Qlnrn^ll Katu ^rlyonl Slibtata ^lilllilllllilA^^^^^ 3 1924 024 704 iff Cornell University Library The original of tiiis 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/details/cu31924024704177 TREATISE ON PRACTICE m THE COURTS OF COMMON PLEAS OF PEmSYLYANIA. ^ie^^""^ BY F. CAREOLL BREWSTER, LL.D. SECOND EDITION, REVISED. IN TWO VOLUMES. VOL. I. PHILADELPHIA: KAY & BROTHEE, JAW BOOKSELLEBS, PUBLISHEKS AND IMPOETEES. 1896. J,/7yfim. Entered according to Act of Congress, in the year 1891, By F. CAEBOLL BREWSTER, In the Office of the Librarian of Congress at Washington. Entered according to Act of Congress, in the year 1896, By F. CARROLL BREWSTER, In the office of the Librarian of Congress at Washington. PHILADELPHIA ; DOBNAN, PBINTEK. INTRODUCTION TO REVISED EDITION. This work is not designed to take the place o£ a treatise upon Pleading, Evidence, Equity, or any special department o£ the law save that indicated by the title. Nor is it proposed \o make it a rSsumS of decisions on Practice. This would in eSect convert it into a digest. Some iorty years ago Messrs. Troubat and Haly published a small treatise on Practice, containing only a few hundred pages. The desire for large works subsequently expanded the original edition into two huge volumes. This has been of great advantage to the profession. Without underrating its value, the remark may, however, be safely ventured that the instruction needed by the beginner should be very compact and very clear. It has been my aim simply to assist the tyro. The veteran needs no help, and could far better teach me tJian receive my instruction. Since the first edition of this work a number of suggestions and corrections have been made by members of the Bar in various parts of the State, which have been incorporated in the present edition. For all these the author here desires to express his thanks. In this edition former publications have been revised. The decisions are cited to date. F. C. B, CONTENTS. The References are to the Pages. VOL. I. PAGE CHAPTER I. Of Matters Preliminary to Bringing Suit 1 CHAPTER II. Commencement and Prosecution of Assumpsit 4 CHAPTER III. Statements 62 CHAPTER IV. Attachments 76 CHAPTER V. The Commencement and Prosecution of Actions for the Recovery of Ground-rents . . . ' 115 CHAPTER VI. How to Sue Out a Mortgage 142 CHAPTER VII. Proceedings upon Mechanics' Claims 171 CHAPTER VIII. How to Sue out and Prosecute Sci. Fas. to Revive Judgment — Sci. Fa.^mr Recognizances — Actions upon Bonds in Error — Official Bonds, etc 196 CHAPTER IX. Commencement and Prosecution of Actions for Annuities, on Ap- prentice-deeds, by and against Attorneys, for Average, on Awards, by Bailees, on Bills of Exchange, on Calls, by and against Car- riers, on Charter-parties, on Contracts of Sale, by Farriers, on Foreign Judgments, for Forbearance, Freight, Good-will, In- demnities, Legacies, Loans, on Promise of Marriage, for Neces- saries, for Party-walls, Pledges, Rent, Rewards, Tolls, War- ranties, by Wharfingers ' 215 CHAPTER X. How to Commence and Prosecute Actions "on Policies of Insurance . 216 VI CONTENTS. PAGE CHAPTEE XI. Account Render 232 CHAPTEE XII. Commencement and Prosecution of Municipal Liens .... 248 CHAPTER XIII. The Commencement and Prosecution of Actions for Slander, Libel, Malicious Prosecution, False Imprisonment, Seduction, Con- spiracy, Crim. Con., Enticing away Apprentice, Actions for Damages occasioned by Negligence, Trover, Trespass, Vi et Armis, Negligence of Officials, and Torts generally . . . 311 CHAPTER XIV. How to Commence and Prosecute Ejectments 345 CHAPTER XV. Writ of Inquiry of Damages 879 CHAPTER XVI. Detinue 388 CHAPTEE XVII. Divorce 394 CHAPTER XVIII. Dower 478 CHAPTEE XIX. Escheats 509 CHAPTER XX. Habeas Corpus — Proceedings before Justices of the Peace and Magistrates 522 CHAPTER XXI. Landlord and Tenant g72 CHAPTEE XXII. Mandamus 7]^^. CHAPTER XXIII. Negligence ygg VOL. II. CHAPTER XXIV. Partition by Action at Law ; 777 CONTENTS. Vll PAGE CHAPTER XXV. Quo Warranto ... 817 CHAPTER XXVI. Replevin 863 CHAPTER XXVII. Actions after Death 898 CHAPTER XXVIII. Original Writs — Service — Return— Motions to Quash — ^Motions to Set Aside Service — Amicable Actions — Confessions of Judgment 901 CHAPTER XXIX. Abatement 946 CHAPTER XXX, Amendments 950 CHAPTER XXXI. Production of Documents 962 CHAPTER XXXII. Depositions, Commissions to take Testimony of Witnesses, and Letters Rogatory 971 CHAPTER XXXIII. Bills of Discovery 999 CHAPTER XXXIV. Feigned Issues 1028 CHAPTER XXXV. Interpleaders 1082 CHAPTER XXXVI. Defalcation 1089 CHAPTER XXXVII. Defenses . . . . ■ 1096 CHAPTER XXXVIII. Arbitration and Reference 1121 CHAPTER XXXIX. Preparation for Trial 1157 CHAPTER XL. At Trial 1177 Vlll CONTENTS. PAGE CHAPTER XLI. New Trials — Arrest of Judgment — Points Reserved — Non-suits . 1212 CHAPTER XLII. Bills of Exceptions 1221 CHAPTER XLIII. Costs 1232 CHAPTER XLIV. Execution — Satisfaction of Judgments 1249 CHAPTER XLV. Audita Querela — Rules to Open and to Strike Off Judgments — Rules to Set Aside Executions — Error Coram Vobis .... 1308 CHAPTER XL VI. Appeals 1321 CHAPTER XL VII. Adoption 1387 CHAPTER XL VIII. Compositions with. Creditors — Assignments for Benefit of Creditors 1393 CHAPTER XLIX. Attorneys and Counselors at Law 1407 CHAPTER L. Courts 1431 CHAPTER LI. Frauds and Perjuries 1449 CHAPTER LII. Insolvent Laws ... 1451 CHAPTER LIII. Limitations 14gg CHAPTER LIV. Lunatics and Habitual Drunkards I477 CHAPTER LV. Discontinuance— Settlement- -Retraxit — Nol. Pros 1504 APPENDIX. Forms of Statements 1510 TABLE OF STATUTES. 1700. 1705. [THE REFERENCES ARE TO THE SECTIONS.] 1 Sm. 71. Execution, 1713. March 27, Marcli 27, March 27, March 27, March 27, March 27, March 27, March 27, March 27, 1715. May 28, May 28, §1. §1. §1. §2. «2. 13. §6. 112. §1. n. n. n. ?2. §2. ?3. U8. §3. ^6. 1 Sm. 57. 1 Sm. 25. ISm. ISm. ISm. ISm. ISm. ISm. ISm. ISm. ,32. 49. 61. .49. ,49. ,50. ,59, 44. 1 Sm. 76. 1 Sm. 76. 1 Sm. 76. 1 Sm. 76. 1 Sm. 76. 1 Sm. 76. 1 Sm. 76. 1 Sm. 76. 1 Sm. 76. 1 Sm. 90. 1 Sm. 91. Execution, Original writs. Execution, Defalcation, Execution, Defalcation, Preparation for trial, Arbitration, Mortgages, Keplevin, Detinue, Account render, Limitations, Costs, Replevin, Limitations, New trials. Limitations, Torts, Assumpsit, Limitations, SECTION 3144a 3144a 23H 3232 2751 3232 2752 2973a 2828 181, 186 2137, 2146 733 312 3640 3117 2208 3641 3048 3642 574 17 3644 1722. May 2^, Damages, May 22, g 8. 1 Sm. 138. Justices, May 22, | 9. 1 Sm. 138. Appeals, May 22, \ 27. 1 Sm. 144. Writ of inquiry, 697, 700 1323 3377 693, 694 1726. March 20, March 20, March 20, 13. 1 Sm. 164. 1 Sm. 164. 1 Sm. 164. Assumpsit, Original writs. Costs, 45 2304 3087 TABLE OF STATUTES. 1729-30. Feb. 14, §14. 1 Sm. 186. Insolvent laws. 3599 Feb. 14, U5. 1 Sm. 186. Insolvent laws. 3599 Feb. 14, ?18. 1 Sm. 186. Insolvent laws. 3599 Feb. 14, §19. 1 Sm. 186. Insolvent laws. 3599 1749-50. Jan. 27, §2. 1 Sm. 203. Appeals, 3391 1752. Aug. 22, §1. 1 Sm. 218. Attachments, 121 Aug. 22, §3. 1 Sm. 218. Justices, 1318 Aug. 22, 16. 1 Sm. 218. Justices, 1322 1767. Feb. 21, n. 1 Sm. 271. At trial. 2986a Feb. 21, §2. 1 Sm. 271. At trial, 2986a Feb. 21, §3. 1 Sm. 271. At trial, 2986ffi Feb. 21, §3. 1 Sm. 271. Costs, 3104 1771. March 9, §33. 1 Sm. 345. Costs, 3109 1772. Marcb 21, 1 Sm. 372. Landlord and tenant. 1672, 1673, 1678, 1683 March 21, 1 Sm. 372. Ejectments, 579 March 21, §1. 1 Sm. 370. Ground-rtents, 151 March 21, n. 1 Sm. 364'. Justices, 1579, 1582 March 21, §1. 1 Sm. 389. Frauds, 3588, 3589 March 21, §2. 1 Sm. 364. Costs, 3101 March 21, §2. 1 Sm. 364. Justices, 1585 March 21, §3. 1 Sm. 364. Justices, 1587 March 21, H. 1 Sm. 364. Justices, 1586 March 21, §5. 1 Sm. 364. Justices, 1588 March 21, §5. 1 Sm. 371. Landlord and tenant. 1652 March 21, §6. 1 Sm. 365. Costs, 3101 March 21, §6. 1 Sm. 372. Landlord and tenant, 1652 March 21, §6. 1 Sm. 365. Justices, 1606 March 21, §7. 1 Sm. 365. Justices, 1589 March 21, §7. 1 Sm. 371. Landlord and tenant, 1660 March 21, §8. 1 Sm. 371. Ejectments, 579 March 21, §9. 1 Sm. 372. Ejectments, 644 March 21, no. 1 Sm. 372. Costs, 3116 March 21, §10. 1 Sm. 372. Replevin, 2188, 2206 March 21, §11. 1 Sm. 372. Replevin, 2139, 2186 March 21, §11. 1 Sm. 370. Ground-rents, 153 March 21, §12. 1 Sm. 373. Landlord and tenant. 1664 March 21, §14. 1 Sm. 375. Landlord and tenant. 1651 TABLE OF STATUTES. 1779. 1785 1787 1789 1790. 1791 SECTION April 3, §2. 1 Sm. 470. Costs, 3116 April 3, 2 2. 1 Sm. 470. Eeplevin, 2140, 2185a April 3, 2 3. Replevin, 2141, 2206 Feb. 18, §1. 2 Sm. 275. Original writs, 2279 Feb. 18, ?1. 2 Sm. 275. Justices, 1173 , 1174, 1201 Feb. 18, §2. 2 Sm. 275. Justices, 1175 Feb. 18, ?3. 2 Sm. 275. Justices, 1176 Feb. 18, §4. 2 Sm. 275. Justices, 1176 Feb. 18, 2 5. 2 Sm. 275. Justices, 1176 Feb. 18, 2 6. 2 Sm. 275. Justices, 1177 Feb. 18, 2 7. 2 Sm. 275. Justices, 1177 Feb. 18, 2 8. 2 Sm. 275. Justices, 1178 Feb. 18, 2 9. 2 Sm. 275. Justices, 1179 Feb. 18, 210. 2 Sm. 275. Justices, 1180 Feb. 18, 211. 2 Sm. 275. Justices, 1181 Feb. 18, 212. 2 Sm. 275. Justices, 1182 Feb. 18, 213. 2 Sm. 275. Justices, 1183 Feb. 18, 214. 2 Sm. 275. Justices, 1184 Feb. 18, 215. 2 Sm. 275. Justices, 1185 Feb. 18, 216. 2 Sm. 275. Justices, 1185 March 26, 2 2. 2 Sm, 300. Limitations, 3628 March 26, 2 3. 2 Sm. 300. Limitations, 3629 March 26, 2 4. 2 Sm. 300. Limitations, 3630 March 26, 2 5. 2 Sm. 300. Limitations, 3627 March 26, 2 7. 2 Sm. 300. Limitations, 3632 Sept. 29, 2 Sm. 425. Escheats, 1148 Sept. 29, 2 Sm. 431. Escheats, 1142 March 27, 2 Sm. 483. Insolvent laws, 3622 May 26, JEev. Stat. U.S.I 2 905 p. 170. Preparation for trial, 2952 April 13, 2 9. 3 Sm. 30. Justices, 1173, 1186 April 13, 214. 3 Sm. 32. Execution, 33416 April 13, 214. 3 Sm. 32. Statements, 3776 Sept. 23, 213. 3 Sm. 43. Costs, 3092 1797. April 4, 2 2. 3 Sm. 297. Limitations, 1798. Feb. 27, Feb. 27, April 4, April 4, 3649 1. 3 Sm. 303. Documents, 2447, 2459, 2462 1. a Sm. 303. Bills of discovery, 2556 12. 2Sm. 331. Soi.fas., 248 i 4. 8 Sm. 332. Limitations, 3648 TABLE OP STATUTES. 1799. April 11, April 11, 1802 April 6, April 6, 1803. April 2, April 2, i 1. 3 8m. 386. i 2. 3 Sm. 387. April 11, ? 3. 3 Sm. 530. 3 Sm. 516. 4 Sm. 89. 4 Sm. 89. Partition, 1921 Partition, 1922, 2032, 2034, 2039, 2042, 2045 Partition, 1925 Justices, 1428, 1608 Landlord and tenant, 1651 Ejectments, Ejectments, 680, 682 580, 658 1804. Jan. 14, Jan. 14, March 27, April 3, 1805. §1. §2. 4 Sm. 107. 4 Sm. 107. f E. S. of U. S. I ? 905 p. 170. i 6. 4 Sm. 203. 1 1806. Justices, Justices, Preparation for trial. Landlord and tenant, March 29, ? 13. 4 Sm. 242. At trial. 1590 1591 2952, 2953 1651 3024 1807, Feb. 24, §25. 4 Sm. 276. Bills of exceptions. 3070, 3071 March 17, 4 Sm. 300. Mechanics' claims. 200, 206, 245 March 21, 4 Sm. 328. Statements, 62, 67, 70 March 21, ?3. 4 Sm. 328. Costs, 3104 March 21, §5. 4 Sm. 328. Costs, 3118 March 21, §6. 4 Sm. 329. Amendments, 2404 March 21, §8. 4 Sm. 330. Original writs. 2313 March 21, ?9. 4 Sm. 330. Attorneys, 3502 March 21, ?12. 4 Sm. 332. Ejectments, 581 March 28, n. 4 Sm. 335. Partition, 1923 March 28, §2. 4 Sm. 335. Partition, 1924 April 7, n. 4 Sm. 398. Partition, 1926, 1983, 2005 April 7, §1. 4 Sm. 398. Original writs, 2286 April 7, ?2. 4 Sm. 476. Original writs. 2296 April 7, ?2. 4 Sm. 398. Partition, 1927, 2005 April 7, ?3. 4 Sm. 399. Original writs. 2289 April 7, ?3. 4 Sm. 399. Partition, 1928, 1983 April 7, ?4. 4 Sm. 400. Partition, 1930, 2012 April 7, §5. 4 Sm. 400. Partition, 1929 April 7, H. 4 Sm. 400. Abatement, 2390 April 13, 4 Sm. 476. Ejectments, 582 April 13, §2. 4 Sm. 476. Ejectments, 631 April 13, H. 4 Sm. 477. Abatement, 2389 Dec. 4, 4 Sm. 482. Attachments, 121 TABLE OF STATUTES. 1808. 1809. xui SECTION 1810. 1811. 1812. March 26, n. 4 Sm. 518. Original writs, 2290 March 26, u. 4 Sm. 518. Partition, 1928 , 1931, 1983 March 11, 2 6. 5 Sm. 17. Preparation for trial. 2958 March 11, 2 6. 5 Sm. 17. Execution, 3152 March 11, 2 6. 6 Sm. 17. Appeals, 3410, 3414, 3463re March 11, 2 7. 6 Sm. 17. Appeals, 3416 April 4,. 5 Sm. 59. At trial. 3024 1, March 20, 21. 5 Sm. 161. Justices, 1224, 1239, 1243, 1268, # 1274 March 20, 2 2. 5 Sm. 162. Justices, 1220, 1221, 1270, 1273, 1280, 1282 March 20, 2 2. 5 Sm. 162. Execution, 3259 March 20, 2 3. 5 Sm. 162. Justices, 1334 ,1338 , 1376, 1482 March 20, 2 4. 5 Sm. 162. Justices, 1387, 1388, 1483, 1515, 1532, 1551 March 20, 2 5. 5 Sm. 162. Justices, 1441 March 20, 2 6. 5 Sm. 165. Justices, 1326, 1375 March 20, 2 7. 5 Sm. 166. Justices, 1347, 1353 March 20, 2 8. 5 Sm. 166. Justices, 1364 March 20, 2 9. 5 Sm. 166. Justices, 1438 March 20, 210. 5 Sm. 166. Justices, 1475, 1629 March 20, 211. 5 Sm. 167. Justices, 1449, 1596 March 20, 212. 5 Sm. 167. Justices, 1450, 1600 March 20, 213. 5 Sm. 168. Justices, 1447 March 20, 214. 5 Sm. 168. Justices, 1225, 1336, 1377, 1384, 1385 March 20, 215. 5 Sm. 169. Justices, 1392 March 20, 217. 5 Sm. 169. Justices, ' 1453, 1531 March 20, 218. 5 Sm. 169. Justices, 1597 March 20, 219. 5 Sm. 170. Justices, 1604, 1607 March 20, 2 20. 5 Sm. 170.. Justices, 1229 March 20, 2 20. 5 Sm. 170. Landlord and tenant. 1650 March 20, 2 21. 5 Sm. 172. Landlord and tenant, 1706 March 20, 2 21. 5 Sm. 172. Justices, 1407, 1409 March 20, 2 22. 5 Sm. 172. Justices, 1411 March 20, 2 23. 5 Sm. 172. Justices, 1530 March 20, 2 24. 5 Sm. 172. Justices, ■ 1415 March 20, 2 25. 5 Sm. 172; Justices, 1430 March 20, 2 26. 5 Sm. 172. Justices, 1556 March 30, 2 32. 5 Sm. 235. Documents, 2460 March 30, 21. 5 Sm. 361. At trial. 29866 March 30, 21. 5 Sm. 361. New trials. 3055 XIV TABLE OF STATUTES. 1813. Marct 22, P. L. 144. Municipal liens, 463 1814. Feb. 21, ■ ■ ?1. 6 8m. 111. New trials, 3049 Marcli 14, 6 Sm. 133. Justices, 1608 March 22, 6 Sm. 182. Justices, 1559 March 22, ?1. 6 Sm. 176. Landlord and tenant, 1665 March 22, •M. 6 Sm. 182. Justices, 1228, 1246, 1268 March tl, S2. 6 Sm. 182. Justices, 1335 March 22, §2. 6 Sm. 182. Costs, 3120 March 22, §3. 6 Sm. 182. Justices, 1486 March 22, H. 6 Sm. 182. Justices, 1228 March 22, ?5. 6 Sm. 182. Justices, 1254 March 22, ?7. 6 Sm. 183. Justices, 1230 March 26, §1. 6 Sm. 206. Justices, 1340 March 26, 12. 6 Sm. 206. Justices, 1341 March 26, U9. 6 Sm. 201. Insolvent laws. 3600 March 28, ?1. 6 Sm. 208. Depositions, 2527 March 28, ?2. 6 Sm. 208. At trial, 3019o 1815. March 11, March 13, March 13, March 13, March 13, March 13, March 13, March 13, March 13, March 13, March 13, March 13, March 13, March 13, March 13, March 13, March 13, March 13, n. i2. i3. !4. i5. i6. !7. !10. il2. il2. ■13. !13. 6 Sm. 277. P. L. 12. 6 Sm. 286. i 1. 6 Sm. 286. ! 2. 6 Sm. 286, 6 Sm. 287. 6 Sm. 287. 6 Sm. 288. 6 Sm. 288. 6 Sm. 288. 6 Sm. 288. 6 Sm. 288. 6 Sm. 288. 6 Sm. 288. 6 Sm. 288. 6 Sm. 288. 6 Sm. 288. 6 Sm. 288. Limitations, Divorce, Divorce, Divorce, Divorce, 807, Feigned issues. Divorce, Divorce, Divorce, Divorce, Divorce, Divorce, Divorce, Divorce, Divorce, Costs, Divorce, Appeals, 3631 751, 773, 832, 859, 884, 885 734, 751, 832 736, 743, 810 812, 813, 814, 815, 864, 884, 885, 888 2618 816 822 737, 793 823 824 818 826 827 819 3094 820 3393 1816. Feb. 13, Feb. 13, n. §1. 6 Sm. 323. 6 Sm. 323. Costs, Justices, 3120 1335, 1344 TABLE OP STATUTES. 1817. Feb. 3, Feb. 26, March 22, March 22, March 22, 1. il. :4. !5. 6 8ra. 398. 6 Sm. 405. 6 Sm. 445. 6 Sm. 439. 6 Sm. 441. Justices, Divorce, Mechanics' claims, Appeals, Quo warranto, XV SECTION 1408 744, 750, 828 206 8411 2050 1818. Jan. 29, March 20, March 24, March 24, March 24, ; 27. P. L. 58. Municipal liens, 398, 478, 491 ! 1. 7 Sm. 86. Costs, 3092 7 Sm. 119. Mechanics' claims, 206 ! 5. 7 Sm. 132. Composition with creditors, 3489 ! 7. 7 Sm. 132. Abatement, 2387 1819. Feb. 8, Feb. 8, Feb. 8, Feb. 8, 7 Sm. 150. Assumpsit, i 1. 7 Sm. 151. Divorce, ! 1. 7 Sm. 151. Appeals, 1 1. 7 Sm. 150. Execution, 46 820 3394 3249 1820. Feb. 17, March 6, March 28, March 28, March 28, March 28, March 28, March 28, §7, §3 ?1 ?2, §3, 1,4, 7Sm. 7Sm. 7Sm. 7Sm. 7Sm. 7Sm. 7Sm. 7Sm. 244. 254. 308. 308. 309. 309. 310. 310. Costs, Abatement, Justices, Justices, Justices, Justices, Justices, Feigned issues. 3100 2397 1601 1602 1598 1597 1592 2608 1821. Feb. 5, Feb. 6, March 7, March 30, March 30, March 30, 1822. March 29, 1823. March 31, March 31, April 1, April 1, 1824. Feb. 3, Feb. 3, Feb. 3, n. «4. §6. ?1. 17. 18. 7 Sm. 355. 7 Sm. 353. P. L. 82. 7 Sm. 429. 7 Sm. 426. 7 Sm. 426. Ground-rents, Partition, Mechanics' claims, Account render. Justices, Justices, • 178 1932, 1998 206 313 1162 1162 7 Sm. 520. Ejectments, P. L. 229. 8 Sm. 131. 8 Sm. 175. 8 Sm. 176. 8 Sm. 189. 8 Sm. 189. 8 Sm. 189. Ejectments, Mortgages, Execution, Justices, 659, 679, 680, 682 589 198 3224 1448 Municipal liens. Municipal liens. Municipal liens, 345 346 347 XVI TABLE OF CONTENTS, 1825 1826, 1827. March 29, March 29, March 29, March 29, March 29, ?1. H. 8 Sm. 287. 8 Sm. 288. P. L. 168. 8 Sm. 291. 8 Sm. 302. Partition, Partition, Ejectments, Original writs, Limitations, SECTION 1933, 2045 1934, 2034 590 2293 3650 March 25, April 11, April 11, ?2. ?1. 8 Sm. 411. P. L. 162. 8 Sm. 471. Landlord and tenant. Mechanics' claims. Costs, 1684 206 3121 April 10, April 10, April 10, n. §2. P. L. 345. P. L. 336. P. L. 336. Mechanics' claims. Municipal liens, Municipal liens, 206 399 399 March 26, March 26, March 26, April 16, . n. ?2. 9 Sm. 303. 9 Sm. 308. 9 Sm. 308. P. L. 446. Sci. fas., Depositions, Depositions, Mechanics' claims, 275 2534 2585 206 1828. April 14, § 1. 10 Sm. 213. Execution, 3199 1829. March 23, March 30, March 30, April 16, April 23, April 23, April 23, April 23, 1. !1. 2. 10 Sm. 305. 10 Sm. 312. 10 Sm. 312. P. L. 410. P. L. 801. P. L. 301. 10 Sm. 466. 10 Sm. 466. Original writs, Justices, Justices, Statements, Municipal liens, Municipal liens, Justices, Costs, 2245 1364 1366 3755j^ 348 400 1440 3097 1830. March 12, April 3, April 3, April 6, April 7, § 7. P. L. 427. Municipal liens, 463 P. L. 187. Justices, 154 ? 1. P. L. 187. Landlord and tenant, 1691, 1692, 1700, 1701, 1703, 1706 P. L. 293. Execution, 3144a P. L. 348. Municipal liens, 478 1831. Jan. 17, Feb. 26, Feb. 26, Feb. 26, Feb. 26, Feb. 26, 1. 11. !1. !2. !2. 13. P. L. 12. P. L. 92. P. L. 92. P. L. 92. P. L. 92. P. L. 92. Costs, Justices, Depositions, Justices, Depositions, Justices, 3090 1366 2505 1367 2506 1368 TABLE OF STATUTES. XVU 1832. 1833 Feb. 26, §3. P. L. 92. Depositions, SECTION 2507 Feb. 26, ?4. P. L. 92. Justices, 1369 Feb. 26, H. P. L. 92. Depositions, 2508 Marcb 30, P. L. 239. Mechanics' claims. 206 March 30, P. L. 243. Mechanics' claims. 228 Ajpril 4, ?l. P. L. 492. Account render, 313 April 4, n. P. L. 458. Justices, 1392 1 March 15, 16. P. L. 136. Feigned issues. 2632 March 15, §7. P. L. 136. Feigned issues. 2634 March 15, §13. P. L. 138. Feigned issues, 2603, 2604, 2648 March 15, ?23. P. L. 140. Feigned issues. 2637 March 15, ?25. P. L. 144. Mandamus, 1772 March 15, §38. P. L. 145. Costs, 3114 March 15, §41. P. L. 144. Feigned issues. 2602 March 15, §43. P. L. 144. Feigned issues, 2605 March 29, §29. P. L. 197. Execution, 3341c March 29, §30. P. L. 197. Execution, 33410 March 29, §35. P. L. 200. Dower, 1008, 1076, 1090 March 29, §36. P. L. 201. Costs, 3110 March 29, §41. P. L. 202. Dower, 1009 March 29, §41. P. L. 202. Landlord and tenant. 1653 March 29, §43. P. L. 202. Dower, 1010 March 29, §43. P. L. 203. Landlord and tenant, 1653 March 29, §53. P. L. 207. Original writs. 2277 March 29, §53. P. L. 210. Abatement, 2395 March 29, §55. P. L. 208. Feigned issues. 2600 March 29, §59. P. L. 213. Appeals, 3436 May 5, §9. P. L. 503. Original writs. 2244 May 15, P. L. 539. Mechanics' claims. 206 June 11, §2. P. L. 611. Appeals, 3412 8. Feb. 20, §1. P. L. 52. Justices, 1572 Feb. 20, §2. P. L. 52. Justices, 1573 March 27, P. L. 99. Ejectments, 660, 676 March 27, §1. P. L. 99. • Justices, 1498 March 27, §3. P. L. 99. Justices, 666 March 30, §1. P. L. 107. Insolvent laws, 3600 April 6, P. L. 167. Escheats, 1142 April 8, §1. P. L. 315. Dower, 1001 April 8, §10. P. L. 315. Dower, 1002, 1036 April 8, §11. P. L. 319. Dower, 1004, 1005, 1022, 1074 April 8, §15. P. L. 319. Dower, 1003 April 8, §18. P. L. 308. Depositions, 2546 April 8, §19. P. L. 308. Depositions, 2547 April 8, §20. P. L. 308. Depositions, 2548 April 8, §21. P. L. 308. Depositions, 2549 April 9, §1. P. L. 480. Justices, 1559, 1563, 1568, 1570 April 9, §1. P. L. 480. Costs, ' 3081 June 5, §1. P. L. 79. At trial, 2990 VOL. I.— B XVUl TABLE OF STATUTES. L SECTION Feb. 1, P. L. 26. Ejectments, 591 Feb. 1, ? 1. P. L. 26. Execution, 3244 Feb. M, ? 22. P. L. 77. Execution, 3195 Feb. 24, § 25. P. L. 77. Sci. fas.. 253 Feb. 24, § 26. P. L. 77. Abatement, 2385 Feb. 24, § 26. P. L. 77. Actions after death, 2217 Feb. 24, ? 27. P. L. 78. Actions after death,. 2222 Feb. 24, ? 27. P. L. 77. Original writs. 2263 Feb. 24, § 27. P. L. 78. Abatement, 2403 Feb. 24, ? 28. P. L. 77. Actions after death, 2216 Feb. 24, § 32. P. L. 79. Abatement, 2386 Feb. 24, ? 32. P. L. 77. Original writs. 2263 Feb. 24, ? 33. P. L. 77. Execution, 3195 Feb. 24, ? 33. P. L. 77. Actions after death. 2220 Feb. 24, ^ 34. P. L. 80. Mechanics' claims. 242 Feb. 24, ? 34. P. L. 80. Sai.fas., 256 Feb. 24, ? 34. P. L. 80. Execution, 3195 Feb. 24, g 35. P. L. 80. Execution, 3195 Feb. 24, i 36. P. L. 80. Execution, 3195 Feb. 24, ? 50. P. L. 83. Account render. 313 Feb. 24, ? 56. P. L. 82. Costs, 3102 March 11, ? 23. P. L. 123. Coats, 3119 April 14, P. L. 375. Replevin, 2180 April 14, P. L. 353. Courts, 3576 April 14, g 62. P. L. 353. Courts, 3553 April 14, ? 63. P. L. 353. Courts, 3554 April 14, 1 64. P. L. 353. Courts, 3555 April 14,- ? 65. P. L. 353. Courts, 3556 April 14, ? 66. P. L. 353. Courts, 3557 April 14, ? 67. P. L. 353. Courts, 3558 April 14, ? 68. P. L. 354. Attorneys, 3503 April 14, g 69. P. L. 354. Attorneys, 3504 April 14, § 70. P. L. 354. Attorneys, 3506 April 14, ? 71. P. L. 354. Attorneys, 3507 April 14, ? 72. P. L. 354. Attorneys, 3507 April 14, § 73. P. L. 354. Attorneys, 3508 April 14, i 74. P. L. 354. Attorneys, 3508 April 14, g 75. P. L. 354. Attorneys, 3505 April 14, ? 90. P. L. 363. At trial. 2978 April 14, § 124. P. L. 363. Preparation for trial. 2971, 2988 April 14, ? 140. P. L. 363. At trial, 2987 April 14, i 151. P. L. 368. At trial. 2989 April 14, ? 156. P. L. 368. Preparation for trial. 2971 April 14, § 157. P. L. 368. Preparation for trial, 2988 April 14, ? 158. P. L. 368. Preparation for trial. 2988 April 14, ? 159. P. L. 368. Preparation for trial, 2971, 2988 April 15, ? 4. P. L. 538. Execution, 3204 April 15, g 5. P. L. 538. Mechanics' claims. 213 April 15, § 6. P. L. 538. Execution, 3204 AprU 15, ? 7. P. L. 538. Execution, 3204 TABLE OF STATUTES. XIX April 15, April 15, April 15, April 15, 1835. March. 28, April 11, April 11, April 11, April 11, April 11, April 11,' April 11, April 13, April 14, April 15, i 46. P. L. 538. i 64. P. L. 549. 65. P. L. 549. 67. P. L. 549. ?5. §1. 2 2. 2 3. 2 3. 2 4. 2 4. 2 4. 2 7. P. L. 90. P. L. 190. P. L. 199. P. L. 199. P. L. 200. 200. 200. L. 200. L. 213. P. L. 276. P. L. 292. P. L. P. L. P. P. SECTION Landlord and tenant, 1651 Sd./as., 264 Sci.fas., 265 Soi.fas., 264 New trials, 3051 Mechanics' claims, 206 Partition, 1935, 2019, 2034 Partition, 1936, 2027 Costs, 3110 Partition, 1937, 2048 Partition, 1928, 1931, 1983, 2015 Original writs, 2291 Mechanics' claims, 206 Appeals, ■ 3437 Justices, 1231, 1394 1836. March 11, March 11, April 1, June 13, June 13, Jime 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, •June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, 2 4. P. L. 77. Interpleaders, 2731 2 5. P. L. 77. Interpleaders, 2732, 2735 P. L. 695. Mechanics' claims, 206 P. L. 572. Eeplevin, 2189 P. L. 616. Attachments, 86 P. L. 572. Assumpsit, 46 2 1. P. L. 572. Original writs, 2223 2 1. P. L. 616. Attachments, 124 2 1. P. L. 606. Attachments, 108 2 1. P. L. 592. Lunatics and drunkards, 3652 2 2. P. L. 572. Detinue, 721 2 2. P. L. 572. Original writs, 2224 i 2. P. L. 592. Lunatics and drunkards, 3659, 3660, 3661 2 3. P. L. 573. Original writs, 2246 2 3. P. L. 606. ' Original Writs, 2258 2 3. P. L. 692. Lunatics and drunkards, 3658 \ 4. P. L. 592. Lunatics and drunkards, 3653 2 5. P. L. 592. Lunatics and drunkards, 3662 2 6. P. L. 592. Lunatics and drunkards, 3663 2 6. P. L. 606. Original writs, 2259 i 7. P. L. 573. Original writs, 2247 2 7. P. L. 573. Negligence, 1872 2 8. P. L. 573. Original writs, 2247 i 8. P. L. 594. Lunatics and drunkards, 3698 2 9. P. L. 594. Costs, 3103 2 9. P. L. 594. Lunatics and drunkards, 3724 2 11. P. L. 606. Original writs, 2260 2 13. P. L. 595. Lunatics and drunkards, 3697 2 14. P. L. 595. Lunatics and drunkards, 3683 2 15. P. L. 595. Lunatics and drunkards, 3687 2 15. P. L. 585. Attachments, 138 TABLE OF STATUTES. June 13, June 13, June 13, • June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, . June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, 15. P. 16. P. 17. P. !17. :18. 120. i21. :22. i22. 23. 24. 24. I 26. 128. ■32. !33. !33. :34. 134. !36. 137. :38. [40. i51. i54. P. P. P. P. P. P. P. P. P. g25. P. ?29. P. ?30. P. 130. P. §31. P. ?31. P. ?32. P. g 33. P. P. P. ; 36. P. !36. P. P. P. P. P. ?40.. P. ?41. P. H2. P. §43. P. §43. P. §44. P. §44. P. §45. P. §48. P. §48. P. §49. P. §49. P. i 55. P. ■56. P. !57. P. SECTION L. 574. Courts, 3552 L. 595. Lunatics and drunkards, 3719 L. 585. Attachments, 103 595. Lunatics and drunkards, 3720 595. Lunatics and drunkards, 3721 595. Costs, 3106 595. Costs, 3106 597. Lunatics and drunkards, 3703 597. Costs, 3106 597. Lunatics and drunkards, 8704 L. 597. Lunatics and drunkards, 3705 L. 573. Original writs, 2248 L. 697. Lunatics and drunkards, 8706 L. 597. Lunatics and drunkards, 8707 L. 597. Lunatics and drunkards, 3708 L. 597. Lunatics and drunkards, 3709 L. 597. Costs, 3087 L. 597. Lunatics and drunkards, 3710 L. 578. Original writs, 2317 L. 578. Original writs, 2318 L. 578. Lunatics and drunkards, 3715 L. 578. Lunatics and drunkards, 3715 L. 578. Original writs, 2319 L. 578. Lunatics and drunkards, 8715 L. 578. Original writs, 2321 L. 578. Sci.fas., 261 L. 578. Sd.fas., 261 L. 578. Original writs, 2322 L. 578. Sci.fas., ■ 261 L. 578. Original writs, 2262, 2323 L. 613. Defalcations, 2754 L. 578. Original writs, 2227, 2382 L. 579. Original writs, 2226 L. 579. Original writs, 2313 L. 615. Costs, 3095 L. 579. Assumpsit, 52 L. 615. Abatement, 2892 L. 596. Lunatics and drunkards, 3686 L. 606. Appeals, _ 8392 L. 601. Execution, " 3249 L. 578. Lunatics and drunkards, 3717 L. 578. Lunatics and drunkards, 3718 L. 580. Original writs, 2251 L. 580. Attachments, 78 L. 580. Attachments, 78 L. 580. Original writs, 2252 581). Original writs, 2252 563. Costs, 3115 563. Costs, 3115 568. Costs, 3115 563. Costs, 3115 TABLE OF STATUTES. XXI June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 18, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 13, June 14, June 14, June 14, June 14, June 14. June 14, June 14, June 14, June 14, June 14, June 14, June 14, June 14, June 14, June 14, June 14, June 14, June 14, June 14, June 14, ?59. §60. §61. ?63. ?64. §65. §65. §66. §67. §78. §79. §79. §80. §80. §80. §81. §81. §82. §82. §83. §83. §83. §84. §84. §85. §86. §86. §86. §87. §1. §1. §2. §2. §4. §5. §5. §6. §6. §6. §7. §10. §11. §11. P. L. 583. P. L. 583. P. L. 583. P. L. 605. P. L. 605. P. L. 605. P. L. 584. P. L. 584. P. L. 605. P. L. 568. P. L. 587. P. L. 587. P. L. 587. P. L. 587. P. L. 587. P. L. 587. P. L. 587. P. L. 587. P. L. 587. P. L. 587. P. L. 587. P. L. 587. L. L. L. L. L. L. P. P. P. P. P. P. P. P. P. P. 587. 587. 587. 587. 588. 588. L. 588. L. 588. L. 587. L. 639. P. L. 626. P. L. 621. P. L. 630. P. L. 630. P. L. 621. 621. 630. L. 630. L. 621. L. 630. L. 639. L. 639. L. 639. L. 639. P. L. 639. P. L. 639. P. L. 639. P. L. 639. P. L. 639. P. L. P. L. P. P. P. P. P. P. P. SECTION 97 97 97 3726 3727 3727 89 89 3676 143 2280 1020, 1100 1020 1983 2281 2282 1020 2285, 2382, 2383 1020 1983 1020 2285 1990 1020 1020 1020 2284 1987 1020 1020 2283, 2382 1593 1736, 1802, 1857 2051 3491 3492 Quo warranto, 2052, 2097 Quo warranto, 2053 Composition with creditors, 3493 Composition with creditors, 3494 Quo warranto, 2056 Composition with creditors, 3495 Quo warranto, 2057 Replevin, 2214 Soi.fas., 266 Quo warranto, 2058 Quo warranto, 2059 Quo warranto, 2060 Quo'warranto, 2061 Quo warranto, 2062 Costs, 3108 Attachments, Attachments, Attachments, Lunatics and drunkards, Lunatics and drunkards. Lunatics and drunkards, Attachments, Attachments, Lunatics and drunkards, Attachments, Original writs. Dower, Dower, Partition, Original writs, Original writs. Dower, Original writs, Dower, Partition, Dower, Original writs. Partition, Dower, Dower, Dower, Original writs. Partition, Dower, Dower, Original writs. Justices, Mandamus, Quo warranto. Composition with creditors Composition with creditors. xxu TABLE OF STATUTES. June 14, June 14, June 14, June 14, June 14, June 14, June 14, June 14, June 14, June 14, June 14, June 14, June 14, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, il2. P. i 12. P. ■13. P. !14. P. 115. P. :15. 116. !16. 517. ■22. ■32 L. 639. L. 639. L. 639. P. P. P. P. ?20. P. 639. 36. P. P. P. P. 621. 621. 621. 621. 626. L. 626. L. 635. L. 635. L. 734. L. 780. L. 699. Costs, Quo warranto, Quo warranto, Quo warranto, Quo warranto. Appeals, Quo warranto, Appeals, Quo warranto, Mandamus, Mandamus, Documents, Appeals, Insolvent laws, Justices, 1608, Mechanics' claims. P. L. 696. Mechanics' claiihs, i 1. P. L. 785. Costs, 1 1. P. L. 761. Execution, § 1. P. L. 717. Arbitration, §1. P. L. 761. Sci./as., 1 1. P. L. 731. Insolvent laws, 1 1. P. L, 785. Appeals, § 2. P. L. 683. Appeals, \ 2. P. L. 731. Insolvent laws, ? 2. P. L. 717. Arbitration, i 2. P. L. 789, Interpleaders, ? 2. P. L. 762. Execution, ? 3. P. L. 717, Arbitration, \ 3. P. L. 762. Account render, 1 3. P. L. 731, Insolvent laws, 1 3. P. L. 785. Courts, 2 3. P. L. 762. Execution, ? 4. P. L. 785, Courts, ? 4 P. L. 717. Arbitration, § 4. P. L. 696. Mechanics' claims, ? 4 P. L. 732, Insolvent laws, 2 4. P. L. 762, Execution, ? 5. P. L. 717. Arbitration, i 5. P. L. 696. Mechanics' claims, § 5. P. L. 732. Insolvent laws, 2 5. P. L. 785. Courts, \ 6. P. L. 762. Execution, I 6. P. L. 732. Insolvent laws, 1 6. P. L. 717. Arbitration, 1 6. P. L. 696. Mechanics' claims, i 7. P. L. 717. Arbitration, 2 7. P. L. 696. Mechanics' claims, 2 7. P. L. 785. Appeals, BECnON 3108 2063 2064 2065 2066, 2135 3403 2067 3404 2068 1820 1836 2455 3406 3625 1620, 1634 200, 201, 206, 208 213, 224, 226, 228 1322 3145 2829 249 3597 3371 3437 3597 2830, 2889 2731 3147 2831 340 3597 3547 3149 3547 2832 214 3604 3150 2833 214 3604 3547 3151 3604 2834 214 2835 214 3372 TABLE OF STATUTES. XXUl SECTION June 16, n. P. L. 762. Appeals, 3415 June 16, ?7. P. L. 732. Insolvent laws, 3604 June 16, 18. P. L. 719. Arbitration, 2837 June 16, ?8. P. L. 696. Mechanics' claims. 214 June 16, §8. P. L. 762. Appeals, 3417, 3421 June 16, «8. P. L. 732. Insolvent laws. 3604 June 16, §9. P. L. 733. Insolvent laws. 3609 June 16, ?9. P. L. 719. Arbitration, . 2838 June 16, §9. P. L. 696. Mechanics' claims. 215 June 16, ?9. P. L. 763. Bills of discovery. 2579 June 16, §10. P. L. 719. Arbitration, 2839 June 16, ?10. P. L. 763. Bills of discovery, 2580 June 16, ?10. P. L. 733. Insolvent laws. 3609 June 16, m. P. L. 787. Appeals, 3463 June 16, 111. P. L. 719. Arbitration, 2841 June 16, ?11. P. L. 763. Bills of discovery, 2581 June 16, §12. P. L. 719. Arbitration, 2842 June 16, ?12. P. L. 763. Bills of discovery. 2582 June 16, §12. P. L. 732. Insolvent laws. 3619 June 16, §12. P. L. 787. Courts, 35476 June 16, §13. P. L. 789. Bills of discovery. 2556, 2583 June 16, §13. P. L. 719. Arbitration, 2843 June 16, §13. P. L. 732. Insolvent laws. 3619 June 16, §13. P. L. 789. Courts, 3562 June 16, §14. P. L. 719. Arbitration, 2844 June 16, §14. P. L. 789. Bills of discovery. 2584 June 16; §14. P. L. 696. Mechanics' claims. 233 June 16, §14. P. L. 732. Insolvent laws. 3619 June 16, §15. P. L. 719. Arbitration, 2845 June 16, §15. P. L. 696. Municipal liens, 423 June 16, §15. P. L. 699. Mechanics' claims. 204 June 16, §15. P. L. 789. Bills of discovery, 2585 June 16, §15. P. L. 732. Insolvent laws. 3619 June 16, §16. P. L. 719. Arbitration, 2846 June 16, §16. P. L. 699. Mechanics' claims. 204 June 16, §16. P. L. 789. Bills of discovery, 2586 June 16, §16. P. L. 784. Insolvent laws. 3620 June 16, §17. P. L. 699. Mechanics' claims, 204 June 16, §17. P. L. 734. Insolvent laws. 3620, 3621 June 16, §17. P. L. 789. Bills of discovery. 2587 June 16, §17. P. L. 721. Arbitration, 2848 June 16, §18. P. L. 789. Bills of discovery, 2588 June 16, §18. P. L. 721. Arbitration, 2849 June 16, §18. P. L. 734. Insolvent laws. 3625 June 16, §18. P. L. 764. Costs, 3084 June 16, §19. P. L. 734. Insolvent laws. 3625 June 16, §19. P. L. 721. Arbitration, 2860 June 16, §20. P. L. 721. Arbitration, 2851 June 16, §20. P. L. 699. Mechanics' claims, 226 June 16, §20. P. L. 787. Courts, 3548 June 16, §20. P. L. 734. Insolvent laws. 3625 XXIV TABLE OF STATUTES. June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, Jtuie 16, June 16, June 16, June 16, June 16, June 16, §21. 2 21. 2 21. ?22. 2 22. 2 22. 2 23. 2 23. 2 23. 224. 2 24. 2 24. 2 25. 2 25. 2 25. 2 26. 2 26. 2 26. 2 27. 2 27. 2 27. 2 27. 2 28. 2 28. 2 28. 2 28. 2 28. 2 29. 2 31. 2 31. 2 32. 2 32. 2 32. 2 32. 2 33. 2 33. 2 33. 234. 234. 2 35. 2 35. 2 36. 2 36. 2 37. 2 37. 2 37. 2 38. 2 38. 2 38. 2 38. 2 39. L. 787. L. 721. L. 699. L. 721. 735. 787. 721. P. L. 696. P. L. 793. P. P. P. P. P. P. L. 793. P. L. 721. P. L. 696. P. L. 721. P. L. 699. P. L. 793. P. L. 793. P. L. 721.. P. L. 699. P. L. 699. P. L. 723. P. L. 793. P. L. 723. P. L. 696. L. 793. L. 735. L. 723. L. 793. L. 723. P. L. 736. P. L. 724. P. L. 767. P. L. 736. P. L. 724. P. L. 723. P. L. 724. P. L. 736. P. L. 767. P. L. 724. P. L. 767. P. L. 724. P. L. 767. P. L. 724 P. L. 767. P. L. 767. P. L. 724. P. L. 736. P. L. 768. P. L. 724. P. L. 724. P. L. 736. P. L. 725. Courts, Arbitration, Meclianics' claims. Arbitration, Abatement, Courts, Arbitration, Mechanics' claims, Courts, Courts, Arbitration, Mechanics' claims. Arbitration, Mechanics' claims. Courts, Courts, Arbitration, Mechanics' claims, Mechanics' claims. Arbitration, Courts, Costs, Mechanics' claims, Courts, Landlord and tenant. Arbitration, Attorneys, Costs, Insolvent laws. Arbitration, Execution, Insolvent laws. Arbitration, Costs, Arbitration, Insolvent laws. Execution, Arbitration, Execution, Arbitration, Execution, Arbitration, Execution, Execution, Arbitration, Insolvent laws, Execution, Arbitration, Documents, Insolvent laws. Feigned issues, SECTION 3549 2852 205 2853 2393 3550 2854 243 3566 3567 2855 242,456 2856 245a 3568 3569 2857 245a 245a 2860 3569 3113 206 3570 1653 2861 3508 3087 3620 2862, 2909 3256 3620 2867 3113 2868 3620 3256 2869 3256 2873 3256 2870 3256, 3257 3256 2871 3625 3261 2872 2467 3625 2621 TABLE OP STATUTES. XXV June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, ?39. 2 39. 139. ?40. HO. ?40. HO. §40. HI. HI. HI. H2. §42. H3. H3. §43. §44. §45. §45. §46. §46. §47. §47. §48. §48. §49. §50. §50. §51. §51. §53. §58. §59. §60. §61. §62. §63. §64. §66. §72. §76. §77. §78. §79. §80. §81. §82. §83. §84. §84. §85. P. P. P. P. P. P. P. P. L. 736. L. 768. L. 725. L. 725. L. 615. L. 768. L. 725. L. 736. P. L. 725. P. L. 736. P. L. 768. P. L. 768. P. L. 725. P. L. 774. P. L. 774. P. L. 725. L. 725. L. 725. P. L. 725. P. L. 725. L. 727. L. 727. L. 470. P. L. 615. P. L. 727. L. 727. L. 727. L. 774. L. 727. L. 774. P. L. 727. P. L. 774. P. L. 774. P. L. 774. P. L. 774. P. L. 774. P. L. 774. P. L. 774. P. L. 774. P. L. 774. P. L. 775. P. L. 775. P. L. 775. P. L. 775. P. L. 775. P. L. 775. P. L. 775. P. L. 777; P. L. 777. P. L. 777. P. L. 777. P. P. P. P. P. P. P. P. P. P. Insolvent laws, Execution, Arbitration, Arbitration, Costs, Execution, Documents, Insolvent laws, Arbitration, Insolvent laws, Execution, Execution, Arbitration, Execution, Ground-rents, Arbitration, Arbitration, Justices, Arbitration, Justices, Arbitration, Arbitration, Insolvent laws. Costs, Arbitration, Arbitration, Arbitration, Execution, Arbitration, Execution, Arbitration, Execution, Execution, Execution, Execution, Execution, Execution, Execution, Execution, Execution, Execution, Execution, Execution, Execution, Execution, Execution, Execution, Landlord and tenant. Landlord and tenant. Costs, Landlord and tenant. SECTION 3625 3183 2875 2876 3095 3184 2458 3625 2877 3625 3185 3187 2878 3205 172 2879 2879 1343 2880 1342 2884 3622 3112 2881 2887 2885 3208 2886 3208 2890 3208 3208 3208 3232 3232 3232 3232 3232 3199, 3203 3220 3220 3220 3221 3222 3220 3223 1654 1654 3111 1654 XXVI TABLE OF STATUTES. June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, June 16, 1837. 1838. April 14, April 14, April 16, April 16, April 16, 186. ?86. 2 87. ?87. 2 87. ?88. 2 89. 2 90. 2 90. 2 91. 2 91. 2 92. 2 93. 2 94. 2 95. 2 96. 2 97. 2 98. 2 99. 2100. 2101. 2102. 2103. 2104. 2105. 2106. 2107. 2108. 2109. 2110. 2111. 2112. 2113. 2114. 2 115. 2116. 2117. 2118. 2119. 2120. L. 777. L. 777. L. 777. L. 777. L. 777. L. 777. L. 777. P. L. 777. P. L. 777. P. L. 777. P. L. 777. L. 777. L. 777. L. 777. L. 777. L. 777. P. L. 778. P. L. 778. L. 778. L. 778. L. 778. L. L. L. L. P. L. 778. P. L. 778. L. 780. L. 780. L. 780. L. 780. L. 780. L. 780. P. L. 780. P. L. 780. P. L. 780. P. L. 780. P. L. 780. P. L. 780. P. L. 780. P. L. 780. P. L. 780. P. L. 780. P. P. P. P. P. P. P. P. P. P. P. 778. 778. 778. 778. Execution, Feigned issues, Execution, Feigned issues, Execution, Appeals, Appeals, Execution, Appeals, Execution, Appeals, Execution, i4. 111. !3. !29. !38. P. L. 395. P. L. 395. P. L. 626. P. L. 525. P. L. 525. Execution, Execution, Execution, Execution, Execution, Execution, Execution, Execution, Execution, Execution, Execution, Execution, Execution, Execution, Justices, Justices, Justices, Justices, Justices, Justices, Justices, Justices, Justices, Justices, Justices, Justices, Justices, Justices, Justices, Justices, April 4, 2 2. P. L. 378. Justices, SECTION 3193 2616, 2690 3235 2616 3235 3395 3397 3235 3398 3235 3398 3235 3399 3235 3235 3235 3234 3234 3234 3234 3234 3234 3234 323^ 3234 3234 3234 1609 1611 1613 1622 1623 1639 1625 1630 1641 1633 1624 1635 1637 1642 1645 1645 1186 At trial, Costs, Municipal liens, Municipal liens. Mandamus, 2995e 3080 401 404 1839 TABLE OP STATUTES. XXVH 1839. 1840 1841 1842. ). SECTION June 21, ?6. P. L. 378. Justices, 1593 June 21, UO. P. L. 379. Justices, 1574 July 2, ^3. P. L. 576. Municipal liens. 404 July 2, §43. P. L. 528. Mandamus, 1786 April 8, P. L. 240. Ground-rents, 147, 176 April 8, n. P. L. 249. Ground-rents, 164, : L69, 170, 176 April 13, §12. P. L. 323. Quo ivarranto, 2069 April 13, §13. P. L. 323. Quo warranto, 2070 April 13, §14. P. L. 323. Quo warranto, 2071 April 14, §8. P. L. 352. Execution, 3232 April 16, §6. P. L. 411. At trial. 2989 April 16, §8. P. L. 412. Mechanics' claims, 206 April 16, §9. P. L. 412. Municipal liens. 348 April 16, §10. P. L. 412. Municipal liens. 349 April 20, §1. P. L. 411. Mortgages, 184 April 20, §2. P. L. 411. Mortgages, 184 April 20, §3. P. L. 411. Mortgages, 184 April 21, §1. P. L. 449. Arbitration, 2858 April 28, §24. P. L. 474. Mechanics' claims, 215 June 3, §1. P. L. 593. Partition, 1939 June 13, §9. P. L. 691. Appeals, 3381 June 13, §10. P. L. 692. Appeals, 3417 June 13, §12. P. L. 692. Execution, 3219 June 13, §39. P. L. 671. Courts, 3562 Oct. 13, P. L. 7. Account render. 330 Oct. 13, |2. P. L. 2. Execution, 3209 Oct. 13, §3. P. L. 2. Execution, 3209 Oct. 13, §4. P. L. 2. Execution, 3209 Oct. 13, §6. P. L. 8. Execution, 3212 Oct. 13, §7. P. L. 3. Execution, 3212 Oct. 13, §8. P. L. 3. Execution, 8212 Oct. 13, §18. P. L. 7. Account render. 313, 384 Oct. 13, §18. P. L. 7. Documents, 2459 Oct. 13, §19. P. L. 7. Account render. 304 Oct. 13, §19. P. L. 7. Courts, 3562 March 19, §14. P. L. 99. Mechanics' claims. 206 April 6, §22. P. L. 163. Mechanics' claims, 206 May 5, §14. P. L. 353. Partition, 194C 1, 2034, 2035 May 5, §15. P. L. 236. Partition, 1941 May 27, §15. P. L. 404. Justices, 1232 !. Feb. 19, §1. P. L. 22. Mechanics' claims. 206 March 21, §8. P. L. 145. Original writs. 2234 March 25, §30. P. L. 197. Mechanics' claims. 206 AprU 5, §9. P. L. 234. Partition, 1939 XXVm TABLE OP STATUTES. * BECnOH April 5, U5. P. L. 236. Partiition, 2008 April 0, 115. P. L. 236, Appeals, ; 3382. , 3383 July 12, P. L, 389, Execution, 3248, ,3251 ,3315 July 12, P. L. 339, Assumpsit, 45,47 July 12, n. P. L. 339. Justices, 1270 July 12, 2 8. P. L. 339. Insolvent laws. 3595 July 12, ?18. P. L. 345. Costs, 3123 July 12, ?23. P. L. 345, Justices, 1271, ,1454 July 12, ?24. P. L. 345. Justices, 1272 July 12, 2 26. P. L. 345. Justices, 1279 ,1280 July 12, 2 26. P. L. 345. Justices, 1221, , 1288 ,1289 July 12, ?27. P. L. 345. Justices, 1289, 1291, 1292, ,1308 July 12, S28. P. L. 345. Justices, 1300 July 12, ?29. P. L. 345, Justices, 1297^ ,1303 July 12, 2 30. P. L. 345. Justices, 1306 July 12, 2 31. P. L. 345. Justices, 1388 ,1389 July 12, 2 32. P. L. 345. Justices, 1452 July 12, 2 33. P. L. 347. Justices, 1333 July 12, 2 34. P. L. 347. Justices, 1487 July 16, 211. P. L. 395. Insolvent laws, 3600 July 26, 2 9. P. L. 433. Costs, 3096 July 27, P. L. 436. Attachments, 81 July 27, 21. P. L. 436. Attachments, 75 July 30, 2 27. P. L. 456. Limitations, 3642 Aug. 2, 212. P. L. 460. Costs, 3082 1843. Aprils, P. L. 171. Mechanics' claims, 206 April 13, 2 8. P. L. 235. Divorce, 821 April 13, 2 9. P. L. 235. Execution, 3219 April 17, 21. P. L. 273. Composition with creditors. 3482, 3486 April 18, 2 8. P. L. 311. Quo warranto, 2072 April 19, P. L. 348. Torts, 542 AprU 19, P. L. 342. Municipal liens. 409 April 19, 21. P. L. 342. Municipal liens, 350 April 24, 2 8. P. L. 360. Dower, 1013 ,1042 1844. March 19, P. L. 140. Mechanics' claims. 206 April 4, 21. P. L. 188. Execution, 3234 April 6, 21. P. L. 213. Original writs. 2276 April 19, P. L. 313. Escheats, 1142 April 24, 2 2. P. L. 512. Bills of discovery, 2589 April 29, 2 43. P. L. 501. Mandamus, 1752 April 30, 2 2. P. L. 551. Abatement, 2396 April 30, 2 2. P. L. 532. Execution, 3199 May 6, P. L. 564. Ejectments, 667 May 6, 2 7. P. L. 565. Original writs, 2225 TABLE OP STATUTES. 1845. 1846. Feb. 27, 2 3. P. L. 73. Justices, 1233 Feb. 27, 14. P. L. 73. Justices, 1234 March 17, n. P. L. 158. Appeals, 3423, 8424, 3425 March 17, ?3. P. L. 160. Dower, 1015, 1043 March 17, §3. P. L. 160. Partition, 1961 March 20, u. P. L. 188. Arbitration, 2863 March 20, u. P. L. 188. Justices, 1439, 1486, 1503 March 20, U: P. L. 188. T landlord and tenant. 1703 March 20, §1. P. L. 189. Execution, 8153 March 20, §3. P. L. 189. Justices, 1484 March 20, §4. P. L. 189. Execution, 3199, 3257 April 12, 21. P. L. 386. Abatement, 2388 April 15, 21. P. L. 459. Execution, 3258 April 15, 21. P. L. 455. Divcyce, 829 April 15, 21. P. L. 459. Justices, 1464 April 15, 2 2. P. L. 455. Divorce, 830 April 15, 2 2. P. L. 459. Justices, 1464 April 15, 2 3. P. L. 459. Justices, 1464, 1468, 1469 April 15, 2 3. P. L. 459. Costa, 3115 April 15, 2 4. P. L. 459. Justices, 1472 April 15, 15. P. L. 459. Justices, 1472 April 15, 2 5. P. L. 460. Execution, 3256 April 15, 2 6. P. L. 459. Justices, 1472 April 16, P. L. 538. Mechanics' claims, 239 April 16, 2 2. P. L. 538. Execution, 3232 April 16, 2 2. P. L. 488. Municipal liens. 351 April 16, 2 3. P. L. 496. Municipal liens. 352 April 16, 2 3. P. L. 542. Courts, 3562 April 16, 2 4. P. L. 538. Municipal liens. 352 April 16, 2 4. P. L. 543. Appeals, 3429 April 16, 2 4. P. L. 538. Sei.fas., 249 April 16, 2 4. P. L. 538. Execution, 3146 April 16, 2 5. P. L. 538. Municipal liens, 853 April 16, 2 5. P. L. 538. Mechanics' claims, 223, 239 AprU 16, 212. P. L. 538. Original writs, 2280 April 16, 213. P. L. 538. Execution, 334i; March 11, P. L. 113. Mechanics' claims, 206 March 11, P. L. 115. Municipal liens. 484 March 11, 21. P. L. 114. Municipal liens. 354 March 11, 2 2. P. L. 114. Municipal liens. 354 March 11, 2 3. P. L. 115. Municipal liens. 356 March 11, 2 4. P. L. 115. Municipal liens. 357 March 11, 2 5. P. L. 115. Municipal liens. 358 March 11, 2 6. P. L. 115. Municipal liens. 359 March 11, 2 7. P. L. 115. Municipal liens, ■ 352 March 11, 2 8. P. L. 115. Municipal liens, 360 April 13, 21. P. L. 327. Mechanics' claims, 206 April 13, 2 2. P. L. 303. Arbitration, 2866 XXX TABLE OP STATUTES. 1847. 1848. SECTION April 13, 2 2. P. L. 303. Cogts, 3113 April 14, ?2. P. L. 329. At trial, 2986c April 14, ?2. P. L. 329. New trial. 3055 April 16, 11. P. L. 353. AmendmentB, 2405 April 20, u. P. L 411. Feigned issues. 2613, 2690 April 20, ?1. P. L. 411. Execution, 3233 April 20, 2 2. P. L. 411. Execution, 8233, 3235 April 20, 2 2. P. L. 411. Bills of discovery, 2601 April 20, 2 2. P. L. 411. Feigned issues. 2601, 2614 April 20, 2 2. P. L. 411. Appeals, 3396 April 20, 2 3. P. L. 411. Feigned issues. 2615, 2621 April 20, 2 3. P. L. 411. Execution, 3233, 3235 April 21, 21. P. L. 424. EjectmentB, 592, 593 April 21, 21. P. L. 426. Partition, 1942, 1961 April 21, 21. P. L. 432. Costs, 3105 April 21, 21. P. L. 430. Execution, 3234 April 21, 21. P. L. 432. Feigned issues. 2608 April 21, 2 3. P. L. 433. Appeals, 3432 April 21, 24. P. L. 434. Justices, 1576 April 21, 2 6. P. L. 434. Justices, 1574 April 22, 2 2. P. L. 476. Execution, 32.32 April 22, 2 3. P. L. 483. DocnmentB, 2446 Feb. 24, 21. P, L. 153. Arbitration, 2882 Feb. 24, 21. P. L. 153. Documents, 2456 Feb. 27, 21. P. L. 169. Divorce, 804 March 13, 21. P. L. 340. Municipal liens. ■ .361 March 13, 21 P. L. 319. Dower, 1042 March 15, 21. P. L. 361. Appeals, 3418 3Iarch 15, 21. P. L. 361. Justices, 1504 JIarch 15, 2 2. P. L. 361. Original writs. 2242 Afarch 16, u. P. L. 474. Partition, 1943 March 27, P. L. 265. Interpleaders, 2731 April 10, P. L. 472. Ejectments, 661,680 April 10, 2 2. P. L. 428. Arbitration, 2836 April 10, ?4. P. L. 449. Courts, 3563 April 10, 2 8. P. L. 450. Feigned issues, 2625 April 10, ?8. P. L. 450. Appeals, 3.384 April 10, 2 9. P. L. 450. Feigned issues, 2606 , 266.3, 2664 April 10, 2S. P. L. 460. Costs, 3085 April 10, 210. P. L. ^^. Execution, 3234 April 11, P. L. 536. Partition, 1943 April 11, ?2. P. L. 536. Insolvent laws. 3623 April 11, ?6. P. L. 536. Feigned issues, 2670 April 11, Ul- P. L. 637. Dower, 100.5, 1022 April 12, 212. P. L. 537. Defalcation, 27-53 TABLE OF STATUTES. 1849. 1850. SECTION Jan. 23. Municipal liens. 345 Jan. 23, ?3. P. L. 686. Municipal liens. 362 Jan. 23, 14. P. L. 686. Municipal liens. 364 Jan. 23, ?5. P. L. 686. Municipal liens. 365 Jan. 24, 2 3. P. L. 677. Execution, 3214 Jan. 24, ?4. P. L. 677. Execution,. 3215 Jan. 24, §5. P. L. 677. Execution, 3213 Jan. 24, ?6. P. L. 677. Insolvent laws. 3623 Feb. .19, 114. P. L. 85. Original writs. 2235 March 21, §3. P. L. 216. Insurance, 294 March 21, 2 3. P. L. 216. Appeals, 3419 March 21, 13. P. L. 216. Original writs. 2232 March 24, P. L. 675 Mechanics' claims. 226 March 24, ?2. *P. L. 675, Mechanics' claims. 232 April 5, 2 7. P. L. 410. Justices, 1235, 1394 April 9, P. L. 533. Dower, 1016 April 9, P. L. 533. Ground-rents, 150 April 9, P. L. 495. Mechanics' claims. 206, 209, 245 April 9, 21. P. L. 533. Landlord and tenant. 1661 April 9, 21. P. L. 533. Justices, 1461 April 9, 21. P. L. 495. Mechanics' claims. 206 April 9, 21. P. L. 533. Execution, 3160 April 9, 2 2. P. L. 495. Mechanics' claims. 217 April 9, 2 2. P. L. 533. Landlord and tenant. 1658 April 9, 2 2. P. L. 533. Execution, 3161 April 9, 2 3. P. L. 533. Execution, 3162 April 9, 2 4. P. L. 533. Execution, 3162 April 9, 2 5. P. L. 526^ Ejectments, 593 April 9, 2 8. y. L. 526. Partition, 1944 April 9, 210. P. L. 621. Mortgages, 199 April 9, 213. P. L. 527. Abatement, 2387 April 9, 216. P. L. 664. Sci.fas., 252, 276 April 9, 216. P. L. 527. Justices, 1619, 1634 April 10, 21. P. L. 600. Original writs. 2225 April 10, 21. P. L. 597. Feigned issues. 2607, 2686 April 10, 21. P. L. 597. Execution, 3318 April 10, 2 7. P. L. 620. Appeals, 3385 April 10, 2 7. P. L. 620. Feigned issues. 2625 April 16, 2 2. P. L. 663. Costs, 3103 April 16, 2 2. P. L. 663. Lunatics and drunkards, 3Z25 April 16, 2 4. P. L. 664. Composition with creditors, 3487 April 16, 2 6. P. L. 664. Limitations, 3642 March 4, 21. P. L. 126. Insurance, 301 March 4, 2 2. P. L. 126. Insurance, 301 March 11, 2 4. P. L. 165. Municipal liens. 366 March 22, 21. P. L. 233. Justices, 1292 March 22, 21. P. L. 257. Original writs. 2225 XXXU TABLE OP STATUTES. SECTION March 22, 12. p. L. 230. Appeals, 3386 March 25. ?9. P. L. 279. Original writs. 2225 April 15, gll. P. L. 469. Municipal liens. 366 AprU 16, 2 38. P. L. 492. Insolvent laws, 3602 April 16, 2 39. P. L. 492. Insolvent laws. 3602 April 22, P. L. 549. Ejectments, 662, 663, 680 April 22, 219. P. L. 553. Justices, 1699 April 25, P. L. 576. Mechanics' claims, 228" April 25, P. L. 571. .Ground-rents, 147 AprU 25, 2 7. P. L. 570. Limitations, 3643 April 25, 2 8. P. L. 571. Ground-rents, 164 April 25, ?9. P. L. 571. Partition, 1946, 1962, 1983 AprU 25, 210. P. L. 571. Partition, 1946 April 25, 110. P. L. 571. Partition, 1947, 1998 AprU 25, 212. P. L. 571. Arbitration, 2864 April 25, 2 24. P. L. 573. Original writs. 2276 April 25, 2 26. P. L. 573. Courts, 3664 AprU 25, 2 27. P. L. 574. Partition, 1945 April 25, 2 28. P. L. 574. Execution, 3164 April 25, 2 29. P. L. 574. Appeals, 3413,3456 AprU 25, 2 35. P. L. 575. Tiimitations, 3640 April 25, 2 35. P. L. 575. Torts, 574 April 26, 24. P. L. 591. Abatement, 2389 April 26, 24. P. L. 591. Ejectments, 694 April 26, 2 5. P. L. 591. Divorce, 738,805 AprU 26, 2 6. P. L. 591. Divorce, 739, 806 April 26, 2 9- P. L. 612. Mechanics' claims, 206 April 30, 21. P. L. 640. Justices, 1577 May 3, P. L. 664. Quo warranto, 2093 May 10, ?3. P. L. 104*8. Original writs, 2^%> L851. AprU 3, P. L. 320. Municipal Uens, 426,455,475,480 April 3, P. L. 871. Mortgages, 196 Aprils, 2 6. P. L. 356. Original writs. 2232 AprU 8, ?6 P. L. 2-54. Insurance, 294 April 14, 21. P. L. 612. Original writs. 2228,2383 April 14, ?2. P. L. 612. Feigned issues, 2609, 2713 April 14, ?2. P. L. 612. Execution, 3341rf April 14, §3. P. L. 612. Feigned issues. 2610, 2713 AprU 14, 2 4. P. L. 612. Feigned issues. 2611, 2612, 2713 April 14, 15. P. L. 613. Dower, 1016 AprU 14, 211. P. L. 614. Ejectments, 595, 599 April 14, 211. P. L. 614. Original writs. 2294 April 14, 215. P. L. 615. Limitations, 3633 AprU 15, 2 7. P. L. 714. Lunatics and drunkards, 3654 AprU 15, 218. P. L. 674. Abatement, 2391 April 15, 218. P. L. 674. N^ligence, 1861, 1875, 1879, 1880 AprU 15, 219. P. L. 674. X^ligence, 1862, 1880, 1889, 1890 April 15, 2 24. P. L. 676. Original writs. 2241 Oct. 28, 2 7. P. L. 725. Lunatics and drunkards, 3723 TABLE OF STATUTES. XXXUl 1852. May 3, May 4, May 4, May 4, May 4, May 4, 1853. Feb. 23, March 17, April 18, April 18, April 18, April 18, April 20, 1854. Feb. 2, Feb. 2, Feb. 2, Feb. 2, Feb. 20, Feb. 20, Feb. 20, March 27, March 27, April 6, April 22, May 5, May 5, May 6, May 8, Mays, May 8, May 8, May 8, 1855 March 9, March 16, April 14, April 14, April 21, April 26, April 26, April 26, April 26, April 26, April 26, VOL. I. — C ■1. i2. i7. ?2. n. n. §8. §9. ?11. §35. HO. n. §1. §1. §1. ?2. 11. 11. 11. !1. !l. !1. ;1. i2. ?1. §2. 11. il. ■1. !1. 2. P. L. 541. P. L. 584. P. L. 574. P. L. 584. P. L. 574. P. L. 570. P. L. 98. P. L. 685. P. L. 503. P. L. 467. P. L. 467. P. L. 503. P. L. 611. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. §20. P. L. 29. L. 29. L. 25. L. 43. L. 89. L. 89. L. 89. L. 214. L. 214. L. 301. L. 480. L. 581. L. 570. L. 605. L. 663. L. 678. L. 644. L. 644. L. 620. P. L. 68. P. L. 89. P. L. 238. P. L. 238. P. L. 269. P. L. 309. P. L. 303. P. L. 304. P. L. 313. P. L. 308. P. L. 308. Arbitration, Sci. fas., Original writs. Ejectments, Amendments, Limitations, Appeals, Quo warranto, Ground-rents, Ejectments, Original writs. Appeals, Sd.foB., 2865, 2909 278 2231 665 2405 3440 2073 178 596, 630 2292 3400 250 Municipal liens, Municipal liens. Mandamus, Municipal liens. Original writs. Dower, Partition, Original writs. Original writs, Costs, Composition with creditors. Justices, 409 Abatement, Limitations, Negligence, Justices, Divorce, Divorce, Execution, 1839 402 2287 1014 1950, 1961, 1983 2229 2273, 2274 3096 3488 1480 2384 3645 1880, 1884 1168 740, 746, 750, 794 800 3204 741, 800 491 226 237 473 Divorce, Municipal liens. Mechanics' claims. Mechanics' claims, Municipal liens. Negligence, 1863, 1873, 1875, 1879, 1880, 1888, 1889, 1890, 1895, 1904 Municipal liens, 363 Justices, 1335, 1337 Executions, 3209 Frauds, 3591 Frauds, 3592 XXXIV TABLE OF STATITTES. SECTION April 26, 12. P. L. 304. Justices, 1412 April 26, ?2. P. L. 309. Negligence, 1864 April 26, §3. P. L. 304. Justices, 1276 April 26, ?5. P. L. 329. Quo warranto, 2094 April 26, ?5. P. L. 328. Escheats, 1142 April 26, §9. P. L. 328. Escheats, 1142 April 26, re. P. L. 329. Escheats, 1148, 1151 April 26, ?14. P. L. 328. Escheats, 1142 April 27, 2 4. P. L. 369. Partiition, 1948, 2016 April 27, ?6. P. L. 369. Limitations, 3634 April 27, ?7. P. L. 369. Limitations, 3635 April 27, 17. P. L. 369. Ground-rents, 177 May 3, ?1. P. L. 415. Composition with creditors, 3490 May 4, 2 7. P. L. 431. Adoption, 3465 May 8, P. L. 533. Ejectments, 680 May 8, 2 2. P. L. 532. Attachments, 97 Mays, 2 3. P. L. 532. Attachments, 78 Mays, 2 4. P. L. 563. Attachments, 89 May 8, 2 4. P. L. 533. Ejectments, 666 1856. March 17, 21. P. L. 388. Original writs, 2237 April 2, 21. P. L. 219. Justices, 1283 April 2, 21. P. L. 219. Original writs. 2238 April 9, 2 3. P. L. 288. Appeals, 3407 April 11, 21. P. L. 304. Execution, 3341e April 15, 21. P. L. 337. Bills o! exceptions. 3071 April 15, 21. P. L. 337. At trial, 3014 April 17, 21. P. L. 386. Original writs. 2288 April 17, 21. P. L. 386. Partition, 1951 , 1983, 2015 April 17, 2 2. P. L. 386. Partition, 1952 April 17, 2 7. P. L. 386. Partition, 1983 April 21, P. L. 496. Mechanics' claims. 226 April 22, 21. P. L. 532. Limitations, 3636 April 22, 2 2. P. L. 532. Ejectments, 598 April 22, 24. P. L. 533. Frauds, 3590 April 22, 210. P. L. 534. Partition, 1949, 2034 May 13, 2 8. P. L. 569. Municipal liens, 372 May 13, 211. P. L. 569. Municipal liens. 363 1857. Feb. 14, P. L. 39. Partition, 1961 Feb. 14, 21. P. L. 39. Appeals, 3432 Feb. 14, 21. P. L. 39. Courts, 3562, 3563 Feb. 14, 21. P. L. 39. Interpleaders, 2731 April 8, P. L. 175. Ground-rents, 147 April 8, 21. P. L. 175. Costs, 3099 April 8, 21. P. L. 170. Execution, 3163 April 8, 2 2. P. L. 175. Ground-rents, 164, 169 April 18, ?l. P. L. 253. Insolvent laws. 3623 April 24, 21. P. L. 318. Assumpsit, 10 TABLE OF STATUTES. XXXV 1858 1859 1860. April 24, u. P. L. 318. Insurance, SECTION 298 April 24, u. P. L. 318. Original writs, 2288 May 13, ?2. P. L. 489. Municipal liens, 372 May 16, • ?2. P. L. 549. Municipal liens, 378 Feb. 17, P. L. 29. Mechanics' claims, 210, 213, 218 March 10, u. P. L. 91. Execution, 3318 March 10, ?1. P. L. 91. Feigned issues, 2606, 2607, 2686 April 12, ?1. P. L. 243. Amendments, 2406 April 13, P. L. 256. Ejectments, 599 April 13, n. P. L. 256. Original writs. 2295 April 20, P. L. 363. Attachments, 140 April 21, P. L. 387. Municipal liens. 479 April 21, §1. f . L. 403. Original writs. 2239 April 21, 11. P. L. 403. Justices, 1288 April 21, 11. P. L. 387. Amendments, 2407 April 21, ?2. P. L. 385. Municipal liens, 874 April 21, ?9. P. L. 387. Municipal liens. 480 April 22, P. L. 451. Divorce, 739, 802 April %-l, n. P. L. 451. Divorce, 806 March 22, n. P. L. 194. Insolvent laws. 3610 April 6, n. P. L. 381. At trial. 30226, 3028 April 6, ?i. P. L. 384. Original writs, 2263, 2270 April 6, i2. P. L. 387. Original writs, 2271 April 6, 13. P. L. 387. Original writs, 2272 April 8, ?1. P. L. 425. Dower, 1016 April 8, ?1. P. L. 425. Execution, 3164 April 12, ?1. P. L. 543. Municipal liens. 374 April 13, u. P. L. 603. Ejectments, 601 April 13, ?1. P. L. 603. Limitations, 3638 AprH 13, §2. P. L. 603. Limitations, 8689 April 14, §1. P. L. 647. Divorce, 742 April 21, ?9. P. L. 387. Municipal liens, 875 ». Feb. 8, P. L. 29. Execution, 8232 Feb. 27, P. L. 85. Execution, 31446 March 29, P. L. 341. Depositions, 2505 March 29, §21. P. L. 390. Justices, 1269 March 29, ?22. P. L. 890. Justices, 1269 March 29, 139. P. L. 892. Divorce, 792 March 29, §57. P. L. 439. Bills of exceptions, 3057 March 29, §62. P. L. 445. Costs, 3092 March 29, §63. P. L. 445. Costs, 3093 March 29, §64. P. L. 445. Costs, 3092 March 29, §65. P. L. 445. Costs, , 8092 March 29. §66. P. L. 400. Qao warranto, 2084 March 29, §131 . P. L. 414. Insolvent laws. 8621, 3626 XXXVl TABLE OF STATUTES. 1861 1862. 1863. SECTION April 2, §1. p. L. 589. Execution, 3204 Sept. 6, P. L. 840. Ground-renta, 179 Dec. 5, P. L. 844. Ejectmente, 600 Dec. 5, ?1. P. L. 844. Original writs. 2297 Jan. 9, P. L. 2. EscheatB, 1142 March 22, u. P. L. 181." Tiandlord and tenant, 1691 March 22, ?1. P. L. 186. Abatement, 2394 March 22, §1. P. L. 186. Death, 2217 April 8, ?1. P. L. 259. Execution, 3200 Aprils, §2. P. L. 259. Execution, 3200 April 9, §5. P. L. 269. Municipal liens. 376 April 17, n. P. L. 329. Original writs. 2225 April 17, n. P. L. 354. Municipal liens. 377 Mayl, P. L. 535. Tiandlord and tenant, 1725 Mayl, P. L. 535. Justices, 1357, 1501 Mayl, P. L. 433. Escheats, 1142, 1145 Mayl, P. L. 550. Mechanics' claims, 207, 208, 228, 229 Mayl, 11. P. L. 521. Arbitration, 2874 Mayl, ?i. P. L. 535. Justices, 1493, 1533 Mayl, 12. P. L. 614. Municipal liens, 472 Feb. 21, ?1. P. L. 44. Municipal liens. 378,486 Feb. 21, 12. P. L. 44. Municipal liens. 378,486 March 4, ?1. P. L. 79. Original writs, 2227 March 15, ?1. P. L. 125. Execution, 3234 April 4, P. L. 235. Gompoeition with creditors, 3501 April 5, n. P. L. 268. Original writs. 2274 April 7, §1. P. L. 304. Original writs, 2230 April 9, P. L. 347. Justices, 1535 April 9, 12. P. L. 402. Mechanics' claims, 241 April 10, P. L. 364. Execution, 3235 April 11, P. L. 484. Sd.fag., 279 April 11, P. L. 430. Ejectments, 667 April 11, n. P. L. 430. Divorce, 745, 831 April 11, 2 2. P. L. 449. Original writs. 2243 1. April 2, P. L. 250. Ejectments, 667 April 2, ?4. P. L. 249. Costs, 3092 April 11, §1. P. L. 346. Justices, 1364 April 22, ?1. P. L. 567. Mortgages, 186 April 22, 21. P. L. 527. Costs, 3098 April 22, u. P. L. 527. Execution, 3260 J)ec. 14, n. P. L. 1125. Landlord and tenant. 1707, 1708, 1709, 1712, 1720, 1726 TABLE OF STATUTES. XXXVll 1864 1865. 1866 SECTION Jan. 6, P. L. 1121. Municipal liens. 435, 454 March 31, n. P. L. 171. Municipal liens. 379 April 1, n. P. L. 206. Municipal liens. 499 April 1, 2 2. P. L. 206. Municipal liens. 499 April 1, §3. P. L. 206. Municipal liens. 380, 499 April 27, u. P. L. 641. Partition, 1938, 2048 April 27, n. P. L. 641. Costs, 3110 May 4, u. P. L. 766! T landlord and tenant. 1692 May 4, §1. P. L. 766. Costs, 3096 May 4, ?i. P. L. 762. Composition with creditors, 3496 May 4, 2 2. P. L. 762. Composition with creditors, 3497 June 27, P. L. 951. Escheats, 1147 Aug. 10, 12. ^ P. L. 962. Divorce, 811 >. Feb. 3, P. L. 92. Justices, 1582 Feb. 28, §1. P. L. 253. Landlord and tenant. 1727 March 14, 21. P. L. 345. Abatement, 2389 March 14, u. P. L. 345. Dower, 1017 March 21, P. L. 433. Mechanics' claims. 210 March 22, P. L. 571. Ground-rents, 179 March 24, P. L. 750. Tiandlord and tenant, 1720, 1726 March 24, 21. P. L. 750. Landlord and tenant. 1734 March 24, 21. P. L. 750. Justices, 1414 March 27, P. L. 794. Landlord and tenant. 1725 March 27, 21. P. L. 791. Municipal liens, 382, 403 March 27, 21. P. L. 794. Justices, 1493 March 27, 21. P. L. 38. Bills of discovery. 2556 March 27, 21. P. L. 795. At trial, 2995a March 27, 21. P. L. 52. Execution, 3341/ March 27, 21. P. L. 56. Limitations, 3637 Nov. 27, 21. P. L. 1227. Dower, 1016 Nov. 27, 2 2. P. L. 1227. Dower, 1016 (. Feb. 14, 21. P. L. 28. Appeals, 3430 Feb. 16, 21. P. L. 50. Municipal liens. 379 March 21, P. L. 262. Mandamus, 1804 March 23, P. L. 299. Municipal liens. 405, 412, 490 March 23, 21. P. L. 303. Municipal liens. 362, 395, 452 March 23, 21. P. L. 303. Original writs. 2264 March 23, 2 2. P. L. 303. Municipal liens. 383, 395 April 11, 21. P. L. 97. Landlord and tenant. 1707 April 11, 21. P. L. 780. Lunatics and drunkards, 3722 April 16, 21. P. L. 941. At trial. 2995e April 16, 2 2. R L. 941. At trial, 2995e April 17, P. L. 106. Negligence, 1872 April 17, 21. P. L. 112. Justices, 1186 April 17, 21. P L. 112. Execution, 3200 April 17, 2 2. P. L. 112. Justices, 1187 Mays, 21. P. L. 116. Costs, 3091 XXXVlll TABLE OF STATUTES. 1867 1868. 1869. SECTION Jan. 7, U- P. L. 1367. Dower, 1011 Feb. 13, ?1. P. L. 160. Dower, 1012 Feb. 20, §1. P. L. 30. Landlord and tenant. 1708 March 12, 11. P. L. 35. Preparation for trial, 2973, 29736 March 28, 21- P. L. 48. Limitations, 3646 March 29, §1. P. L. 601. Original writs. 2264 March 29, 21. P. L. 600. Municipal liens. 427, 431 April 10, P. L. 1115. Ejectments, 602 April 10, n. P. L. nil. Municipal liens. 387 April 10, ?5. P. L. 1123. Costs, 3089 April 15, ?1. P. L. 84. Costs, 3106 April 18, ?1. P. L. 1303. Municipal liens, 388 May 22, P. L. 40. Mandamus, 1785 Feb. 27, P. L. 212. Mechanics' claims. 211, 219 March 2, P. L. 256. Justices, 1495 March 2, n. P. L. 257. Justices, 1570 March 13, u. P. L. 316. Municipal liens, 389 March 16, 21. P. L. 46. Bills of exceptions, 3057 March 26, P. L. 495. Justices, 1496 April 1, 211. P. L. 567. Municipal liens. 466 April 2, P. L. 3. Justices, 1570 April 4, P. L. 680. Mechanics' claims, 210 April 4, §1. P. L. 58. Negligence, 1865, 1867, 1870, 1904, 1905, 1906, 1907, 1908, 1909, . 1910,1911,1912. , 1913, 1914 April 4, 2 2. P. L. 58. Negligence, 1866, 1871 April 4, 2 3. P. L. 58. Negligence, 1869 April 4, 2 4. P. L. 58. Negligence, 1869 April 8, P. L. 70. Assumpsit, 10 April 8, P. L. 752. Mechanics' claims. 212, 220 April 8, P. L. 70. Insurance, 293 April 8, P. L. 70. Original writs. 2233 April 14, 21. P. L. 98. Justices, 1187 April 15, 21. P. L. 103. Insurance, 300 April 28, P. L. 1151. Mortgages, 198 Aug. 1, P. L. 1169. Mechanics' claims, 226, 230, 233, 244 Aug. 1, 2 4. P. L. 1169. Defenses, 2802 Aug. 1, 2 4. P. L. 1169. Feigned issues. 2619 Aug. 1, 2 4. P. L. 1169. Preparation for trial. 2973e Feb. 12, 21. P. L. 3. Feigned issues. 2625 Feb. 18, 21. P. L. 198. At trial. 2995a Feb. 18, 2 2. P. L. 198. At trial. 29956 Feb. 18, 2 3. P. L. 198. At trial. 2995c Feb. 18, 2 3. P. L. 209. Justices, 1357 Feb. 18, 2 4. P. L. 198. At trial, 2995rf TABLE OF STATUTES. XXXIX 1870. Feb. 26, §1. P. L. 3. Limitations, SECTION 3635 March 17, P. L. 8. Assumpsit, 51, 52 , 53, 59, 60 March 17, «2. P. L. 9. Assumpsit, 54 March 17, «2. P. L. 9. Original writs. 2320 March 17, 13. P. L. 9. Assumpsit, 54 March 22, n. P. L. 477. Municipal liens, 390 March 30, §1. P. L. 15. Partition, 1953, 2042 April 2, ?4. P. L. 645. Municipal liens. 429 April 6, P. L. 725. Arbitration, 2927 April 6, P. L. 16. Ejectments, 604 AprU 10, §1. P. L. 23. Discontinuance, 3743 April 12, P. L. 27. Ejectments, 603 April 12, ?1. P. L. 27. Abatement, 2389 April 15, ?1. P. L. 972. Landlord and tenant. 1692 April 17, P. L. 71. Escheats, 1148 April 17, gl. P. L. 69. Justices, 1461 April 17, n. P. L. 1126. Landlord and tenant. 1692 April 17, §1. P. L. 69. Execution, 3165 April 20, ?i. P. L. 77. Dower, 1006, 1022, 1041 April 20, u. P. L. 77. Ejectments, 668, 676 April 20, §2. P. L. 77. Ejectments, 668, 676 April 20, ?2. P. L. 77. Dower, 1007 May 4, u. P. L. 1251. Ejectments, 669, 676, 680 June 25, n. P. L. 1275. Landlord and tenant, 1725 1. Jan. 20, P. L. 85. Arbitration, 2927 Feb. 18, P. L. 188. Justices, 1357 Feb. 23, P. L. 221. Justices, 1495 Feb. 23, §1. P. L. 227. Justices, 1164 Feb. 25, P. L. 254. Justices, 1357 Feb. 26, §1. P. L. 256. Partition, 1957 Feb. 28, P. L. 269. Justices, 1496 March 1, P. L. 282. Mechanics' claims. 209, 245 March 4, P. L. 35. Ground-rents, 150 March 4, ?i. P. L. 35. Execution, 3165 March 11, P. L. 397. Justices, 1496 March 23, P. L. 540. Arbitration, 2927 March 28, P. L. 586. Justices, 1357 March 28, §1. P. L. 586. Justices, 1358 March 28, ?i. P. L. 566. At trial. 2995^ March 28, 2 2. P. L. 566. At trial, 2995sr March 28, H. P. L. 586. Justices, 1359 March 28, ?5. P. L. 586. Justices, 1360 March 28, 16. P. L. 586. Justices, 1361 March 28, §8. P. L. 586. Justices, 1363 March 29, P. L. 669. Landlord and tenant, 1652 April 1,. P. L. 751. Municipal liens. 436, 441 April 2, P. L. 796. Municipal liens, 414 April 5, P. L. 890. Municipal liens. 416 April 5, P. L. 931. Justices, 1496 xl TABLE OP STATUTES. SECTION April 6, P. L. 960. Attacluneuta, 101 April 6, P. L. 987. Justices, 1357 April 6, u. P. L. 948. Arbitration, 2890a April 6, §2. P. L. 948. Arbitration, 28906 April 6, §3. P. L. 948. Arbitration, 2890c April 6, H. P. L. 948. Arbitration, 2890d April 6, 2 5. P. L, 948. Arbitration, 2890e April 6, §6. P. L. 948. Arbitration, 2890/ April 6, ?7. P. L. 948. Arbitration, 2890sr April 6, 18. P. L. 948. Arbitration, 2890A April 6, ?9. P. L. 948. Arbitration, 2890i April 6, §10. P. L. 948. Arbitration, 2890/ April 6, §11. P. L. 948. Arbitration, 2890A April 6, §12. P. L. 948. Arbitration, 2890A April 6, §13. P. L. 948. Arbitration, 2890>6 April 6, §14. P. L. 948. Arbitration, 2890^ April 6, §15. P. L. 948. Arbitration, 2890m April 7, P. L. 58. Mechanics' claims. 245 April 7, §1. P. L. 58. Execution, 3201, 3203 April 7, §2. P. L. 58. Execution, 3201 April 9, §1. P. L. 60. Attachments, 87 May 3, P. L. 1298. Municipal liens. 413 1871. Feb. 21, Feb. 24, March 13, May 10, May 10, May 13, May 13, May 15, May 18, May 18, May 19, May 19, May 26, June 2, June 2, June 22, June 28, June 28, f E. S. ofU. 8.,1 1 §905 p. 170. J § 4. P. L. 126. P. L. 820. P. L. 675. § 1. P. L. 265. P. L. 820. P. L. 840. § 1. P. L. 268. § 1. P. L. 938. § 2. P. L. 939. P. L. 986. § 1. P. L. 986. P. L. 1190. P. L. 290. P. L. 1292. P. L. 1363. P. L. 1376. § 1. P. L. 1376. Preparation for trial, Municipal liens. Justices, Mechanics' claims. Amendments, Justices, Municipal liens. Replevin, Justices, Justices, Ground-rents, Replevin, Mechanics' claims. Ejectments, Arbitration, Arbitration, Execution, Execution, 2953 428, 436 1621 209, 210, 245 2408 1608 425 2142, 2168 1494 1534 153 2143, 2186 209 670 2927 2927 3193 3235 1872. Feb. 29, March 6, March 14, March 20, March 23, April 2, §1. §1. §1. P. L. 190. P. L. 22. P. L. 25. P. L. 474. P. L. 524. P. L. 31. Justices, Landlord and tenant, Amendments, Municipal liens, Justices, Adoption, 1357, 1358 1709 2409 414 1496 3474 TABLE OP STATUTES. xli 1873 1874, April 3, P. L. 33. Ejectments, SECTION 605 April 3, u. P. L. 33. Appeals, 3402 April 4, ?1. P. L. 46. Qw warranto, 2074 April 4, §2. P. L. 46. Quo warranto, 2075 April 4, ?3. P. L. 46. Quo warranto. 2075 April 9, P. L. 47, Composition with creditors, 3488 May 6, P. L. 1168. Mandamus, 1826, , 1831, 1845 i. Feb. 18, P. L. 35. Ejectments, 671 March 6, §3. P. L. 215. Feigned issues. 2619 Marcli 6, §3. P. L. 215. Preparation for trial. 2973e March 14, P. L. 46. Insurance, 292 March 25, P. L. 396. Arbitration, 2S90TO April 3, n. P. L. 60. Execution, 3156 April 4, §5. P. L. 20. Insolvent laws. 3602 April 4, ?13. P. L. 20. Insurance, 293 April 4, §13. P. L. 27. Original writs. 2232 April 8, P. L. 64. Municipal liens. 404 April 8, P. L. 65. Execution, 3196, 3220 April 9, n. P. L. 67. Costs, 3093 April 10, P. L. 776. Groimd-rents, 153 April 10, ?1. P. L. 776. Replevin, 2144, 2186 June 20, ?1. P. L. 331. Preparation for trial, 2973/ t. April 1, n. P. L. 60. Appeals, 3378 April 18, ?i. P. L. 64. Appeals, 3387 April 18, §1. P. L. 64. Bills of exceptions. 3057 April 18, §1. P. L. 64. Assumpsit, 38 April 18, §2. P. L. 64. Appeals, 3389 April 22, P. L. 109. Arbitration, 2935 April 22, §1. P. L. 109. Preparation for trial, 2957 April 22, §5. P. L. 109. Costs, 3086 April 29, §14. P. L. 80. Execution, 3202 April 29, §15. P. L. 80. Execution, 3202 April 29, §24. P. L. 80. Execution, 3202 May 8, P. L. 123. Justices, 1290, 1302 Mays, §1. P. L. 123. Justices, 1293, 1304 Mays, |1. P. L. 123. Lunatics and drunkards, 3691 Mays, §2. P. L. 123. Justices, 1301 May 8, §2. P. L. 123. Lunatics and drunkards 3692 Mays, §4. P. L. 123. Justices, 1307 May 14, P. L. 158. Municipal liens. 404 May 14, §1. P. L. 159. Arbitration, 2840 May 14, §1. P. L. 166. Arbitration, 2928 May 14, §1. P. L. 156. Partition, 1954, 2016 May 14, §1. P. L. 146. Execution, 3155, 3202 May 14, §2. P. L. 160. Arbitration, 2930, 2935 May 14, |2. P. L. 156. Partition, 1955 MHy 14, §3. P. L. 166. Arbitration, 2932, 2937 xlii TABLE OF STATUTES. May 14, May 14, May 14, May 14, May 14, May 14, May 15, May 19, May 19, May 19, May 23, May 23, May 24, May 25, June 2, June 2, June 4, June 5, §3. 2 4. ?5. ?6. ?7. 2 8. 2 9. 2 5. 21. 2 2. P. L. 166. P. L. 166. P. L. 166. P. L. 166. P. L. 166. P. L. 166. P. L. 189. 219. P. L. P. L. L. L. L. L. L. P. L. 271. P. L. 271. P. L. 800. P. L. 300. 207. 210. 230. 232. 230. 277. Partition, Arbitration, Arbitration, Arbitration, Arbitration, Arbitration, Replevin, Mandamus, Appeals, Costs, Municipal liens, Municipal liens. Mandamus, Appeals, Original writs. Execution, Mechanics' claims, Mechanics' claims. SECTION 1956 2942 2932 2933 2940 2943 2173 1784 3437 3089 420 372 1815, 1816 3462 2236 3202 219 210, 211, 212, 218, 220 1875. Feb. 5, Feb. 5, Feb. 6, Feb. 5, Feb. 5, Feb. 18, Feb. 18, March 3, March 11, March 18, March 30, March 30, March 30, March 30, March 30, March 30, 2 1. P. L. 56. 2 7. P. L. 56. § 11. P. L. 56. 2 12. P. L. 56. 2 13. P. L. 56. fE. 8. U.S., 1874-1 I 1881, p. 188. j {Tm»; "•} 18 Stat. U. 8., 470. 2 1. P. L. 6. P. L. 15. 2 1. P. L. 35. 2 2. P. L. 35. 2 3. P. L. 35. 2 4. P. L. 35. 2 5. P. L. 35. 2 6. P. L. 35. Justices, Justices, Justices, Landlord and tenant. Justices, Appeals, 1226 1594 1578 1664, 1684, 1691 1400 34632>& Original writs, Courts, At trial, Municipal Uens, Courts, Courts, Courts, Courts, Courts, Courts, 2236 3539 3001, 3002a, 3054 421 3576, 3677 3578 3579, 3580 3581 3582 3583 1876. Feb. 17, Feb. 17, March 14, March 23, April 17, April 20, May 1, Mayl, Mayl, 21. 21. 21. 21. 21. 217. p. L. 4. Dower, 1048 P. L. 4. Composition with creditors, 3500 P. L. 7. Execution, 3-34l5r P. L. 8. Execution, 3157 P. L. 29. Justices, 1400, 1488 P. L. 43. Justices, 1499, 1500, 1506 P. L. 89. Original writs, 2236 P. L. 94. Municipal liens, 470 P. L. 58. Insurance, 291 TABLE OF STATUTES. xliii May 2, May 5, May 8, Mays, May 8, May 8, May 13, May 13, May 13, May 13, May 18, il. !1. il. il. il. i26. il. P. P. P. P. P. P. P. P. P. P. P. L. 95. L. 110. L. 140. L. 127. L. 148. L. 139. 171. 171. 171. 169. 180. Ejectments, Arbitration. At trial. Escheats, Costs, Execution, Ground-rents, Justices, Execution, Insolvent laws, At trial. SECTION 606 2859 3004 1141 8089 3256 150 1461 3165, 3177 3602 2995/ 1877. March 22, March 22, March 23, March 23, March 23, March 23, March 23, March 23, March 24, March 24, March 24, April 4, 1878. May 22, May 24, May 24, May 24, May 26, May 25, May 25, May 25, il. 1. il. 2. il. 1. il. P. P. P. P. P. P. P. P. P. P. L. 14. L. 13. L. 34. L. 28. L. 34. L. 34. L. 34. L. 26. L. 38. L. 38. P. L. 38. P. L. 53. P. L. 98. P. L. 134. P. L. 135. P. L. 135. P. L. 154. P. L. 145. P. L. 156. P. L. 156. Arbitration, Justices, Sci.fas., Arbitration, New trials. At trial. At trial. Original writs. Bills of exceptions. At trial, . At trial. Appeals, Courts, Justices, Original writs, Justices, Courts, Execution, Divorce, Preparation for trial, 2888 1373, 1485 274 2847, 2903 3050 30226 30226 2266 3071 3014 3014 3890 3584 1611 2320 1613 3577 3200 817, 845, 910 2973^ 1879. iMarch 1, March 28, May 1, May 15, May 19, May 19, May 19, May 19, May 29, June 4, June 11, June 11, June 11, i2. !1. U. il. il. il. 2. i2. P. L. 9. P. L. 13. P. L. 40. P. L. 62. 66. 66. P. L. P. L. P. L. P. L. P, L. 194. 90. 151. P. L. 109. P. L. 129. Original writs, 2320 Dower, 1018 Partition, 1958 Justices, 1339 Appeals, 3401 Attorneys, 3509 Costs, 3083 Attorneys, 3509 Landlord and tenant, 1650 Municipal liens, 404 Justices, 1577 Writ of inquiry, 711 Torts, 558 xliv TABLE OF STATUTES. June 11, P. L. 122. Execution, 3206 June 11, P. L. 125. Ejectments, 607, 609, 650, 687 June 11, P. L. 141. Mortgages, ' 198 June 11, ?1. P. L. 125. Courts, . 3551 June 11, ?2. P. L. 122. Mechanics' claims, 241 June 11, no. P. L. 145. Adoption, 3465 June 12, §1. P. L. 177. Appeals, 3431 June 28, P. L. 182. Mechanics' claims, 208 July 7, P. L. 194. Justices, 1289, 1290, 1426 July 7, u. P. L. 194. Justices, 1227, 1228, 1253 July 7, ?2. P. L. 194. Justices, 1374 1881. April 8, P. L. 9. Escheats, 1141 May 10, P. L. 17. Frauds, 3593 May 10, P. L. 13. Execution, 3206 May 11, il. P. L. 20. Insurance, 292 May 21, §1. P. L. 26. Limitations, 3647 May 21, 11. P. L. 24. Ejectments, 610 May 25, P. L. 32. Mandamus, 1736 June 2, P. L. 45. Ejectments, 674 June 8, P. L. 84. Frauds, 3594 June 8, u. P. L. 80. Appeals, 3420 June 10, P. L. 106. Attachments, 104 June 10, P. L. 97. Mortgages, 195 June 10, n. P. L. 115. Original writs, 2236 June 10, ?i. P. L. 102. Feigned issues, 2617, 2697 June 10, §1. P. L. 102. CSomposition with creditors, 3500 June 10, «i. P. L. 113. Courts, 3559 June 10, u. P. L. 91. Municipal liens, 395 June 10, ?2. P. L. 102. Feigned issues, 2617 June 10, ?2. P. L. 102. Composition with creditors, 3500 1883. April 19, ?1. P. L. 9. Landlord and tenant, 1651 April 19, ?3. P. L. 9. Defalcation, 2755 April 19, §4. P. L. 11. Municipal liens, 376 April 19, ?5. P. L. 11. Municipal liens, 369 April 19, §6. P. L. 11. Municipal liens, 359, 368 April 19, ?6. P. L. 9. Execution, 31446 April 26, P. L. 15. Arbitration, 2891 May 17, P. L. 34. Execution, 3166 May 17, ii. P. L. 83. Documents, 2461 May 22, P. L. 39. Municipal liens, 426, 441 June 4, u. P. L. 73. Composition with creditors, 3495 June 5, 11. P. L. 79. Ejectments, 672, 676 June 6, ?2. P. L. 79. EjectmentB, 672 June 5, §3. P. L. 79. Ejectments, 672 June 5, H. P. L. 79. Ejectments, 672 June 13, P. L. 89. Ejectments, 673 June 13, P. L. 116. Composition with creditors, 3488 TABLE OF STATUTES. xlv June 20, p. L. 134. Insurance, SECTION 293 June 20, P. L. 134. Justices, 1283 June 20, P. L. 138. Mortgages, 197 June 20, P. L. 134. Original writs, 2232 June 20, u. P. L. 136. Courts, 3560 June 20, ?2. P. L. 136. Courts, 3560 June 27, P. L. 161. Municipal liens. 457 June 27, n. P. L. 163. Sci.fas., 254 June 27, u. P. L. 165. Insurance, 290 June 27, H. P. L. 161. Municipal liens. 422 June 27, ?4. P. L. 161. Municipal liens. 423 1885. May 7, P. L. 16. Attorneys, 3510 May 21, P.'L. 22. Appeals, 3420 June 4, P. L. 73. Escheats, 1143 June 4, n. P. L. 73. Escheats, 1148 June 11, P. L. 107. Execution, 3260 June 11, P. L. 110. Justices, 1165 June 11, P. L. 107. Costs, 3098 June 23, P. L. 137. Insolvent laws, 3602 June 23, n. P. L. 138. At trial. 2987, 2988 June 24, P. L. 161. Ground-rents, 177 June 24, P. L. 152. Ejectments, 609, 650 June 24, P. L. 159. Justices, 1438, 1475, 1480 June 24, P. L. 150. Mandamus, 1736 June 24, u. P. L. 159. Justices, 1570, 1571 June 24, ?2. P. L. 159. Justices, 1570 June 24, P. L. 160. Execution, 3248 July 7, P. L. 257. Partition, 1959 July 7, u. P. L. 257. Dower, 1019, 1043 July 8, P. L. 269. Execution, 3251 July 8, P. L. 270. Limitations, 3632 1887. Feb. 1, n. P. L. 3. Justices, 1226, 1546 March 3, Courts, 3539 Marcli 4, P. L. 4. Execution, 3166 April 1, P. L. 15. Assumpsit, 24 April 13, u. P. L. 53. Adoption, 3476 May 6, 21.' P. L. 86. Insolvent laws. 3623 May 6, §1. P. L. 86. Costs, 3090 May 12, P. L. 96. Justices, 1370 May 18, P. L. 108. Mandamus, 1818 May 17, 12. P. L. 117. Municipal jiens. 344 May 18, P. L. 118. Mechanics' claims, , 207, 213, 229, 230 May 19, P. L. 131. Attorneys, 3510 May 19, P. L. 132. Execution, 3148 Mav 19, P. L. 132. Sci./as., 247,249 May 19, P. L. la5. Adoption, 3465, 3475 May 23, P. L. 164. Attachments, 75, 102 xlvi TABLE OF STATUTES. SECTION May 23, P. L. 164. Execution, 3167 May 23, ?5. P. L. 159. Divorce, 982 May 23, ?7. P. L. 160. Account render, 334 May 23, 2 8. P. L. 158. Bills of discovery. . 2556 May 23, ?8. P. L. 161. Depositions, 2467 May 24, P. L. 197. Assumpsit, 51,60 May 24, P. L. 194. Mandamus, 1785 May 24, P. L. 204. Municipal claims, 424 May 24, P. L. 199, At trial, 3004, 3008 May 24, n. P. L. 199. At trial. 3004 May 24, ?1. P. L. 202. Lunatics and drunkards. 3711 May 24, ?2. P. L. 199. At trial. 3004 May 24, ?2. P. L. 202. Lunatics and drunkards. 3711 May 24, ?3. P. L. 199. At trial. 3004 May 24, ?4. P. L. 199. At trial. 3004 May 24, ?5. P. L. 199. At trial. 3004 May 24, §6. P. L. 199. At trial. 3004 May 24, §7. P. L. 199. At trial. 3004 May 26, P. L. 270. Mortgages, 196 May 25, P. L. 272. Ground-rents, 164, 303 May 25, P. L. 272. Assumpsit, 19 Mfly 25, P. L. 272. Account render, 303, 317 May 25, P. L. 272. Defenses, 2779 May 25, P. L. 272. Eeplevin, 2209, 2210 May 25, P. L. 272. Statements, 61 May 25, P. L. 272. Ground-rents, 147 ,164 May 25, P. L. 272. Attachments, 88 May 25, P. L. 270. Mortgages, 196 May 25, §2. P. L. 272. Torts, 508 May 25, 13. P. L. 272. Attachments, 80 May 25, ?3. P. L. 272. Torts, 521 May 25, ?4. P. L. 272. Assumpsit, 17 May 25, ?6. P. L. 272. Assumpsit, 17 May 25, ?6. P. L. 272. Attachments, 85 May 25, ?7. P. L. 272. Insurance, 302 May 25, §7. P. L. 272. Torts, 571 June 1, P. L. 289. Sd.fas., 252 June 2, P. L. 302. Escheats, 1142 June 3, P. L. 332. Assumpsit, 40 June 3, P. L. 332. Mechanics' claims. 240 June 3, §2. P. L 332. Assumpsit, 46 June 6, P. L. 350. Escheats, 1141 June 6, §1. P. L. 359. Feigned issues. 2626 June 6, ?2. P. L. 359. Feigned issues. 2626 June 6, §3. P. L. 359. Feigned issues, 2627 June 6, H. P. L. 359. Feigned issues. 2628 June 14, P. L. 386. Municipal liens. 406 June 17, P. L. 409. Mechanics' claims, 207, , 208, 220, 224, 234 Jurfe 17, u. P. L. 409. Mechanics' claims, 231 June 17, ?5. P. L..409. Mechanics' claims. 216 TABLE OP STATUTES. xlvii SEcrnoN 1888. Aug. 13, 25 Stat. U. S. 434. Courts, 3539, 3540, 3541, 3542 1889. Feb. 23, P. L. 8. Ejectments, 608, 687 March 8, n. P. L. 10. Ejectments, 611 March 8, 12. P. L. 10. Ejectments, 612 April 4, P. L. 23. Execution, 3166 April 4, P. L. 23. Partition, 1945 April 22, P. L. 41. Assumpsit, 23 April 23, P. L. 48. Municipal liens, 396 May 2, u. P. L. 66. Escheats, 1113 May 2, 12. P. L. 66. Escheats, 1114 May 2, §3. P. L. 66. Escheats, 1115 May 2, 2 4. Pf L. 66. Escheats, 1116 MRy 2, ?5. P. L. 66. Escheats, 1117 May 2, ?6. P. L. 66. Escheats, 1118 May 2, ?7. P. L. 66. Escheats, 1119 May 2, 2 8. P. L. 66. Escheats, 1120 May 2, 2 9. P. L. 66. Escheats, 1121 May 2, 2 9. P. L. 66. Feigned issues, 2620 May 2, §10. P. L. 66. Escheats, 1122 May 2, 211. P. L. 66. Escheats, 1123 May 2, 2 12. P. L. 66. Escheats, 1124 May 2, 212. P. L. 66. Appeals, 3408, 3434 May 2, 213. P. L. 66. Escheats, 1125 May 2, 214. P. L. 66. Escheats, 1126 May 2, 215. P. L. 66. Escheats, 1127 May 2, 216. P. L. 66. Escheats, 1128 May 2, 217. P. L. 66. Escheats, 1129 May 2, 218. P. L. 66. Escheats, 1130 May 2, 219. P. L. 66. Escheats, 1131 May 2, 2 20. P. L. 66. Escheats, 1132 May 2, §21. P. L. 66. Escheats, 1133 May 2, 2 22. P. L. 66. Escheats, 1134 May 2, §23.- P. L. 66. Escheats, 1135 May 2, §24. P. L. 66. Escheats, 1136 May 2, 2 25. P. L. 66. Escheats, 1137 May 2, §25. P. L. 75. Feigned issues. 2620 May 2, 2 26. P. L. 76. Escheats, 1138, 1154 May 2, §27. P. L. 75. Escheats, 1139 May 2, §28. P. L. 75. Escheats, 1140 May 3, P. L. 78. Courts, 3587 May 4, P. L. 80. Arbitration, 2932, 2938, 2942 May 4, P. L. 79. Municipal liens. 355 May 4, P. L. 83. Ejectments, 674, 680 May 7, P. L. 102. Courts, 3586 May 9, P. L. 176. Execution, 3248 May 9, P. L. 172. Courts, 3565 May 9, P. L. 168. Adoption, 3471, 3475 May 9, P. L. 158. Assumpsit, 38 xlviii TABLE OF STATUTES. 1891 1893. May 9, P. L. 158. Account render. SECTION 341 May 9, P. L. 158. Appeals, 3373, 3374, 3376 May 9, P. L. 176. Justices, 1476, 1480 May 9, P. L. 146. Partition, 1960 May 9, §3. P. L. 158. Appeals, 3379 May 10, P. L. 183. Attachments, 86 May 13, §1. P. L. 198. Assumpsit, 10 May 13, 21. P. L. 199. Justices, 1236 May 16, ?17. P. L. -228. Municipal liens, 406 May 16, ?20. P. L. 228. Municipal liens. 406 May 16, 2 23. P. L. 228. Municipal liens. 406 May 23, P. L. 272. Municipal liens, 408 May 23, P. L. 323. Municipal liens. 407, 439 May 29, P. L. 395. Escheats, 1141 June 1, ?18. P. L. 427. Mortgages, 181 March 3, §5. K. S.U.S. 1874r-91,p. 904. Appeals, 3463m)» March 3, 2 6. E. 8. U. S. 1874-91, p. 904. Appeals, S4SSmm April 16, P. L. 22. Insurance, 282 April 22, P. L. 25. Municipal liens, 395 April 29, P. L, 35. CJosts, 3098 April 29, 21. P. L. 35. Execution, 3260 May 6, P. L. 41. Assumpsit, 14 May 6, P. L. 71. Municipal liens. 424 May 7, P. L. 44. Execution, 3323 May 12, P. L. 54. Execution, 3323 May 12, P. L. 541. Composition with creditors, 3488 May 16, P. L. 69. Municipal liens, 424a May 20, P. L. 101. Appeals, 3390 May 20. 2 2. P. L. 101. Appeals, 3462a May 26, P. L. 122. Composition with creditors, 3488a June 1, P. L. 143. Justices, 1160 Junel, P. L. 143. Divorce, 740 June 2, P. L. 205. Arbitration, 2891 June 8, P. L. 247. Divorce, 741 June 8, P. L. 208. Ejectments, 661, 680 June 8, P. L. 244. Execution, 3341 i June 8, P. L. 225. Mechanics' claims, 224 June 11, P. L. 295. Appeals, 3393 April 26, P. L. 26. Assumpsit, 18 April 26, P. L. 25. Municipal liens. 404 April 26, P. L. 26. Quo warranto. 2075a May 18, P. L. 102. Arbitration, 2891 May 23, P. L. 117. Justices, 1570, 1582 May 24, P. L. 128. Composition with creditors, 3500 May 25, P. L. 131. Ejectments, 611 May 26, P. L. 145. Adoption, 3474a TABLE OF STATUTES. xlix May 29, P. L. 176. Justices, SECTION 1362 May 31, P. L. 185. Assumpsit, 36 June 6, P. L. 328. Justices, 1190a June 8, P. L. 345. Replevin, 2185 June 8, P. L. 245. Abatement, 2388 June 8, P. L. 344. Dower, 1097 June 8, P. L. 344. Assumpsit, 46 June 8, P. L. 344. Mechanics' claims, 240 June 8, P. L. 345. Partition, 1943 June 8, §1. P. L. 345. Mandamus, 1736 June 8, ?2. P. L. 345. Mandamus, 1737, 1820, 1821 June 8, ?3. P. L. 345. Mandamus, 1738 June 8, §4. P. L. 345. Mandamus, 1739 June 8, ?5. P. L. 345. Mandamus, 1740 June 8, 16. P. J.. 345. Mandamus, 1741 June 8, §7. P. L. 345. Mandamus, 1742 June 8, §8. P. L. 345. Mandamus, 1743 June 8, ?9. P. L. 345. Mandamus, 1744 June 8, §10. P. L. 345. Mandamus, 1745 June 8, Ul. P. L. 345. Mandamus, 1746 June 8, 112. P. L. 345. Mandamus, 1747 Junes, ?13. P. L. 345. Mandamus, 1748 June 8, §14. P. L. 345. Mandamus, 1749 June 8, §15. P. L. 345. Mandamus, 1750 June 8, §16. P. L. 345. Mandamus, 1751 June 8, §16. P. L. 345. Costs, 3107 June 8, §17. P. L. 346. Costs, 3107 June 8, §17. P. L. 345. Mandamus, 1751a June 8, §18. P. L. 345. Mandamus, 17516 June 8, §19. P. L. 345. Mandamus, 1761c June 8, §19. P. L. 345. Costs, 3107 June 8, §20. P. L. 345. Mandamus, 1751i June 8, §21. P. L. 345. Mandamus, 1751e June 8, §22. P. L. 345. Mandamus, 1751/ June 8, §23. P. L. 345. Mandamus, 1751^ June 8, §24. P. L. 345. Mandamus, 1761A June 8, §25. ■ P. L. 345. Mandamus, 1761 i June 8, §26. P. L. 345. Mandamus, 1751;' June 8, §27. P. L. 345. Mandamus, 1761* June 8, §28. P. L. 345. Mandamus, 1751? June 8, §29. P. L. 345. Mandamus, 1751OT June 8, §30. P. L. 345. Mandamus, 1751» June 8, §31. P. L. 345. Mandamus, 17610 June 8, §32. P. L. 345. Mandamus, 1751^3 June 8, §33. P. L. 345. Mandamus, 1751g June 20, P. L. 471. Divorce, 740, 741a, 7416, 802 1895. April 3, P. L. 32. At trial. 2998 May 8, P. L. 55. Costs, 3133 May 8, P. L. 54. Torts, 558 VOL. I.— D TABLE OP STATUTES. May 8, May 8, May 8, May 15, May 16, Jlay 22, May 22, May 22, May 22, May 22, May 22, June 8, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 24, June 25, June 25, June 25, June 25, June 25, June 25, June 25, June 25, June 25, June 25, June 25, June 25, June 25, June 25, 1. P. 2. P. 3. P. P. P. P. P. P. P. P. P. 28. P. P. P. P. P. P. P. P. P. P: P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. !1. :1. 2. :2. ■3. 13. 14. !5. !6. ■7. :1. 1. il. ■2. !2. !2. !3. !4. !5. !6. !7. !8. !9. !10. ill. U2. !13. U4. \ 15. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. 44. 44. 44. 69. 84. 105. L. 111. L. 100. L. 112. L. 111. 114. 345. 243. 212. 246. 236. L. 237. L. 346. 236. 212. 236. 236. 212. 236. L. 212. L. 212. L. 212. L. 212. L. 212. L. 212. L. 212. L. 212. L. 212. L. 212. L. 212. L. 212. L. 212. L. 308. L. 282. L. 283. L. 280. L. 279. L. 300. L. 279. L. 300. L. 279. L. 300. L. 300. L. 300. L. 300. L. 300. Mortgages, Mortgages, Mortgages, Preparation for trial. Mechanics' claims. Divorce, Execution, Justices. Limitations, Municipal liens. Partition, Appeals, Account render. Appeals, Execution, Negligence, Partition, Original writs. Abatement, Appeals, Actions after death. Limitations, Appeals, Actions after death. Appeals, SECTION 195 195 195 2949 203, 204 811 31446 1409 36516 376 2042 3405 330, 341 Appeals, Appeals, Appeals, Appeals, Appeals, Appeals, Appeals, Appeals, Appeals, Appeals, Appeals, Appeals, Divorce, Execution, Escheats, Original writs. Depositions, Lunatics and drunkards. Depositions, Lunatics and drunkards. Depositions, Lunatics and drunkards. Lunatics and drunkards. Lunatics and drunkards. Lunatics and drunkards. Lunatics' and drunkards. 3234 1874, 1889 2041 229 2391 3463rere 2216, 2217 3640 3463rara 2216, 2217 3463rera 3463nre 346300 3463pi) 3463 qq, 3463rr 3463««, 3463ft, 3463mm 3463rr, M&^ww 3463a;a;, 3463yy 34632H 3463a(za 3463666 3463CCC 3463CCC 746, 750, 799 3165 1148 2236 2489 3680a 2489 36806 2489 3680c 3680d 3680e 3680/ 3680sr June 25, «8. P. L. 300. June 25, §9. P. L. 300. June 26, P. L. 346. June 26, P. L. 316. June 26, P L- 375. June 26, u. P. L 381. June 26, n. P L- 369- June 26, ?2. P. I 381. June 26, §10. P. L. 379. TABLE OF STATUTES. li SECTION Lunatics and drunkards, 3680A Lunatics and drunkards, 3680J Ejectments, , 599 Justices, 1196 Limitations, 3651a Lunatics and drunkards, 3680y Mechanics' claims, 225 Lunatics and drunkards, 3680; Lunatics and drunkards, 3683a TABLE OF CASES. [THE REFEREN-CES ABE TO THE SECTIONS.] A. V. B. A. V. B. Aarons v. Dunseith, Abbey, Young v., Aber, Marshall v., Able, Rush v., Abrahams, Tripner v., Abrahams, Tripner v., A. C. V. B. 0. A. C. V. B. C. Academy of Music v. Bert, Academy v. Robinson, AchufE, Howard v., Ackerman v. Buchman, Adam's Appeal, Adams v. Adams, Adams, Artman v., Adams, Brown v., Adams, City v., Adams v. DufiBeld, Adams, Herring v., Adams v. Hill, Adams, Ins. Co. v., Adams v. Mcllhenny, Adams v. Null, Adams, Phila. v., Adams, R. R. Co. v., Adams v. Smith, Adams, Strang v., Addams, Tutton v., Addicks, Comm. v., Addicks, Comm. v., Addison v. Hampson, Adelman v. Steel, Admr. v. Howsare, Aechtemacht, Kirk v., AfiSick, Thomas v., Agar-BUis v. Lascelles, Ager V. Murray, Agnew, Angier v., Agnew V. City, Agnew V. Johnson, Ahl V. Rhoads, Aid Society, Spangler v., Aiken v. Stewart, VOL. I. — E SECTION Law Rep., 1 P. & D., 559, Divorce, 772 2 Dist. Rep., 394, Divorce, 903 1 Dist Rep., 701, Assumpsit, 40 1 Dist. Rep., 43, Justices, 1413 I Dist. Rep., 770, Assumpsit, 30 90 Pa. St., 153, Mechanics' Claims, 238 47 Pa. St., 220, Ejectments, 639 47 Pa. St., 228, New Trials, 3036 II W. N., 479, Divorce, 768 10 W. N., 569, Divorce, 769, 864 47 Leg. Int., 222, Assumpsit, 32 37 Pa. St., 210, Amendments, 2411 19 W. N., 334, Justices, 1544 109 Pa. St., 254, Mandamus, 1844 113 Pa. St., 449,Account Render, 304, 309 1 W. N., 279, Appeals, 3434 11 W. N., 339, Assumpsit, 54 2 Wh., 188, Dower, 1042, 1097 7 Cent. Rep., 195, Municipal Liens, 418 4 Brews., 9, Mandamus, 1839 5 W. & S., 459, Justices, 1347 29 Leg. Int., 126, Justices, 1413 110 Pa. St., 553, At Trial, 2977 1 Watts, 53, Justices, 1561 5 W. &. S., 363, Justices, 1512 7 Cent. Rep., 195, Municipal Liens, 418 55 Pa. St., 499, Negligence, 1881 19 Pa. St, 191, At Trial, 3023a 4 Dist Rep., 212, Execution, 3323 45 Pa. St., 67, Account Render, 340 5 Binn., 520, Justices, 1195, 1202 2 S. & R., 174, Justices, 1195 6 Pa. St, 463, Justices, 1562 34 Leg. Int, 134, Arbitration, 2927 100 Pa. St, 506, Justices, 1500 1 Phila., 426, Justices, 1517 16 Pa. St, 14, Justices, 1537, 1579 39 L. T. (N. S.), 380, Justices, 1194 105 U. S., 131, Execution, 3201 98 Pa., St., 587, Ejectments, 679 2 Phila., 340, Justices, 1537 17 Pa. St, 373, Torts, 562 84 Pa. St., 319, Defalcation, 2757 12 W. N., 312, Insurance, 293 63 Pa. St, 30, Bills of Exceptions, 3068 Uv TABIiE OP CASES. Albert, Du Bree v., Alberti, Mann v., Alberti, Reinholdt v., Alberty v. Dawson, Albrecht v. Strimpler, Albright v. Leiser, Albright V. Snyder, Alcom V. City, Alegheny City, Johnson v., Alexander r. Arters, Alexander v. Bank, Alexander, Boothe v., Alexander, Comm. v., Alexander, Dennis v., Alexander v. Pigley, Alexander, McCormick v., Alexander, Xittinger v., Alexander v. Tichnor, Algeo, Young v., Alkyn, Howell v., AUeman's Appeal, Allen V. Allen, Allen's Appeal, Alien V. Ash, Allen V. Bank, Allen, Briggs v., Allen, Bnnting v., Allen, City v., AUen, Comm. v., Allen, Comm. v., Allen V. Conrad, Allen, Plisher, r., Allen, Flisher, v., Allen V. Getz, Allen, Irons v., Allen V. Erips, Allen V. Maclellan, Allen, McCntcheon v., Allen, Millet v., Allen, Phila. v., Allen, Richard v., Allen V. Bostain, Allen V. Woods, Allert, City v., Allison V. Allison, Allison I". Allison, Allison, Chnrch v., Allison, People v., Allshonse v. Ramsey, Alrams, Victor v., Ames, Scott v., Ames, Short v., Ames, Stafford v.. Amheim v. Dye Works, Ammons, Simpson v., Amos V. Stiles, SEcnos 100 Pa. St, 483, Ejectments, 623 2 Binn., 195, Justices, 1446 1 Binn., 470, Execution, 3341a 1 Binn., 105, Justices, 1371 7 Pa. St, 477, Defenses, 2783a 2 Penny., 483, Arbitration, 2934 1 Dist Rep., 723, Statements, 73 17 W. N., 368, Municipal Liens, 443 139 Pa. St, 330, Arbitration, 2935 1 Dist Rep., 359, Assumpsit, IS 3 Lane. Law Bey., 354, Arbitration, 2897 4 W. N., 492, Assumpsit 30 14 S. & R., 261, Execution, 3144a 3 Pa. St, 50, New Trials, 3036 2 Dist Rep., 167, Justices, 1430 3 Dist Rep., 149, Defalcation, 2757 17 W. X., 284, Replevin, 2186 1 Phila., 120, Lunatics and Drunkards, 3718 3 Watts, 223, Execution, 3244 2 Rawle, 282, Execution, 3190 15 W. X., 213, Dower, 1063 23 W. N., 371, Attachments, 88 99 Pa. St, 199, Divorce, 794 6 Phila., 312, Landlord and Tenant, 1693 57 Pa. St, 129, Execution, 3301 4 Hill, 538, Discontinuance, 3751 6 W. N., 157, Assumpsit, 22 21 W. X., 153, Municipal Liens, 444 30 Pa. St, 49, Execution, 3217 70 Pa. St 465, Quo Warranto, 2084, 2089 51 Pa. St, 487, Execution, 3341b 21 W. X., 509, Statements, 73 141 Pa. St, 525, Costs, 3132 2 P. & W., 310, Dower, 1045, 1076, 1112 169 Pa. St, 633, Justices, 1595 24 W. X., 248; 119 Pa. St,l,ScL Fas., 256 12 Pa. St, 328, Divorce, 987 96 Pa. St, 319, At Trial, 3024 3 W. X., 374, Mechanics' Claims, 228 21 W. X., 153, Municipal Liens, 444 117 Pa. St, 199, Execution, 3196 11 S. & R., 362, Bills of Exceptions, 3068 24 Pa. St, 76, At Trial, 3023a 29 W. N., 113, Municipal Liens, 354 18 W. X., 508, Divorce, 802 46 Pa. St, 321, Divorce, 949 10 Pa. St, 413, Mechanics' Claims, 213 68 HI., 151, Attorneys, 3531 6 Whart, 331, Prep, for Trial, 2973a 2 Dist Rep., 781, Attachments, 75 4 Penny., 415, Ejectments, 647 22 W. N., 354; 121 Pa. St, 530, Me- chanics' Claims, 201, 239 9 Pa. St, 348, Torts, 563 36 W. N., 32, Defenses, 2792 1 Binn., 175, Mortgages, 193 1 W. X., 414, Justices, 1627 TABLE OP CASES. Iv Amsink, Dingman v., Amsink, Dingman v., Anderson's Appeal, Anderson, Dickerson v., Anderson, Freytag v., Anderson 17. Oliver Bros., Anderson, School Directors Anderson, Wood v., Andrews, In re Andrews v. Andrews, Andrews v. Andrews, Andrews v. Lee, Androkus, Coal Co. v., Angeny, Bauer v., Angeny, Bauer v., Angier v. Agnew, Angier v. Angier, Ankermiller, Sharpless v., Anshutz, "Walker v., Anspach v. Bast, Anthony v. Unangst, Appeals, Apple V. Rambo, Appleton ■».. Donaldson, Application of Citizens, Apreda v. Romano, Archer v. Dunn, Armor, Butts v., Armstrong, Benjamin v., Armstrong v. Novinger, Arnold, Comm. v., Arnold, Comm. v., Arnold, Comm. v., Arnold v. Lightner, Arnold, Nussear v., Arnold, Respublica v., Arnold, Zell v., Arrison, Comm. v., Arters, Alexander v., Arthur v. Sylvester, Arthur v. Sylvester, Arthurs, White v., Artman v. Ad^ms, Artman v. Giles, Armor, Butts v., Arundel, Connelly v., Arundel, Connelly v., Arundel v. Springer, Arundel v. Springer, Asay, Shultz v., Ash, Allen v., Ash V. Conyers, Ash V. McGill, Ashcraft v. Mathewson, Ashe V. Guie, Ashman v. Weigley, Ashmead, Maher v., SECTION 77 Pa. St., 114, Actions after Death, 2217 77 Pa. St., 116, Defenses, 2783a 36 Pa. St., 476, Dower, 1078, 1088 4 Whar., 78, Justices, 1563 1 Rawle, 73, Landlord and Tenant, 1690 27 W. N., 123, Bills of Exceptions, 306.5 v., 45 Pa. St., 388, Mandamus, 1798 25 Pa. St., 407, Amendments, 2423 21 Weekly Reporter, 480, Justices, 1194 5 S. & R., 374, Appeals, 3435 5 S. & R., 374, Divorce, 990 3 P. & W., 99, Appeals, 3445 2 Dist Rep., 764, Landlord and Tenant, 1712 100 Pa. St., 429, Justices, 1416 12 W. N., 526, Justices, 1624 98 Pa. St., 587, Ejectments, 679 63 Pa. St., 450, Divorce, 783 19 W. N., 88, Attachments, 111 6 W. & S., 519, Attachments, 131 52 Pa. St., 356, Assumpsit, 30 4 Dist. Rep., 304, Arbitration, 2837 See Names of Appellants 13 Pa. St., 9, Justices, 1584 3 Pa. St., 381, Prep, for Trial, 2973a 5 Clark, 400, Mandamus, 1799 24 W. N., 124, Attachments, 78 2 W. & S., 327, Defalcation, 2757 164 Pa. St., 73, Feigned Issues, 2660 2 S. & R., 392, Appeals, 8434 8 Pa. St., 412, Landlord and Tenant, 1672 34 W. N., 313, Bills of Exceptions, 3076a 34 W. N., 313, At Trial, 3008 161 Pa. St., 320, At Trial, 3013, 3014 1 Dist. Rep., 791, Depositions, 2517 13 S. & R., 323, Depositions, 2516 3 Yeates, 263, Justices, 1200 2 P. & W., 292, Costs, 3125 15 S. & R., 127, Quo Warranto, 2080 1 Dist. Rep., 359, Assumpsit, 18 105 Pa. St., 233, Torts, 562 105 Pa. St., 233, Defalcation, 2757 24 Pa. St., 99, Landlord and Tenant, 1675 11 W. N., 339, Assumpsit, 54 155 Pa. St., 409, Comp. with Cred., 3495 164 Pa. St, 73, Feigned Issues, 2660 6 Phila., 49, Landlord and Tenant, 1724 6 Phila., 38, Landlord and Tenant, 1720 71 Pa. St., 398, Actions after Death, 2216 71 Pa. St., 398, Discontinuance, 3750 11 W. N., 195; 2 Penny., 416,M.O.,228,239 6 Phila., 312, Landlord and Tenant, 1693 2 Miles, 94, Lunatics and Drunkards, 3718 6 Wh., 391, Execution, 3244 5 Pa. C. C, 80, Arbitration, 2911 97 Pa. St., 493, Assumpsit, 1314 29 W. N., 569, Assumpsit, 30 30 Pa. St., 344, Torts, 510 Ivi TABLE OF CASES. Ashton, Heylin v., Ashtoii V. Sproule, Assessors v. Oomm'rs, Ass'n V. Benseman, Ass'n, Busch v., Ass'n, CofEa v., Ass'n V. Gardiner, Ass'n, Harrison v., Ass'n V. Hoagland, Ass'n, Hunt v., Ass'n, Hunt v., Ass'n, Irish v., Ass'n, McMahon v., Ass'n V. Patterson, Ass'n, Quinn v., Ass'n, Quinn v., Ass'n, Quinn v., Ass'n, Rhoads v., Ass'n, Rush v., Ass'n V. Russell, Ass'n, Seldon v., Ass'n V. Silverman, Ass'n, Smith v., Ass'n V. Smith, Ass'n V. Taylor, Ass'n, Thomas v.. Assurance Co. v. Powers, Atkins, Robinson v., Atkinson v. Crossland, Atkinson v. Harrison, Atkinson v. McNanghton, Atkinson v. Shoemaker, Aughenbaugh v. Roberts, Augenbaugh, Warner v., Aolenbach, Medlor v.. Anil V. BonneU, Austin, In re Austin, Leggett v., Ayars' Appeal, Ayers, Furst v., Ayers Estate, B. A. v., B. A. v., B. V. L. B. C, A, C. v., B. C, A. C. v., Bach V. Burke, Bachman v. Fenstermacher, Backentoss v. Speieher, Backus, Jones v., Backus, Jones v., Bacon v. Scott, Baer 17. Kistler, Baer, Snyder v., Bagaley, Ireland, v., Bagaley, Watson v.. SEcrios 7 PhUa., 464, Dower, 1043 35 Pa. St., 492, Bills of Exceptions, 3066 3 Brews., 333, Mandamus, 1770 4 W. N., 1, Mandamus, 1803 4 Dist. Rep., 176, Original Writs, 2232 3 Dist Rep., 566, Mechanics' Claims, 241 2 W. N., 95, Assumpsit, 23 26 W. N., 84, Mechanics' Claims, 233,238 87 Pa. St., 326, Appeals, 3390 17 W. N., 423, Insurance, 294 17 W. N., 423, Original Writs, 2310 13 W. N., 372, Assumpsit, 22 2 Brews., 441, Mandamus, 1820 96 Pa. St., 469, Execution, 3244, 3245 100 Pa. St., 382, Assumpsit, 10 100 Pa. St., 382, Insurance, 293 100 Pa. St., 382, Writs, 2233 36 W. N., 48, Assumpsit, 32 4 Pa. C. C, 523, Arbitration, 2908 36 W. N., 260, Mortgages, 186 2 W. N., 481, Assumpsit, 30 4 W. N., 546, Assumpsit, 30 9 W. N., 168, Assumpsit, 32 24 W. N., 33, Insurance, 290 1 Del. Co. B., 378, Arbitration, 2894 3 PhUa., 425, Justices, 1537 12 Phila., 377, Mortgages, 195 2 W. N., Ill, Assumpsit, 52 4 Watts, 451, Justices, 1430 153 Pa. St, 472, Execution, 3341g 27 W. N., 438, Feigned Issues, 2670 30 W. N., 567, Mechanics' Claims, 228 4 W. N., 181, Assumpsit, 30 15 S. & B., 9, Replevin, 2190, 2204 2 P. & W., 355, Dower, 1111 11 W. N., 376, Dower, 1044 5 Rawle, 191, Attorneys, 3531 2 P. L. J., 247, Depositions, 2491 122 Pa. St, 266, Municipal Liens, 424 2 W. N., 722, Assumpsit, 30 1 Pearson, 413, Escheats, 1159 1 Law Rep. (P. & D.), 559 Divorce, 772 2 Dist Rep., 394, Divorce 903 38 Law Jour. Rep. (P. M.), 35, Divorce, 766 11 W. N., 479, Divorce, 768 10 W. X., 569, Divorce, 769, 864 141 Pa. St., 649, Discontinuance, 3740 112 Pa. St, 331, Justices, 1460, 1600 31 Pa. St., 324, Replevin, 2177, 2178 114 Pa. St, 120, Arbitration, 2907 114 Pa. St, 120, At Trial, 3023a 32 W. N., 194, Assumpsit, 32 4 Rawle, 364, Execution, 3341h 3 Penny., 530, Mechanics' Claims, 241 21 W. N., 240, Ejectments, 647 12 Pa. St., 164, Comp. with Cred., 3482 TABLE OF CASES. Ivii Bagby v. Railioad Co., Bailey v. Bailey, Bailey v. Comm., Baileyi Etter v., Bailey v. Musgrave, Bailie v. Wallace, Baily, Turnpike Co. v., Bain v. Whitehaven, Bair v. Black, Baird v. Camphell, Baird 17. Corwin, Baird v. Otte, Baird, Ehey v., Baizley, Odorilla v.. Baker, Brown v., Baker, City v., Baker, In re Baker v. IJeibert, Baker v. Lewis, Baker, People v.. Baker v. Reese, Baker v. Richart, Baker, Vandever v., Bakewell v. Keller, Baldwin's Appeal, Balwin v. Baldwin, Baldwin v. Cash, Baldwin, Comm. v., Baldwin, Downing v., Baldwin's Estate, Baldwin, Nickle v., Baldwin, Stewart v., Baldy v. Brady, Ball V. Ball, Ballantine's Appeal, Ballantine v. Negley, Ballard v. Ward, Ballentine v. White, Ballentine, White v., Balliet, Bank v., Ballou, Clark v., Balsbaugh v. Frazer, Balsley v. Hoffman, Baltzell, Myers v., Baluss, In re Bamfield v. Massey, Bancroft v. Haines, Bank, Alexander v., Bank, Allen v., Bank v. Balliet, Bank v. Bank, Bank, Beebe v., Bank, Biddle v.. Bank, Boughton v., Bank, Brooks v., Bank v. Brooks, Bank, Camp v., Bank, Carpenter v., SECTION 86 Pa. St., 291, Attachments, 104 14 S. & R., 195, Statements, 70, 71 41 Pa. St., 473, Dower, 1061 8 Pa. St., 442, Torts, 562 2 S. & R., 219, Amendments, 2423, 2427 10 W., 228, Insolvent Laws, 3608 37 Ohio, 104, Prep, for Trial, 2972 3 Clark's App. Cases, 16, At Trial, 3009 10 W. N., 156, Appeals, 3380 4 W. & S.. 192, Justices, 1552 17 Pa. St., 462, Partition, 2002 2 Dist. Rep., 449, New Trials, 3037 51 Pa. St., 85, Justices, 1509- 47 Leg. Int., 83, Attachments, 130, 131 15 W. X., 60, Torts, 562 140 Pa. St., 11, Assumpsit, 30 44 Pa. St., 440, Justices, 1575 125 Pa. St., 106, Dower, 1111 33 Pa. St., 301, Bills of Exceptions, 3068 31 Sickles, 78, Divorce, 30 W. N., 437, Assumpsit, 2 Dist. Rep., 195, Justices, 13 Pa. St., 121, Dower, 11 W. N., 300, Execution, 86 Pa. St., 483, Execution, 17 W. N., 222, Divorce, 7 W. & S., 425, Replevin, 9 W. N., 233, Mandamus, 802 30 1375 1061 3201 3268 981 2184 1783 1 S. & R., *298, Bills of Exceptions, 8070 16 W. N., 300, Feigned Issues, 2661 4 W & S., 290, Justices, 1352 1 P. & W., 461, Costs, 3124 15 Pa. St., 109, Prep, for Trial, 2973b 2 Simons R., 35, Justices, 1194 5 W. N., 321, Municipal Liens, 413 158 Pa. St., 475, Ejectments, 586 89 Pa. St., 358, Adoption, 3474 77 Pa. St., 20, Bills of Exceptions, 3066 96 Pa. St., 186, Municipal Liens, 436 8 W. & S., 311, Prep, for Trial, 2973a 1 Dist. Rep., 430, Account, 315 19 Pa. St., 95, At Trial, 2990 13 Pa. St., 603, Replevin, 2209 37 Pa. St., 491, Execution, 3300 28 Mich., 507, Attorneys, 3531 1 Camp., 460, Torts, 545 31 W. N., 248, Defenses, 2774 3 Lane. Law Rev., 354, Arbitration, 2897 57 Pa. St., 129, Execution, 3301 8 W. & S., 311, Prep, for Trial, 2973a 13 W. N., 515, Assumpsit, 52 7 W. & S., 375, Assumpsit, 17 16 W. N., 397, Attachments, 99 9 W. N., 519, Assumpsit, 30 23 W. N., 502, Assumpsit, 18 42 Leg. Int., 26, Replevin, 2163 10 Watts, 130, Statements, 72 , 15 W. N., 523, Assumpsit, 32 ' Iviii TABLE OF CASES. Bank, Comm. v., Bank, Comm. v., Bank, Comm. v., Bank, Comm. v.. Bank, Coulston v., Bank, Cowden v., Bank v. Oowperthwaite, Bank v. Crawford, Bank, Douglass v., Bank, Dreisbaeh v., Bank v. Bge, Bank v. Ellis, Bank v. Emerson, Bank v. Byer, Bank v. Fagan, Bank v. Fife, Bank v. Fisher, Bank, Fiske v., Bank v. Pitler, Bank ■». Forster, Bank, Poster v.. Bank, Fulton v., Bank, Gibbs v., Bank v. Gregg, Bank v. Grier, Bank v. Gross, Bank- v. Hall, Bank v. Hall, Bank v. Hardware Co., Bank, Hicks v., Bank v. Hunsicker, Bank v. Hyndman, Bank, Ins. Co. v.. Bank v. Iron Co., Bank, Irvine v., Bank v. James, Bank v. Karmany, Bank v. Keen, Bank, Kuhn v., Bank, Knhns v., Bank v. Macalester, Bank, McConnell, v., Bank v. McHenry, Bank v. Meyer, Bank, Moore v.. Bank, Morgan v.. Bank v. Morgan, Bank, Murphy v.. Bank, Osbom v.. Bank v. Perrin, Bank v. Power, Bank v. R. R. Co., Bank v. Reigart, Bank, Roberts v., Bank, Royer v., Bank, Savings Institution v.. Bank v. Schofield, Bank, Shepherd v.. SECTION 28 Pa. St., 383, Quo Warranto, 2109, 2125 28 Pa. St., 391, Quo Warranto, 2126 2 Grant, 392, Quo Warranto, 2102 10 Phila., 156, Quo Warranto, 2118 4 W. N., 297, Assumpsit, 30 7 W. & S., 432, Execution, 3265 10 W. N., 532, Justices, 1634 2 W. N., 371, Justices, 1443 4 W. N., 163, Assumpsit, 30 113 Pa. St., 554, Assumpsit, 55 9 Watts, 436, Justices, 1646 34 W. N.,351, Forms of Statements,3753o 7 W. N., 392, Feigned Issues, 2685 58 Pa. St., 97, Bills of Exceptions, 3070 34 W. N., 20, Execution, 3273 101 Pa. St., 388, At Trial, 3023 1 Rawle, 341, Discontinuance, 3733 25 W. N., 454, Assumpsit, 32 155 Pa. St., 210, Assumpsit, 30 8 Watts, 304, At Trial, 2990 2 W. N., 617, Assumpsit, 30 92 Pa. St., 112, Prep, for Trial, 2947 2 W. N., 472, Assumpsit, 30 79 Pa. St., 384, Assumpsit, 30 35 Pa. St., 423, Mechanics' Claims, 222 50 Pa. St., 224, Execution, 3294 107 Pa. St., 583, Ground Rents, 154 107 Pa.St.,583, Replevin, 2205, 2209, 2210 16 W. N., 104, Assumpsit, 32 168 Pa. St, 638, Defalcation, 2756 2 W. X., 381, Assumpsit, 60d 42 Leg. Int., 330, Replevin, 2209 57 Pa. St., 388, Partition, 1973,1983,2032 31 W. X., 503, Discovery, 2590 2 W. & S., 190, At Trial, 2991 152 Pa. St, 364, Writs, 2331 98 Pa. St, 65, Defalcation, 27-57 1 Disfc Rep., 480, Execution, 3180 20 W. N., 230, Justices, 1466, 1474, 1489 68 Pa. St, 448, Defenses, 2783a 6 W. & S., 147, Discontinuance, 3733,3734 146 Pa. St., 79, Assumpsit 14 20 W. X., 366, Assumpsit 19 59 Pa. St, 361, Execution, 3308 5 S. & R., 41, Xew Trials, 3032 3 P. & W., 391, Statements, 71 35 W. X., 484, Defenses, 2771 20 Pa. St, 415, Quo War., 2093,2102,2118 32 W. X'., 158, Assumpsit, 22 172 Pa. St, 15, Mortgages, 191 2 W. X., 275, Prod. Documents, 2449 8 W. X., 252, Original Writs, 2310 4 Pa. St, 477, Comp. with Ored., 3482 19 Pa. St, 71, Replevin, 2176 4 W. X., 86, Assumpsit; 32 61 Pa. St, 391, At Trial, 3015 36 W. X., 361, Defenses, 2771 170 Pa. St., 330, Feigned Issues, 2639 TABLE OF CASES. lix Bank, Sherer v.. Bank, Sherer v., Bank v. Ship Building Co., Bank v. Smith, Bank v. Soap Co., Bank v. Stadelman, Bank, Stewart v., Bank v. Wager, Bank, Wilson v., Bank, Wirebach v.. Bank v. Wise, Banking Co.-Schoonover v., Bannon v. Rathbone, Bannon, Tyler v., Bantom, R. R. Co. v.. Baptist, Harrisburg v., Bar V. Purcil, Barbe v. Davis, Barber v. Chandler, Barber, Dennis v.. Barber, City v., Barber's Estate, Barclay's Appeal, Barclay's Appeal, Barclay v. Kerr, Barclay v. Wainwright, Barclay v. Wainwright, Bard's Estate, Bard v. Naylon, Bardsley v. Delp, Bare v. Hoffman, Bare v. Hoffman, Barker v. Pairchild, Barker v. Pairchild, Barker, Frishmuth v.. Barker v. McCreary, Barker, Rex v., Barker, Weld v., Barkley, Thomson v., Barnard, Trimble v., Bamardo, Queen v., Bamardo, Queen v., Barnes, Reynolds v., Barnes, Scott v., Barnes, Scranton v., Barnet v. Barnet, Bamett v. Barnett, Bamett, Plummer v., Barnett v. Stains, Bamhill v. Haigh, Bamsdall v. Barnsdall, Baroux, Comm. v., Barr, McCully v., Barr, McGary v., Barr, McGary v., SECTION 33 Pa. St., 134, Assumpsit, 58 33 Pa. St., 134, Original Writs, 2310 2 Cent. Rep., 56, Insurance, 295 11 Wheaton (U. S.), 171, At Trial, 3002d 161 Pa. St., 134; 34 W. N., 447, State- ments, 73 153 Pa. St., 634, Assumpsit, 30 11 S. & R., 267, Bills of Exceptions, 3065 6 W. & S., 147, Discontinuance, 3733 45 Pa. St., 488, Amendments, 2418, 2419 97 Pa. St., 543, At Trial, 2990 3 Watts, 400, Justices, 1645 1 Dist. Rep., 733, Statements, 73 3 Grant, 259, Justices, 1480 30 W. N., 372, Costs, 3126 54 Pa. St.,495, Negligence, 1886,1894,1897 156 Pa. St., 526, Assumpsit, 30 2 Phila., 259, Justices, 1284 I Miles, 118, Assumpsit, 23 17 Pa. St., 48, Justices, 1381, 1537 6 S. & R., 420, New Trials, 3038 160 Pa. St., 123, Municipal Ldens, 404 29 W. N., 552, Costs, 3135 13 Pa. St., 494, Mechanics' Claims, 239 II W. N., 359, Mechanics' Claims, 239 110 Pa. St., 130, Partition, 1963, 1969 5 W. N., 162, Assumpsit, 32 86 Pa. St.,191, Mechanics' Claims,224,227 58 Pa. St., 393, Dower, 1026, 1085 33 W. N., 251, Assumpsit, 44 6 W. N., 479, Assumpsit, 30 79 Pa. St., 71, Prep, for Trial, 2971 79 Pa. St., 71, At Trial, 2988 168 Pa. St., 246, 348, Assumpsit, 32 36 W. N., 358, Defenses, 2771 159 Pa. St., 549, Assumpsit, 32 66 Pa. St., 162, Justices, 1561 3 Burrows, 126, Mandamus, 1755 153 Pa. St., 466, Assumpsit, 32 27 Pa. St., 263, New Trials, 3033, 3042 15 W. N., 127, Depositions, 2509 58 Law Jour. Rep. (Q. B.), 553, 61 Law Jour. Rep. (Q. B.), 728, Justices, 1197 59 Law Jour., Rep. (Chan.), 345, Jus- tices, 1197 76 Pa. St., 427, Execution, 3341g 7 Pa. St., 134, Justices, 1242 147 Pa. St., 461, Appeals, 3435 15 S. & R., 72, Dower, 1064, 1108 16 S. & R., 51, Dower, 1094, 1109 13 Atl. Bep., 953, Prep, for Trial, 2973a 20 W. N., 274, Assumpsit, 40 53 Pa. St., 165, Amendments, 2412, 2419 171 Pa. St., 625, Divorce, 746 36 Pa. St., 262, Mandamus, 1806 17 S. & R., 445, New Trials, 3030 47 Leg. Int., 214, Assumpsit, 18 47 Leg. Int, 214, Ground Rents, 154 Ix TABLE OF CASES. Barr, lIcGary v., Barr, McGary v., Barrett, Daly v., Barry' Estate, Barry, McCambridge v., Barry, Peterson v., Barry, Seaton v., Barry v. Shoemaker, Bartholemew v. Jndyknnst, Bartholemew's Appeal, Bartholemew's Appeal, Bartholemew's Appeal, Bartholemew v. Bartholemew, Bartholemew, DeHaven v., Bartle, Hatch v., Bartlett v. Gibbs, Bartlett v. Ejngan, Bartman v. Bnsminger, Bartoe v. Gnckert, Bartol V. Bartol, Barton v. Hunter, Barton v. Morris, Barton. Xutz v., Bartram v. MeKee, Basom, Minich v., Bass, Strong v., Bassler v. Niesly, Bast, Anspach v., Bates V. Collum, Bates V. McCrory, Bateson, Howell v., Bander's Appeal, Bauer v. Angeny, Bauer v. Angeny, Bauer, Koenig v., Baner, Korstein v., Bangh v. Mitchell, Baugher's Appeal, Bangher v. Conn, Banm v. Brown, Banm v. Cnster, Buam, Snlly v., Banmgardner, Best v., Banmgardner v. Bumham, Bayan v. Ins. Co., Bavington v. Clarke, Baxter's Appeal, Baxter, Buchanan v., Baxter, Comm. v.. Bayard's Appeal, Bayard's Appeal, Bayard v. Hawk, Bayard, Shaw v., Baylor, Reynolds r.. Beach, Harvey v., Beaeom v. Holmes, SECTION 25 W. N., 310, Repleyin, 2210, 2212 25 W. N., 310, Statements, 73 4 Phila., 350, Landlord and Tenant, 1693 37 Leg. Int., 62, Dower, 1089 29 W. N., 92, Execution, 3254 4 Binney, 481, New Trials, 3034 4 W. & S., 183, Partition, 2040 1 S. & R., 234 Justices, 1238 3 P. & W., 493, New Trials, 3038 26 W. N., 22, Costs, 3103 26 W. N., 22, Lunatics, 3675, 3724, 3725 71 Pa. St., 291, Partition, 2035 50 Pa. St., 194, Insolvent Laws, 3608 57 Pa. St., 126, Dower, 1111 45 Pa. St,- 166, Execution, 3181 2 W. & S., 29, Replevin, 2205 19 Pa. St., 343, Mechanics' Claims, 237 14 W. N., 530, Justices, 1467 158 Pa. St., 124, Assumpsit. 18 18 W. N., 8, Divorce, 916 101 Pa. St., 406, Execution, 3189 2 Miles, 109, Mechanics' Claims, 243 9 Phila., 526, Justices, 1538 1 W., 39, Justices, 1557 2 Dist Rep., 709, Mandamus, 1787 35 Pa. St., 333, Execution, 3300 1 S. & R., 430, Bills of Exceptions, 3070 52 Pa. St., 356, Assumpsit, 30 34 W. X., 513, Audita Querela, 3359 3 Yeates, 192, Partition, 1997 9 W. N., 463, Ground Rents, 151 115 Pa. St., 480, Divorce, 786 100 Pa. St., 429, Justices, 1416 12 W. N., 526, Justices, 1624 57 Pa. St., 168, Justices, 1512 4 Penny., 366, Dower, Ull 166 Pa. St., 577; 36 W. X., 228, Assump- sit, 32 8 Cent Rep., 166, Account Bender, 304 I Pa. C. C, 184, Account Render, 304 II W. N., 202, Prep, for Trial, 2973c 22 W. N., 245, Sci. Fas., 252 1 W. N., 115, Writ of Inquiry, 696 122 Pa. St, 17, Mechanics' Claims, 229 10 W. X., 445, BUI of Exceptions, 3068 9 W. & S., 187, At Trial, 3002a 2 P. & W., 115, Partition, 1973 1 Brews., 451, Feigned Issues, 2623,2662 67 Pa. St, 348, Landlord and Tenant, 1682 35 Pa. St, 263, Quo Warranto, 2099 72 Pa. St, 453, Mechanics' Claims, 245 72 Pa. St, 453, Execution, 3203 3 P. & W., 174, Justices, 1492 4 Pa. St, 2.59, At Trial. 3023a 3 C. P., 54, Costs, 3135a 38 Pa. St, .500, Justices, 1509 13 S. & R., 190, Insolvent Laws, 3607 TABLE OF CASES. Ixi Beale v. Coon, Beale v. Dougherty, Beale v. Dougherty, Beale, Ins. Co. v., Beale, LafEerty v., Bealer, Miller v., Bealor v. Hahu, Beam, Layman v.. Beam, Layman v.. Beam, Smyers v.. Beam v. Woolridge, Beates v. Retallick, Beatty, Ogden v., Beatty v. Bankin, Beaumont, In re Beaver Co., Cornell v., ' Beaver Falls Co. v. Wilson, Bechtol V. Cobaugh, Bechtol, Walter v., Beck V. Beck, Beck V. Courtney, Beck i\ Courtney, Becker, Driesbach v., Becker, Loucheim v., Becker, Strouse v., Becker v. Wesner, Beckham, Johnston v., Beekhaus, Herst v., Beckley, Bryfogle v., Beckwith, Graves v., Bedford v. Kelly, Bedford v. Kelly, Bedford v. McKowl, Bedford, Miller v., Bee V. Fischer, Beebe v. Bank, Beecher, Tilton v., Beeker v. Dubois, Beers, Peoples Ferry Co. v., Beery, Deshler v., Beeson v. Comm. Beidman v. Vanderslice, Beirne, Magee v., Beitler v. Zeigler, Beitzel v. Stair, Belfast, The, Bell V. Bell, Bell V. Bell, Bell V. Bell, Bell V. Bell, Bell V. Caldwell, Bell V. Fulmer, Bell V. Kennedy, Bell, Peacock v., • Bell, Reamer v.. Bell V. Sterling, Bellas, Wynn v.. SECTION 2 Watts, 183, Defalcation, 2757 3 Binn., 432, Justices, 1536, 1542 3 Binn., 432, Appeals, 3434 110 Pa. St., 321, Appeals, 3434 1 Miles, 51, Partition, 1991 100 Pa. St., 585, At Trial, 3002a 47 Leg. Int., 120, Divorce, 787 6 Wh., 181, Attachments, 94, 99 6 Wh., 181, Execution, 3273, 3278 158 Pa. St., 57, Mechanics' Claims, 229 3 Pa. C. C, 17, Ejectments, 678 23 Pa. St., 288, Amendments, 2427, 2435 26 W. N., 524, Assumpsit, 30 139 Pa. St., 358, Landlord and Tenant, 1650 1 Whart., 52, Lunatics, 3677 3 Dist. Rep., 783, Justices, 1570 83 Pa. St., 83, Execution, 3203 10 S. & R., 122, Justices, 1547 5 Rawle, 228, Justices, 1492 163 Pa. St., 649, Divorce, 783 13 W. N., 302, Assumpsit, 21, 30 13 W. N., 302, Sci. Fas., 262 34 Pa. St, 152, Comp. with Cred., 3482 3 W. N., 449, Assumpsit, 30 44 Pa. St., 206, Execution, 3174 1 Woodward, 202, Arbitration, 2900 3 Grant, 267, Depositions, 2515 2 Dist. Rep., 199, Attachments, 90 16 S. & R., 264, Depositions, 2532 3 P. & W., 525, Justices, 1325 61 Pa. St., 491, Justices, 1425 61 Pa. St., 491,Landlord and Tenant,1682 3 Esp., 119, Torts, 545 86 Pa. St., 454, Mechanics' Claims, 239 ■ 6 S. & R., 339, New Trials, 3031 7 W. & S., 375, Assumpsit, 17 59 N. y., 177, Divorce, 915 1 W. N., 285, Prep, for Trial, 2973e 20 Howard, 393, Attachments, 125, 130 4 Dall., 300, Dower, 1044 13 S. & R., 249, Amendments, 2422, 2423 2 Rawle, 334, Discontinuance, 3748 39 Pa. St., 50, Attachments, 78, 116 1 P. & W., 135, Account Render, 341 2 Dist. Rep., 337, Mechanics' Claims,228 7 Wallace, 624, Attachments, 129 9 Watts, 47, Bills of Exceptions, 3066 9 Watts, 48, Writ of Inquiry, 694 11 W. N., 156, Divorce, 787 32 Pa. St., 309, Justices, 1248 107 Pa. St., 46, Ejectments, 646 1 Phila., 43, Partition, 2042 100 Pa. St., 220, Prep, for Trial, 2973a 1 Saunders Rep., 96, Courts, 3585 79 Pa. St., 292, Assumpsit, 32 12 Phila., 230, Assumpsit, 22 34 Pa. St., 160, Arbitration, 2906 Ixii TABLE OP CASES. Bellows, Smith v., Beltzhoover v. Maple, Bemus v. Clark, Bender, Bnsh v., Bender, Bnsh v., Bender v. Gibson, Benedict v. Hood, Benedict, McClay v., Benjamin v. Armstrong, Benjamin, Lynd v., Benner v. Bvans, Benner, Gratz v., Benners v. Buckingham, Bennethum v. Bowers, Bennethum v. Bowers, Bennett's Appeal, Bennett, Eldred v., Bennett, Hower v., Bennett, Rodgers v., Bennett, Work v., Benscotter v. Long, Benseman, Ass'n v., Benson, Mason v., Bentley, Ix)ngwell v., Bentley v. Reading, Bentley, Williams v., Bentz V. Bentz, Berg, Linderman, v., Berger, Comm. v., Berger v. Small, Berghaus v. City, Bergman v. Roberts, Bergstresser, Ins. Co. v., Beriac v. Wellhoff, Beringer v. Meanor, Berkey v. Whitaker, Berks St., Jn re Bemhard, Hinnershitz v., Berrill v. Plynn, Berry, K. B. Co. v.. Berry, Walden v.. Berry Co., Wood Co. v., Berryhill v. Wells, Bert, Academy of Mnsic «., Bertie, Weidenhamer v., Berwald v. Bay, Ashler Estate, Best V. Banmgardner, Best, Kase v., Bethel v. Lloyd, Bertolet, Schrimpton v., Betts, Comm. v., Betts V. Gas Co., Betz's Appeal, Betz V. Greenwaldt, Bevan v. Thackara, Beyer, Dickinson v., SECTION 77 Pa. St, 441, Amendments, 2410, 2421 130 Pa. St., 342, Assumpsit, 60c 29 Pa. St., 251, Arbitration, 2906 113 Pa. St., 94, Replevin, 2153 113 Pa. St., 94, Prep, for Trial, 2973a 4 W. N., 543, Damages, 707 26 W. N., 37, Mechanics' Claims, 224 1 Bawle, 424, Ejectments, 644 2 S. & B., 392, Appeals, 3434 2 Miles, 172, Repleyin, 2189 3 P. & W., 454, Dower, 1094, 1109, 1110 13 S. & B., 110, At Trial, 2991 5 Phila., 68, Execution, 3275, 3296 26 W. N., 8, Ejectments, 629 133 Pa. St, 336, Original Writs, 2310 22 Pa. St, 476, Bills of Discovery, 2590 33 Pa. St, 183, Replevin, 2212 4 Dist Rep., 323, Assumpsit, 40 16 S. & R., 243, Justices, 1491 70 Pa. St, 484, Torts, 562 167 Pa. St, 595, Appeals, 3463n 4 W. N., 1, Mandamus, 1805 9 W., 287, Insolvent Laws, 3608 23 Pa. St, 99, Partition, 1972, 1975 22 W. N., 60, Discontinuance, 3733 27 Pa. St, 302, Prep, for Trial, 2973a 95 Pa. St, 217, Defalcation, 2757 12 Pa. St., ^01, Ejectments," 645 8 PhUa., 237, Audita Querela, 3347 39 Pa. St, 302, Assumpsit, 49 122 Pa. St, 289, Municipal Liens, 424 61 Pa. St, 497, Justices, 1492 1 Dist Rep., 771, Assumpsit, 30 27 W. N., 53, 96, Torts, 518, 530, 536 85 Pa. St, 226, Discontinuance, 3750 4 W. N., 137, Assumpsit, 30 12 W. N., 10, Municipal Liens, 442 13 Pa. St, 518, Dower, 1022 8 Phila., 239, Justices, • 1285 68 Pa. St, 279, Bills of Exceptions, 3071 48 Pa. St, 456, Justices, 1553 4 Dist Rep., 141, Assumpsit, 21 5 Binn., 56, Justices, 1479 47 Leg. Int, 222, Assumpsit, 32 103 Pa. St, 448, Justices, 1527 165 Pa. St, 192, Assumpsit, 60 129 Pa. St, 268, Assumpsit 60c 122 Pa. St, 17, Mechanics' Claims, 229 10 Pa. St, 101, Justices, 1.554 1 Dall., 2, Partition, 1997 155 Pa. St, 638, At Trial, 2980 76 Pa. St, 465, Justices, 1428 97 Pa. St, 367, Execution, 3271 1 Pa. Rep., 271, Sci. Fas., 249 8 Att. Rep., 852, Insolvent Laws, 3608 28 W. X., 473; 48 Leg. Int, 439 Mechanics' Claims, 240 87 Pa. St, 274, Dower, 1053 TABLE OF CASES. Ixiii SUCTION 2 Wh., 95, Defalcation, 2757 1 S. & R., 467, Partition, 2021 13 PMIa., 67, Docnments, 2452 62 Pa. St., 45, Amendments, 2435 16 W. N., 397, Attachments, 99 99 Pa. St., 380, Assumpsit, 52, 57, 59 1 Phila., 68, Costs, 3124 120 Pa. St, 221, Ground Rents, 177 3 Pa. St., 161, At Trial, 3023a 9 Pa. St., 461, Partition, 1983 Beyer v. Fenstermacher, Bickel, Young v., Bickford v. Ice Co. Bickham v. Smith, Biddle v. Bank, Biddle v. Black, Biddle, Christmas v., Biddle v. Hooven, Biddle v. Moore, Biddle v. Starr, Bidwell V. City, Bidwell, Speer v., Bierer's Appeal, Bigler, Dubois v., Biles' Appeal, Billmyer v. Evans, Binder, Wolf v., Bindley, McLean v., Binns, McCorkle v., Binns, Tieman v., Binswanger v. Fisher, Birbeck's Case, Birmingham, Taylor v., Birmingham Turnpike v. Comm.l Penny., 458, Quo Warranto, Bishop's Appeal, Bishop V. Bishop, Bisler, Richards v., Bissey, SoUiday v., Bitner, Shuey v., Bittinger's Appeal, Bitting, Tucker v., Blabon v. Lewis, Black's Appeal, Black's Appeal, Black, Bair v., Black, Biddle v., Black's Case, Black's Case, Black, City v., Black V. Halstead, Black V. Halstead, Black V. Johns, Black, Lanback_D., Black V. Nease, Blackburn v. Ormsby, Blackiston v. Potts, Blackman's Estate, Blackwell v. Cameron, Blair, Hibbs v., Blair v. McLean, Blakeley, Mclntire v., Blakey v. Douglass, Blanco v. Bosch, Blatt, Comm. v., Bletz V. Haldeman, Blewett V. Coleman, Blewett, Coleman v., Blight V. Blight, 5 W. N., 41, Municipal Liens, 417 44 Pa. St., 23, Arbitration, 2898 92 Pa.St.,265,Dower, 1066,1075jl078,1088 95 Pa. St., 203, Arbitration, 2910 119 Pa. St., 105, Partition, 2048 40 Pa. St., 324, Execution, 3169 28 W. N., 133, Assumpsit, 17 114 Pa. St, 559, Audita Querela, 3349 5 Binn., 340, New Trials, 3037 92 Pa. St, 248, Dower, 1066 3 W. N., 340, Assumpsit 30 1 Dist Rep., 639, Lunatics, 3656 29 Pa. St., 306, Dower, 1040, 1081 2091 7 W. & S., 251, Partition, 1961 30 Pa. St., 412, Divorce, 739, 784, 802 3 W. N., 485, Assumpsit, 30 12 Pa. St., 347, Defalcation, 2756 3 W. & S., 275, Justices, 1568 76 Pa. St, 105, Execution, 3174 32 Pa. St., 428, At Trial, 3002d 16 Leg. Int, 300, Comp. with Cred., 3483 106 Pa. St, 344, Feigned Issues, 2685 47 Leg. Int., 426, Partition, 2024 10 W. N., 156, Appeals, 3380 99 Pa. St, 380, Assumpsit, 52, 57, 59 18 Pa. St, 434, Appeals, 3435 18 Pa. St, 434, Lunatics, 3686 132 Pa. St., 568, Municipal Liens, 408 .39 Pa. St, 64, Assumpsit, 30 39 Pa. St, 71, Defenses, 2772 68 Pa. St, 83, Assumpsit, 23 1 W. N., 314, Attachments, 92 37 Pa. St, 433, Execution, 3280 41 Pa. St, 97, Assumpsit, 30 2 Miles, 388, Assumpsit 44 6 Phila., 160, Dower, 1057 46 Pa. St,- 236, Partition, 1963 14 Pa. St, 413, Justices, 1296, 1299 25 Pa. St, 77, Justices, 1332 10 Cent Rep., 925, Torts, 562 5 Cent Rep., 274, Torts, 562 3 W. X., 171, Assumpsit, 39 165 Pa. St, 213, Appeals, 3435 26 Pa. St, 403, Justices, 1473 40 Pa. St, 45, Partition, 1976 43 Pa. St, 176, Partition, 1976 51 Pa. St, 420, Dower, 1029 Ixiv TABLE OP CASES. Blind Co. v. Nesbit, Blissets' Case, Block V. Iqs. Co., Block, Ins. Co. v., Bloodgood's Estate, Bloom, Gates v.. Bloom, Spencer v., Blue V. Comm., Blumenthal's Petition, In re Blumner, Lingg v., Blydenstein v. Haseltine, Blythe v. McClintoc, Board v. Dairy Co., Board v. becker, Board of Health, Kennedy v., Boaz, Ex parte, Bodey v. Thackara, Bodkin v. McDonald, Bogan, Foss v., Bogart V. Rathbone, Bohan, Cawley v., Bohlen, Christy v., Boileau, Vansant v., Bollinger v. Gallagher, BoUman, Corbyn v., Bolton, Leib v., Bonanan v. Peterson, Bondz V. Penna. Co., Bondz v. Penna. Co., Bone V. Canal Co., Bonham, Thornton v., BonnafEon v. Thompson, Bonnell, Aull v., Bonnell, Lance v., Bonner, Shuster v., Bonnert, Lewis v., Bonsall v. Comly, Books V. Borough, Boom, Coal Co. v., Boom Co., V. Boom Co., Boomer v. Henry, Boothe V. Alexander, Bootz, Erie v., Borden v. Surety Co., Borden v. Surety Co., Borland v. Baly, Borland, Murphy v., Borland v. Murphy, Borland v. Nichols, Borland v. Spitz, Borland v. Stokes, Berlin's Appeal, Born V. Zimmermann, Borough, Books v.. Borough V. Canal Co., Borough V. Comm., Borough, Comm. i'., SECTION 3 Dist. Rep., 696, Costs, 3135 Loft's Rep., 748, Justices, 1194 40 Leg. Int., 160, Discovery, 2556 109 Pa. St., 535, Insurance, 290 47 Leg. Int., 298, Dower, 1033 30 W. N., 127, Justices, 1223, 1291 30 W. N., 128, Justices, 1291 4 Watts, 215, Justices, 1263 125 Pa. St., 412, Mandamus, 1818 6 W. N., 459, Assumpsit, 30 140 Pa. St., 120, Assumpsit, 36 7 S. & R., 341, Sci. Fas., 276 3 Dist. Rep. 363, Justices, 1403 3 Dist Rep. 362, Justices, 1403 2 Pa. St. 366, Municipal Liens, 478 31 Ala. 425, Justices, 1194 28 W. N., 470, Mechanics' Claims, 240 2 W. N., 478, 586, Justices 1628, 1629 92 Pa. St. 296, Justices, 1524 1 Pa. St. 188, Justices, 1567 120 Pa. St., 295, Justices, 1492a 5 Pa. St., 38, Assumpsit, 32 1 Binn., 444, Appeals, 3434 29 W. N., 89, Justices, 1295 4 W. & S., 342, Execution,. 3288 1 Dall., 82, Damages, 707 9 Wendell's Rep., 503, Attorneys, 3531 138 Pa. St., 155, At Trial, 3002b 27 W. N., 123, BUls of Exceptions, 3065 18 W. N., 125, Escheats, 1151 2 Pa. St., 102, Damages, 691 83 Pa. St., 460, Execution, 3307 11 W. N., 376, Dower, 1044 14 W. N., 385, New Trials, 3027, 3042 7 W. N., 17, Attachments, 86 2 Dist. Rep., 698, Replevin, 44 Pa. St., 442, Replevin, 95 Pa. St., 158, Negligence, G W. N., 222, Original Writs, 110 U. S. Rep., 57, Appeals, 2 Dist. Rep., 357, Assumpsit, 4 W. N., 492, Assumpsit, 72 Pa. St., 196, Muni6ipal Liens, 33 W. N., 502; 159 Pa. St., 465, At- tachments, 2 Dist. Rep., 245, Attachments, 2209 2179 1879 2311 3463ee 32 30 462 83 86 43 Pa. St., Ill, Justices, 1383, 1426 92 Pa. St., 86, Dower, 1043, 1111 4 W. N., 472, Dower, 1043 12 Pa. St., 38, Dower, 1024, 1070 153 Pa. St., 590, Justices, 1461 120 Pa. St., 278, Torts, 563 9 W. N., 545, Execution, 3234 8 Phila., 233, Assumpsit, 52 95 Pa. St., 158, Negligence, 1879 1 Dist. Rep., 701, Justices, 1404 34 Pa. St., 293, Mandamus, 1765 15 W. N., 506, Mandamus, 1821 TABLE OF CASES. Ixv Borough V. Gilmore, Borough V. Green, Borough V. Lifter, Borough V. Neff, Borough, Norton v., Borough V. R. R. Co., Borough V. Beinhart, Borough, Seminary v., Borough 1). Siggins, Borough, Smith v.. Borough V. Wadlinger, Borough V. Walters, Borough V. Water Co., Borough V. Welsh, Borough, Wilcox v., Borton v. Morris, Bosch, Blanco v., Boteler v. Espew, Botsford V. R. R. Co., Bott, Myers v., Boucher, Flick v., Boudrou, Railway Co. v., Boughton V. Bank, Bournanville v. Goodall, Bouslaugh V. Bouslaugh, Bovier, Hibberd v., Bowen, Kulp 1)., Bowen, Stewart v., Bower's Appeal, Bower v. Fenn, Bower, Mann v., Bower v. McCormick, Bower v. Tallman, Bower, Williams v., Bowers, Bennethum v., Bowers, Bennethum v., Bowers, Gunn v., Bowers, R. B. Co. v., Bowler's Estate, Bowman, City v., 15 W. N. SECTION 342, Municipal Liens, 437, 438 Bowman, Bowman, Bowman Bowman Bowman Bowman, Bowman, Bowyer's Comm. v., Kline v., V. Silvers, V. Smiley, V. Smiley, Smiley v., Tagg v., Appeal, Boyd's Appeal, Boyd V. Boyd, Boyd, Comm. v., Boyd V. Davis, Boyd V. Gordon, Boyd, Keite v., Boyd, Miller v., Boyd, Bemick v., 22 W. N., 180, Municipal Liens, 441 4 Dist. Rep., 230, Justices, 1400 102 Pa. St., 476, Appeals, 3435 43 Leg. Int., 187, Municipal Liens, 475 27 W. N., 177, Municipal Liens, 480 41 Leg. Int., 337, Negligence, 1876 153 Pa. St., 583, At Trial, 3024 110 Pa. St., 291, Municipal Liens, 455 120 Pa. St., 357, Municipal Liens, 426 48 Leg. Int., 384, Justices, 1406 29 W. N., 483, Landlord and Tenant, 1712 97 Pa. St., 554, Mandamus, 1859 117 Pa. St., 174, Dower, 1111 2 Dist. Rep., 721, Justices, 1420, 1520 2 ililes, 109, Defenses, 2800 3 W. N., 171, Assumpsit, 39 99 Pa. St., 313, Mechanics' Claims, 239 141 U. S. Rep., 250, Prep, for Trial, 2972 10 W. N., 259. Justices, 1478 16 S. & R., 373, Justices, 1562 92 Pa. St., 475, Negligence, 1871 9 W. N., 519, Assumpsit, 30 10 Pa. St., 133, At Trial, 3002a 68 Pa. St., 495, Execution, 3264, 3306 1 Grant, 266, Execution, 3219 122 Pa. St., 78, Ejectments, 629 49 Pa. St., 245, Account Render, 333 84 Pa. St., 311, Appeals, 3443 90 Pa. St., 359, At Trial, 3023a 8 Watts, 179, Justices, 1265 73 Pa. St., 427, Justices, 1252 5 W. & S., 556, Replevin, 2184 1 Dist. Rep., 88, Assumpsit, 32 26 W. N., 8, Ejectments, 629 133 Pa. St., 336, Original Writs, 2310 126 Pa. St., 552, Arbitration, 2895 124 Pa. St., 183, Negligence, 1870 26 W. N., 367, Defalcation, 2757 36 W. N., 138; 166 Pa. St., 393, As- sumpsit, 32 3 Dist. Rep., 74, Execution, 3248 19 Pa. St, 24, Dower, 1024, 1111 1 Dist. Rep., 762, Justices, 1475 31 Pa. St., 225, Execution, 3169, 3176 31 Pa. St., 225, Justices, 1463 3 Grant, 132, Justices, 1463 108 Pa. St., 273, Defalcation, 2757 21 Pa. St., 210, Execution, 3169, 3170, 3172, 3173, 3179 38 Pa. St., 241, Divorce, 987 1 Watts, 365, New Trials, 3030 56 Pa. St., 402, Execution, 3172 1 Dist. Rep., 438, Attachments, 89 6 S. & R., 53, Statements, 6671 16 S. & B., 300, Actions after Death, 2216 12 W. N., 353, Justices, 1550 11 W. N., 312; 99 Pa. St., 555, Re- plevin, 2168 Ixvi TABLE OF CASES. Boyd V. Patrol, Boyd, Shaw v., Boyd, Stockham v., Boyer's Appeal, Boyer, Henderson v., Boyer, McClain v., Boyer v. Mining Co., Boyer, R. R. Co. v., Boyer v. Smith, Boyer v. Winters, Boyes v. Coppinger, Boylan v. Hays, Boyle, Devine v., Boyle V. Grant, Boyle V. Grant, Boyle, Railway Co. v., Boyle V. Rankin, Boyles, King v., Brackney, Meeker v., Braddee v. Brownfield, Braddee v. Wiley, Braden, McElroy v., Braden's Estate, Bradenbtirg, Ferree v., Bradfield, City v., Bradford r. Frederick, Bradford, Skidmore v., Bradford, Stedman v., Bradfords v. Kent, Bradlee v. Whitney, Bradley's Appeal, Bradley v. Dusenberry, Bradley, Dnsenberry v., Bradley v. Harker, Bradley, Knerr v., Bradley v. O'Donnell, Bradley v. O'Donnell, Bradley v. Railway Co., Bradley v. Totten, Bradly t. Potts, Bradly v. Potts, Bradly v. Potts, Bradner, Wing v., Brady, Baldy c, Brady, Comm. v., Brady, Comm. v., Brady, Cowden r., Brainerd, Fire Extin. Co. v., Branson v. Machine Co., Brant's Appeal, Bratton, Mitchell v., Bratton v. Mitchell, Bratton v. Seymonr, Branm i-. Keally, Braunrenter, Voueiff i:. Bream v. Spangler, Bredin v. Kingland, 20 W. N., 53, At Trial, 5 S. & R., 309, Dower, 22 W. N., 118, Attachments, 24 W. N., 300, Appeals, 4A Pa. St., 220, Dower, 84 Pa. St., 417, Arbitration, SZCTIOS 3024 1065 76 3375 1111 2906 2 Chest Co. Rep., 31, Arbitration, 2910 97 Pa. St., 91, Negligence, 1868 5 Watts, 55, Ejectments, 643, 645 3 Kulp, 29, Arbitration, 2911 2 Yeates, 277, Justices, 1312 7 Watts, 509, Justices, 1526 4W. X., 139, Justices, 1538 18 Pa. St., 163, Assumpsit, 60c 18 Pa. St., 162, Justices, 1245 29 W. X., 20, Justices, 1538 22 Pa. St., 168, Replevin, :il58 31 Pa. St., 424, Justices, 1559, 1560 35 Pa. St, 276, Justices, 1510 4 W., 474, Execution, 3341b 10 Watts, 362. Justices, 1645 152 Pa. St., 78, Mechanics' Claims, 224 165 Pa. St, 184, Execution, 3183 37 W. N., 284, Appeals, 3463yyy 159 Pa. St, 517, Municipal Liens, 343 101 Pa. St, 445, Replevin, 2187 4 Pa. St, 296, Execution, 3279 3 Phila., 258, Justices, 1418 43 Pa. St, 474. Dower, 1026, 1(H1, 1076 108 Pa. St, 366, Arbitration, 2942 89 Pa. St, 521, Attachments, 114 7 W. y., 146, Assumpsit 22 6 W. N., 413, Assumpsit, 32 15 W. X., 403, Assumpsit, 52 16 W. X., 72. Assumpsit, 32 40 Pa. St, 479, Costs, 3125 40 Pa. St, 479, At Trial, 3023a 7 W. X. 16, Mechanics' Claims, 204 34 W. X., 78, Execution, 3168 33 W. X., 570; 2 Dist Rep., 797, As- sumpsit, 18 33 W. X., 570, Writ of Inquiry, 692 32 W. N., 426, Defenses, 2775 162 Pa. St, 72, Attachments, 88 1.5 Pa. St, 109, Prep, for Trial, 2973 h 6 Phila., 121, Mandamus, 18.35 6 Phila., 121, Writs, 2366 8 S. & R., 505, Execution, 3190 2 vr. X., 473, Assumpsit 30 40 Leg. Int. 5, Insurance, 2^ 20 Pa. St, 141, Execution, 3173 5 Watts, 70, Ejectments, 629 7 Watts, 113, Dower, 1092 4 W., 329, Justices, 1551 146 Pa. St, 519, Asstmipsit, 30 1 Dist Rep., 645, Assumpsit, 30 1 W & S., 378, Justices, * 1512 4 Watts, 420, Account Render, 307 TABLE OP CASES. Ixvii Breed v. City, Breinig v. Breinig, Brenckman v. Twibill, Brendt, Gwinner v., Breneman v. Mylin, Brenneman v. Greenawalt, Brentlinger v. Brentlinger, Brewer v. Fleming, Brewster, Ellis v., Breyf ogle v. Beckley, Brice, Wilkinson v., Brice, Wilkinson v., Brick V. Coster, Brick Co. V. Gibson, Brick Co. v. Norton, Bricker, Keasy v., Bricker v. R. R. Co., Bridge Co., Comm. v., Bridge Co., Gardiner v., Brientnall v. City, Brierly, Ins. Co. v., Briggs V. Allen, Briggs V. Briggs, Briggs, Comm. v., Briggs V. Morgan, Bright V. Hewitt, Brinckle v. Brinckle, Brinckle v. Brinckle, Brinckle v. Brinckle, Brindle, Caldwell v., Brindle, Crist, v., Brindle, Delaney v., Brindle v. Mcllvaine, Brindle, Ringwalt v., Brink, Cromelien v., Brink, Cromelien v., Brinton, Fox v., Brinton, Perry v., Britton, Lndwig v., Britton v. Stanley, Britton, Thornton v., Broadbent, Lewis v., Broadbent, Shannon v., Brock V. Brock, Brockaway v. Ins. Co., , Brockett v. Brockett, Brodhead, Supervisors v., Brolasky, Woods v., Brom V. Brom., Bronson v. Bronson, Bronson v. Lane, Brooke, Phila. v., Brookes, Market Co. v.. Brooks V. Bank, Brooks, Bank v., Brooks V. Brooks, Brooks V. Brooks, SECTION 85 Pa. St., 214, Municipal Liens, 441 26 Pa. St., 161, Divorce, 864, 865, 933 7 W. N., 188, Assumpsit, 30 2 Dist. Rep., 50, Justices, 1517 2 Dist. Rep., 296, Attachments, 114 1 S. & R., 27, Justices, 1336 4 Rawle, 241, Divorce, 990 51 Pa. St., 102, Replevin, 2168 6 Watts, 277, Justices, 1492 16 S. & R., 264, Depositions, 2532 148 Pa. St., 153, Defenses, 2774 30 W. N., 30, Assumpsit, 32 4 W. & S., 494, Assumpsit, 30 21 W. N., 32, Execution, 3275 2 Dist. Rep., 559, Mechanics' Claims, 228, 237' 60 Pa. St., 9, Mandamus, 1820 132 Pa. St., 1, Negligence, 1912 20 Pa. St., 185, Quo Warranto, 2102,2103 2 Binney, 450, Execution, 3244 103 Pa. St., 156, Municipal Liens, 474 10 W. N., 45, Assumpsit, 22 4 Hill, 538, Discontinuance, 3751 1 Dist. Rep., 780, Divorce, 884 16 Pick., 203, Justices, 1194 2 Haggard, 339, Divorce, 770 2 W. N., 626, Assumpsit, 30 10 Phila., 1, Divorce, 864 10 Phila., 144, Divorce, 913 MMS., Divorce, 991 11 Pa. St., 293, Justices, 1445, 1508 ,2 Rawle, 121, Defalcation, 2756 15 S. & R., 75, Justices, 1239 9 S. & R., 74, Bills of Exceptions, 3068 59 Pa. St., 51, Executions, 3289, 3291 29 Pa. St., 524, Justices, 1537 29 Pa. St., 522, Replevin, 2168 1 Dist. Rep., 608, Defenses, 2775 13 Pa. St., 202, Municipal Liens, 411 3 W. & S., 447, Justices, 1457 1 Wh., 267, New Trials, 3028 28 W. N., 467, Amendments, 2419 21 W. N., 31, Assumpsit, 32 34 W. N., 466, Mechanics' Claims, 237 18 W. N., 123, Attachments, 81 4 Kulp, 207, Discontinuance, 3733 2 Howard, 238, Appeals, 3463u 7 Cent. Rep., 496, Mandamus, 1858 2 W. N., 198, Justices, 1538 2 Wh., 94, Divorce, 990 7 Phila., 405, Divorce, 986 91 Pa. St., 153, Ejectments, 629 81 Pa. St., 23, Municipal Liens, 409 4 Dist. Rep., 5, Execution, 3262 23 W. N., 502, Assumpsit, 18 42 Leg. Int., 26 Replevin, 2163 18 W. N., 115, Divorce, 928 MMS. Appeals, 3375 Ixviii TABLE OF CASES. SECTION Brooks V. Fitzpatrick, 41 Leg. Int, 448, Replevin, 2185 Brooks, People v., 35 Barb., 85, Justices, 1194 Brooks V. Prentzel, 10 W. N., 319, Discontinuance, 3733 Broom v. Fox, 2 Yeates, 530, Discontinuance, 3733 Brotherhood, Schafer v., 22 W. N., 312, Statements, 73 Brotherline, Ramler v., 1 Pears, 462, Arbitration, 2904 Brotherline, Swires v., 41 Pa. St, 135; 48 Pa. St., 68, Execu- tion, 3189 Brothers v. Mitchell, 157 Pa. St., 484, Ejectments, 624 Brower v. City, 26 W. N., 270, Negligence, 1872 Brown's Appeal, 84 Pa. St., 457, Partition, 1961 Brown's Case, 2 Pitts., 152, Attorneys, 3530 Brown v. Adams, 2 Wh., 188, Dower, 1042, 1097 Brown v. Baker, 15 W. N., 60, Torts, 562 Brown, Banm v., 11 W. N., 202, Prep, for Trial, 2973c Browne. Brown, 12 Lancaster Bar, 114, Arbitration, 2909 Brown v. Brown, 3 S. & R., 496; 3 Pa. Rep., 200, Jus- Brown v. Caldwell, Brown, Campbell v., Brown v. Church, Brown v. City, Brown v. Clark, Brown v Colorado, Brown v. Comm., Brown, Comm. v.. Brown v. Dempsey, Brown v. Dupuy, Brown v. Dysinger, Brown's Estate, Brown, Jones v., Brown, Jones v.. Brown, Hollis v., Brown, Honniter v.. Brown, Ins. Co. v.. Brown V. McKinney, Brown v. McKinney, Brown v. Myers, Brown, Myers v., Brown v. O'Brien, Brown v. Scott, Brown v. Stackhouse, Brown v. Steele, Brown, Stephenson v.. Brown, Stewart c, Brown v. Street, Brown, Taylor v., Brown, Travis v., Brown v. Wagner, Brown, Willing v., Browne, Comm. U, Brownfield, Braddee v., Brubaker v. Brubaker, Brubaker v. Robinson, Bruner v. Wallace, Bryan v. Harrison, Bryant's Estate, tices, 1537 10 S. & R., 114, Replevin, 2168 19 Pa. St.,361, Forms of Statements, 3764 23 Pa. St, 495, Partiton, 1978 5 Cent. Rep., 699, Municipal Liens, 417 14 Pa. St, 469, Prep, for Trial, 2947 106 TJ. S. Rep., 95, Appeals, 3463ee 73 Pa. St, 321, At Trial, 2978 11 Phila., 370, Justices, 1201 95 Pa . St, 243, Replevin, 2180 4 W. N., 491, Assumpsit, 21, 30 1 Rawle, 408, Prep, for Trial, 2973a 166 Pa. St, 249, Justices, 1196 167 Pa. St, 395, Assumpsit, 52 1 Dist Rep., 675, Justices, 1546 159 Pa. St, 539, Assumpsit 30 1 P. & W., 487, Costs, 3125 1 Dist Rep., 583, Defenses, 2764 25 W. N., 76, Justices, 1477 47 Leg. Int, 49, Justices, 1517 29 W. N., 393, Mechanics' Claims, 224 38 Leg. Int, 72, Arbitration, 2909 3 Clark. 121, Prep, for Trial, 2971 51 Pa. St, 357, Execution, 3312 32 W. N., 407; 155 Pa. St, 582, Land- lord and Tenant 1655, 1661 110 Pa. St, 588, Mechanics' Claims, 223 147 Pa. St, 300, At Trial, 3012 2 S. & R., 461, Partition, 1971 6 W. & S., 221, Assumpsit, 30 3 Dist Rep., 570, Original Writs, 2238 43 Pa. St, 9, Prep, for Trial, 2949 23 W. N., 252, Mortgages, 191 7 S. & R., 467, Partition, 1972 1 S. & R., 382, Quo Warranto, 2078 4 W., 474, Execution, ' 3341b 4 Dist Rep., 186, Divorce, 798 3 P. & W., 295, Account Render, 309 4 W. X., 53, Assumpsit, 30 37 Pa. St, 233, Assumpsit 30 4 Dist Rep., 192, Escheats, 1159a TABLE OP CASES. Ixix Bryar's Appeal, Bryson v. Home, Buchanan v. Baxter, Buchanan v. Hazzard, Buchanan v. Specht, Bnchman, Ackerman v.. Buck V. Nicholas, Buck, Reed v., Buckingham, Bennera v., Buckius, Griel v., Buckley v. Handy, Buckley, Morris v., Buckman, Schryock v., Buckmyer v. Dubs, Buckwalter, Hamilton v., Buckwalter v. Russell, Budd, Harris v., Buffnm, Seidenstriker 17., Buffum, Seitz v., BufEum, Seitz v.. Building Ass'n v. Russell, Building Ass'n, Selden. v.. Bull, Irvine v.. Bull, Malin v., Bullitt V. Church, Bullock, Finch v., Bumm, Comm v., Bunce v. Stanford, Bunn, Comm. v., Bunting's Appeal, Bunting's Bstate, Bunting v. Allen, Bunting, Hopple v., Bunting, Smith v., Burck V. Mansbury, Burd V. Dausdale, Burdick v. Burdick, Burf ord v. Fergus, Burger, Diller v.. Burgess v. Jackson, Burgin, Phila. v., Burginhofen v. Martin, Burk V. McMullen, Burk V. Huber, Burke, Bach v., Burke v. Lessee, Burke, Marble Co. v., Burke v. Teller, Burket, Waugh v., Burkhalter, Rockey v., Burkhart, Comm. v., Burkholder, Eby v., Burkholder v. Plank, Bumham, Baumgardner v.. Bums, Cobb v., Burns v. Cooper, vol.. I. — F SECTION 111 Pa. St., 81, Dower, 1044, 1052 36 W. N., 362, Defenses, 2771 67 Pa. St.,348, Landlord and Tenant, 1682 95 Pa. St., 240, Bjectmpnts, 618 1 Phila., 252, Justices, 1275, 1285 109 Pa. St., 254, Mandamus, 1844 8 S. & R., 316, Statements, 71 32 W. N., 204, Execution, 3273 5 Phila., 68, Execution, 3275, 3296 114 Pa. St., 190, Assumpsit, 32 2 Miles, 449, Replevin, 2199 8 S. & R., 211, Bills of Exceptions, 3095 22 W. N., 289; 121 Pa. St., 248, Mechan- ics' Claims, 240 5 Binn, 29, Justices, 1372, 1424, 1523 2 Yeates, 389, Dower, 1074 119 Pa. St., 495, Arbitration, 2896 1 Dist. Rep., 83, Assumpsit, 52 14 Pa. St., 159, Justices, 1509 14 Pa. St., 69, Justices, 1551 14 Pa. St., 69, Amendments, 2421 36 W. X., 260, Mortgages, 186 2 W. N. 481, Assumpsit, 30 4 W., 289, At Trial, 3023a 13 S. & R., 441, Statements, 73 2e Pa. St., 108, Feigned Issues, 2712 10 Phila., 318, Attachments, 90 10 Phila., 162, Quo Warranto, 2084 27 Pa. St., 265, Justices, 1491 71 Pa. St., 405, Mandamus, 1772 6 W. N., 12, Mechanics' Claims, 228 16 W. N., 335, Ground Rents, 169 6 W. N., 157, Assumpsit, 22 3 W. N., 472, Assumpsit, 30 5 W. N., 186, Assumpsit, 30 102 Pa. St., 35, At Trial, 3023a 2 Binney, 80, New Trials, 3036 2 Dist. Rep., 622, Divorce, 741, 741b, 802 165 Pa. St., 310; 36 W. N., 43, Defal- cation, 2759 68 Pa. St., 432, Mechanics' Claims, 237 2 P. & W., 431, Justices, 1512 50 Pa. St., 539, Municipal Liens, 409 3 Yeates, 479, Justices, 1424 4 Pa. St., 317, Bills of Exceptions, 3069 2 Watts, 306, Amendments, 2423 141 Pa. St., 649, Discontinuance, 3740 2 S. & R., 383, Depositions, 2530 5 W. N., 124, Prep, for Trial, 2973e 1 Dist. Rep., 23, Costs, 3125 3 Grant, 319, Justices, 1308 68 Pa. St., 221, Replevin, 2187 23 P?. St., 521, Justices, 1396, 1406, 1428 17 S. & R., 9, Attachments, 75 69 Pa. St., 225, Prep, for Trial, 2949 10 W. N., 445, Bills of Exceptions, 3068 61 Pa. St., 282, Feigned Issues, 2629 31 Pa. St., 426, Replevin, 2160 Ixx TABLE OF CASES. Bnms, Devlin v., Burns, Hollis v., Burns, Lyons v.. Burr V. Dougherty, Burr, Ex parte, Burrell, Comm. v., Burt, Kennedy v., Burt, Larison v., Burton V. Fulton, Busch V. Ass'n, Bnsch, City v.. Bush V. Bender, Bush V. Bender, Bush, Conklin v., Bush, Bilenberger v.. Bush V. Monteith, Bush, Walker v.. Butcher, Fernau v., Butcher v. Metts, Butcher, Williams v., Butler 17. Butler, Butler, Oavenee v., Butler, Debozear v., Butler, Erie v., Butler, Erie v., Butler, Gemmill v., Butler, Gemmill v., Butler v. Lee., Butler, Mohan v., Butler, E. E. Co. v., Butler V. Slam, Butler V. Urch, Butts V. Armor, Bye, Pidcock v., Bye, Pidcock v., Byrne v. Funk, Byrne v. Grossmann, Byrne v. Hayden, Byrne v. Hayden, Byrne v. Hayden, C— , H— v., Cadwalader, Meyer v., Cadwallader, City v., Cadwallader, City «., CadwallMer, City v., Caffrey, Long v., Gaflisch, Band v., Cahoon, Tibbal v.. Gain v. Shakespear, Cain, Shakespear v.. Gain, Shakespear v., Galdcleugh v. Carey, Caldwell, Bell v., Caldwell v. Brindle, Caldwell, Brown v., Galdwell v. Garter, Caldwell, Garter v.. SECTION 23 Atl. Eep., 375, Assumpsit, 32 100 Pa.St.,206,Landlord and Tenant, 1712 47 Leg. Int., 222, Sci. Fas., 252 8 W. N., 175, Ground Eents, 169 9 Wheaton, 531, Attorneys, 3531 7 Pa. St., 34, Quo Warranto, 2097 41 Leg. Int., 146, Eeplevin, 2177 4 W. & S., 27, At Trial, 3023a 49 Pa. St, 151, Prep, for Trial, 2948 4 Dist. Eep., 176, Original Writs, 2232 35 W. N., 564, Municipal Liens, 480 113 Pa. St., 94, Eeplevin, 2153 113 Pa. St., 94, Prep, for Trial, 2973a 8 Pa. St, 514, Account Eender, 311 2 Dist Eep., 50, Justices, 1517 2 W. N., 112, Audita Querela, 3362 30 Pa. St, 357, Justices, 1643 113 Pa. St, 292, Assumpsit, 60 1 Miles, 153, At Trial, 3023a 1 W. N., 304, Audita Querela, 3349, 3350 1 Pars., 329, Divorce, 783, 797, 912, 918 6 Binn., 52, Justices, 1513 2 Grant, 417, Landlord and Tenant, 1678 120 Pa. St, 374, Assumpsit, 30 120 Pa. St, 374, Municipal Liens, 485 4 Pa. St, 232, Actions after Death, 2222 4 Pa. St., 232, Execution, 3272 32 Barb., 75, Depositions, 2513 17 W. N., 434, Landlord and Tenant, 1693 57 Pa. St, 335, NegUgence, 1890, 1892 50 Pa. St, 456, At Trial, 3015 2 Grant, 247, Justices, 1247 164 Pa. St, 73, Feigned Issues, 2660 3 Eawle, 183, Dower, 1111 3 Eawle, 194, At Trial, 3023a 13 W. N., 503, Landlord and Tenant, 1667 65 Pa. St, 310, Amendments, 2435 23 W. N., 306, Assumpsit, 21 124 Pa. St, 170, Eeplevin, 2212 23 W. N., 306, Statements, 73 1 Law Times Eep., 489, Divorce, 758 1 Dist Eep., 274, New Trials, 3030 22 W. N., 8, Mechanics' Claims, 239 22 W. N., 8, Municipal Liens, 444 20 W. N., 14, Municipal Liens, 462 8 Phila., 548, Justices, 1388 36 W. N., 198, Courts, 3576 10 Watts, 232, Eeplevin, 2204, 2209 3 W. N., 514, Attachments, 139 5 W. N., 392, Attachments, 139 3 W. N., 167, Attachments, 139 5 W. & S., 155, Insolvent Laws, 3608 107 Pa. St, 46, Ejectments, 646 11 Pa. St, 293, Justices, 1445, 1508 10 S. & E., 114, Eeplevin, 2168 153 Pa. St, 310, Mechanics' Claims, 201 147 Pa. St, 371, Appeals, 3435 TABLE OF CASES. Ixxi Caldwell, Carter v., Caldwell, Hickman v., Caldwell v. Miller, Caldwell v. Bemington, Caldwell v. Stileman, Caldwell v. Thompson, Calhoun v. Calhoun, Calhoun v. Hays, Callahan, Comm. v., Callin V. Lnkens, Cameron, Blackwell v., Camp V. Bank, Camp V. Wood, Camp, Zimmerman v., Campbell's Appeal, Campbell's Appeal, Campbell's Estate, Campbell, Baird v., Campbell v. Brown, Campbell v. Clevenstine, Campbell v. Comm., Campbell v. County, Campbell, Fager v., Campbell v. Hering, Campbell, Laird v., Campbell, Powell v., Campbell v. R'wy Co., Campbell, Stockdale v., Campbell, Ulp ■»., Campbell, Walls v., Campbell, Wilson v., Canal Co. Bone v., Canal Co. Borough v.. Canal Co. v. Carroll, Canal Co., Jones v., Canal Co. v. Loftns, Canal Co., Walker v., Canal Co. v. Webster, Canan v. McCamy, Cane, Comm. v.. Canon, Junk ■»., Capron, Jamieson v., Capron, Jamieson v., Car Co., Manfg. Co. v., Car^ V. Keller, Carey, Caldclengh v., Carey v. Henry, Carey, McOonnell v., Carfrey, Snyder v., Carle v. Ice Co., Carlin V. Holland, Carlin, Tryon v., Carlson's License, Carmalt v. Piatt, Carman's Appeal, Carothers v. Cummings, Carothers, McMann v., Carothers, McMasters v., SECTION 23 Atl. Rep., 575, Appeals, 3435 4 Rawle, 376, Execution, 3190 46 Pa. St., 233, Costs, 3124 2 Wh., 137, Amendments, 2425 1 Rawle, 212, At Trial, 3002d 1 Rawle, 370, Justices, 1528 18 W. N., 428, Divorce, 922 8 W. & S., 127, Depositions, 2532 153 Pa. St., 625, Prep, for Trial, 2958a 7 W. N., 28, Assumpsit, 30 46 Pa. St, 236, Partition, 1963 10 Watts, 130, Statements, 72 10 W., 118, Justices, 1379 155 Pa. St., 152, Appeals, 3463o 80 Pa. St., 298, Dower, 1043, 1067, 1087 29 Pa. St., 401, Execution, 3341i 13 W. N., 144, Partition, 2048 4 W. & S., 192, Justices, 1552 19 Pa. St.,361, Forms of Statements, 3764 3 Dist. Rep., 166, Feigned Issues, 2685 84 Pa. St., 187, At Trial, 2978 24 W. N., 107, Arbitration, 2928 5 Watts, 287, Execution, 3144a 139 Pa. St., 473, Assumpsit, 30 8 W. N., 134, Assumpsit, 32 2 Phila., 42, Landlord and Tenant, 1685 27 W. N., 79, Assumpsit, 18 1 Phila., 520, Justices, 1388 19 Pa. St, 361, Dower, 1067 23 W. N., 506, Assumpsit, 57 1 Dall., 126, Ejectments, 578 18 W. N., 125, Escheats, 1151 1 Dist Rep., 701, Justices, 1404 89 Pa. St, 374, Amendments, 2413 10 Phila., 570, Justices, 1456, 1489, 1491 71 Pa. St, 420, Justices, 1541 29 Leg. Int,.381, Executions, 3144b 18 W. N., 339, Depositions, 2516 1 Penny., 397, Justices, 1269 2 Par., 265, Justices, 1520 34 Pa. St, 286, Divorce, 1039 95 Pa. St, 15, Amendments, 2416 95 Pa. St, 15, Replevin, 2187 37 Leg. Int, 333, Arbitration, 2908 77 Pa. St, 487, Dower, 1112 5 W. & S., 155, Insolvent Laws, 3608 3 Clark, 32, Assumpsit, 44 48 Pa. St, 345, Partition, 1916 54 Pa. St, 90, Justices, 1284 4 Dist Rep., 289, Justices, 1228 1 Dist Rep., 174, Justices, 1388 5 Watts, 371, Ejectments, 627 127 Pa. St, 330, Appeals, 3376 7 W., 322, At atrial, 3023a 2 Pa., 332, Dower, 1037 63 Pa. St, 199, Justices, 1540 2 Am. L. J., 133, Interpleaders, 2730 1 Pa. St, 324, Partition, 1975, 2025 Ixxii TABLE OF CASES. Carothers, Oil Co. v., Carpenter v. Bank, Carpenter, Jackson «., Carpet Co. v. Latimer, Oarr's Admr. Grim v., Carr v. Carr, Carr, Nicholas v., Carr, Phila. v., Carrier v. Esbangh, Carroll, Canal Co. v., Carroll, Sauter v., Carson, Chambers v., Carson, Chambers v., Carson, Woodward v., Carstairs v. Knapp, Carter v. Caldwell, Carter, Caldwell v.. Carter's Estate, Carter v. Hess, Carter v. Hess, Carter, In, re Cartledge v. Cartledge, Case V. Dunmore, Case V. Djinmore, Cash, Baldwin v., Cash, Kirby v., Cash, Kirby v., Casselberry, Detwiler ■»., CasseU v. Cooke, Caster, Snyder v.. Castor V. Cloud, Cathcart, City v., Cathcart v. Potterfield, Cattison v. Cattison, Cauffman v. CaufCman, Canghey v. Mayor, Caulk, Warner v., Cavenangh, Rush v., Cavence v. Butler, Cayene v. HcMichael, Oawley v. Bohan, Cemetery Co. v. City, Central Railway v. Cook, Cerf, Geisenberger v., Chaffee v. Sangston, ChaSees v. Risk, Chain v. Hart, Chambers v. Carson, Chambers v. Carson, Chambers, Datz v.. Chambers, Hering v.. Chambers V. Lapsley, Chambers v. Reynolds, Chandler, Barber v.. Chapman, Roach v., Chappell, Fnrbush v., Charlston, Murray v.. 63 Pa. St., 379, New Trials, 15 W. N., 523, Assumpsit, 3 Cowan, 22, At Trial, 165 Pa. St., 617, Defenses, 31 Pa. St., 533, Death, 22 Grattan, 168, Justices, SECTION 3027, 3042 32 3002a 2781 2216 1194 6 Luz. Leg., Rep., 204, Arbitration, 2896 21 W. N., 444, Municipal Liens, 457 70 Pa. St, 239, Execution, 3188 89 Pa. St, 374, Amendments, 2413 1 Dist. Rep., 122, Justices, 1375 2 Wh., 365, Sci. Fas., 256 2 Wh., 365, Mortgage, 191 86 Pa. St, 176, Executions, 3304 35 W. N., 292, Original Writs, 2311 147 Pa. St., 371; 23 Atl. Rep., 575, Appeals, 3435 153 Pa. St, 310, Mechanics' Claims, 201 2 Dist Eep.,578,Peigned Issues,2650,2656 3 W. N., 325, Justices, 1497 3 W. N., 325, Landlord and Tenant, 1725 1 Phila., 507, Attorneys, 3530 Jurist, June 7, 1862, p. 493, Divorce, 903 23 Pa. St., 93, Execution, 3169 23 Pa. St, 93, Justices, 1463 7 W. & S., 425, Replevin, 2184 93 Pa. St, 505, Sci. Fas., 277 93 Pa. St, 505, Municipal Liens, 457 5 W. & S., 179, Insolvent Laws, 3608,3610 8 S. & R., 268, Amendments. 2430 4 Yeates, 358, Account Render, 333 2 W. N., 252, Justices, 1426 10 Phila., 103, Justices, 1285 5 Watts, 163, Sci. Fas., 275 22 Pa. St, 275, Divorce, 783, 787 17 S. & R., 16, Dower, 1076 12 S. & R., 53, Justices, 1419 3 Wh., 193, Defalcation, 2756 2 Pa. St., 187, Amendments, 2438 6 Binn., 52, Justices, 1513 8 S. & R., 441, Amendments, 2430, 2435 120 Pa. St, 295, Justices, 1492a 93 Pa. St, 129, Municipal Liens, 446 1 W. N., 319, Negligence, 1871 1 Phila., 17, Landlord and Tenant, 1690 10 Watts, 265, Replevin, 2187, 2212 24 Pa. St, 432, Comp. with Cred., 3483 28 W. N., 317, Assumpsit, 30 2 Wh., 365, Sci. Fas., 256 2 Wh., 365, Mortgages, 191 3 Dist Rep., 354, Attachments, 75 103 Pa. St, 172, Municipal liens, 436,451 7 Pa. St, 24, Discontinuance, 3749 2 Dist Rep., 402, Justices, 1517 17 Pa. St, 49, Justices, 1381, 1537 22 Howard, 129, Attachments, 126, 130 105 Pa. St, 187, Ground Rents, 151 106 TJ. S. Rep., 95, Appeals, 3463ee TABLE OF CASES. Ixxiii Chamley v. Hansbury, Chase v. Hodges, Chase, Holgate v., Chase v. Miller, Chase, Murphy v.. Chase, Providence Co. v., Chase v. Vandegrift, Chave, Heebner v., Chegary, People v., Chemical Co., MacGeorge v. Cheny, Mulholm v., Chess v. Chess, Chews' Appeal, Chew, Oniel v., Cheyney, Wright v., Chichester, Crofut v., Childs V. Comm., Childs V. R. R. Co., Chincleclamouche Co. v. Comm. Chippenham, Dummer v., Chittenden, Comm. v., Christ, Snyder v., Christ, Vandyke v., Christian v. Mills, Christman, Lovegrove v., Christmas v. Biddle, Christy V. Bohlen, Christy V. Reynolds, Churchs' Appeal, Church V. AUison, Church, Brown v., Church, Bullitt v., Church V. Church, Church, City v.. Church V. City, Church, Brie v., Church, Howarth v., Church V. Jones, Church, McCracken v., Church, Northern Liberties v., Church, Russell v.. Church V. Stettler, Church, Tassey v., Church V. Trout, Cist, Reed v., City's Appeal, City V. Adams, City, Agnew v., City, Alcorn v., City V. Allen, City V. Allert, City V. Barber, City, Berghaus v., City, Bidwell v.. City V. Black, SECTION 13 Pa. St., 16, Ground Rents, 176 2 Pa. St., 48, Actions after Death, 2218 7 Luz. L. Reg., 178, Arbitration, 2897 41 Pa. St., 403, Appeals, 3376 103 Pa. St., 260, Ground Rents, 151 108 Pa. St., 319, Feigned Issues, 2695 88 Pa. St, 217, At Trial, 3004 5 Pa. St., 115, Justices, 1480 18 Wendell, 637, Justices, 1194 141 Pa. St, 575, Original Writs, 2336 Add., 301, Replevin, 2149 1 P. & W., 32, At Trial, 2990 3 Grant, 294, Appeals, 3433 1 Dall., 379, Attachments, 78, 115 10 Phila., 469, Assumpsit 22 3 Phila., 457, Replevin, 2189 3 Brews., 194, Mandamus, 1836 27 W. N., 510, Torts, 558 .100 Pa. St., 438, Quo Warranto, 2092 14 Ves., 245, Bills of Discovery, 2564 2 Dist Rep., 804, Mandamus, 1843 39 Pa. St, 499, Execution, 3217 7 W. & S., 373, Feigned Issues, 2712 16 W. N., 393, Ejectments, 677 35 W. N., 327; 164 Pa. St, 390, De- fenses, 2782 1 Phila., 68, Costs, 3124 5 Pa. St, 38, Assumpsit 32 4 Phila., 8, Execution, 3191 165 Pa. St., 475, Municipal Liens, 446 10 Pa. St, 413, Mechanics' Claims, 213 23 Pa. St., 495, Partition, 1978 26 Pa. St, 108, Feigned Issues, 2712 2 Clark, 349, Partition, 2048 19 W. N., 109; 115 Pa. St, 291, Municipal Liens, 422 108 Pa. St, 466, Municipal Liens, 457 105 Pa. St, 278, Municipal Liens, 446 34 W. N., 470, Mechanics' Claims, 223 25 W. N., 396, Assumpsit 32 17 W. N., 45, Assumpsit, 30 13 Pa. St., 104, Municipal Liens, 411, 446 65 Pa. St, 14, Interpleaders, 2730 26 Pa. St, 246, Mechanics' Claims, 213 4 W. & S., 141, Amendments, 2432, 2434 28 Pa. St., 153, Mechanics' Claims, 239 7 S. & R., 183, Actions after Death, 2216 86 Pa. St, 182, Execution, 3199 7 Cent. Rep., 195, Municipal Liens, 418 2 Phila., 340, Justices, 1537 17 W. N., 368, Municipal Liens, 443 21 W. N., 153, Municipal Liens, 444 29 W. N., 113, Municipal Liens, 354 160 Pa. St., 123, Municipal Liens, 404 122 Pa. St., 289, Municipal Liens, 424 5 W. N., 41, Municipal Liens, 417 132 Pa. St, 568, Municipal Liens, 408 Ixxiv TABLE OF CASES. City V. Bowman, City V. Bradfield, City, Breed v., City, Brientnall v., City V. Brooke, City, Brower v., City, Brown v., City V. Burgin, City V. Bnsch, City V. Cadwallader, City V. Cadwallader, City V. Cadwallader, Cily V. Carr, City V. Cathcart, City, Cemetery Co. v., City V. Church, City, Church v.. City V. Cloud, City V. Coal Co., City V. Cohen, City, Collins v., City V. CoUum, City, Commissioners v., City, Comm. v.. City V. Conlston, City V. Conlston, City, Cowan v., City V. Cox, City V. Cox, City, Craig v.. City V. Crump, City V. Dibeler, City, Dickinson v.. City V. Dickson, City V. Donath, City ■». Dungan, City V. Eastwick, City V. Edward, City V. Evans, City V. Eyre, City, Fell v. City, Fisher v., City V. Pitton, City, Fisher v., City, Plannigen v., City V. Fraley, City V. Gallagher, City, Gans v.. City V. Glading, City V. Gondey, City V. Gratz Land Co., City, Graves v., City V. Greble, City, Hammett v.. 8Ecno>f 36 W. N., 138; 166 Pa. St., 393, As- sumpsit, 32 159 Pa. St., 517, Municipal Liens, 343 85 Pa. St., 214, Municipal Liens, 441 103 Pa. St., 156, Municipal Liens, 474 81 Pa. St., 23, Municipal Liens, 409 26 W. N., 270, Negligence, 1872 5 Cent Rep., 699, Municipal Liens, 417 50 Pa. St., 539, Municipal Liens, 409 35 W. N., 564, Municipal Liens, 480 22 W. N., 8, Mechanics' Claims, 239 20 W. N., 14, Municipal Liens, 462 22 W. N., 8, Municipal Liens, 444 21 W. N., 144, Municipal Liens, 457 10 Phila., 103, Justices, 1285 93 Pa. St., 129, Municipal Liens, 446 19 W. N., 109; 115 Pa. St., 291, Munic- ipal Liens, 422 108 Pa. St, 466, Municipal Liens, 457 4 W. N., 445, Defalcation, 2756 105 Pa. St, 445, Municipal Liens, 415 13 W. N., 468, Justices, 1517 8 W. N., 410, Arbitration, 2937 1 W. N., 525, Municipal Liens, 481 3 Brews., 596, Mandamus, 1769 14 Pa. St, 185, Quo Warranto, 2101 19 W. N., 109; 115 Pa. St., 291, Munic- ipal Liens, 422 21 W. N., 71, Municipal Liens, 422 2 Del. Co. Rep., 234, Arbitration, 2908 29 W. N., 519, Municipal Liens, 351 1 Dist Rep., 280, Execution, 3144a 89 Pa. St., 265, Municipal Liens, 409, 416 1 Dist Rep., 698, Municipal Liens, 438 147 Pa. St, 261, Defenses, 2809 14 W. N., 367, Municipal Liens, 415 47 Leg. Int., 83, Municipal Liens, 344 9 W. N., 415, Municipal Liens, 453 23 W. N., 243, Municipal Liens, 434 35 Pa. St, 75, Municipal Liens, 445 78 Pa. St, 62, Municipal Liens, 409 27 W. N., 240, Defenses, 2809 36 W. N., 216, Assumpsit, 32 81 Pa. St, 58, Municipal Liens, 473, 409 4 Brews., 395, At Trial, 2990 27 W. N., 340, Municipal Liens, 383 4 Brews., 395, At Trial, 2990 51 Pa. St, 491, Ejectments, 627 18 W. N., 508, Municipal Liens, 436 16 Phila., 15, Municipal Liens, 440 102 Pa. St, 97, Municipal Liens, 433 36 W. N., 247, Municipal Liens, 478 36 W. N., 246, Municipal Liens, 478 38 Pa. St, 359, Municipal Liens, 478 95 Mich., 266, Prep, for Trial, 2972 38 Pa. St, 339, Municipal Liens, 411 65 Pa. St, 164, Municipal Liens, 411, 412, 425 TABLE OF CASES. Ixxv City V. Hanbest, City, Hartupee v.. City V. Hartwell, City V. Hays, City V. Hemphill, City, Hershberger v., City v. Hiester, City V. Hospital, City, HoBtetter v.. City, Howell v., City V. Hower, City V. Jacobs, City V. Jewell's Estate, City, Johnson v.. City V. Kates, City V. Kates, City V. Keith, City, Keith v.. City V. Kelly, City V. Kendrick, City V. Knowlson, City V. Langhlin, City V. Laughlin, City V. Laws, City, liibr^ry Co. v.. City V. Iiinnard, City, Lipps v.. City, Lukens v.. City V. Masonic Home, City V. Matchett, City V. McCaffrey, City V. McCaffrey, City V. McCuen, City V. McGarry, City, McGlue v., City V. Meighan, City V. Merklee, City V. Meyers, City, Michener v., City V. Milligan, City, Munley v.. City V. Newkumet, City, O'Byrne v., City V. O'Reilly, City V. Pennell, City, Pepper v.. City, Pepper v.. City V. Pepper, City V. Pepper, City V. R. R. Co., City, R. R. Co. v.. City V. R. R. Co., City, Rwy. Co. v.. City V. Rwy. Co., City V. Rwy. Co., SECTION 15 W. N., 349, Municipal Liens, 452 131 Pa. St., 535, Arbitration, 2901, 2941 164 Pa. St., 348, Defenses, 2796 93 Pa. St, 72, Municipal Liens, 465 24 W. N., 79, Municipal Liens, 459 115 Pa. St., 78, Municipal Liens, 435 142 Pa. St., 39, Municipal Liens, 354 28 W. N., 434, Municipal Liens, 400 107 Pa. St., 419, Arbitration, 2901 38 Pa. St., 471, Municipal Liens, 482 93 Pa. St, 332, Municipal Liens, 480 22 W. N., 348, Municipal Liens, 450 26 W. N., 150, Municipal Liens, 451 139 Pa. St., 330, Arbitration, 2935 150 Pa. St, 30, Municipal Liens, 354 30 W. N., 345, Municipal Liens, 457 1 Cent. Rep., 898, Municipal Liens, 416 24 W. N., 115, Municipal Liens, 419 2 Dist Rep., 143, Amendments, 2407 I Brews., 406, Justices, 1420 92 Pa. St, 116, Municipal Liens, 454 48 Leg. Int., 265, Municipal Liens,434,480 161 Pa. St, 522, Assumpsit, 32 20 W. N., 63, Municipal Liens, 450 161 Pa. St, 155, Municipal Liens, 404 97 Pa. St., 242, Arbitration, 2937 38 Pa. St, 503, Municipal Liens, 411 13 W. N., 86, Municipal Liens, 418 160 Pa. St, 572, Municipal Liens, 404 116 Pa. St., 103, Municipal Liens, 488 25 W. N., 213, Assumpsit, 32 47 Leg. Int., 247, Assumpsit, 32 14 W. N., 453, Audita Querela, 3362 II W. N., 168, Municipal Liens, 486 105 Pa. St, 236, Arbitration. • 2900 159 Pa. St, 495, Municipal Liens, 401 159 Pa. St., 515, Municipal Liens, 343 18 W. N., 329, Justices, 1253 118 Pa. St, 535, Municipal Liens,410,462 147 Pa. St., 338, Municipal Liens, 383 4 Dist Rep., 117, New Trials, 3038 1 Dist. Rep., 558, Municipal Liens, 451 93 Pa. St., 225, Municipal Liens, 461 32 AV. N., 166, Municipal Liens, 480 169 Pa. St, 301, Municipal Liens, 408 114 Pa. St, 96, Municipal Liens, 409, 417, 485 114 Pa. St, 96, At Trial, 3022a 19 W. N., 109; 115 Pa. St, 291, Muni- cipal Liens, 422, 423 423 441 441 469 439 36 3576 16 W. N., 331, Municipal Liens, 33 Pa. St., 41, Municipal Liens, 7 W. N., 87, Municipal Liens, 12 Phila., 479, Municipal Liens, 92 Pa. St, 100, Municipal Liens, 33 W. N., 522; 2 Dist. Rep., 705, As- sumpsit 28 W. N., 388, Courts, Ixxvi TABLE OF CASES. City V. Rwy. Co., City, Reilley v., City V. Richards, City V. Robbins, City V. Rule, City V. Ryers, City V. Sanger, City V. Sanger, City V. Savage, City, Schlag v., City V. Schofield, City V. Schofield, City V. Scott, City V. Scott, City V. Segelbaum, City, Shaw v.. City, Shoemaker v., City V. Simpson, City, Slocum v., City V. Stevenson, City, Stewart v.. City V. Stewart, City V. Strawbridge, City, Swain v., City V. Theis, City V. Thomas, City V. Tryon, City V. Tyson, City V. Tiber, City V. Unknown Owner, City V. Van Vrankin, City V. Wadlinger, City, Wain's Heirs v., City V. Walter, City V. Ward, City, Watson v., City, Watson v., City V. Wheaton, City, Winter v., City, Wistar v., City V. Wistar, City, Wistar v.. City, Wistar v., City, Wolf v.. City V. Wood, City V. Woodward, Clapp V. Senneff, Clark's Case, Clark V. Ballon, Clark, Beraus v., Clark, Brown v., Clark V. Comm., Clark V. Comm., Clark, Comm. v., Clark, Davis v., Clark V. Depew, SECTION 143 Pa. St., 444, Courts, 3576 60 Pa. St., 467, Municipal Liens, 464, 467, 481 23 W. N., 339, Municipal Liens, 479, 480 18 W. N., 39, Municipal Liens, 452 93 Pa. St., 15, Municipal Liens, 415 27 W. N., 71, Municipal Liens, 354 5 W. N., 335, Municipal Liens, 474 8 W. N., 151, Municipal Liens, 486 22 W. N., 3, Municipal Liens, 420 42 Leg. Int, 354, Municipal Liens, 479 25 W. N., 388, Municipal Liens, 438 166 Pa. St., 389, Municipal Liens, 383 3 W. N., 562; 93 Pa. St., 25, Munic- ipal Liens, 242, 457, 458 8 W. N., 405, Defenses, 2769 151 Pa. St., 172, Municipal Liens, 439 115 Pa. St., 46, Execution, 3144b 122 Pa. St., 285, Municipal Liens, 424 25 W. N., 517, Feigned Issues, 2623, 2662 11 W. N., 167, Municipal Liens, 443 6 Pa. C. C, 287, Municipal Liens, 438 4 Cent. Rep., 674, Municipal Liens, 418 1 W. N., 242, Municipal Liens, 464, 467 4 W. N., 215, Justices, 1398 22 W. N., 120, Municipal Liens, 449 12 W. N., 239, Municipal Liens, 461 9 W. N., 240, Municipal Liens, 488 35 Pa. St., 401, Municipal Liens, 411 9 W. N., 367, Assumpsit, 60c I W. N., 160, Municipal Liens, 480 23 W. N., 271, Municipal Liens, 457 39 Leg. Int., 402, Municipal Liens, 478 142 Pa. St., 308, Justices, 1406 II W. N., 314, Municipal Liens, 462 39 Leg. Int., 42, Municipal Liens, 484 16 W. N., 76, Municipal Liens, 457 93 Pa. St., Ill, Municipal Liens, 483 48 Leg. Int, 372, Defalcation, 2756 1 Del. Co. Rep., 3, Arbitration, 2908 15 W. N., 329, Municipal Liens, 470 III Pa. St., 604, Municipal Liens, 425 10 W. N., 275, Municipal Liens, 447 86 Pa. St., 215, Municipal Liens, 448, 451 9 W. N., 98, Municipal Liens, 459 105 Pa. St., 25, Municipal Liens, 433, 489 4 Phila., 156, Municipal Liens, 477 13 W. N., 372, Municipal Liens, 434 7 Phila., 214, Justices, 1410 22 Pa. St., 466, Costs, 3103 1 Dist. Rep., 430, Account Render, 315 29 Pa. St., 251, Arbitration, 2906 14 Pa. St., 469, Prep, for Trial, 2947 123 Pa. St., 555, Justices, 1200 29 Pa. St., 129, Justices, 1201 6 Phila., 498, Mandamus, 1813 106 Pa. St., 377, Mechanics' Claims, 208 25 Pa. St., 509, Bills of Discovery, 2571 TABLE OF CASES. Ixxvii Clark V. Halbertstadt, Clark, Hunter v., Clark, Huston v., Clark V. McClelland, Clark V. McCormack, Clark V. Moras, Clark V. Patterson, Clark, Pentz v., Clark, RafCerty v., Clark, Rex v., Clark, Sargeant v., Clark, Sargeant v., Clark, Worcester v., Clark V. Yeat, Clarke, Bavington v., Clarke, Hartranft v., Clarke, Keller v., ' Clarkson, Respubllca v., Class V. Kingsley, Class v. Kingsley, Clawges V. Olawges, Claxton's Case, Clay, Comm. ■;;., Glayburgh v. Clayburgh, Cleary, Evans v., Cleaver v. Comm., Clements i;. Gilbert, Clement v. Comm., Clement v. Wright, Clemson v. Davidson, Clevenstine, Campbell v., Climenson v. Climenson, Clingen, Wallace v., Clinton, Keller v., Clippenger v. Miller, Clippenger v. Creps, Clothier, Yardley v., Cloud, Castor v., Cloud, City v.. Clover, Evans v., Club, Evans v., Cluff, Gunnis v., Cluggage V. Swan, Cluley, Comm. v., Cluley, Pittsburg v., Clymor v. Clymer, Clymer v. Clymer, Clymer, Jackson v., Clymer v. Shaw, Clymer v. Thomas, Coakley v. R. R. Co., Coaks V. White, Coal Co. V. Androkus, Coal Co. V. Boom, Coal Co. City v., SECTION 1 Miles, 26, At Trial, 3023 16 W. N., 558, Attachments, 81 9 W. N., 316, Arbitration, 2896 9 Pa. St., 128, Death, 2216 2 Phila., 68, Justices, 1409 28 W. N., 301, Replevin, 2209 6 Binn., 128, Appeals, 3434 100 Pa. St, 446, Execution, 3189 18 W. N., 378, Justices, 1354 8 T. R., 220, Justices, 1520 108 Pa. St., 588, Arbitration, 2892, 2896 108 Pa. St., 588, Appeals, 3445 2 Gr., 84, Dower, 1058 4 Binn., 185, Justices, 1428 2 P. & W., 115, Partition, 1973 4 W. N., 543, Justices, 1537 6 W. & S., 534, Justices, 1596 1 Teates, 46, Mandamus, 1788, 1819 48 Leg. Int., 364, Assumpsit, 30 28 W. N., 320, Defenses, 2771 2 Miles, 34, Partition, 1961 1 Ash., 102, Insolvent Laws, 3608 9 Phila., 121, Discontinuance, 3733 15 W. N., 365, Divorce, 903 23 W. N., 509, Attachments, 81 34 Pa. St., 283, Quo Warranto, 2104 12 Pa. St.', 255, Justices, 1526 95 Pa. St., 107, Amendments, 2410, 2415 40 Pa. St., 250, Replevin, 2168 5 Binn., 392, New Trials, 3041 3 Dist. Rep., 166, Feigned Issues, 2685 163 Pa. St., 451; 35 W. N., 471, Just- tices, 1334 9 Pa. St., 51, Interpleaders, 2730 4 Dist. Rep., 216, Costs, 3135 1 P. & W., 64, Attachments, 75 2 Watts, 45, Justices, 1443 1 Dist. Rep., 46, Defalcation, 2756 2 W. N., 252, Justices, 1426 4 W. N., 445, Defalcation, 2756 1 Grant, 164, 3733, 3734 50 Pa. St., 107, Mandamus, 1774 111 Pa. St., 512, Defalcation, 2756 4 Binn., 150, New Trials, 3037 56 Pa. St., 270, Quo Warranto, 2088, 2093, 2105, 2118 66 Pa. St., 449, Municipal Liens, 476 45 Leg. Int., 379, Divorce, 985 45 Leg. Int., 379, Discontinuance, 3742 43 Pa. St., 79, Defalcation, 2757 1 Dist. Rep., 164, Feigned Issues, 2669 7 S. & R., 178, Amendments, 2425 5 Clark, 444, Negligence, 1879, 1890, 1900 11 W. N., 271, Assumpsit, 52 2 Dist. Rep., 764, Landlord and Ten- ant, 1712 6 W. N., 222, Original Writs, 2311 105 Pa. St., 445, Municipal Liens, 415 Ixxviii TABLE OF CASES. Coal Co., Dnrldn v., Coal Co., Frame v., Coal Co. V. Huntzinger, Coal Co. V. MeBnery, Coal Co., Megargell v., Coal Co., Ome v., Goal Co., Schneider v., Coal Co., Scott v., Ooates, Northern Liberties v., Coates v. Roberts, Coates V. Roberts, Coates, Soop v., Cobangh, Bechtol v., Cobb V. Bnms, Cochlln V. Comm., Cochran, Comm. v., Cochran v. Library Co., Cochran, McCristal v., Cochran, Meyers v., Cochran v. Parker, Cochran v. Sanderson, Cock V. Wortham, Cockley v. Rehr, Coffa V. Ass'n, Cohen, City v., Cohn V. Schener, Coit, Comm. v., Colburn, Poor v., Colbnm, Poor v., Cole, Graves v., Coleman's Api)eal, Coleman's Estate, Coleman, Blewett v., Coleman v. Blewett, Coleman v. Coleman, Coleman v. Gmbb, Coleman, Johnston v., Coleman v. Spencer, Colgan, Comm. v., College, Greenhoe v., College, Seabrook v., Collier, Petriken v., Collins' Appeal, Collins V. City, Collins V. Collins, Collins V. Collins, Collins V. Cronin, Collins, Lanahan v., Collins V. Leafey, Collins V. Leafey, Collins V. Rnsh, Collins V. Schock, Collins V. Schock, Collins V. Walker, CoUum, Bates v., CoUum. City v., 171 Pa. St., 193, Arbitration, 97 Pa. St., 309, Defalcation, 6 W. N., 300, Execntlon, 91 Pa. St., 185, Negligence, 8 W. & S., 342, Justices, 114 Pa. St., 172, Ejectments, 98 Pa. St., 470, Arbitration, 89 Pa. St, 231, Amendments, 15 Pa. St., 245, Municipal Liens, 4 Bawle, 110, Justices, 4 Rawle, 109, Interpleader, 12 S. & R., 388, Justices, 1486, SECTION 2891 2756 3248 1890 1398, 1551 622 2909 2433 448 1385 2730 1490 10 S. & R.. 122, Justices, 1547 61 Pa. St., 282, Feigned Issues, 2629 11 W. N., 460, Sci. Fas., 262 5 Binn., 87, Mandamus, 1790, 1819 6 Phila., 492, Original Writs, 2232 147 Pa. St., 225, Mechanics' Claims, 213, 239 33 W. N., 250, Assumpsit, 36 6 S. & R., 549, Justices, 1513 151 Pa. St., 591, Appeals, 3463o 2 Stra., 1054, Torts, 545 2 Dist. Rep., 331, Justices, 1475 3 Dist. Rep., 566, Mechanics' Claims, 241 13 W. N., 468, Justices, 1517 115 Pa. St., 178, Replevin, 2204 15 W. N., 270, Mandamus, 1834 57 Pa. St, 415, Assumpsit, 58 57 Pa. St, 415, Execution, 3298, 3305 19 Pa. St, 171, Divorce, 923 62 Pa. St, 252, Partition, 1976, 1997 4 Dist Rep., 105, Feigned Issues, 2652 40 Pa. St, 45, Partition, 1976 43 Pa. St, 176, Partition, 1976 19 Pa. St, 100, Partition, 1976 23 Pa. St, 393, Partition, 1976 8 W. & S., 69, Insolvent Laws, 3608 1 Phila., 271, Prod, of Documents, 2452 19 W. N., 131, Assumpsit, 22 29 W. N., 99, Appeals, 3463o 65 Pa. St, 74^ Mechanics' Claims, 243 7 W. & S., 392, Depositions, 2513 166 Pa. St, 179; 37 W. N., 269, Mort- gages, 191 8 W. N., 410, Arbitration, 2937 37 Pa. St, 387, Justices, 1252, 1256 2 Brews., 515, Divorce, 795 117 Pa. St, 35, Torts, 549 28 W. N., 287, Defalcation, 2757 124 Pa. St, 203, At Trial, 3113 124 Pa. St, 203, NegUgence, 1891, 1895 7 S. & R., 155, At Trial, 3023a 14 W. N., 485, Mechanics' Claims, 242 14 W. N., 485, Municipal Liens, 457 6 W. N., 175, Attachments, 81 34 W. N., 513, Audita Querela, 3359 1 W. N., 525, Municipal Liens, 481 TABLE OP CASES. Ixxix Colorado, Brown v.. Colter V. Lower, Colvin, R. R. Co. v., Colvin V. Reed, Colvin, Tonng v., Colwell, Neil v., Colwell V. Rockwell, Colwell, Wilson v., Colwell, Wood v., Colwell, Wood 17., Colwell, Wood v.. Comfort V. Leland, Comly, Bonsall v., Comly, Edelkamm v., Comly ■17. Ryan, Commissioners, Assessors v., Commissioners v. City, Commissioners, Comm. v., Commissioners v. Comm., Commissioners v. Comm., Commissioners, Comm. v., Commissioners, Comm. v.. Commissioners, Comm. v., Commissioners, Comm. v., Commissioners, Comm. v., Commissioners, Comm. v., Commissioners, Comm. v., Commissioners, Comm. v., Commissioners v. Picbniger, Commissioners v. Flanigan, Commissioners, Harger v., Commissioners, James v., Commissioners v. Keith, Commissioners, Prison Insp. Commissioners, R. R. Co. v.. Commissioners, Respublica t (Commissioners v. Ross, Commissioners, StauSer v.. Commissioners, Zimmerly v., Comm. v. Addicks, Comm. 17. Addicks, Comm. 17. Alexander, Comm. 17. Allen, Comm. 17. Allen, Comm. 17. Arnold, Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. 17. Arnold, V. Arrison, , Bailey 17., 17. Baldwin, 17. Bank, 17. Bank, 17. Bank, 17. Bank, 17. Baroux, 17. Baxter, , Beeson 17., SECTION 106 U. S. Rep., 95, Appeals, 3463ee 35 Ind., 285, Torts, 540 118 Pa. St., 230, NegUgence, 1909 55 Pa. St., 380, Divorce, 783, 784 168 Pa. St., 449, Justices, 1504 66 Pa. St., 216, Execution, 3227 11 W. N., 552, Sci. Fas., 256 3 Watts, 212, Appeals, 3434 34 Pa. St., 92, Audita Querela, 3369a 34 Pa. St., 92, Death, 2220 34 Pa. St., 92, Execution, 3227 3 Wh., 81, Justices, 1551 44 Pa. St., 442, Replevin, 2179 1 Dist. Rep., 505, Mechanics' Claims, 226 5 Wh., 263, Assumpsit, 30 3 Brews., 333, Mandamus, 1770 • 3 Brews., 596, Mandamus, 1769 32 Pa. St,218, 237, Mandamus, 1762, 1844 37 Pa. St., 277, Bills of Exceptions, 3064 37 Pa. St., 237, 277, Mandamus, 1769, 1844 72 Pa. St., 24, Mandamus, 1777 6 Wh., 476, Mandamus, 1789 5 Binney., 536, Mandamus, 1795 5 Rawle, 75, Mandamus, 1797 4 S. & R., 125, Mandamus, 1801 16 S. & R., 317, Mandamus, 1812, 1819 1 Wh., 1, Mandamus, 1819 1 S. & R., 385, Quo Warranto, 2077 51 Pa. St, 51, Justices, 1424 3 Phila., 458, Municipal Liens, 479 12 Pa. St., 251, Costs, 3135 13 Pa. St., 72, Mandamus, 1803 2 Pa. St., 218, Municipal Liens, 471 !., 16 S. & R., 317, Mandamus, 1812 21 Pa. St., 9, Mandamus, 1822 ., 4 Yeates, 181, Mandamus, 1833 3 Binney, 520, New Trials, 3030, 3041 1 Watts, 300, Sci. Fas., 249 25 Pa. St., 134, Justices, 1428 5 Binn., 520, Justices, 1195, 1202 2 S. & R., 174, Justices, 1195 14 S. & R., 261, Execution, 3144a 70 Pa. St., 465, Quo Warranto, 2084,2089 30 Pa. St., 49, Execution, 3217 34 W. N.,313; 161 Pa. St.,320, At Trial, 3008, 3013, 3014 34 W. N., 313, Bills of Exceptions, 3076a 15 S. & B., 127,' Quo Warranto, 2080 41 Pa. St, 473, Dower, 1061 9 W. N., 233, Mandamus, 1783 2 Grant, 392, Quo Warranto, 2102 28 Pa. St., 383, Quo Warranto, 2109,2125 28 Pa. St., 391, Quo Warranto, 2109,2126 10 Phila., 156, Quo Warranto, 2118 36 Pa. St., 262, Mandamus, 1806 35 Pa. St., 263, Quo Warranto, 2099 13 S. & R., 249, Amendments, 2422, 2423 Ixxx TABLE OF CASES. Comm. V. Berger, Comm. V. Betts, Comm. e. Blatt, Comm., Blue v., Comm., Borough v., Comm. V. Borough, Comm. V. Bowman, Comm. V. Boyd, Comm. V. Brady, Comm. V. Brady, Comm. V. Bridge Co., Comm. v. Briggs, Comm. V. Brown, Comm., Brown v., Comm. V. Browne, Comm. V. Bumm, Comm. V. Bunn, Comm. V. Burkhart, Comm. V. Burkhart, Comm. V. Burrell, Comm. v. Callahan, Comm., Campbell v., Comm. V. Cane, Comm., Childs v., Comm.,Chincleclamouche Co. Comm. V. Chittenden, Comm. V. City, Comm., Clark v., Comm., Clark v., Comm. V. Clark, Comm. V. Clay, Comm., Cleaver v., Comm., Clement v., Comm. V. Cluley, Comm., Cochlin v., Comm. V. Cochran, Comm. V. Coit, Comm. V. Colgan, Comm. V. Commissioners, Comm. V. Commissioners, Comm. V. Commissioners, Comm. V. Commissioners, Comm., Commissioners v., Comm. V. Commissioners, Comm. V. Commissioners, Comm. V. Commissioners, Comm. V. Commissioners, Comm. V. Commissioners, Comm. V. Commissioners, Comm. V. Conard, Comm., Conner v., Comm., Councils v., Comm. V. Councils of Pittsb., Comm. V. Councils of Pittsb., Comm. V. Crompton, Comm., Crutcher v., Comm. V. Curby, SECTION 8 Phila., 237, Audita Querela, 3347 76 Pa. St, 465, Justices, 1428 165 Pa. St., 213, Appeals, 3435 4 Watts, 215, Justices, 1263 34 Pa. St, 293, Mandamus, 1765 15 W. N., 506, Mandamus, 1821 3 Dist Rep., 74, Execution, 3248 56 Pa. St, 402, Execution, 3173 6 Phila., 121, Mandamus, 1835 6 Phila., 121, Writs, 2366 20 Pa. St, 185, Quo Warranto, 2102, 2103 16 Pick., 203, Justices, 1194 11 Phila., 370, Justices, 1201 73 Pa. St, 321,.At Trial, 2978 1 S. & R., 382, Quo Warranto, 2078 10 Phila., 162, Quo Warranto, 2084 71 Pa. St., 405, Mandamus, 1772 23 Pa. St., 521, Justices, 1396, 1406 23 Pa. St, 522, Justices, 1428 7 Pa. St., 34, Quo Warranto, 2097 153 Pa. St., 625, Prep, for Trial, 2958a 84 Pa. St, 187, At Trial, 2978 2 Par., 265, Justices, 1520 3 Brews., 194, Mandamus, 1836 D.lOO Pa. St., 438, Quo Warranto, 2092 2 Dist Rep., 804. Mandamus, 1843 14 Pa. St., 177, Quo Warranto, 2101 123 Pa. St, 555, Justices, 1200 29 Pa. St, 129, Justices, 1201 6 Phila., 498, Mandamus, 1813 9 Phila., 121, Discontinuance, 3733 34 Pa. St, 283, Quo Warranto, 2104 95 Pa. St, 107, Amendments, 2410, 2415 56 Pa. St, 270, Quo Warranto, 2088, 2093, 2105, 2118 11 W. N., 460, Sci. Fas., 262 5 Binney, 87, Mandamus, 1790, 1819 15 W. N., 270, Mandamus, 1834 19 W. N., 131, Assumpsit, 22 37 Pa. St., 277, Bills of Exceptions, 3064 32 Pa. St, 218, Mandamus, 1762, 1844 1 Wh., 1, Mandamus, 1819 37 Pa. St, 237, 277, Mandamus, 1766, 1844 72 Pa. St, 24, Mandamus, 1777 6 Wh., 476, Mandamus, 1789 5 Binney, 536, Mandamus, 1795 5 Rawle, 75, Mandamus, 1797 4 S. & R., 125, Mandamus, 1801 16 S. & R., 317, Mandamus, 1812, 1819 1 S. & R., 385, Quo Warranto, 2077 I Rawle, 349, Execution, 3158 3 Binn., 43, Justices, 1167 II Pa. St., 196, Mandamus, 1810 34 Pa. St., 496, Mandamus, 1764 88 Pa. St, 66, Mandamus, 1766 26 W. N., 475, Escheats, 1152 6 Wh., 340, Appeals, 3434 8 Phila., 372, Justices, 1202 TABLE OP CASES. Ixxxi Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm Comm. Comm, Comm. Comm, Comm. Comm. Comm. Comm, Comm, Comm, Comm Comm, Comm, Comm, Comm, Comm, Comm, Comm, Comm. Comm, Comm, Comm V. Daily, V. Bailing, V. Davenger, V. Davis, V. Davis, V. Davison, V. Deacon, , Dechert v., V. Dechert, V. Degitz, V. Delamater, V. Demot, V. Dickinson, V. Dickinson, V. Dieffenbach, V. Dillon, V. Dillon, ., Douglass v., ., Doyle v., V. Dugan, . V. Dumbanld, , V. Eberle, , V. Eichenberg, , V. Emminger, . V. Pee, . V. Feigle, ,, Field v., . V. Fitler, , V. Flanagan, . V. Fleming, ,, Foust v., . V. Freeman, . V. Frank, . V. Garrigues, ., Gerdemann v., . V. Getz, V. Gill, . V. Gill, Gilroy v., Comm. V. Gipner, Comm. V. Gipner, Comm., Girts v., Comm. V. Graham, Comm., Grant v., Comm. V. Guardians, Comm., Haines v., Comm. Comm. Comm, Comm. Comm.. Comm. Comm, Comm. Comm, , Haines v., , Haines v., , V. Hale, V. Hancock, Hare v., V. Hartranft, , HefCner v., V. Henry, V. Henszey, SECTION 3 W. N., 133, Quo Warranto, 2118 2 Pars., 285, Justices, 1285 30 Leg. Int., 321, Justices, 1395 109 Pa. St., 128, Quo Warranto, 2118,2135 29 W. N., 500, Justices, 1209 4 Dist. Rep., 103, Justices, 1194 8 S. & R., 72, Justices, 1210 113 Pa. St., 229, Mandamus, 1816 16 W. N., 508, Mandamus, 1859 167 Pa. St., 400, Assumpsit, 30 2 Dist. Rep., 562, At Trial, 2977 7 Phila., 624, Justices, 1202 3 Brews., 561, Mandamus, 1771 83 Pa. St., 458, Mandamus, 1808 3 Grant, 368, Quo Warranto, 2132 *81 Pa. St., 41, Quo Warranto, 2102, 2118, 2125, 2133 61 Pa. St., 488, Quo Warranto, 2120 108 Pa. St., 559, Mandamus, 1815 107 Pa. St., 20, Justices, 1214 2 Dist. Rep., 772, Justices, 1196, 1202 97 Pa. St., 293, Quo Warranto, 2090 3 S. & R., 9, New Trials, 3029 140 Pa. St., 158, Justices, 1403 74 Pa. St., 479, Mandamus, 1787 6 S. & R., 255, Justices, 1202 2 Phila., 215, Justices, 1421 32 Pa. St., 478, Quo Warranto, 2086 26 W. N., 369, Mandamus, 1804 7 W. & S., 415, New Trials, 3032 157 Pa. St., 644, Assumpsit, 38 33 Pa. St., 338, At Trial, 2978 166 Pa. St., 332, At Trial, 2978 13 Am. L. R. (O. S.), 700, Justices, 1199 28 Pa. St., 9, Quo Warranto, 2103 11 Phila., 374, Justices, 1216 4 Dist. Rep., 391, Quo Warranto, 2120 27 W. N., 311, Justices, 1188 3 Wh., 228, Quo Warranto, 2133 105 Pa. St., 484, Quo Warranto, 2093, 2118 118 Pa. St., 379, Justices, 1405 20 W. N., 500, Justices, 1417, 1521 22 Pa. St., 351, Amendments, 2435 64 Pa. St., 339, Quo Warranto, 2080, 2125 71 Pa. St., 495, Bills of Exceptions, 3067 13 W. N., 61, Mandamus, 1815 11 W. N., 289, Bills of Exceptions, 3067, 3069 99 Pa. St., 410, Bills of Exceptions, 3063 99 Pa.St,410,Mandamus, 1784,1842,1849 36 Leg. Int., 285, Justices, 1201 9 Phila., 535, Mandamus, 1844 92 Pa. St., 141, Execution, 3196, 3197 77 Pa. St, 154, Mandamus, 1756 28 Pa. St., 108, Mandamus, 1810 49 Pa. St., 530, Mandamus, 1795 81 Pa. St, 101, Quo Warranto, 2103 Ixxxii TABLE OF CASES. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. Comm. . V. Hepburn, . V. Hickey, , V. Hill, . V. Hoe, . «. Home, ,, Huber v., , V. Hultz, , Ins. Co. v., . V. Iron Co., ., Iron Co. v., , V. JaDer, , v. Johnson, V. Johnson, , V. Jones, V. Jones, Comm. V. Jndges, Comm. V. Judges, Comm. V. Judges, Comm., Kaine v., Comm. V. Keeper, Comm. V. Keeper, Comm. V. Keeper, Comm. V. Keeper, Comm. V. Keilly, Comm. V. Ketner, Comm. 17. Killacky, Comm. V. Kistler, Comm. V. Kite, Comm. V. Land Co., Comm. V. Lane, Comm. V. Lebo, Comm. V. Lecky, Comm. V. Lee, Comm. V. Leech, Comm. V. Lelar, Comm. V. Lentz, Comm., Leonard v., Comm. V. Lieb, Comm. V. Long, Comm., Lynch v., Comm. V. Lyndall, Comm. 1). Hackling, Comm. V. Maize, Comm. V. Marrow, Comm. V. Mayor, Comm. V. McCarter, Comm. V. McClintock, Comm. V. McCutcheon, Comm. V. McFadden, Comm., McFadden v., Comm., McGinnis v., Comm. V. McLaughlin, Comm. v. Mc Williams, Comm., Mears v., Comm. V. Meeser, Comm. 17. Megary, SECTION 5 W. & S., 403, Mandamus, 1760 2 Pars., 317, Justices, 1211 3 Dist Eep., 216, Justices, 1404 26 Leg. Int., 124, Escheats, 1156 10 Phila., 164, Quo Warranto, 2100 11 W. N., 496, Assumpsit, -21, 30 6 Pa. St., 469, Mandamus, 1792 92 Pa. St., 72, Mandamus, 1814 105 Pa. St, 111, Mandamus, 1781, 1820 113 Pa. St., 563, Mandamus, 1781, 1820 7 Watts, 366, Justices, 1201 2 Binney, 275, Mandamus, 1757, 1819 6 Pa. St., 136, Appeals, 3445 3 S. & E., 158, Justices, 1202 12 Pa. St., 365, Quo Warranto, 2093, 2098, 2118 I S. & R., 187, Mandamus, 1793 5 W. & S., 272, Mandamus, 1793 3 Binney, 273, Mandamus, 1790 101 Pa. St., 490, Mandamus, 1780 II W. N., 341, Assumpsit, 46 11 W. N., 341, Torts, 511 26 Pa. St, 279, Justices, 1209, 1210 9 W. N., 314, Justices, 1206 4 Phila., 329, Quo Warranto, 2087 92 Pa. St, 372, Justices, 1204 3 Brews., 565, Justices, 1188 149 Pa. St, 345, Quo Warranto, 2118 5 S. & R., 399, Justices, 1331 57 Pa. St, 102, Escheats, 1147 3 W. N., 546, Mandamus, 1809 13 S. & R., 175, At Trial, 3017 1 Watts, 66, Justices, 1209 2 S. & R., 174, Justices, 120!^ 44 Pa. St, 332, Quo Warranto, 2103 1 Phila., 173, Replevin, 2214 106 Pa. St, 643, Justices, 1596 3 Cent Rep., 628, Quo Warranto, 2089 9 Watts, 200, Quo Warranto, 2090, 2097 5 Binney, 489, Insolvent Laws, 3622 77 Pa. St, 205, At Trial, 2978 2 Brews., 425, Mandamus, 1816 2 Watts, 130, Amendments, 2434 23 W. N., 572, Divorce, 802, 884 3 Brews., 402, At Trial, 3022a 5 Watts, 152, Mandamus, 1795 98 Pa. St., 607, Quo Warranto, 2078, 2098 36 Leg. Int, 412; 13 Phila., 26, Jus- tices, 1624 20 W. N., 365, Assumpsit, 19 8 W. N., 454, Mandamus, 1811 23 Pa. St, 12, At Trial, 2990 74 Pa. St, 245, Appeals, 3434 120 Pa. St, 518, Mandamus, 1790 11 Pa. St, 61, Quo Warranto, 2081 2 Grant, 385, Defalcation, 2757 44 Pa. St, 341, Quo Warranto, 2083 8 Phila., 607, Justices, 1209 TABLE OF CASES. Ixxxiii Comm. V. Meredith, Comm., Misbler v., Comm. 17. Mitchell, Comm. V. Murray, Comm., Myers v., Comm. V. Naile, Comm. 17. Nesbit, Comm. V Newton, Comm. V Newton, • Comm. V Newton, Comm. V. Order of Vesta, Comm. 47. Palmer, Comm., Palmer 17., Comm. 17. Park, Comm. 17. Pelletier, Comm. 17. Perkins, Comm. 17. Perkins, Comm. 17. Perkins, Comm., Phillips 17., Comm 17. Pittsburgh, • Comm 17. Pittsburgh, Comm. 17. Potter, Comm. 17. Price, Comm. 17. Pulte, Comm. 17. Quin, Comm. V. Quin, Comm., R. K. Co. 17., Comm. V. B. E. Co., Comm. 17. K. R. Co., Comm. V. R. R. Co., Comm., R. R. Co. 17., Comm. 17. R. R. Co., Comm. 17. R. R. Co., Comm. 17. R. R. Co., Comm. V. R. R. Co., Comm. 17. Railway Co., Comm. 17. Railway Co., Comm. 17. Reed, Comm. 17. Rees, Comm. 17. Beigert, Comm. 17. Reiser, Comm. 17. Reynolds, Comm., Rice v., Comm. 17. Richer, Comm., RoUand 17., Comm. 17. Roop, Comm. 17. Bosseter, Comm., Bunkle 17., Comm. V. Sage, Comm. 17. Sanson, Comm., Schenley 17., Comm. 17. School Directors, Comm. 17. Shannon, Comm. 17, Sbeehan, Comm. 17. Shepp, Comm. 17. SherifiE, SECTION 14 W. N., 188, Lunatics and Drunk- ards, 3696 62 Pa. St., 55, Amendments, 2435 82 Pa. St., 343, Mandamus, 1815 11 S. & R., 73, Quo Warranto, 2095 110 Pa. St, 217, Mandamus, 1778 88 Pa. St., 429, Escheats, 1149 34 Pa. St., 398, Justices, 1520 1 Gr., 453; 2 Phila., 262, Attorneys, 3531 1 Gr., 453, Courts, 3571 1 Gr., 453, Justices, 1324 33 W. N., 1, Quo Warranto, 20T5a 6 W. N., 486, Escheats, 1158 6 S. & R., 244, Justices, 1604 9 Phila., 481, Mandamus, 1810 8 W. N., 516, Assumpsit, 22 124 Pa. St., 36, Courts, 3571 124 Pa. St., 36, Justices, 1208 43 Pa. St, 401, Mandamus, 1763 98 Pa. St, 394, Quo Warranto, 2108 34 Pa. St., 496, Mandamus, 1844 14 Pa. St, 177, Quo Warranto, 2101 3 Luz. Leg. Reg., 209, Justices, 1194 1 Wh., 1, Mandamus, 1800 37 Leg. Int., 493, Justices, 1201 1 W. N., 401, Quo Warranto, 2096 1 W. N., 313, Quo Warranto, 2120 39 Pa. St, 403, Appeals, 3463bb 132 Pa. St, 591, Escheats, 1151 114 Pa. St, 340, Escheats, 1151 114 Pa. St, 340, Quo Warranto, 2094 120 Pa. St, 537, Mandamus, 1844 58 Pa. St, 26, Quo Warranto, 2126 25 W. N., 404, Quo Warranto, 2094 10 W. N., 400, Quo Warranto, 2102 3 Dist Rep., 116, Mandamus, 1781 20 Pa. St, 518, Quo Warranto, 2102 53 Pa. St, 62, Quo Warranto, 2126 59 Pa. St., 425, Justices, 1202 3 Wh., 124, Replevin, 2186 14 S. & B., 216, Quo Warranto, 2096 147 Pa. St, 342, Justices, 1403 17 S. & R., 367, Justices, 1260 18 B. Monroe (Ky.), 472, Attorneys, 3531 13 W. N., 142, Justices, 1287, 1520 82 Pa. St, 306, At Trial, 2978 15 W. N., 419, Justices, 1172 2 Binney, 360, Mandamus, 1819 97 Pa. St, 328, Mandamus, 1816 34 W. N., 225; 2 Dist Rep., 553, Jus- tices, 1215 67 Pa. St, 322, At Trial, 2995a 36 Pa. St, 29, Municipal Leins, 487 4 Dist Rep., 314, Mandamus, 1754, 1843 13 S. & R., 109, Costs, 3125 *81 Pa. St, 132, Mandamus, 1853 10 Phila., 518, Quo Warranto, 2085 7 W. & S., 108, Justices, 1200 Ixxxiv TABLE OF CASES. Oomm. V. Sheriff, Comm. V. Sheriff, Comm. V. Small, Comm. V. Smith, Comm. V. Smith, Comm., Smith v., Comm. V. Smith, Comm. V. Society, Comm. V. Society, Comm., Society v., Comm., Society v., Comm. V. Sparks, Comm. V. Sprenger, Comm., Strock v., Comm. V. Supervisors, Comm. V. Swank, Comm. V. Swisher, Comm., Taylor v., Comm. V. Taylor, Comm., Taylor v., Comm. V. Taylor, Comm., Telegraph Co. »., Comm., Telephone Co. v., Comm. V. Thomas, Comm. V. Trust Co., Comm. V. Trustees, Comm., Turnpike v., Comm. V. Vandyke, Comm. V. Wallace, Comm. V. Walter, Comm. V. Walter, Comm. V. Walter, Comm. V. Warfel, Comm. 17. Weart, Comm. V. Westfield, Comm. V. Wickersham, Comm. V. Williamson, Comm., Wilson v., Comm. V. Wilson, Comm. V. Winnemore, Comm. V. Wise, Comm. V. Wisler, Comm., Wolf v., Comm. V. Wood, Comm. V. Young, Comm. V. Zappe, Companies, Compton, McNair v., Con V. Hartranft, Conard, Comm. v., Condy, Dawson v., Oonfair, Heffner v., Conklin v. Bush, Conn, Baugher v., Conn v. Stnmm, Connell v. O'Neil, SECTION 1188 1201 2082, 2132 1205 1605 1823 2107 1T75 1776 1843 1857 2134 2123 22 1804 ,2088, 2 Dist Rep., 321, Justices, 16 S. & R., 304, Justices, 26 Pa. St, 31, Quo Warranto, 11 W. N., 34, Justices, 3 W. N., 95, Justices, 41 Pa. St, 335, Mandamus, 45 Pa. St, 59, Quo Warranto, 15 Pa. St., 251, Mandamus, 8 W. & S., 247, Mandamus, 52 Pa. St, 125, Mandamus, 31 Pa. St, 86, Mandamus, 6 Whar., 416, Quo Warranto, 5 Binney, 353, Quo Waranto, 90 Pa. St, 272, Assumpsit, 29 Pa. St, 124, Mandamus, 79 Pa. St, 154, Quo Warranto. 2109, 2125, 2133 3 Dist Rep., 662, Costs, 3135 103 Pa. St, 96, Feigned Issues, 2648 11 Phila., 386, Justices, 1215 103 Pa. St, 97, Mandamus, 1773 36 Pa. St, 263, Mandamus, 1853 114 Pa. St., 592, Mandamus, 1820, 1823 17 W. N., 505, Mandamus, 35 W. N., 255, Mandamus, 35 W. N., 87, Assumpsit 6 S. & R., 508, Mandamus, 1 Penny., 458, Quo Waranto, 57 Pa. St., 34, Replevin, 114 Pa. St, 405, Appeals, 83 Pa. St, 105, Quo Waranto, 86 Pa. St, 15, Quo Warranto, 99 Pa. St, 184, Prep, for Trial, 33 W. N., 357, Justices, 6 W. N., 237, Escheats, 1 Dist. Rep., 495, Mandamus, 90 Pa. St., 311, Mandamus, 10 Phila., 490, Mandamus, 10 S. & R., 373, Justices, 25 W. N., 148, Mandamus, 1 Brews., 356; 2 Brews.,378,At Trial,2991 3 Dist Rep., 290, Justices, 1196 11 W. N., 513, Quo Warranto, 2100 64 Pa. St, 252, Mandamus, 1807 3 Binn., 414, Costs, 3135 2 Pears., 163, Quo Warranto, 2109, 2126 153 Pa, St, 498, At Trial, 3016 See Bridge Co., Canal Co., Cemetery Co., Car Co., R. R. Co., Water Co., etc., etc. 35 Pa. St, 23, Amendments, 2430 154 Pa. St, 457, Assumpsit, * 30 1 Rawle, 249, Execution, 3158 7 S. & R., 366, Justices, 1492a 1 Del. Co. Rep., 440, Arbitration, 2903 8 Pa. St, 514, Account Render., 311 1 Pa. C. C, 184, Account Render, 304 31 Pa. St, 14, Justices, 1244 32 W. fl., 256, Bills of Exceptions, 3076a 1782 1772 60 1796 2091 2186 3375 2089, 2118 2109, 2126 2973c 1606 1158 1810 1794 1780 1530 1785 TABLE OF CASES. Ixxxv Connell v. O'Neil, Connellee, Sechrist v., Connelly v. Arundell, Connelly, Dean v., Conner v. Comm., Connor v. Simpson, Connor v. Simpson, Conner, Weidner v., Connolly v. Evans, Connolly v. Miller, Connor v. Connor, Connors v. Ins. Co., Connors v. Ins. Co., Conover, Dillon v., Conrad's Appeal, Conrad, Allen v., Conrad, Moock v., Conrad v. Telegraph Co., Conrad, Van Vliet v., Conrad, Van Vliet v., Conrade, Finch v., Conrow v. Gravenstine, Conrow v. Schloss, Conrow v. Schloss, Conroy v. R. R. Co., Constein, Rice v., Controllers, McManns v., Conway, R. R. Co. v., Conyers, Ash v.. Cook V. Dnnkle, Cook, Pelt v., Cook V. Gilbert, Cook V. Haggarty, Cook, Ins. Co. v.. Cook, Morford v., Cook V. Murphy, Cook, Railway Co. v., Cook V. Shirley, Cook Co., Dimmick v., Cooke, Cassell v., Cooke, Dunlap v., Cooke V. Reinhart, Cooke V. Reinhart, Coolbaugh v. Pierce, Coolidge V. Coolidge, Coon, Beale v., Cooper, Bums v.. Cooper V. Cooper, Cooper, Hopkinson v., Cooper, Hopkinson v., Cooper, Lippencott v., Cooper, Lippencott v.. Cooper, Young v., Cooper, Young v., Coover, Shouffler v.. Cope's Appeal, Cope V. Kidney, vol,. I. — G SECTION 32 W. N., 256, At Trial, 3008 3 P. & W., 388, Justices, 1261 6 Phila., 38, Landlord and Tenant, 1720, 1724 6 Pa. St, 246, Justices, 1643 3 Binn., 43, Justices, 1167 104 Pa. St., 440, Arbitration, 2900 44 Leg. Int, 241, Arbitration, 2901 9 Pa. St, 78, Depositions, 2513 4 Pa. C. C, 300, Execution, 3248 95 Pa. St, 513, At Trial, 3023a 1 Dist. Rep., 358, Divorce, 875 1 Dist. Rep., 115, Justices, 1283 1 Dist Rep., 720, Insurance, 295 10 Phila., 450, Feigned Issues, 2663 33 Pa. St, 47, Dower, 1026 51 Pa. St, 487, Execution, 3341b 32 W. N., 329, Appeals, , 3435 162 Pa. St, 204, Assumpsit, 30 95 Pa. St, 494, At Trial, 3024 95 Pa. St, 494, New Trials, 3029 154 Pa. St, 329, At Trial, 3002b 17 "W. N., 204, Assumpsit, 30 55 Pa. St, 28, Bills of Exceptions, 3062 55 Pa. St, 28, Mandamus, 1784, 1849 1 Pitts., 440, Negligence, 1879 89 Pa. St, 477, Arbitration, 2909 7 Phila., 23, Mandamus, 1768 17 W. N., 429, Negligence, 1869, 1877 2 Miles,94, Lunatics and Drunkards, 3718 25 Pa. St, 340, Justices, 1486, 1492 95 Pa. St, 247, Execution, 3341g 8 S. & R., 567, Statements, 68, 71 36 Pa. St., 67, Amendments, 243a 3 Dist Rep., 625, Justices, 1517 24 Pa. St, 92, Amendments, 2417 30 W. N., 335, Mechanics' Claims, 224 1 W. N., 319, Negligence, 1871 4 W. N., 560, Justices, 1553 19 W. N., 239, Mechanics' Claims, 226 8 S. & R., 268, Amendments, 2430 18 Pa. St., 454, Ejectments, 647 1 Rawle, 321, Appeals, 3375 1 Rawle, 321, Justices, 1428, 1625 8 S. & R., 418, At Trial, 3023a 4 Pa. C. C, 374, Discontinuance, 3742 2 Watts, 183, Defalcation, 2757 31 Pa. St, 426, Replevin, 2160 1 Phila., 129, Discontinuance, 3733 8 Phila., 8, Ejectments, 649 8 Phila., 8, Execution, 3248 19 W. N., 130, Justices, 1492a 19 W. N., 130, Landlord and Tenant, 1704 6 W. N., 43, Ejectments, 635 6 W. N., 43, Original Writs, 2297 1 W. &. S., 400, Dower, 1111 39 Pa. St, 284, Justices, 1456 115 Pa. St, 228, At Trial, 3023a Ixxxvi TABLE OF CASES. Cope V. Bisk, Copley, Moore v.. Copper, Glascott v., Copplnger, Boyes v.. Corah, Lindsay v., Corbett v. Packington, Corbyn v. Bellman, Corfield v. Coryell, Cornelius v. Junior, Cornell v. County, Cornell v. Green, Cornman's Appeal, Oomman, Gallatin v., Comog V. Delaney, Corporation v. Wallace, ■ Corr's Appeal, Corson v. McAfee, Corwin, Baird v., Coryell, Corfield v., Cosgrove v. Scott, Cosporus V. Jones, Costello, Winchester v.. Coster, Brick v.. Cot Co. V. Stemberger, Cote's Appeal, Cotton, Huidekoper v., Coulston V. Bank, Conlston, City v., Coulston, City v.. Coulter V. Bepplier, Councils V. Comm., Councils, Comm. v.. Councils, Comm. v.. County, Campbell v., County V. Shock, County, Slusher v., Courtney, Beck v., Courtney, Beck v., Covert V. Hertzog, Covode, Irwin v.. Cowan V. City, Cowden v. Bank, Cowden v. Brady, Cowden, Pleasants v., Cowles V. Cowles, Cowperthwaite, Bank v., Cowperthwaite, Oxley v., Cowperthwaite, Woglam v.. Cox, City v.. Cox, City v., Cox V. Derringer, Cox V. Hartranft, Cox V. Henry, SECTION 21 Pa. St., 66, Justices, 1522 35 W. N., 563; 165 Pa. St., 294, At Trial, 3020 11 Sim., 305, Bills of Discovery, 2564 2 Yeates, 277, Justices, 1312 7 Watts, 235, Justices, 1561 6 Bam. & Cress., 268, Forms of State- ments, 3754w 4 W. & S., 342, Execution, 3288 4 Wash. C. C, Rep., 380, Discontinu- ance, 3743 5 Phila., 171, Municipal Liens, 460 3 Dist Eep., 783, Justices, 1570 10 S. & R., 14, Prep, for Trial, 2973a 90 Pa. St., 254, 257, Execution, 3172,3175 1 P. &. W., 115, Costs, 3125 11 W. N., 575, Execution, 3248 3 Rawle, 126, Execution, 3144a 157 Pa. St, 133, Attachments, 92 44 Pa. St., 288, Execution, 3284 17 Pa. St., 462, Partition, 2002 4 Wash. C. C. Rep., 380, Discontinu- ance, 3743 8 W. N., 28, Justices, 1329 7 Pa. St, 120, Dower, 1105 2 Pars. 279, Landlord and Tenant, 1658 4 W. & S., 494, Assumpsit, 30 12 W. N., 290, Depositions, 2491 79 Pa. St, 235, Dower, 1033 3 W., 56, At Trial, 3022a 4 W. N., 297, Assumpsit, 30 19 W. N., 109; 115 Pa. St, 291, Munic- ipal Liens, 422 21 W. N., 71, Municipal Liens, 422 15 Pa. St, 208, Defalcation, 2760 11 Pa. St, 196, Mandamus, 1810 34 Pa. St, 496, Mandamus, 1764 88 Pa. St, 66, Mandamus, 1766 24 W. N., 107, Arbitration, 2928 18 W. N., 326, Justices, 1219 27 Pa. St, 205, Execution, 3341h 13 W. N., 302, Assumpsit, 21, 30 13 W. N., 302, Sci. Pas., 262 4 Pa. St, 145, Dower, 1069 24 Pa. St, 162, Ejectments, 677 2 Del. Co. Rep., 234, Arbitration, 2908 7 W. &. S., 432, Execution, 3265 8 S. & R., 505, Execution, 3190 7 W. & S., 379, Execution, 3^82 2 P. & W., 139, Prod, of Documents, 2454 10 W. N., 532, Justices, 1634 1 Dall., 349, Replevin, 2186 2 Dall., 68, Replevin, 2207 1 Dist Rep., 280, Execution, 3144a 29 W. N., 519, Municipal Liens, 351 82 Pa. St, 258, New Trials, 3036 154 Pa. St., 457, Assumpsit, 30 36 Pa. St., 445, Appeals, 3463j TABLE OP CASES. Ixxxvii Cox, Lynch v., Cox, McCulIum v., Cox V. Rogers, Cox V. Williams, Coxe, Moore v., Coxe 17. Railroad Co., Coxe V. Tilghman, Coyle, Kane v., Cozad, Seldenc, Cozens v. Dewees, Cozier, Lnmmis v., Cozzens v. Frink, Crackall v. Thompson, Craig V. City, Craig V. Henderson, Craig V. Kline, Craig, McKeown v., Craig, O'Nail v., Craig, Smyth v., Crall V. Ford, Crane, Wright v., Crawford, Bank v., Crawford v. Jackson, Crawford, Gonld v., Crawford v. Stewart, Creager v. Meeker, Creaton, Veon v., Creevy's Appeal, Creps, Clippinger v., Crist V. Brindle, Criswell, MiUer v., Croasdale, Scott v., Croasdale v. Tallant, Crofut V. Chichester, Croman, Vanyalzal v., Cromelien v. Brink, Oromelien v. Brink, Crompe, Martin v., Crompton, Comm. v., Croney, Harra v., Cronin, Collins v., Crosland, Smith v., Crossland, Atkinson v., Crossman, Hamilton v., Crotzer, Tritt v., Cronsillat v. McCall, Crouthamel v. Silberman, Crowell V. Randall, Crozier's Appeal, Crump, City v.. Crump, Kramer v., Crump, Meace v., Crunckleton, Hastings v., Crutcher v. Comm., Culbertson, Range v., Culler 1). Motzer, , CuUlgan V. Russell, SECTION 23 Pa. St., 265, Amendments, 2413 I Dallas, 139, Discontinuance, 3733 77 Pa. St., 160, Dower, 1076, 1078 39 Leg. Int., 108, Ground Rents, 167 10 W. N., 135, Justices, 1170 II W. N., 386, Insurance, 294 1 Wh., 282, Amendments, 2424, 2430 20 W. N., 317, Attachments, 75 2 Dist Rep., 664, Execution, 3251 2 S. & R., 112, Justices, 1426 35 Leg. Int., 262, Attachments, 75 13 Amer. Law Reg. (O. S.), 700, Jus- tices, 1199 1 Salkeld's Rep., 354, Divorce, 892 89 Pa. St., 265, Municipal Liens, 409, 416 2 Pa. St., 261, Defalcation, 2756 65 Pa. St., 399, Replevin, 2204 20 Pa. St., 170, Execution, 3234 56 Pa. St., 161, Execution, 3169 3 W. & S., 14, At Trial, 3002a 28 W. N., 366, Defalcation, 2757 13 S. & R., 447, Writ of Inquiry, 693 2 W. N., 371, Justices, 1443 1 Rawle, 212, At Trial, 3002d 2 Pa. St., 89, Justices, 1328 38 Pa. St., 34, Attachments, 81 22 Ohio, 207, Bills of Exceptions, 3064 27 W. N., 57, Negligence, 1884 19 Atl. Rep., 137, Feigned Issues, 2656 2 Watts, 45, Justices, 1443 2 Rawle, 121, Defalcation, 2756 3 Pa. St., 449, Justices, 1550 1 Yeates, 75, Dower, 1044 3 W. N., 375, Death, 2216 3 Phila., 457, Replevin, 2189 1 Dist Rep., 190, Feigned Issues, 2690 29 Pa. St., 524, Justices, 1537 29 Pa. St, 522, Replevin, 2168 1 Ld. Ray., 340, Account Render, 323 26 W. N., 475, Escheats, 1152 32 W. N., 90, Statements, 73 117 Pa. St., 35, Torts, 549 15 W. N., 211, Landlord and Tenant, 1697 4 Watts, 451, Justices, 1430 130 Pa. St, 320, Prep, for Trial, 2973a 13 Pa. St, 458, Interpleaders, 2730 5 Binn., 433, Account Render, 333 1 W. N., 131, Execution, 3341i 10 Pet, 368, Appeals, 3463ee 90 Pa. St, 384, Dower, 1086 1 Dist Rep., 698, Municipal Liens, 438 28 W. N., 16, Mechanics' Claims, 229 12 W. N., 534, Execution, 3248 3 Teates, 261, Ejectments, 678 6 Wh., 340, Appeals, 3434 168 Pa. St, 324, Appeals, 3390 13 S. & R., 356, Dower, 1112 2 W. N., 440, Justices, 1283 Ixxxviii TABLE OF CASES. Culp, Thomas v., Cummings, Carothers v., Cummings v. Forsman, Oummings v. Gann, Cummings v. Gann, Cummings v. Railroad Co., Cummins, Ralston v., Cummisky v. Cnmmisky, Cumpston v. Cumpston, Cumpsty, Wright v., Cunningham v. Gardner, Cunningham v. McCue, Cnnnningham, Paul v., Curby, Comm. v., Curcier, Rodrique v., Curry v. Spunk, Cusick, In re Cusick, Ins. Co. v., Custer, Baum v.. Cutler V. Cutler, Cutler V. Richley, D., M. v., Dailey's Appeal, Daily, Comm. v.. Dairy Co., Board v., Dalbrow, English v.. Dale V. Elder, Dale V. Manfg. Co., Dalling, Comm. v., Dalsam, Linville v., Dalsheimer, Matthews v., Daly V. Barrett, Daly, Reilly v., Dana v. Jackson, Danforth, Mott v., Daniels, McBride v., Danziger, Williams v., Darley v. The Queen, Darlington v. Speakman, Darlington, Wright ■»., Darrah v. Wamock, Datz V. Chambers, Dausdale, Burd v., Davenger, Comm. v., Davenport, R. R. Co. v., Davenport v. R. R. Co., Davenport v. R. R. Co., Davenport v. R. R. Co., David, Mills v., Davidson, Clemson v., Davidson v. Davidson, Davis' Appeal, Davis, Barbe v.. SECTION 4 S. & R., 271, Ejectments, 627 63 Pa. St., 199, Justices, 1540 6 Pa. St, 194, Justices, 1511 52 Pa. St, 484, At Trial, 2991 52 Pa. St, 484, Replevin, 2209 92 Pa. St, 82, Negligence, 1908 2 Yeates, 436, New Trials, 3030 109 Pa. St, 1, Partition, 2028, 2032 4 W. N., 184, Divorce, 908 41 Pa. St, 102, Account Render, 311 4 W.& S.,120,Landlord and Tenant, 1675 31 Pa. St, 470, Justices, 1392, 1548 9 Pa. St, 106, Justices, 1345 8 Phila., 372, Justices, 1202 15 S. & R., 81, Amendments, 2425 23 Pa. St., 58, Mechanics' Claims, 239 15 W. N., 469, Lunatics and Drunk- ards, 3698 109 Pa. St, 158, Insurance, 290 22 W. N., 245, Sci. Fas., 252 2 Brews., 513, Divorce, 783 151 Pa. St., 195, Arbitration, 2890m 54 L. J. Rep., P. D. & A., 68, Divorce, 759 10 W. N., 420, Divorce, 785 3 W. N., 133, Quo Warranto, 2118 3 Dist Rep., 363, Justices, 1403 1 Miles, 160, Replevin, 2185a 22 W. N., 59, Arbitration, 2907 3 Dist Rep., 763; 35 W. N., 509; 167 Pa. St, 403, Original Writs, 2231, 2334 2 Pars., 285, Justices, 1285 5 W. N., 528, Justices, 1537 10 W. N., 371, Assumpsit, 52 4 Phila., 350, Landlord and Tenant, 1693 159 Pa. St, 606, Assumpsit, 36 6 Pa. St, 234, Partition, 2035 6 Watts, 304, Torts, 549 92 Pa. St,332, 334, New Trials, 3039,3042 91 Pa. St, 232, Arbitration, 2906 12 Clark & Pinnelly, 520, Quo War- ranto, 2079 2222 81 1548 75 3036 1395 32 2454 2561 9 W. & S., 182, Death, 108 Pa. St, 373, Attachments, 1 P. & W., 21, Justices, 3 Dist Rep., 354, Attachments, 2 Binn., 80, New Trials, 30 Leg. Int, 321, Justices, 154 Pa. St., Ill, Assumpsit, 2 Dist Rep., 784, Documents, M. S., Discovery, 36 W. N., 132; 166 Pa. St, 480, Dis- covery, 2571 22 W. N., 515, Justices, 1350 5 Binney, 392, New Trials, 3041 18 W. N., 63, Divorce, 932 83 Pa. St, 348, Appeals, 3440 1 Miles, 118, Assumpsit, 23 TABLE OF CASES. Ixxxix Davis, Boyd v., Davis V. Clark, Davis, Comm. v., Davis, Comm. v.,- Davis V. Davis, Davis, Dodson v., Davis V. Ehrman, Davis, Gardner v.. Davis, Hollister v., Davis V. JafEe, Davis V. Jones, Davis V. Koenig, Davis, Large v., Davis, Manayunli v., Davis V. Reeves, Davis V. Sharpe, Davis V. Steiner, Davis V. Tliompson, Davis, White v., Davison's Appeal, Davison, Comm. v., Davison v. Suit Co., Dawes v. White, Dawson, Alberty v., Dawson v. Oondy, Dawson, Hoffman v., Dawson v. Tibbs, Day V. Hamburgh, Day V. Willy, Day V. Woodworth, Deacon, Comm. v., Deacon v. Govett, Deacon v. Greenfield, Deakyne, Stokes v., Deal, Melloy v., Dean v. Connelly, Dean, Kennedy v., Dean, Kirk v., Dean, Lee v., Dean v. Peel, Dear, Pennypacker v., Dearman, Irwin v., De Armit, McCarthy v., Dearth i). Laughlin, De Benneville v. De Benneville,3 T., 558; 1 Binn., 46, Costs, SECTION 1 Dist. Rep., 438, Attachments, 89 106 Pa. St., 377, Mechanics' Claims, 208 29 W. N., 500, Justices, 1209 109 Pa.St.,128, Quo Warranto, 2118,2135 2 Dist Rep., 621, Divorce, 802 2 Yeates, 168, Dower, 1035 20 Pa. St., 258, Sci. Fas., 249, 250 15 Pa. St., 41, Justices, 1565 54 Pa. St., 508, Defalcation, 2756 17 W. N., 107, Execution, 3251 12 S. & R., 60, Discontinuance, 3736 165 Pa. St., 347, Assumpsit, 32 12 W. N., 33, Costs, 3135a 2 Parsons, 289, Justices, 1517 2 Clark, 314, Partition, 1969 5 W. N., 404, Discontinuance, 3734 14 Pa. St., 275, At Trial, 3002d 12 Cent. Rep., 721, Torts, 563 14 W. N., 59, Arbitration, 2896 95 Pa. St., 394, Dower, 1053 4 Dist. Rep., 103, Justices, 1194 4 Dist. Rep., 237, Justices, 1503 2 Miles, 140, Assumpsit, 30 I Binn., 105, Justices, 1371 7 S. & R., 366, Justices, 1492a II Pa. St, 280, Justices, 1541 4 Yeates, 349, Depositions, 2531 1 Bro., 78, Audita Querela, 3369a 3 Brewster, 43, Sci. Fas., 276 13 Howard's U. S. Rep., 371, Torts, 543 8 S. & R., 72, Justices, 1210 4 Phila., 7, Execution, 3191 26 W. N., 264, At Trial, 3022b 2 Dist Rep., 143, Mechanics' Claims, 201 46 Leg. Int, 100; 23 W. N., 289, Attachments, 86, 90 1643 3125 1064 1262 545 3462 545 540 1561 3135 6 Pa. St., 246, Justices, 46 Pa. St, 246, Costs, 2 Binn., 341, Dower, 3 Rawle, 325, Justices, 5 East, 45, Torts, 166 Pa. St., 284, Appeals, 11 East, 23, Torts, 99 Pa. St, 63, Torts, 16 S. & R., 296, Justices, Debozear v. Butler, Decamp, Feay v., Decamp v. Feay, Decatur, R. R. Co. v., De Chasbellux v. Fairchild, Dechert v. Comm., Dechert, Comm. ■;;., Decker, Board v., Decker, R. R. Co. v., De Coursey v. Trust Co., De Crano v. Musselman, 2 Grant 417, Landlord and Tenant, 1678 15 S. & R., 227, At Trial, 3002a 5 S. & R., 323, Prep, for Trial, 2973a 147 U. S,. 190, Municipal Liens, 446 15 Pa. St., 18, New Trials, 3025 113 Pa. St, 229, Mandamus, 1816 16 W. N., 508, Mandamus, 18.59 3 Dist Rep., 362, Justices, 1403 84 Pa. St,419, Negligence, 1876,1890,1893 81 Pa. St, 217, Landlord and Tenant, 1683, 1734 7 Phila., 208, Execution, 33411 xc TABLE OP CASES. Deerwester v. Hook, Degitz, Oomm. v., De Haven v. Bartholoniew, Deihm v. Snell, Deihm v. Snell, Deitrich v. Manfg. Co., De La Ouesta v. Ins. Co., De La Cuesta v. Ins. Co., Delamater, Comm. v., Delaney v. Brindle, Delaney, Comog v., Delaney v. Gault, Delp, Bardsley v., Del Valle v. Welsh, De Mannevllle, King v., De Mill, People v., Demmy v. Dongherty, De Morat v. Entrekin, De Morat v. Falkenhagen, Demot, Comm. v., Dempsey, Brown v., Dengler's Appeal, Denuing's Estate, Dennis v. Alexander, Dennis v. Barber, Dennison's Appeal, Dennison v. Leech, Denton, Pritchard v., Depew, Clark v., Depew, Snyder v.. Derringer, Cox ■»., Derringer v. Derringer, De Saville v. Shive, Deshler v. Beery, DesUver Estate, De Thoneux v. Pimay, Detrick's Appeal, De Turk, Winters v., Detwiler v. Casselberry, Detwiler, Byerman v., Devereaux St, In re Devereaux v. Ewing, Devine v. Boyle, Deyine v. Hundell, Devlin v. Bnms, Devlin, Mulligan v., De Wald v. Woog, Dewart v. Purdy, Dewees, Cozens v., De Wolf, Ins. Co. v., Deyoe, Mumford v., Dialogue, Gilser v., Dibeler, City v., Dick, Gray v., Dicken, Emrick v., Dickens, In re Dickens, Perry v., Dickens, Perry v., 1 Dist. Rep., 406, Justices, 167 Pa. St., 400, Assumpsit, 57 Pa. St., 126, Dower, 21 W. N., 177, Justices, 119 Pa. St, 317, Justices, 4 Dist. I^ep., 324, Defenses, 136 Pa. St., 78, Dower, SECTION 1469 30 1111 1356 1553 2771 1066 136 Pa.St.,62,Forms of Statements, 3755o 2 Dist. Rep., 562, At Trial, 2977 15 S. & B., 75, Justices, 1239 11 W. N., 575, Execution, 3248 30 Pa. St., 63, Municipal Liens, 436 6 W. N., 479, Assumpsit, 30 M. S., Attachments, 81 5 East R., 221, Justices, 1194 15 Mich., 164, Quo Warranto, 2106 1 Pears., 236, Account Render, 311 33 W. N., 160, Assumpsit, 36 30 W. N., 39, Assumpsit, 32 7 Phila., 624, Justices, 1202 95 Pa. St., 243, Replevin, 2180 125 Pa. St., 12, Execution, 3196 20 W. N., 391, Partition, 2031 3 Pa. St., 50, New Trials, 3036 6 S. & R., 420, New Trials, 3038 1 Pa. St., 201, Execution, 3218 9 Pa. St, 164, Assumpsit, 23 8 Watts, 371, Justices, 1492a 25 Pa. St, 509, BUls of Discovery, 2571 1 Lack. Leg. Dec, 477, Ejectments, 677 82 Pa. St, 258, New Trials, 3036 8 PhUa., 269, Divorce, 950 12 W. N., 250, Feigned Issues, 2677 4 DaU., 300, Dower, 1044 5 Rawle, 111, Escheats, 1146 17 W. N., 284, Attachments, 81 117 Pa. St, 459, Divorce, 787 25 W. N., 511, Dower, 1112 5 W. & S., 179, Insolvent Laws, 3608,3610 26 W. N., 390, Partition, 2035 13 Phila., 103, Mandamus, 1820 1 Phila., 233, Audita Querela, 3369a 4 W. N., 139, Justices, 1538 13 W. N., 267, Costs, 3135a 23 Atl. Rep., 375, Assumpsit, 32 2 Dist Rep., 685, Defenses, .2811 158 Pa. St., 497, Mechanics' Claims, 229 29 Pa. St, 113, Partition, 2032 2 S. & R., 112, Justices, 1426 33 Pa. St, 45, Audita Querela, 3349 4 Dist Rep., 575, Justices, 1302 4 W. N., 10, Assumpsit, 21 147 Pa. St, 261, Defenses, 2809 97 Pa. St, 142, Mechanics' Claims, 239 92 Pa. St, 78, Municipal Liens, 436 67 Pa. St, 169, Attorneys, 3530, 3531 105 Pa. St, 83, Matters Preliminary, 3 105 Pa. St, 83, Attorneys, 3537 TABLE OF CASES. Dickensheets v. Hotchkiss, Diekerman v. Edinger, Dickerson v. Anderson, Dickerson's Estate, Dickey, Gunn v., Dickey, Pantall v., Dickinson v. Beyer, Dickinson v. City, Dickinson, Comm. v., Dickinson, Comm. v., Dickinson v. Dickinson, Dickinson, In re Dickson, City v., Dickson's Estate, Dickson, Gandy v., Diefenderfer v. Eslileman, DiefEenbach, Comm. v., DifEenderfer v. Fisher, Diehl V. Forthuber, Diehl V. Holben, Dietrich v. Dietrich, Dietrick's Appeal, Dillebaugh's Estate, Diller v. Burger, Dilley v. Kowe, Dilley v. Rowe, Dillinger, Macky v., Dillinger, Macky v., Dillon, Comm. v., Dillon, Comm. v., Dillon V. Conover, Dillon, McGee v., Dillon, Renninger v., Dimenstein v. Richelson, Dimm, Straub v., Dimmick's Case, Dimmick v. Cook Co., Dinan, Tombler v., Dingman v. Amsink, Dingman v. Amsink, Directors, Field v., Directors of the Poor v. Boyer, Dismore v. Kelso, District, King v., Ditchfield v. Ditchfield, Dixon V. Oliver, Dobson V. Fell, Dobson, Ridgely v., Dock V. Hart, Dodd V. Norris, Dodson V. Davis, Donaghy, Ellis v., Donahoo v. Scott, SECTION 6 Phila., 156, Landlord and Tenant, 1724 3 Dist. Rep., 12, Feigned Issues, 2693 4 Wh., 78, Justices, 1563 43 Leg. Int., 76, Dower, 1035 14 W. X., 274, Defalcation, 2756 123 Pa. St., 431, Justices, 1286 87 Pa. St., 274, Dower, 1053 14 W. N., 367, Municipal Liens, 415 3 Brews., 561, Mandamus, 1771 83 Pa. St., 458, Mandamus, 1808 61 Pa. St., 401, Dower, 1078 1 W. N., 96, Lunatics and Drunkards, 3693 47 Leg. Int., 83, Municipal Liens, 344 166 Pa. St., 134, Comp. with Cred., 3482 166 Pa. St., 422; 36 W. N., 95, Land- land and Tenant, 1651 1025 2132 3172 40 3172 30 258 1111 237 521 3753a 2763 113 Pa. St., 305, Dower, 3 Grant, 368, Quo Warranto, 3 Grant, 32, Execution, 16 W. N., 227, Assumpsit, 39 Pa. St., 213, Execution, 154 Pa. St., 92, Assumpsit, 107 Pa. St., 178, Sci. Fas., 4 Watts, 177, Dower, 68 Pa. St., 432, Mechanics' Claims, 23 W. N., 491, Torts, 23 W. N., 491, Forms, 73 Pa. St., 85, Defalcation, 73 Pa. St., 85, Replevin, 2156, 2164, 2180, 2203 "►SI Pa. St., 41, Quo Warranto, 2102, 2118, 2125, 2133 61 Pa. St., 488, Quo Warranto, 2120 10 Phila., 450, Feigned Issues, 2663 103 Pa. St., 433, Justices, 1569 2 Dist. Rep., 819, Assumpsit, 40, 44 34 W. N., 295, Prep, for Trial, 2972 27 Pa. St., 36, Escheats, 1155 2 Dist. Rep., 842, Insolvent Laws, 3622 19 W. N., 239, Mechanics' Claims, 226 4 Pa. C. C, 309, Torts, 522 77 Pa. St., 114, Death, 2217 77 Pa. St., 116, Defenses, 2783a 54 Pa. St., 233, Prep, for Trial, 2948 43 Pa. St., 146, Dower, 1028, 1047 4 Brews., 34, Prep, for Trial, 2973c 1 Phila., 402, Justices, 1504 35 Law Jour. Bep. (P. & M.), 51, Di- vorce, 761 5 W., 509, At Trial, 3023a 14 W. N., 456, Justices, 1538 3 W. & S., 118, Damages, 696 7 W. & S., 172, Bills of Exceptions, 3065 3 Camp., 519, Torts, 545 2 Yeates, 168, Dower, 1035 6 W. N., 541, Justices, 1549 12 Pa. St., 45, Mechanics' Claims, 204 xcu TABLE OF CASES, Donaldson, Appleton v., Donaldson, Portsmouth v., Donally, McGrath v., Donath, City v., Donegan, Paving Co. v., Donelly, Huston v., Doriot V. Hagemann, Dorian v. Market Co., Dottera, Flegal v., Dougherty, Beale v., Dougherty, Beale v., Dougherty, Burr v., Dougherty, Demmy v., Dougherty, Hall v., Dougherty, Locke v., Dougherty v. Thayer, Douglass V. Bank, Douglass, Blakey v., Douglass 17. Comm., Douglass V. Herold, Douredoure, McGarry v., Dow, Emerson v., Dowling V. E. R. Co., Downey v. Perry, Downey v. Garard, Downey v. Tharp, Downing v. Baldwin, Downing, Vann v., Dows, McKinney v., Doyle V. Comm., Drake v. R. E. Co., Drexel v. Mann, Driesbach v. Bank, Briesbach v. Becker, Driesbach v. Morris, Drill Co., Johnson v., Dmckenmiller v. Young, Drum V. Wartman, Dryden, Purriance v., Dubois, Beeker v., Dubois V. Bigler, Dubree v. Albert, Dubs, Buckmyer v., Duck V. O'Rourke, Duerhagen v. Ins. Co., Duff V. Hofeman, Duffee, Wayne v., Duffield, Adams v., DufBeld V. Miller, Duffy V. Ogden, Duffy V. Turnpike Co., Dugan, Comm. v., Dugan, Lance v., Duganne, Shoemaker v., Duke V. Hague, Dnmbauld, Comm. v., Dummer v. Chippenham, SECnON 3 Pa. St., 381, Prep, for Trial, 2931a 32 Pa. St., 202, Account Render, 311 6 Phila., 43, Landlord and Tenant, 1724 9 W. N., 415, Municipal Liens, 453 4 Dist Rep., 243; 36 W. N., 261, Me- chanics' Claims, 226 8 Phila., 337, Justices, 1251 21 W. N., 556, Statements, 73 19 W. N., 87, Mechanics' Claims, 201 1 Dist Rep., 190, Justices, 1499 3 Binn., 432, Appeals, 3434 3 Binn., 432, Justices, 1536, 1542 8 W. N., 175, Ground Rents, 169 1 Pears., 236, Account Render, 311 8 W. N., 255, Mechanics' Claims, 235 43 Pa. St., 88, Amendments, 2417 78 Pa. St., 172, Execution, 3292 4 W. N., 163, Assumpsit, 30 5 Cent. Rep., 274, Torts, 562 108 Pa. St., 559, Mandamus, 1815 17 Phila., 2, Municipal Liens, 436 6 Phila., 332, Justices, 1251 11 W. N., 267, 270, Execution, 3248 21 W. N., 527, NegUgence, 1872 2 Watts, 304, Justices, 1486, 1490 24 Pa. St, 52, Amendments, 2412 63 Pa. St, 322, Defalcation, 2757 1 S. & R., *298, Bills of Exceptions, 3070 28 W. N., 260, At Trial, 2995 3 Watts, 250, Depositions, 2533 107 Pa. St, 20, Justices, 1214 21 W. N., 122, Statements, 73 6 W. & S., 386, Bills of Exceptions, 3060 113 Pa. St, 554, Assumpsit, 55 34 Pa. St, 152, Comp. with Cred., 3482 94 Pa. St, 22, Justices, 1518 99 Pa. St, 216, Defalcation, 2756 27 Pa. St, 97, Amendments, 2412, 2417 6 Phila., 45, Dower, 1043 3 S. & E., 402, Statements, 64 1 W. N., 285, Prep, for Trial, 2973e 95 Pa. St, 203, Arbitration, 2910 100 Pa. St, 483, Ejectments, 623 5 Binn., 29, Justices, 1372, 1424, 1523 19 W. N., 497, Mechanics' Claims, 240 2 S. & R., 185, At Trial, 3002d 63 Pa. St, 191, Mechanics' Claims, 224 1 Tr. & H. Pr., 844, Partition, 2012 4 Brews., 9, Mandamus, 1839 92 Pa. St, 287, Torts, 563 64 Pa. St,240, Landlord and Tenant,1712 9 S. & R., 59, Mandamus, 1822 2 Dist Rep., 772, Justices, 1196, 1202 22 W. N., 132, Assumpsit 32 5 W. X., 403, Mechanics' Claims, 204 107 Pa. St, 57, Partition, 1965 97 Pa. St, 293, Quo Warranto, 2090 14 Ves., 245, Bills of Discovery, 2564 TABLE OF CASES. XClll Duncan v. Duncan, Duncan v. Iron Works, Duncan v. Lloyd, Duncan v. Sherman, Dundass v. Gallagher, Dundore, Kunkel v., Dungan, City v., Dungan v. Read, Dunham, Ins. Co. v., Dunkle, Cook v., Dunkle v. Dunkle, Dunlap V. Cooke, Dunlap V. Linton, Dunlap, Miller v., Dunlap, Wallingford v., Dunlavey, Snowden v., Dunlop V. Speer, Dunmire v. Price, Dunmore, Case v., Dunmore, Case v., Dunn, Archer v., Dunn V. Megargee, Duim, Moore v., Dunn, Moore v., Dunseith, Aarons v., Dupuy, Brown v., Durkin v. Coal. Co., Dusenberry, Bradley v., Dusenben?y v. Bradley, Dutill V. Sully, Dwire v. "Weber, Dye Works, Amheim v., Dysinger, Brown v., Ealy, Borland v., Earhart v. Youngblood, Earl's Appeal, Earl, Harvey v., Early, Fenn v., 'Earon v. Mackey, Eastman, Hackwell v., Easton v. Worthington, Eastwick, City v., 'Eastwick v. Hugg, Eaton's Appeal, Eberle, Comm. ■;;., Eberle v. Fisher, Eberle v. Mayer, Eberly v. Lehman, Ebersole, Metz v., Ebert v. Spangler, Ebert v. Wood, Ebling's Estate, Eby V. Burkholder, Eby V. Guest, Eby V. R. R. Co., Eby, Yost v., Eckert, Biland v., Eckfeldt's Appeal, SECTION 2 Yeates, 302, Dower, 1074 26 W. N., 479, Ejectments, 616 1 Miles, 350, Writ of Inquiry, 704 121 Pa. St., 520, Ejectments, 640 4 Pa. St., 205, Prep, for Trial, 2947 47 Leg. Int., 94, Statements, 73 23 W. N., 243, Municipal Liens, 434 167 Pa. St., 393, Execution, . 3248 117 Pa. St., 460, Insurance, 292 25 Pa. St., 340, Justices, 1486, 1492 1 Dist. Rep., 684, Divorce, 798 18 Pa. St., 454, Ejectments, 647 48 Leg. Int., 465, Torts, 574 21 W. N., 285, Arbitration, 2935 14 Pa. St., 31, At Trial, 3023 11 Pa. St., 522, Partition, 1983 3 Binn., 169, Execution, 3158 12 W. N., 179, Landlord and Tenant, 1725 23 Pa. St., 93, Execution, 3169 23 Pa. St., 93, Justices, 1463 2 W. & S., 327, Defalcation, 2757 6 W. N., 204, Prep, for Trial, 2973c 28 W. N., 63, Audita Querela, 3362 147 Pa. St., 359, Feigned Issues, 2690 1 Dist. Rep., 701, Assumpsit, 40 4 W. N., 491, Assumpsit, 21, 30 171 Pa. St., 193, Arbitration, 2891 7 W. N., 146, Assumpsit, 22 6 W. N., 413, Assumpsit, 32 9 W. N., 573, Assumpsit, 21 1 W. N., 64, Justices, 1537 36 W. N., 32, Defenses, 2792 1 Rawle, 408, Prep, for Trial, 2973a 43 Pa. St, 111, Justices, 1383, 1426 27 Pa. St., 331, Forms of Statements,3764 13 Pa. St., 483, Execution, 3190 1 Pears., 542, Arbitration, 2904 113 Pa. St., 264, Assumpsit, 20 16 W. N., 10, Prep, for Trial, 2947 2 Cro., 410, Account Bender, 323 5 S. & B., 130, Replevin, 2150, 2204 35 Pa. St., 75, Municipal Liens, 445 1 Dall., 222, New Trials, 3038 83 Pa. St., 154, Execution, 3144a 3 S. & R., 9, New Trials, 3029 13 Pa. St., 526, Dower, 1057 1 Rawle, 366, Execution, 3190 100 Pa. St., 546, Prep, for Trial, 2973a 3 Dist. Rep., 672, Justices, 1430 3 P. & W., 389, Justices, 1317 1 Binn., 216, Partition, 1997 47 Leg. Int., 465, Costs, 3103 17 S. & R., 9, Attachments, 75 94 Pa. St., 160, Execution, 3270 6 W. N., 385, Original Writs, 2311 23 Pa. St., 327, Amendments, 2433 23 Pa. St., 215, Sci. Pas., 249 13 Pa. St., 171, Appeals, 3442 XCIV TABLE OF CASES. Eckmau v. Eckman, Eckstein's Estate, Ecoff V. Gillespie, Edelkamm v. Comly, Edinger, Dickerman v., Edison Co. v. Light Co., Edmond's Appeal, Edwards, In re Edwards, Jackson v., Edwards, City v., Egan, Hill v., Ege, Bank v., Ege, Kille v., Ege, McClnre v., Ehresman, Goodell i;., Ehrgood v. Ins. Co., Ehrlicher, Rosenthal v., Ehrlieher, Rosenthal v., Bhrman, Davis v., Eichbaum, Warden v., Eichenberg, Comm. v., Eichert's Estate, Eichman, Kelly v., Bilenberger v. Bush, Bisenbeis, Hilke v., Eisenhower, Stewart v., Elbert v. O'Neil, Elder, Dale v.. Elder, Murphy v., Elder, Reel v., Eldred v. Bennett, Election Cases, Election Cases, Electric Co. v. Goodman, Electric Co., Longwell v.. Electric Co., Pierce v., Electric Co., Sterritt v., Eliot, Eoskinson v., Ellott V. Pearsall, Elkins V. Greisemer, Elkinton v. Fennimore, Elliott V. Flanigan, Elliott, Kenege v., Elliott V. McGowan, Elliott V. Nicklin, Elliott V. Powell, Ellis, Bank v., Ellis V. Brewster, Ellis V. Donaghy, Ellis, Jacobs v., Ellis, Murphy v., Ellis V. Pennington, Ellis, Wilson v., Ellison V. Jones, Ellmaker v. EUmaker, EUmaker, Reigert v., SECTION 68 Pa. St., 460, Depositions, 2528 1 Pars.,59, Lunatics and Drunkards, 3718 13 W. N., 564, Assumpsit, 32 1 Dist. Rep., 505, Mechanics' Claims, 226 3 Dist. Rep., 12, Feigned Issues, 2693 32 W. N., 327, Assumpsit, 26 57 Pa. St., 232, Divorce, 783 42 L. J. (Q. B.), 99, Justices, 1194 1 Cowan, 138, At Trial, 3002a 78 Pa. St, 62, Municipal Liens, 409 160 Pa. St., 119, At Trial, 3014 9 Watts, 436, Justices, 1646 82 Pa. St., 102, Amendments, 2413 7 Watts, 74, Execution, 3190 1 Dist. Rep., 662, Execution, 3215 1 Dist. Rep., 117, Defenses, 2764 32 W. N., 221, At Trial, 3008 32 W. N., 221, Bills of Exceptions, 3076a 29 Pa. St., 258, Sci. Fas., 249, 250 14 Pa. St., 121, Lunatics and Drunk- ards, 3685 140 Pa. St., 158, Justices, 1403 155 Pa. St, 59, Discontinuance, 3739 3 Whar., 419, Justices, 1551 2 Dist Rep., 50, Justices, 1517 104 Pa.St,514, Landlord and Tenant,1650 4 Dist Rep., 565, Justices, 1531 102 Pa. St, 303, Dower, 1078 22 W. N., 59, Arbitration, 2907 4 W. N., 212, Execution, 3248 62 Pa. St., 308, Dower, 1071 33 Pa. St, 183, Replevin, 2212 65 Pa. St, 20, Appeals, 3376 65 Pa. St, 20, Bills of Exceptions, 3066 129 Pa. St., 206, Replevin, 2204 35 W. N., 374; 164 Pa. St, 533, At- tachments, 94 28 W. N., 311, Attachments, 75 44 Leg. Int, 253, Mandamus, 1817 62 Pa. St, 393, Amendments, 2413, 2419 4 Clark, 157, Dower, 1049 2 Penny., 52, Replevin, 2173 13 Pa. St, 173, Justices, 1545 37 Pa. St, 425, Execution, 3176 9 Watts, 262, Ground Rents, 148, 149 22 Pa. St, 198, Execution, 3219 5 Price, 641, Torts, 545 10 Watts, 453, Replevin, 2168 34 W. N.,351, Forms of Statements,3753o 6 Watts, 277, Justices, 1492 6 W. N., 541, Justices, 1549 156 Pa. St, 253, Justices, 1426 1 Dist Rep., 397, Mechanics' Claims, 224 2 W. N., 29, Justices, 1549 28 Pa. St, 238, Execution, 3181 2 Kulp, 26, Arbitration, 2910 4 Watts, 89, Dower, 1034, 1035, 1066 14 S. & R., 121, Dower, 1032 TABLE OF CASES. XCV Ellmaker, Van Amringe v., EUsbree's Appeal, Ellsey, Eailway Co. v., Elmer v. Elmer, Elmes V. Blmes, Elton V. Stokes, Elton V. Stokes, Ely, Funk v., Ely V. Penn District, Ely V. Silvis, Emerick, Sheetz v., Emerson, Bank v., Emerson v. Dow, Emerson v. Grattan, Emery v. Patton, Emminger, Comm. v., Bmrick v. Dicken, Enfield v. Squire, English V. Dalbrow, Ensign v. Kindred, Bnsminger, Bartman v., Entrikin, De Morat v., Eppelsheimer v. Steel, Erb, Ins. Co. v., Erbs V. Wenner, Erie v. Bootz, Erie v. Butler, Erie v. Butler, Brie v. Church, Erie, Poster v., Erie v., Knapp, Erie, Olds v., Errissman v. Errissman, Erwin's Estate, Brwin, Rementer v., Esbaugh, Carrier v., Bshback v. Eshback, Bsher v. Flagler, Bshleman, Diefenderfer v., Espew, Boteler v., Bssler v. Johnson, Essler v. Johnson, Estates — Etheridge v. Hall, Btter V. Bailey, Btter, Schlatter v., Etting V. Levy, Evans, Benner v., Evans, Billmyer v., Evans, City v., Evans v. deary, Evans v. Clover, Evans, Connolly v., Evans v. Evans, Evans v. Evans, Evans v. Evans, SECTION 4 Pa. St., 283, Depositions, 2497 15 W. N., 217, Sci. Pas., 250 85 Pa. St., 283, Replevin, 2175 30 W. N., 383, Divorce, 934 9 Pa. St, 166, Divorce, 990 39 Leg. Int., 159, Justices, 1429 12 W. N., 240, Justices, 1634 45 Pa. St., 444, At Trial, 2991 I Phila., 18, Mandamus, 1835 3 W. & S., 420, At Trial, 2990 5 Phila., 190, Partition, 2047 7 W. N., 392, Feigned Issues, 2685 II W. N., 267, Execution, 3248 4 W. N., 574, Feigned Issues, 2677 9 Phila., 125, Audita Querela, 3348, 3349 74 Pa. St., 479, Mandamus, 1787 92 Pa. St., 78, Municipal Liens, 436 3 Dist. Rep., 349, Justices, 1290 I Miles, 160, Replevin, 2185a 35 W. N., 226; 163 Pa. St., 638, As- sumpsit, 21 14 W. N., 530, Justices, 1467 33 W. N., 160, Assumpsit, 36 21 W. N., 380, Defalcation, 2756 17 W. N., 273, Insurance, 290 32 W. N., 204, Execution, 3305 72 Pa. St., 196, Municipal Liens, 462 120 Pa. St., 374, Assumpsit, 30 120 Pa. St., 374, Municipal Liens, 485 105 Pa. St., 278, Municipal Liens, 446 142 Pa. St., 407, Justices, 1406 29 Pa. St., 173, Execution, 3199 79 Pa. St., 380, Municipal Liens, 472 25 111., 136, Divorce, 903 4 Dist. Rep., 219; 36 W. N., 412, Feigned Issues, 2656 II W. N., 194, Detinue, 723 70 Pa. St., 239, Execution, 3188 23 Pa. St., 343, Divorce, 787 17 S. & R., 141, Justices, 1547 113 Pa. St., 305, Dower, 1025 99 Pa. St., 313, Mechanics' Claims, 239 25 Pa. St., 350, Justices, 1429 25 Pa. St.,350,Landlord and Tenant,1705 See the proper names. 7 Port., 47, Bills of Exceptions, 3064 8 Pa. St., 442, Torts, 562 13 S. & R., 36, Statements, 69 10 Phila., 139, Bills of Discovery, 2590 3 P. & W., 454, Dower, 1094, 1109, 1110 40 Pa. St., 324, Execution, 3169 27 W. N., 240, Defenses, 2809 23 W. N., 509, Attachments, 81 1 Gr., 164, Discontinuance, 3733, 3734 4 Pa. C. C, 300, Execution, 3248 1 Hag. Con., 35, Divorce, 832 9 Pa. St., 190, Dower, 1038, 1042 29 Pa. St., 277, Dower, 1039, 1040, 1108 XCVl TABLE OF CASES. Evans v. Evans, Evans, Haas v., Evans v. Hall, Evans, Ins. Co. v., Evans, Ins. Co. v., Evans v. Ives, Evans, Jones v., Evans, Landis v., Evans v. PhUa. Club, Evans v. Radford, Evans v. Boss, Evans v. Wright, Everett v. Ins. Co., Everhart v. Shoemaker, Everitt, Osborne v., Ewen, Wright v., Ewer, Smith v., Bwing, Devereaux v.. Swing V. Ewing, Ewing V. Tees, Ewing, Thompson v.. Ex parte — Express Co., Taylor v., Eyer, Bank v., Eyerman v. Detwiller, Eyre, City v., Eyre, Smith v., Eyster v. Rineman, Eyster, Wolfran v., Eyster, Wolfran v., Faber, King v., Faekler, Wolbert v., Fagan, Bank v., Fagan's Estate, Fager v. Campbell, Fahlnecker v. Harrington, Fahnestock v. Faustenauer, Fairchild, Barker v., Fairchild, Barker v., Fairchild, De Chasbellux v., Fairchild, Rhees v., Fairies v. Weisel, Falkenhagen, De Morat v., Falkler, Gorman v., Farel v. Roberts, Farley v. Hall, Famsworth, Flagg v., Far, Navigation Co. v., Faunce v. Sabers, Faustenauer, Fahnestock v.. Feather v. Strohoecker, Feay v. Decamp, Feay, Decamp r., Fee, Comm. v., SECTION 1 Phila., 113, Dower, 1042 5 W. & S., 252, New Trials, 3029 45 Pa. St, 235, Justices, 1250 102 Pa. Sfc, 281, Assumpsit, 32 102 Pa. St, 281, Insurance, 290 38 Leg. Int, 393, Arbitration, 2903 1 Browne, 207, Justices, 1519 113 Pa. St, 332, Execution, 3190 50 Pa. St, 107, Mandamus, 1774 2 Phila., 370, Landlord and Tenant, 1679 107 Pa. St, 231, Dower, 1111 M. S., Assumpsit, 44 48 Leg. Int, 363, Defenses, 2767 42 Leg. Int, 480, Partition, 1979 103 Pa. St, 421, Justices, 1280 44 Leg. Int, 179; 24 W. N., Ill, As- sumpsit, 52 22 Pa. St, 116, Defalcation, 2759 1 Phila., 233, Audita Querela, 3369a 2 Phila., 371* Divorce, 946 1 Binn., 450, New Trials, 3027 1 Brews., 67, Mandamus, 1786 See the proper names. 9 Phila., 272, Replevin, 2186 58 Pa. St, 97, Bills of Exceptions, • 3070 26 W. N., 390, Partition, 2035 36 W. N., 216, Assumpsit 32 30 W. N., 183, Attachment, 87 11 Pa. St, 147, Justices, 1551 7 Watts, 38, Amendments, 2435 7 Watts, 38, At Trial, 3022a 51 Pa. St., 387, At Trial, 3022a 32 Pa. St, 452, Justices, 1302, 1305 34 W. N., 20, Execution, 3273 34 W. N., 66, Execution, 3273 5 Watts, 287, Execution, 3144a 21 W. N., 541, Statements, 73 5 S. & R., 174, Landlord and Tenant, 1667, 1677 168 Pa. St, 246, Assumpsit 32 36 W. N., 358, Defenses, 2771 15 Pa. St, 18, New Trials, 3025 160 Pa. St, 555, Depositions, 2517 7 W. N., 213, Arbitration, 2903 30 W. N., 39, Assumpsit 32 2 Pears, 316, Arbitration, 2908 1 Dist Rep., 743, Arbitration, 2896 1 W. N., 115, Writ of Inquiry, 696 12 W. N., 500, Execution, 3201 4 W. & S., 362, Prep, for Trial, 2971 1 W. N., 248, Assumpsit, 23 5 S. & R.,174, Landlord and Tenant, 1667, 1677 3 P. & W., 505, Partition, 2040 15 S. & R., 227, At Trial, 3002d 5 S. & R., 323, Prep, for Trial, 2973a 6 S. & R., 255, Justices, 1202 TABLE OP CASES. XCVll Fehr, Graver v., Fehr, Graver v., Feigle, Comm. v., Fell, Dobson v.. Fell V. City, Fellows, Griffin v., Felpel V. Hershonr, Felt V. Cook, Felton V. Weyman, Felts V. R. K. Co., FeltB V. R. R. Co., Felts V. R. R. Co., Fenn, Bower v., Fenn v. Early, Fennimore, Elkinton v., Fenstermaeher, Bachman v., Fenstermaeher, Beyer v., Fenton v. Hughes, Fergus, Burford v., Ferguson v. Lauterstein, Ferguson v. Quinn, Ferguson v. RafEerty, Ferguson v. Telegraph Co., Ferguson v. Wright, Femau v. Butcher, Fernsler v. Moyer, Femstler v. Seibert, Ferree v. Bradenburg, Ferrers, Schofield v., Ferris v. Zeidler, . Ferry, Downey v., Ferry Go. v. Beers, Ferry Co., Monaghan v., Fertig v. Maley, Festler, Holman v., Fessler, Johnston v., Fessler, McGee v., Fetherston, Smith v., ' Fetterman, Herron v.. Fey, McCredy v., Fichthom, Hagenman v., Fickniger, Commissioners v., Fidelity Co.'s Appeal, Fidelity Ins. Co.'s Appeal, Fidelity Co. v. Miller, Fidler v. Hershey, Field V. Comm., Field V. Directors, Field, Kilborn v., Fife, Bank v., Figley, Alexander v., Fillman's Appeal, Fillman v. Byon, Finch V. Bullock, Finch V. Oonrade, SECTION 89 Pa. St., 460, Justices, 1517 89 Pa. St., 460,Landlord and Tenant,lT10 2 Phila. 215, Justices, 1421 14 W. N., 456, Justices, 1538 81 Pa. St., 58, Municipal Liens, 409, 473 81 Pa. St., 114, Ejectments, 677 24 W. N., 523, Justices, 1346 95 Pa. St., 247, Execution, 3341g 10 Pa. St., 70, Justices, 1554 170 Pa. St., 432, At Trial, 2986b 170 Pa. St., 432, Courts, 3576 160 Pa., 503, Appeals, 3435 90 Pa. St., 359, At Trial, 3023a 113 Pa. St., 264, Assumpsit, 20 13 Pa. St., 173, Justices, 1545 112 Pa. St., 331, Justices, 1460, 1600 2 Whar., 95, Defalcation, 2757 7 Ves., 289, Bills of Discovery, 2564 165 Pa. St., 310; 36 W. N., 43, Defal- cation, 2759 160 Pa. St., 427, Replevin, 2151 23 W. N., 38, Municipal Liens, 430 128 Pa. St., 337, Replevin, 2165 151 Pa. St., 211, Statements, 73 7 Phila., 92, Account Render, 309 113 Pa. St., 292, Assumpsit, 60 3 W. & S., 416, Torts, 546 114 Pa. St., 196, Ejectments, 615 37 W. N., 284, Appeals, 3463yyy 46 Pa. St., 438, Replevin, 2204 5 Phila., 529, Justices, 1287 2 Watts, 304, Justices, 1486, 1490 20 Howard, 393, Attachments, 125, 130 9 W. N., 363, Arbitration, 2937 5 W. N., 133, Assumpsit, 30 7 W. & S., 313, Justices, 1562 7 W., 48, Justices, 1551 1 Pa. St., 126, Landlord and Tenant, 1666, 1682 10 Phila., 306, Justices, 1523 14 W. N., 480, Ejectments, 650 7 W., 498, Prep, for Trial, 2973b 1 Woodward, 442, Arbitration, 2902 51 Pa. St., 51, Justices, 1424 16 W. N., 12, Partition, 2048 93 Pa. St., 242, Divorce, 987 6 W. N., 553, Assumpsit, 22 90 Pa. St., 363, Amendments, 2419 32 Pa. St., 478, Quo Warranto, 2086 54 Pa. St., 233, Prep, for Trial, 2948 78 Pa. St., 194, Divorce, 897 101 Pa. St., 388, At Trial, 3023 2 Dist. Rep., 167, Justices, 1430 99 Pa. St., 286; 11 W. N., 195, Divorce, 883, 885 36 W. N., 391, Amendments, 2421 10 Phila., 318, Attachments, 90 154 Pa. St., 329, At Trial, 3002b XCVlll TABLE OF CASES. Finch, Lang v., Finch V. Redding, Findlay, Heaton v., Fink's Appeal, Fink's Appeal, Fink V. Gannan, Finley v. Finley, Finney v. Harbeson, Fire Ex. Co. v. Brainerd, Firmstone v. Mack, Firth, List v., Fischer, Bee 1?., Fish V. Keeney, Fish V. Weatherwax, Fisher, Bank v., Fisher, Binswanger v., Fisher v. City, Fisher, DifiEenderfer v., Fisher, Eberle v., Fisher, Gehr v., Fisher, Harner v., Fisher v. Hart, Fisher, Ins. Co. v., Fisher v. Kean, Fisher v. Nyce, Fisher v. Phila., Fisher v. WhoUery, Fisher, Ziegler v., Fiske V. Bank, Fisler, Bees v., Fiss V. Smith, Fitch V. Ross, Fitter, Bank v., Fitter, Comm. v., Fitter v. Fitter, Fitler, Kneas v., Fitter, Redheffer v., Fitton, City v., Fitzpatrick, Brooks v., Fitzpatrick, Johnson v., Fitzpatrick, Mnirhead v., Fitzpatrick, Nicholson v., Fitzpatrick, Rhoads v., Flack, Knox v., Plagg V. Famsworth, Flagler, Esher v., Flaherty v. Lindsay, Flanagan, Conun. v., Flanigan, Commissioners v., Flanigan, BUiott «., Flanigan, Yearsley v., Flannery v. Wise, Flannigen v. City, Flegal V. Dottera, Flegal, Hoar v., SECTION 166 Pa. St., 255; 36 W. N., 61, Execu- tion, 3248 32 W. N., 196, Appeals, 3463o 12 Pa. St., 310, Depositions, 2491 47 Leg. Int, 424, Partition, 1964 130 Pa. St, 256, Dower, 1031 40 Pa. St., 95, Negligence, 1880 Leg. Gazette, June 7, 1872, Divorce, 892 4 Teates, 514, Account Render, 340 2 W. N., 473, Assumpsit, 30 49 Pa. St., 392, Justices, 1468 15 W. N., 548, Execution, 3248 6 S. & R., 339, New Trials, 3031 91 Pa. St., 138, Execution, 328fl 2 Johns., Cases, 215, Mandamus, 1759 1 Rawle, 341, Discontinuance, 3733 3 W. N., 340, Assumpsit, 30 4 Brews., 395, At Trial, 2990 3 Grant, 32, Execution, 3172 13 Pa. St, 526, Dower, 1057 143 Pa. St, 311, Depositions, 2528 58 Pa. St., 453, Replevin, 2153 30 W. N., 208, At Trial, 3005a 4 W. N., 414, Mortgages, 192 1 Watts, 259, Amendments, 2435 60 Pa. St, 109, Justices, 1424 4 Brews., 395, At Trial, 2990 25 Pa. St, 197, Replevin, 2187 3 Pa. St, 365, Ejectments, 629 25 W. N., 454, Assumpsit, 32 3 Clark, 137, Arbitration, 2909 1 Browne(Append.),LXXL,New Trials, 3033, 3034 4 S. & R., 557, Attachments, 98, 100 155 Pa. St, 210, Assumpsit, 30 26 W. N., 369, Mandamus, 1804 2 Phila., 348, Justices, 1194 2 S. & E., 263, Replevin, 2184 7 Phila., 338, Justices, 1512 27 W. N., 340, Municipal Liens 383 41 Leg. Int, 448, Replevin, 2185 27 W. N., 250, Defenses, 2771 5 W. & S., 506, Defalcation, 2761 2 Phila., 205, Assumpsit, 28 166 Pa. St, 294, Assumpsit, 32 22 Pa. St, 337, Appeals, 3375 12 W. N., 500, Execution, 3201 17 S. & R., 141, Justices, 1547 7 W. N., 79, Assumpsit, 40 7 W. & S., 415, New Trials, 3032 3 Phila., 458, Municipal Liens, 479 37 Pa. St, 425, Execution, 3176 22 Pa. St, 489, Mechanics' Claims, 226,237 2 Woodward, 431, Arbitration, 2909 51 Pa. St, 491, Ejectments, 627 1 Dist Rep., 190, Justices, 1499 1 Penny., 208, New Trials, 3037 TABLE OF CASES. Fleishman v. Price Co., Fleming, Brewer v., Fleming, Comm. v., Fleming v. Ins. Co., Fleming v. Ins. Co., Fleming v. Ins. Co., Fleming v. McGuire, Fleming v. E. E. Co., Flick V. Boucher, Flesher, Allen v., Flesher v. Allen, Flood, Murphy v., Flood, Murphy v.. Flower v. E. E. Co., Floyd, Murtland v., Floyd, Eobinson v., Flynn, Berrill v., Folmar's Appeal, Ford, Crall v.. Ford, Hazelett v., Ford, Vanormer v., Forder, Wilson v., Fordham v. Fordham, Foreman, McClure v., Foreman v. Schricon, Forney v. Morrison, Forsman, Cummings v., Forster, Bank v., Forsyth v. Matthews, Forsyth, Oil Co. v., Forthuber, Diehl v., Foss V. Bogan, Foster v. Bank, Foster v. Erie, Foster v. Fowler, Foster v. Weaver, Fougeray v. Fougeray, Foulke V. Millard, Foundry Co., Storage Co. v., Foust V. Comm., Fontz, Miller v., Fowler, Foster v., Fowler v. Smith, Fowler v. Smith, Fox V. Brinton, Fox, Broom v., Fox, King v., Fox V. Eeutschler, Fox, Warfield v., Fox, Watts v., Foy, Eice v., Fraily v. Sparks, Fraim v. Lancaster, Fraley, Phila. v., Frame v. Coal Co., Franklin v. Lieb, Frantz v. Frantz, Franz, E. E. Co. v., SECTION 27 W. N., 312, Assumpsit, 47 51 Pa. St., 102, Eeplevin, 2168 157 Pa. St., 644, Assumpsit, 38 Bright., 102, At Trial, 3002a 4 Pa. St., 475, At Trial, 3002a 4 Wh., 59, New Trials, 3036 14 W. N., 210, Execution, 3248 134 Pa. St, 477, Negligence, 1911 16 S. & E., 373, Justices, 1562 141 Pa. St, 525, Costs, 3132 21 W. N., 509, Statements, 73 2 Grant, 411, Bills of Exceptions, 3066 2 Grant, 411, Execution, 33411 132 Pa. St, 524, Prep, for Trial, 2971 32 W. N., 6, Assumpsit, 23 32 W. N., 5, Assumpsit, 23 8 Phila., 239, Justices, 1285 68 Pa. St, 482, Feigned Issues, 2639 28 W. N., 366, Defalcation, 2757 10 Watts, 101, Justices, 1516 98 Pa. St, 177, Assumpsit, 23 30 Pa.St.,129, Mechanics' Claims, 228,237 15 W. N., 250, Divorce, 807 4 W. & S., 280, Insolvent Laws, 3608 8 W. & S., 43, Assumpsit, 23 1 Leg. Eec, 85, Arbitration, 2897 6 Pa. St, 194, Justices, 1511 8 Watts, 304, At Trial, 2990 14 Pa. St., 100, BUls of Exceptions, 3068 48 Pa. St, 291, New Trials, 3038 16 W. N., 227, Assumpsit, 40 92 Pa. St, 296, Justices, 1524 2 W. N., 617, Assumpsit, 30 142 Pa. St, 407, Justices, 1406 60 Pa. St, 27, Mechanics' Claims, 213 118 Pa. St, 42, Defalcation, 2763 5 W. N., 38, Divorce, ' 950 108 Pa. St, 235, Ground Eents, 176 105 Pa. St, 248, Mechanics' Claims, 213 33 Pa. St, 338, At Trial, 2978 2 Yeates, 418, Eeplevin, 2209 60 Pa. St, 27, Mechanics' Claims, 213 153 Pa. St, 639, Assumpsit, 32 153 Pa. St., 639, At Trial, 3016 1 Dist Eep., 608, Defenses, 2775 2 Yeates, 530, Discontinuance, 3733 2 W. N., 196, Amendments, 2415 147 Pa.St,240,Forms of Statements,3754i 55 Pa. St, 382, Feigned Issues, 2639 64 Pa. St,336, Landlord and Tenant, 1673 2 Dist. Eep., 333, Justices, 1475 2 Pars. 232, Justices, 1285, 1413, 1517 171 Pa. St, 436, Justices, 1570 18 W. N., 508, Municipal Liens, 436 97 Pa. St, 309, Defalcation, 2756 10 Lancaster Bar, 73, Arbitration, 2910 1 Dist Eep., 241, Divorce, 740 24 W. N., 321, Negligence, 1895 TABLE OF CASES. I'razer, Balsbaugh v., Frazier v. Funk, Frazier, Hey v., Frear, Roat v., Frederic, Bradford v., Fredrigal, Kay v., Freeburger's Appeal, Freeland, Wain v., Freedly v. Mitchell, Freeman, Comm. v., Freeman, Hooke v.. Freeman v. Smith, Freeman v. Wall, Freese, Hammer c, French v. Kaign, Fretton v. Karcher, Fretz V. Johnson, Frey, Hausmann v., Freytag v. Anderson, Frick V. Kitchen, Frick V. Patton, Fricke, Ganzer v., Friedman, Henisler v., Friedly v. Seheetz, Friend v. Supply Co., Friend, Telegraph Go. v., Fries v. Null, Frink, Comm. v., Frisbee's Appeal, Frishmuth v. Barker, Fritz V. Hathaway, Fritz V. Hathaway, Fritz, Hess^ v., Fritz, McKinney v., Fritz, Sands v., Frohock v. Gustine, Frohock v. Gusline, Pronheiser v. Werner, Frothingham, Mesker v., Frutchey v. Liutz, Fry, Schempp v., Fuch's Case, Fnllerton, Johnson v., Fulmer, Bell v., Fnlmer v. Fulmer, Fulton V. Bank, Fulton, Burton v., Pulton's Estate, Fulton's Estate, Funck, Wright v., Funk, Byrne v.. Funk V. Ely, Punk, Frazier v., Punston, Hanse v., Furbush v. Chappell, SECTION 19 Pa. St., 95, At Trial, 2990 15 S. & R., 26, At Trial, 3017 1 Monaghan, 759, Defenses, 2783a 167 Pa. St., 614, Mechanics' Claims, 228 101 Pa. St, 445, Replevin, 2187 3 Pa. St., 221, Amendments, 2424 40 Pa. St., 244, Execution, 3190, 3191 2 Miles, 161, Depositions, 2517 2 Pa. St, 100, Discontinuance, 3750 166 Pa. St., 332, At Trial, 2978 2 Dist Rep., 779, Execution, 3273 30 Pa. St, 264, Execution, 3181 3 Luz. Legal Reg., 33, At Trial, 2990 19 Pa. St, 255, Execution, 3172, 3181 3 W. N., 495, Mechanics' Claims, 228 77 Pa. St. 423, At Trial, 3023 15 W. N., 208, Attachments, 103 2 Montg. Go. Law. Rep., 13 Arbitra- tion, 2911 1 Rawle, 73, Landlord and Tenant, 1690 4 W. & S., 30, Insolvent Laws, 3607 2 Rawle, 20, Justices, 1415 57 Pa. St, 316, Discontinuance, 3750 5 Clark, 147; 11 P. L. J., 355, Attach- ments, 117 9 S. & R., 156, Amendments, 2435 165 Pa. St, 652, Assumpsit, 32 114 Pa. St, 592, Mandamus, 1844 32 W. N., 237, At Trial, 3014 13 Amer. Law Reg. (O. S.), 700, Jus- tices, 1199 88 Pa. St, 144, Account Bender, 311 159 Pa. St, 549, Assumpsit, 32 26 W. N., 273, Assumpsit, 32 26 W. N., 273, Statements, 73 23 W. N., 299, Execution, 3244 2 W. N., 173, Execution, 33411 84 Pa. St, 15, Replevin, 2209 8 Watts, 121, Death, 2220 8 Watts, 121, Partition, 2012 3 Dist Rep., 515, Justices, 1523 1 Dist Rep., 120, Execution, 3256 167 Pa. St, 337, Execution, 3256 165 Pa. St, 510, Execution, 3261 6 Wh., 191, Appeals, 3435 44 Pa. St, 466, Execution, 3244 1 Phlla., 43, Partition, 2042 13 Phila., 166, Divorce, 770 92 Pa. St, 112, Prep, for Trial, 2947 49 Pa. St, 151, Prep, for Trial, 2948 51 Pa. St, 204, Feigned Issues, 2712 51 Pa. St, 204, Sci. Pas., 276 94 Pa. St, 26, Replevin, 2205 13 W. N., 503, Landlord and Tenant, 1667 45 Pa. St, 444, At Trial, 2991 15 S. & R.. 26, At Trial, 3017 1 W. N., 73, At Trial, 3022a 105 Pa. St, 187, Ground Rents, 151 TABLE OP CASES. CI Furbush v. Greene, Furnace Co. v. StoufEer, Furst V. Ayers, Fuss, Yeager v., G. V. G., Gabell, Whalen v., Gabell, Whalen v., Gable v. Parry, Gage, Gould v., Gage, Gould v., Galbraith, Hardwick v., Galbralth v. Green, Galbraith v. Green, Galbraith, Langs v., Galbreath v. Galbreath, Galbreath v. Moore, Gallagher's Appeal, Gallagher's Appeal, Gallagher, Bollinger v., Gallagher, Dundas v., Gallagher v. Jackson, Gallagher, Pyle v., Gallagher, Phila. v., Galland, Schroeder v., Gallatin v. Comman, Galloway, Sager v., Gandy v. Dickson, Gangwere's Estate, Gann, Cummings v., Gann, Cummings v., Gans, Ins. Co. v., Gans V. Phila., Ganzer v. Fricke, Gaoler, Republiea v., Garard, Downey v., Garden, Milliken v., Gardiner, Ass'n v., Gardiner v. Bridge Co., Gardner, Cunningham v., Gardner v. Davis, Gardner v. Heath, Gardner, Musser v., Gardner, Page v., Gardner, Rubeck v., Gardner, Township v., Gardy v. MofBt, Garey, Woodward v., Garman, Fink v., Garrat v. Garrat, Garrett v. Garrett, Garrett, Weatheread v., Garrett, Wethered v., Garrett's Appeal, Garrettson v. Harris, VOL. I. — H SECTION 108 Pa. St., 503, Execution, 3189 127 Pa. St., 336, Replevin, 2167 2 W. N., 722, Assumpsit, 30 9 W. N., 557, BUls of Exceptions, 3068 40 Law Jour. Rep. (P. and M.), 83, Divorce, 771 20 W. N., 274, Assumpsit, 46 120 Pa. St., 284, Torts, 511 13 Pa. St, 181, Defalcation, 2756 20 W. N., 553; 118 Pa. St, 559, As- sumpsit, 19 20 W. N., 553, Statements, 73 27 W. N., 573, Assumpsit, 30 13 S. & R., 85, Bills of Exceptions, 3069 1040 1505 1975 311 3442 1084 1295 2947 1491 2897 13 S. & R., 85, Dower, 1 S. & R., 491, Justices, 5 Watts, 146, Partition, 2 Watts, 86, Account Render, 89 Pa. St, 29, Appeals, 87 Pa. St, 200, Dower, 29 W. N., 89, Justices, 4 Pa. St, 205, Prep, for Trial, 1 S. & R., 492, Justices, 1 Chest Co. Rep., 449, Arbitration, 16 Phila., 15, Municipal Liens, 440 2(5 W. N., 33, Mechanics' Claims, 224 1 P. & W., 115, Costs, 3125 113 Pa. St, 500, Ejectments, 680 166 Pa. St, 422; 36 W. N., 95, Landlord and Tenant, 1651 14 Pa. St., 417, Dower, 1066 52 Pa. St, 484, At Trial, 2991 52 Pa. St., 484, Replevin, 2209 01 Pa. St, 103, Appeals, 3380 102 ta. St, 97, Municipal Liens, 433 .")7 Pa. St, 316, Discontinuance, 3750 2 Yeates, 258, Justices, 1202 24 Pa. St., 52, Amendments, 2412 37 Pa. St, 458, Justices, 1349 2 W. N., 95, Assumpsit, 23 2 Binney, 450, Execution, 3244 4 W. & S., 120,Landlord and Tenant,1675 15 Pa. St, 41, Justices, 1565 10 W. N., 495, At Trial, 3023a 66 Pa. St., 242, Amendments, 2418 1 Dist Rep., 539, Justices, 1450 7 Watts, 455, Escheats, 1145 16 W. N., 348, Justices, 1555 14 W. N., 438, Justices, 1507 42 Leg. Int, 490, Replevin, 2184 40 Pa. St., 95, Negligence, 1880 4 Yeates, 244, Divorce; 864 4 W. N., 240, Divorce, 811 27 W. N., 451, Mechanics' Claims, 239 7 Pa. C. C, 535, Prep, for Trial, 2973e 32 Pa. St, 160, Execution, 3170 2 Dist. Rep., 719, Execution, 3323 cu TABLE OF CASES. Garrigues, Comm. v., Garrigues, Stanley v., Gartiser, Goepp v., Garven, Vanderslice t Garvin, Livezey v.. Gas Co., Betts v., Gas Co., Richards v., Gates V. Bloom, Gates, In re Gates, McConnell v., Gates V. E. E. Co., Gaul, In re Ganl, Sheredine v., Gault's Appeal, Gault, Delaney v., Gault V. McKinley, Gault V. Neal, Gavit V. Hall, Gaw, Pringle v., Gaw, Pringle v., Gaw, Pringle v., Gay, Mallon v., Gay V. Waltman, Gearing v. Hapgood, Gebbie, Griswold, v., Gee V. Gee, Gehr v. Fisher, Geibler's Estate, Geiger, Hise v., Geiger, Times Co. v., Geisenberger v. Cerf, Geist V. Hartman, Geist V. Hartman, Gemmill v. Butler, Gemmill v. Butler, Gerard v. E. E. Co., Gerber v. Hartwig, Gerdemann v. Comm., Gere v. linger, Gerzog, Lisansky v., Gesell's Appeal, Gesell's Appeal, Getz, Allen v., Getz, Comm. v.. Geyger v. Stoy, Gibbs V. Banking Co., Gibbs V. Bartlett, Gibbs V. Neely, Gibbs, Walker v., Gibson's Appeal, Gibson, Bender v., Gibson, Brick Co. v., Gibson v. Gibson, Giffen v. Township, Gifford, McDonald v.. SECTION 28 Pa. St., 9, Quo Warranto, 2103 1 W. N., 28, Assumpsit, 60d 35 Pa. St., 130, Mechanics' Claims, 239 14 S. & E., 273, Original Writs, 2297 16 W. N., 439, Mechanics' Claims, 228 97 Pa. St., 367, Execution, 3271 25 W. N., 61, Forms of Statements, 3753 30 W. N., 127, Justices, 1223 2 Atl. Rep., 214, Attorneys, 3531 4 Penny., 377, Municipal Liens, 436 32 W. N., 333, Appeals, 3434 7 W. N., 522, Lunatics and Drunkards, 3677 2 DaU., 190, Prep, for Trial, 2973a 33 Pa. St., 94, Municipal Liens, 411 30 Pa. St, 63, Municipal Liens, 436 2 Phila., 71, Justices, 1628 6 Phila., 61, Landlord and Tenant, 1712 75 Pa. St, 363, Landlord and Tenant, 1669, 1674 5 S. & R., 534, Ejectments, 5 S. & R., 536, Dower, 6 S. & E., 298, New Trials, 28 W. N., 93, Torts, 89 Pa. St, 453, Arbitration, 22 W. N., 437, Mechanics' Claims, 24 W. N., 72, Torts, 2 Dist Eep., 773, Divorce, 143 Pa. St, 311, Depositions, 1 Pearson, 445, Partition, 7 W. & S., 273, Dower, 147 Pa. St, 399, Assumpsit, 1 Phila., 17, Landlord and Tenant, 29 W. N., 477, Attachments, 1 Dist Eep., 109, Costs, 4 Pa. St, 232, Death, 4 Pa. St, 232, Execution, 12 PhUa., 394, Negligence, 11 W. N., 197, Justices, 11 Phila., 374, Justices, 24 W. N., 7, Assumpsit, 2 Dist Eep., 220, Assumpsit, 84 Pa. St, 238, Account Render, 84 Pa. St, 238, Appeals, 621 1093 3038 558 2892, 2893 224 521 781 2528 2035 1111 30 1690 97 3098 2222 3272 1908 1621 1216 32 40 341 3443 2 P. & W., 310, Dower, 1045, 1076, 1112 4 Dist Rep. 391, Quo Warranto, 2120 1 DaU., 135, Justices, 1203 2 W. N., 472, Assumpsit, 30 2 W. ife S., 29, Replevin, 2205, 2209 7 Watts, 305, Execution, 3188 2 Dall., 211, Amendments, 2435 108 Pa. St., 244, Arbitration, 2906 4 W. N., 543, Writ of Inquiry, 707 21 W. N., 32, Execution, 3275 20 Pa. St, 9, Justices, 1332 4 W. & S., 327, Justices, 1551 1 Brews., 278, Appeals, 3421 TABLE OP CASES. cm Gilbert, Clements v., Gilbert, Cook v., Gilbert v. Gilbert, Gilchrist, Kraft v., Giles, Artman v., Giles, Seiders v., Gill. Comm. v., Gill, Comm. v., Gill, Globe Gas Light Co. v., Gill V. Tolan, Gill V. Weston, Gillardon v. Gillardon, Gillespie, EcofE v., Gillespie v. Goddard, Gillespy, Whitehead v., Gillespy, Withers v., Gillingham, Guilky v., Gilmore, Borough v., Gilmore, Hunt v., Gilmore, Kelly v., Gilmore v. Reed, Gilmore, Saving Fund v., Gilmore, Smith v., Gilmore, Sommer v., Gilpin's Appeal, Gilroy v. Comm., Gilser v. Dialogue, Ginder, Kerst v., Gingricfc, Kraft v., Gipner, Comm. v., Gipner, Comm. v., Girard v. Stiles, Girdwood, Long v., Girolo, Sweeney v.. Girts V. Comm., Givens v. McCalmont, Givens v. Miller, Glading, City v., Glancy, Robinson v., Glancy, Robinson v., Glass, McDowell v.. Glass, Price v., Glass Co., Hugus v., Glasscott V. Copper Co., Glaub's Appeal, Gleason v. Gleason, Gleason, Jackson v., Glenn v. Thompson, Globe Gas Light Go. v. Gill, Gloninger v. Hazard, Goddard, Gillespie v., Godshall, Paine v., Goehring, Ins. Co v., Goenner, Schick v., Goenner, Schick v., Goepp's Appeal, Goepp V. Gartiser, SECTION 12 Pa. St., 255, Justices, 1526 8 S. & R., 567, Statements, 68, 71 18 W. N., 535, Divorce, 983 31 Pa. St., 470, Justices, 1547 155 Pa. St., 409, Comp. with Cred., 3495 141 Pa. St, 93, Partition, 1977 27 W. N., 311, Justices, 1188 3 Wh., 228, Quo Warranto, 2133 1 Dlst. Rep., 538, Mechanics' Claims, 226 18 W. N., 50, Replevin, 2186 110 Pa. St., 312, Torts, 562 16 W. N., 457, Divorce, 948 13 W. N., 564, Assumpsit, 32 1 Pitts. R., 306, Replevin, 2199 1 Phila., 515, Justices, 1389 7 S. & R., 10, Depositions, 2511 3 S. & R., 93, Justices, 1491, 1492, 1555 15 W. N., 342, Municipal Liens, 437, 438 59 Pa. St., 450, Defalcation, 2756 1 W. N., 73, Justices, 1538 76 Pa. St,462,Defalcation,2760,2761,2762 3 Dist. Rep., 823, Defenses, 2775 34 W. N., 128, Mechanics' Claims, 239 168 Pa. St., 117, New Trials, 3036 164 Pa. St., 1, Execution, 3265 105 Pa. St.,484, Quo Warranto, 2093,2118 4 W. N., 10, Assumpsit, 21 12 Leg. Int., 271, Prep, for Trial, 2973a 2 Dist. Rep., 398, Assumpsit, 30 118 Pa. St., 379, Justices, 1405 20 W. N., 500, Justices, 1417, 1521 4 Yeates, 1, Amendments, 2435 150 Pa. St., 413, Attachments, 75 32 W. N., 404, Justices, 1284 22 Pa. St., 351, Amendments, 2435 4 Watts, 460, Ejectments, 678, 680' 62 Pa. St., 133, Landlord and Tenant,1724 36 W. N., 247, Municipal Liens, 478 69 Pa. St., 89, Appeals, 3443 69 Pa. St., 89, Partition, 2008 4 Watts, 389, Justices, 1563 2 W. N., 472, Assumpsit, 30- 96 Pa. St., 160, Execution, . 3297 11 Sim., 305, Bills of Discovery, 2564 11 W. N., 297, Appeals, SSgO' 12 W. N., 408, Divorce, 930- 6 Phila., 307, Justices, 1641 75 Pa. St., 389, Landlord and Tenaut,1667 1 Dist Rep., 538, Mechanics' Claims, 226 42 Pa. St, 389, Account Render, 304 1 Pitts. R., 306, Replevin, 2199 29 Leg. Int., 12, Justices, 1418, 1517 99 Pa. St., 13, Arbitration, 2901 21 W. N., 63, Assumpsit, 18 21 W. N., 63, Torts, 522 15 Pa. St, 427, Prep, for Trial, 2973b 35 Pa. St., 130, Mechanics' Claims, 239 CIV TABLE OF CASES. Gogel V. Jacoby, Goldenberg, Weber «., Good V. Good, Good V. Grant, Good V. Grant, Good V. Mylin, Good Intent Co. v. Hartzell, Goodall, Boumanville v., Goodell, Ehresman v., Goodman, Electric Co. v., Goodrich v. Tracey, Goodwin v. Schott, Goodwin, Steele v., Gord V. Middleman, Gordon, Boyd v., Gordon v. Gordon, Gordon, Jones v., Gorman v. Falkler, Gormley, Harbert v., Gosline v. Place, Gosweiler's Estate, Goudy, City v., Gould V. Crawford, Gould V. Gage, Gould V. Gage, Gould, Lee v., Gould V. McFall, Gould, Norris v., Gould, Taylor v., Gourley v. Kinley, Goui-ley v. Kinley, Gourley v. Kinley, Gourley v. Kinley, Govett, Deacon v., Govett V. Wiley, Graban v. Hirshfield, Grace, Jenks v., Grace v. Kurts, Graff's Appeal, Graff, In re Graham, Comm. i ., Graham v. Graham, Graham v. James, Graham, McMillan v., Graham, Miner v., Graham v. R. R. Co., Graham v. R. R. Co., Graham v. Vandalore, Graham, Wagner v., Gram, Zeigler v.. Grant, Boyle v.. Grant, Boyle v.. Grant v. Comm., Grant, Good v.. Grant, Good v., Grant, Payne v., SECmON 5 S. & R., 117, Defalcation, 2758 48 Leg. Int., 24, Execution, 3251 7 Watts, 195, Dower, 1111 76 Pa. St., 52, Execution, 3283 76 Pa. St., 52, Prep, for Trial, 2973b 13 Pa. St, 538, At Trial, 3015 22 Pa. St, 277, Amendments, 2424 10 Pa. St, 133, At Trial, 3002a 1 Dist. Rep., 662, Execution, 3215 129 Pa. St, 206, Replevin, 2204 3 P. & W., 64, Insolvent Laws, 3607 159 Pa. St, 552, Assumpsit, 32 113 Pa. St, 288, Attachments, 81, 104 25 W. N., 556, Justices, 1330 6 S. & R., 53, Statements, 66, 71 48 Pa. St, 226, Divorce, 787 23 W. N., 302, Statements, 73 2 Pears., 316, Arbitration, 2908 115 Pa. St, 237, Assumpsit, 60 32 Pa. St„ 520, Justices, 1212 3 Pa., 200, Justices, 1537 36 W. N., 246, Municipal Liens, 478 2 Pa. St, 89, Justices, 1328 20 W. N., 553; 118 Pa. St, 559, As- sumpsit, 19 20 W. N., 553; 118 Pa. St, 559, State- ments, 73 47 Pa. St., 398, Replevin, 2161 111 Pa. St, 66, Justices, 1517 17 Phila., 318, Account Render, 307 57 Pa. St, 152, Defalcation, 2757 66 Pa. St, 270, Dower, 1040, 1092, 1109 66 Pa. St, 274, Dower, 1024, 1025 66 Pa. St., 270, Ejectments, 621 66 Pa. St, 270, Partition, 1961,1963,2035 4 Phila., 7, Execution, 3191 13 W. N., 98, Justices, 1549 47 Leg. Int, 278, Justices, 1556 1 W. N., 2, Justices, 1443 1 Phila., 105, Discontinuance, 3748 21 W. N., 246, Execution, 3193 23 Atl. Rep., 397, Appeals, 3442 64 Pa. St, 339, Quo Warranto, 2080,2125 1 S. & R., 330, New Trials, 3026, 3036 13 W. N., 279, Justices, 1424 4 Pa. St, 140, Justices, 1425 24 Pa. St, 491, Ground Rents, 171 25 W. N., 65, Attachments, 80 26 W. N., 203, Attachments, 81 2 Watts, 131, Justices, 1551 14 W. N., 343, Justices, 1644 13 S. & R., 102; Justices, 1259 18 Pa. St., 163, Assumpsit, 60c 18 Pa. St, 162, Justices, 1245 71 Pa. St., 495, Bills of Exceptions, 3067 76 Pa. St, 52, Execution, 3283 76 Pa. St, 52, Prep, for Trial, 2973b 7 W. N., 406, Discontinuance, 3733 TABLE OF CASES. CV Grantham, Neely v.. Grape St., In re Grattan, Emerson v., Gratz V. Benner, Gratz Land Co., Phila. v., Gratz V. Phillips, Gratz V. Phillips, Grauer, Shivery v., Grauer, Shivery v., Gravenstine, Conrow v.. Graver v. Fehr, Graver v. Fehr, Graves v. Beckwith, Graves v. City, Graves v. Cole, Gray's Appeal, Gray v. Dick, Gray v. McCune, Gray, Sheaf v., Gray, Wilson v.. Greaves, Nesbit v., Greble, Phila. v.. Green's Appeal, Green, Borough v., Green, Cornell v., Green, Galbraith v., Green, Galbraith v., Green v. Iron Co., Green v. IJeymer, Greenawalt, Brenneman v., Greenawalt v. Hamilton, Greenawalt v. Shannon, Greenberg, Moss v., Greene, Furbush v., Greenfield, Deacon v., Greenhill, Rex v., Greenhoe v. College, Greenongh, Kase v., Green waldt, Betz v., Greenwaldt v. Kraus, Greenwood v. R. R. Co., Greenwood, Walsh v., Gregg, Bank v., Greiner's Appeal, Greisemer, Elkins v., Greup, Haycock v., Greup, Haycock v., Grieb v. Kuttner, Griel V. Buckins, Grier, Bank v.. Grier v. McGlathery, Grier v. McGlathery, Griffin v. Fellows, Griffin v. Rogers, Griffith, Salter v., Griffith V. Sitgreaves, Griffith, Sitgreaves v., Griffith, Stiles v., SECTION 58 Pa. St., 433, Execution, 3276 103 Pa. St., 121, Negligence, 1872 4 W. N., 574, Feigned Issues, 2677 13 S. & R., 110, At Trial, 2991 38 Pa. St., 359, Municipal Liens, 478 3 Binn., 475, Account Render, 333 1 Binn., 588, Amendments, 2424 2 Dist. Rep., 388, Sci. Fas., 262 2 Dist. Rep., 387, Justices, 1504 17 W. N., 204, Assumpsit, 30 89 Pa. St, 460, Justices, 1517 89 Pa. St., 460, Landlord and Tenant,1710 3 P. & W., 525, Justices, 1325 95 Mich., 266, Prep, for Trial, 2972 19 Pa. St., 171, Divorce, 923 96 Pa. St., 243, Appeals, 3441 97 Pa. St., 142, Mechanics' Claims, 239 23 Pa. St, 447, Dower, 1021, 1046 2 X., 273, New Trial, 3033 8 Watts, 25, Replevin, 2196, 2204 6 W. & S., 120, Insolvent Laws, 3608 38 Pa. St., 339, Municipal Liens, 411 6 W. & S., 327, Sci. Fas., 275 22 W. N., 180, Municipal Liens, 441 10 S. & R., 14, Prep, for Trial, 2973a 13 S. & R., 85, Bills of Exceptions, 3069 13 S. & R., 85, Dower, 1040 62 Pa. St., 97, Replevin, 2168 3 Watts, 381, Justices, 1390 1 S. & R., 27, Justices, 1336 4 Penny., 495, Arbitration, 2896 8 Pa. St, 465, Justices, 1541 3 Dist Rep., 247, Mechanics' Claims, 229 108 Pa. St., 503, Execution, 3189 26 W. N., 264, At Trial, 3022b 4 Ad. & Ellis, 624, Justices, 1194 29 W. N., 99, Appeals, 3463o 7 W. N., 535, Assumpsit, 21 8 Atl. Rep., 852, Insolvent Laws, 3608 148 Pa. St, 517, Insolvent Laws, 3608 3 Del. Co. Rep., 415, Arbitration, 2908 2 Dist Rep., 64, Justices, 1347 79 Pa. St, 384, Assumpsit, 30 103 Pa. St, 89, Dower, 1083 2 Penny., 52, Replevin, 2173 57 Pa. St, 438, Amendments, 2435 57 Pa. St, 441, Prep, for Trial, 2949 26 W. N., 323, Assumpsit, 50 114 Pb. St, 190, Assumpsit, 32 35 Pa. St., 423, Mechanics' Claims, 222 16 W. N., 457, Assumpsit, 10 16 W. N., 457, Writs, 2302 81 Pa. St., 114, Ejectments, 677 38 Pa. St., 382, Comp. with Cred., 3483 7 W. N., 288, Assumpsit, 21 2 W. N., 707, Assumpsit, 38 2 W. N., 705, Assumpsit, 30 3 Yeates, 82, Replevin, 2170 CVl TABLE OF CASES. Griffith, Wiler v., Griffith 17. Willing, Grim V, Carr's Admrs., Grimley v. Beceveuve, Grimm v. Sarmiento, Grinolds, Ormsby v., Grishobber, McCnUough v., Grissom V. Grissom, Griswold V. Gebbie, Gritman, Morss v., Gritman, Quick v., Groetzinger v. Latimer, GrofE, Hersch v., Groff V. Musser, Groff V. Ressler, Groom, Springer v., Gross, Bank v., Grossman, Byrne v.. Grove's Appeal, Grove's Appeal, Grubb's Appeal, Grubb's Appeal, Grubb, Coleman v., Gnmdy v. Winner, Guarantee Co., Kraemer v., Guardians, Comm., v., Guekert, Bartoe v., Gne V. BUine, Guest, Bby v., Guie, Ashe v., Guier, Morris v., Guilky V. Gillingham, Gummer v. Trustees, Gundrum, Kline v., Gunn V. Bowers, Gmm V. Dickey, Gunnis V. ClufE, Gunnison, Porter v., Gunzberg, Harvey v., Gustine, Frohock v., Gustine, Frohock v., Guthrie V. Guthrie, Guthrie, Hilty v., Guy V. McDree, Guy, Wright v., Guy, Wright v., Gwinner v. Brendt, H. ». C, H., L. v., H., M. v., H. V. P., Haas V. Evans, Haas, Steamship Co. v., Hackenburg, Moreburger v.. Hacker, Livezey v., Hackley, Harvey »., SECTION 45 Leg. Int., 486, Municipal Liens, 445 3 Binn., 317, Account Render, 305 31 Pa. St., 33, Actions after Death, 2216 21 W. N., 573, Torts, 539 43 Leg. Int., 129, Arbitration, 2934 42 Leg. Int,. 415, Justices, 1290 4 W. & S., 201, Attachments, 111 8 W. N., 484, Divorce, 808, 811, 866 24 W. N., 72, Torts, 521 10 Phila., 573, Arbitration, 2908 3 Pa. C. C. Eep., 610, Arbitration, 2902 23 Ati. Rep., 393, Defalcation, 2757 2 W. & S., 449, Assumpsit, 23 3 S. & B., 262, Assumpsit, 60a 27 Pa. St, 71, Justices, 1353, 1562 21 W. N., 242, Torts, 563 50 Pa. St, 224, Execution, 3294 65 Pa. St, 310, Amendments, 2435 37 Pa. St, 443, 446, Divorce, 787, 903 68 Pa. St, 143, Divorce, 939 82 Pa. St, 21, Costs, 3110, 3124 2048 1976 3737 3463rr 1815 18 1551 3270 13,14 22 82"Pa. St, 23, Partition, 23 Pa. St, 393, Partition, 1 Phila., 400, Discontinuance, 37 W. N., 469, Appeals, 13 W. N., 61, Mandamus, 158 Pa. St, 124, Assumpsit, 13 Pa. St, 60, Justices, 94 Pa. St, 160, Execution, 97 Pa. St, 493, Assumpsit, 5 W. N., 132, Assumpsit, 3 S. & R., 93, Justices, 1491, 1492, 1555 50 Wis., 247, At Trial, 3002a II Pa. St, 242, At Trial, 3017 126 Pa. St, 552, Arbitration, 2895 14 W. N., 274, Defalcation, 2756 III Pa. St., 512, Defalcation, 2756 2 Grant, 300, Defenses, 2783a 148 Pa. St,294,Landlord and Tenant,1650 8 Watts, 121, Death, 2220 8 Watts, 121, Partition, 2012 26 Mo. App., 566, Divorce, 789 31 Pitts. L. J., 322, Arbitration, 2909 26 Pa. St, 92, Comp. with Cred., 3483 10 S. & E., 227, Account Render, 306 10 S. & R., 227, Justices, 1266, 1492 2 Dist. Rep., 50, Justices, 1517 1 Law Times Rep., 489, Divorce, 758 4 Swab. & T., 115, Divorce, 760 34 L. J. Rep. (Prob. M. & A.),Divorce,763 Law Rep. (3 P. & M.), 126, Divorce, 767 5 W. & S., 252, New Trials, 3029 31 W. N., 79, Landlord and Tenant, 1664,1683 13 S. & R., 28, At Trial, 3008 20 W. N., 14, Mechanics' Claims, 228 6 W., 264, Prep, for Trial, 2973a TABLE OP CASES. evil Hackman, Schoenberger v., Hackney, Hook v., Hackwell v. Eastman, Haffner v. Hoeckley, Hagadorn v. Mangan, Hagemann, Doriot v., Hageman's Appeal, Hagenman v. Fichthorn, Haggarty, Cook v., Haggerty v. Wilber, Hague, Duke v., Haggy V. Poike, Hahn, Bealor v., Haigh, Barnhill v., Haines' Appeal, Haines, Bancroft v., Haines v. Comm., ' Haines v. Comm., Haines v. Comm., Haines, Harlan v., Haines v. Heppe, Haines v. Hillary, Haines v. Levin, Haines, McGregor v., Haines v. Moorhead, Haines v. Rapp, Haines v. Townsend, Hains v. Moyer, Hains v. Viereck, Hakewell, In re Halberstadt, Clark v., Halberstadt v. Printing Co., Haldeman, Bletz v., Haldeman v. Martin, Haldeman v. Martin, Haldron, Rafferty v., Hale, Comm. v., Hale, Weir v.. Hall's Appeal, Hall, Bank v., Hall, Bank v., Hall V. Dougherty, Hall, Etheridge v., Hall, Evans v., Hall, Farley v., Hall, Gavit v., Hall, lams v., Hall V. Kenyon, Hall V. Kintz, . Hall V. Knapp, Hall, Lowry v., Hall, Martin v., Hall V. Oyster, Hall, Pollock v., SECTION 37 Pa. St, 87, Amendments, 2423 16 S. & R., 385, Depositions, 2533 2 Cro., 410, Account Bender, 323 3 Brews., 253, Landlord and Tenant, 1666 1 Kulp, 181, Arbitration, 29W 21 W. N., 556, Statements, 73 88 Pa. St., 21, Mechanics' Claims, 245fc 1 Woodward, 442, Arbitration 2902 36 Pa. St, 67, Ameddments, 2433 16 Johnson's Rep., 287, Execution, 3186 107 Pa. St, 57, Partition, 1965 160 Pa. St, 522, Feigned Issues, 2690 47 Leg. Int, 120, Divorce, 787 53 Pa. St., 165, Amendments, 2412, 2419 92 Pa. St., 273, Execution, 3196 31 W. N., 248, Defenses, 2774 11 W. N., 289, Bills of Exceptions, 3067, 3069 99 Pa. St, 410, Bills of Exceptions, 3063 99 Pa. St, 410, Mandamus, 1784, 1842, 1849 125 Pa. St., 48, Execution, 3174, 3314 20 W. N., 502, Feigned Issues, 2685 9 Phila., 526, Justices, 1538 51 Pa. St,412,Landlord and Tenant,1707 6 Phila., 62, Landlord and Tenant, 1707 2 Pa. St., 65, Justices, 1561 2 W. N., 595, Assumpsit 30 1 Chest. Co. Rep., 146, Justices, 1485 1 Woodward, 171, Arbitration, 2900 2 Phila., 40, Justices, 1471 22 Eng. L. & Eq. E., 395, Justices, 1194 1 Miles, 26, At Trial, 3023 2 Dist. Rep., 320, Feigned Issues, 2676 26 Pa. St., 403, Justices, 1473 10 Pa. St., 369, Amendments, 2435 10 Pa. St, 369, Torts, 551 *81 Pa. St, 438, Replevin, 2204 36 Leg. Int, 285, Justices, 1201 3 W. & S., 285, Execution, 3190 1 Penny., 223, Death, 2219, 2222 107 Pa. St, 583, Ground Rents, 154 107 Pa. St, 583, Replevin, 2205,2209,2210 8 W. N., 255, Mechanics' Claims, 235 7 Port, 47, Bills of Exceptions, 3064 45 Pa. St., 235, Justices, 1250 1 W. N., 115, Writ of Inquiry, 696 75 Pa. St., 363, Landlord and Tenant, 1669, 1674 4 Dist Rep., 259, Justices, 1503 20 W. N., 21, Arbitration, 2897 2 Dist., Rep., 16, Assumpsit, 57 1 Pa. St, 213, Costs, 3125 2 W. & S., 129, Replevin, 2174 1 P-hila., 233, Assumpsit, 23 168 Pa. St., 399, Attachments, 81 4 Dall., 222; 3 Yeates, 42, Discontinu- ance, 3733 CVlll TABLE OF CASES. Hall, Weed v., Hallgarten, Steel Works v., Halliday's Estate, Hallman v. Hallman, Hallack, Ins. Co. v., Hallowell's Appeal, Hallowell, Rosenberger v., Hallowell v. Willianfe, Halstead, Black v., Halstead, Black v., Haman, Malone v., Hamberg, Thamm v., Hambleton v. Yocum, Hamburger v. Marcus, Hamburgh, Day v., Hamill v. Rwy Co., Hammill, Schnitzler v., Hamilton v. Buckwalter, Hamilton v. Grossman, Hamilton, Green wait v., Hamilton v. Hart, Hamilton, Irwin v., Hammer v. Freese, Hammett v. City, Hammond, Koontz v., Hammond, Koontz v., Hampson, Addison v., Hampton, Hawley v., Hampton, Sims v., Hanbest, City v., Hancock's Appeal, Hancock, Comm. v., Hancock v. Hancock, Hancock, McCormac v., Handy, Buckley v., Hankey v. Title Co., Hanlon, Taylor v., Hanna^ M'Clay v., Hannas, Youngs v., Hano, Wolf v., Hansbury, Charnley v., Hansel! v. Hansell, Hapgood, Gearing v., Harar v. Croney, Harbach v. Kurth, Harbaugh, Shriver v., Harbert v. Gormley, Harbeson, Finney v., Harden, Paul v., Hardie v. Hardie, Hardware Co., Bank v., Hardwick v. Galbraith, Hardy v. Metzgar, Hardy v. Watts, Hardy v. Watts, Hare v. Comm., SECTION 101 Pa. St., 592, Replevin, 2175 15 W. N., 47, Replevin, 2157, 2165 17 Eng. L. & Eq. R., 77, Justices, 1194 124 Pa. St., 347, Execution, 3170 22 W. N., 151, Insurance, 292 20 Pa. St., 215, Appeals, 3439 3 Phila., 830; 35 Pa. St., 371, Execu- tion, 3172 4 Pa. St., 339, Justices, 1453 39 Pa. St., 64, Assumpsit, 30 39 Pa. St., 71, Defenses, 2772 5 W. N., 447, Dscontinuance, 3736 2 Brews., 528, Landlord and Tenant,1667 108 Pa. St., 304, Feigned Issues, 2639 33 W. N., 201, Execution, 3273 1 Bro., 78, Audita Querela, 3369a MMS. Writ of Inquiry, 697 1 W. N., 471, Execution, 33411 2 Yeates, 389, Dower, 1074 130 Pa. St., 320, Prep, for Trial, 2973a 4 Penny., 495, Arbitration, 2896 125 Pa. St., 142, Arbitration, 2897 6 S. & R., 208, Death, 2216 19 Pa. St., 255, Execution, 3172, 3181 65 Pa. St., 146, 164, Municipal Liens, 411, 412, 425 62 Pa. St., 177, At Trial, 3022a 62 Pa. St., 182,Landlord and Tenant,1725 6 Pa. St., 463, Justices, 1562 160 Pa. St., 18, Execution, 3168 1 S. & R., 411, Justices, 1537 15 W. N., 349, Municipal Liens, 452 64 Pa. St., 470, Divorce, 864, 865 9 Phila., 535, Mandamus, 1844 13 W. N., 29, Divorce, 799, 902 2 Pa. St., 310, Execution, 3302 2 Miles, 449, Replevin, 2199 1 Dist., Rep., 657, Statements, 73 103 Pa. St., 504, Torts, 563 4 Dall., 160, Appeals, 3439 1 Pa. C. G. Rep., 579, Dower, 1048 1 Dist. Rep., 700, Execution, 3189 13 Pa. St,. 16, Ground Rents, 176 3 Dist. Rep., 724, Divorce, 798 22 W. N., 437, Mechanics' Claims, 224 32 W. N., 90, Statements, 73 25 W. N., 301, Mechanics' Claims, 201 37 Pa. St., 399, Attachments, 78 115 Pa. St., 237, Assumpsit, 60 4 Yeates, 514, Account Render, 340 9 S. & R., 23, Amendments, 2435 162 Pa. St., 227, Divorce, 787 16 W. N., 104, Assumpsit, 32 27 W. N., 573, Assumpsit, 30 2 Yeates, 347, Replevin, 2150 22 Pa. St., 33, Justices, 1509 22 Pa. St., 33, Landlord and Tenant, 1703 92 Pa. St., 141, Execution, 3196, 3197 TABLE OF CASES. CIX Harger v. Commissioners, Hargrave, Moulsou v., Harker, Bradley v., Harker v. Whitaker, Harkins v. R. R. Co., Harlan v. Haines, Harlan v. Harlan, Harlan v. Langham, Harland v. Rand, Harligan, Ward v., Harmar v. Holton, Harmstead v. Kingsley, Harmstead, Wallace r., Harner v. Fisher, Harold v. Ins. Co., Harp, Stehley v.. Harper's Appeal, Harper v. Kean, Harper v. New Brig., Harrell, Price v., Harrington, Fahlnecker v., Harris v. Budd, Harris, Garretson v., Harris v. Harris, Harris v. Harris, Harris v. Hay, Harris, Mitchell v., Harris v. Smith, Harris, Thomas v., Harrisburg V. Baptist, Harrisburg, Berghaus v., Harrisburg v. Rwy. Co., Harrisburg, Shoemaker v., Harrison v. Ass'n, Harrison, Atkinson v., Harrison, Bryan v., Harrison v. Harrison, , Harrison, Stokes v., Hart, Chain v., Hart, Dock v.. Hart, Fisher v., Hart, Hamilton v., Hart V. Hart, Hart V. Hart, Hart, Neall v.. Hart, Wakely v., Harter v. Harter, Hartman, Geist v., Hartman, Geist v., Hartman v. Keown, Hartman v. R. R. Co., Hartmann v. Mfg. Co., Hartnett, Potter v., Hartnett, Potter v., Hartranft v. Clarke, Hartranft, Comm. v., Hartranft, Cox v., 12 Pa. St., 251, Costs. I S. & R., 201, Depositions, 15 W. N., 403, Assumpsit, 5 Watts, 474, Account Render, II W. N., 120, Negligence, 125 Pa. St., 48, Execution, SECTION 3135 2484 52 311 1887 3174, 3314 15 Pa. St., 507, Replevin, 2157, 2168 69 Pa. St., 235, Partition, 1968 27 Pa. St., 511, Mechanics' Claims, 224 1 W. N., 72, Justices, 1420 25 Pa. St., 245, At Trial, 3023a 3 W. N., 64,Lunatics and Drunkards,3718 44 Pa. St., 492, Ground Rents, 149 58 Pa. St., 453, Replevin, 2153 2 Dist. Rep., 503, Defenses, 2779 5 S. & R., 544, Justices, 1551 I Cent. Rep., 585, Municipal Liens, 471 II S. & R., 280, At Trial, 2991 Gilpin, 536, Attachments, 131 34 W. N., 442; 161 Pa. St., 530, As- sumpsit, 32 21 W. N., 541, Statements, 73 1 Dist. Rep., 83, Assumpsit, 52 2 Dist. Rep., 719, Execution, 3323 32 W. N., 247, Audita Querela, 3362 1 Phila., 442, Discontinuance, 3735 III Pa. St., 562, Arbitration, 2935 2 Clark, 443, Partition, 2044 3 S. & R., 20, Replevin, 2152 43 Pa. St., 231, Dower, 1047, 1056 156 Pa. St., 526, Assumpsit, 30 122 Pa. St., 289, Municipal Liens, 424 1 Dist. Rep., 192, Defenses, 2793 122 Pa. St., 285, Municipal Liens, 424 26 W. N., 84, Mechanics' Claims, 233,238 153 Pa. St., 472, Execution, 3341g 37 Pa. St., 233, Assumpsit, 30 1 Phila., 389, Divorce, 775 2 W. N., 382, Prep, for Trial, 2973a 28 W. N., 317, Assumpsit, 30 7 W. & S., 172, Bills of Exceptions, 3065 30 W. N., 208, At Trial, 3005a 125 Pa. St., 142, Arbitratioh, 2897 167 Pa. St., 13, Execution, 3173, 3178 8 W. N., 156, Justices, 1195 115 Pa. St., 354, Torts, 540 6 Binn., 318, Justices, 1168 4 Dist. Rep., 211, Attachments, 75 29 W. N., 477, Attachments, 97 1 Dist. Rep., 109, Costs, 3098 101 Pa. St., 338, Replevin, 2159 22 W. N., 84, Prep, for Trial, 2971 5 W. N., 502, Assumpsit, 30 28 W. N., 120, Assumpsit, 30 29 W. N., 567, Assumpsit, 32 4 W. N., 543, Justices, 1537 77 Pa. St., 154, Mandamus, 1756 154 Pa. St., 457, Assumpsit, 30 ex TABLE OF CASES. Hartung, Knapp v., Hartupee v. City, Hartupee v. Pittsburg, Hartwell, City v., Hartwig, Gerber v., Hartzell, Good Intent Co. v., Hartzell v. Osborne, Hartzell, StefCen v., Harvey v. Beach, Harvey v. Earl, Harvey v. Gunzberg, Harvey v. Hackley, Harvey v. Traction. Co., Haseltine, Blydenstein v., Haslage's Appeal, Haslett, Murray v., Hassall, Paul v., Hassenplug's Appeal, Hassler, Norris v., Hastings v. Crunckleton, Hatch V. Bartle, Hathaway, Fritz v., Hathaway, Fritz v., Hathaway, Wilson v., Hauberger v. Root, Haupt V. Haupt, Hause v. Funston, Hausmann v. Frey, Haverly v. R. R. Co., Haviland, In re Hawk, Bayard v., Hawk V. Stouch, Hawley v. Hampton, Hawn V. Norris, Hay, Harris v., Haycock v. Greup, Haycock v. Greup, Hayden, Byrne v., Hayden, Byrne v., Hayden, Byrne v., Hayden v. P&tterson, Haydock, Roseman. v., Hayes' Appeal, Hayes v. Market Co., Hayes v. Mouille, Hayes, Wilson v., Haymaker, Reece v., Hays, Boylan v., Hays, Calhoun v., Hays, City v., Hay ward, Lewis v., Haywood, In re Hazard, Gloninger, SECTION 73 Pa. St., 290, Amendments, 2424 131 Pa. St., 535, Arbitration, 2901, 2941 131 Pa. St., 535, Arbitration, 2901, 2941 164 Pa. St., 348, Defenses, 2796 11 W. N., 197, Justices, 1621 22 Pa. St., 277, Amendments, 2424 15 W. N., 142, Justices, 1517 5 Whar., 448, Justices, 1266 38 Pa. St., 500, Justices, 1509 1 Pears., 542, Arbitration, 2904 148 Pa.St.,294, Landlord and Tenant,1650 6 W., 264, Prep, for Trial, 2973a 26 W. N., 231, Prep, for Trial, 2972 140 Pa. St., 120, Assumpsit, 36 37 Pa. St., 440, Appeals, 3443 l£f Pa. St., 356, Justices, 1509 42 Leg. Int., 17, Execution, 3203 ards, 3725 106 Pa. St., 527, Lunatics and Drunk- 23 Fed. Rep., 581, At Trial 3 Yeates, 261, Ejectments, 45 Pa. St., 166, Execution, 26 W. N., 273, Assumpsit, 26 W. N., 273, Statements, 8 Phila., 235, Justices, 5 Pa. St., 108, At Trial, 157 Pa. St., 469, Ejectments, 1 W. N., 73, At Trial, 2 Montg.Co.Law Bep.,13,Arbitration,2911 23 W. N., 439, Torts, 562 1 W. N., 345, Lunatics and Drunk- ards, 3674 3 P. & W., 174, Justices, 5 S. & R., 157, Justices, 160 Pa. St., 18, Execution, 4 Binn., 77, Ejectments, 111 Pa. St., 562, Arbitration, 57 Pa. St., 438, Aijiendments, 57 Pa. St., 441, Prep, for Trial, 23 W. N., 306, Assumpsit, 124 Pa. St., 170, Replevin, 23 W. N., 306, Statements, 51 Pa. St., 261, Justices, 21 W. N., 121, Assumpsit, 35 W. N., 158, Sci. Fas., 35 W. N., 198, Execution, 14 Pa. St., 48, Replevin, 18 Pa. St., 354, Writs, 164 Pa. St., 575, Mechanics' Claims, 239, 242 7 Watts, 509, Justices, 1526 8 W. & S., 127, Depositions, 2532 93 Pa. St., 72, Municipal Liens, 465 35 Law Jour., Rep. (P. & M.), 105, Divorce, 66 N. C, Rep., 1, Attorneys, 42 Pa. St., 389, Account Render, 2982 678 3181 32 73 1543 3023a 629 3022a 1492 1634 3168 627 2935 2435 2949 21 2212 73 1647 17 251 3262 2156, 2180 2310 764 3531 304 TABLE OF CASES. CXI Hazelett v. Ford, Hazen, Ins. Co. v., Hazzard's Appeal, Hazzard, Buckanan v., Heath v. Gardner, Heaton v. Findlay, Hecker v. Jarrett, Heckseher ■;;. Iron Co., Heebie, Hess v., Heebner v. Chave, HefEner v. Comm., HefEner v. Oonf air, Heffner v. HefEner, HefEner, Yost v., Hefron, Knoblauch v., Heft V. McGill, Heidelbaugh v. Thomas, Heidelberg School Dis. u. JBCeifner, Wormelsdorf v., Heil V. Strong, Heil, Wheeler Co. v., Heilbrenner, Reist v., Heilbron v. Heilbron, Hein, Paris v., Heineman's Appeal, Heinzman v. Heinzman, Heiss, Moore v., Heister, R. R. Co. v., Heister, Smith v., Helfenstein v. Hirst, Helfrich v. Obermyer, Helfrich v. Weaver, Heller's Appeal, Heller v. Hufsmith, Heller v. Ins. Co., Heller v. Ins. Co., Heller v. Jones, Hellings v. Wright, Helsey v. Witmer, Hemingway, Reinheimer i Hemphill, Phila. v., Hendel, Turnpike Co. v., Henderson's Appeal, Henderson v. Boyer, Henderson, Craig v., Henderson v. Lauck, Henderson, Morrison v., Henderson, Morrison v., Henderson, Steinman v., Henisler v. Friedman, Hennegan v. Williams, Henry, Boomer v., Henry, Carey v., Henry, Comm. v., SECTION 10 Watts, 101, Justices, 1516 17 W. N., 249, Insurance, 290 83 Pa. St., Ill, Mechanics' Claims, 237 95 Pa. St, 240, Ejectments, 618 10 W. N., 495, At Trial, 3023a 12 Pa. St., 310, Depositions, 2491 1 Binn., 374; 3 Binn., 404, Justices, 1218 26 W. N., 525, Assumpsit, 30 6 S. & R., 61, Discontinuance, 3752 5 Pa. St., 115, Justices, 1480 28 Pa. St., 108, Mandamus, 1810 1 Del. Co. Rep., 440, Arbitration, 2903 23 Pa. St., 104, Divorce, 775 69 Pa. St., 68, Execution, 3172, 3174 3 Dist. Rep., 765, Justices, 1285 3 Pa. St., 256, Ejectments, 614 * 10 W. N., 141, Execution, 3341g Horst,62 Pa. St., 301, Amendments, 2411 104 Pa. St., 1, Justices, 1543 44 Pa. St., 264, Ejectments, 670 115 Pa. St., 487, Torts, 562 11 S. & R., 131, Actions after Death, 2216, 2222 33 W. N., 240; 158 Pa. St., 297, Divorce, 903, 924 6 W. N., 124, Justices, 1549 92 Pa. St., 95, Dower, 1026, 1085 4 Dist. Rep., 225, Divorce, 776 4 Yeates, 261, Writ of Inquiry, 704 8 Pa. St., 445, Justices, 16J.5 11 W. N., 353, Assumpsit, 21 15 Pa. St., 358, Justices, 1243 15 Pa. St., 113, Dower, 1057 61 Pa. St., 385, Dower, 1061 116 Pa. St., 534, Dower, 1030, 1043, 1060, 1061 102 Pa. St., 533, Torts, 563 30 W. N., 547, Defenses, 2775 30 W. N., 545, Statements, 73 4 Binn., 68, Execution, 3144a 14 Pa. St., 373, Amendments, 2423 4 Dist. Rep., 290, Justices, 1228 35 Pa. St., 432, Replevin, 2199 24 W. N., 79, Municipal Liens, 459 11 S. & R., 125, Discontinuance, 3731 31 Pa. St., 502, Oomp. with Cred., 3483 44 Pa. St., 220, Dower, 1111 2 Pa. St., 261, Defalcation, 2756 21 Pa. St., 359, Replevin, 2155, 2162 22 W. N., 8, Mechanics' Claims, 229 24 W. N., 38, Mechanics' Claims, 239 94 Pa. St., 313, Mechanics' Claims, 240 5 Clark, 147; 11 Pa. L. J. Rep., 355, Attachments 117 4 W. N., 458, Justices, 1634 2 -Dist. Rep., 357, Assumpsit, 32 -3 Clark, 32, Assumpsit, 44 49 Pa. St., 530, Mandamus, 1795 CXll TABLE OF CASES. Henry, Cox v., Henry, McNickle v., Henry v. Mulherrin, Henry v. Raiman, Henry, Romberger v., Henry, Shober v., Henry v. Sims, Hensel, Ex parte, Hensel, Snyder v., Henszy, Comm. t\, Hepburn, Comm. i;., Heppe, Haines v., Hepperd v. Van Horn, Herbein v. R. R. Co., Herdic v. Young, Herdie, Young v., Hering, Campbell Co. v., Hering v. Chambers, Herman v. Sailer, Herman v. Ramsay, Herman v Ramsey, Herod, Knox v., Herold, Douglass v.. Heron v. HofEer, Herr, Wissler v.. Herring v. Adams, Herron v. Fetterman, Herron, Jones v., Herron, Jones v., Herron, Logan v., Hersch v. Groff, Hershberger v. Phila., Hershey, Fidler v., Hershey, Miller v., Hershour, Felpel v., Herst V. Beckhaus, Hertzog, Covert v., Heslop V. Heslop, Heslop V. Heslop, Hess, Carter v., Hess, Carter v., Hess V. Heebie, Hess V. Monier, Hess V. R. R. Co., Hess V. Shorb, Hessel v. Fritz, Hessel v. Johnson, Hester's Case, Hevron's Appeal, Hewitt, Bright v., Hewitt, Ex parte, Hewitt V. Huling, Hey V. Frazier, Heylin v. Ashton, Hibberd v. Bovier, Hibbs V. Blair, Hibbs V. Stines, SECTION 36 Pa. St., 445, Appeals, 3463j 28 Leg. Int., 44, Dower, 1043 1 Dist. Rep., 607, Justices, 1228 25 Pa. St., 354, At Trial, 3023a 167 Pa. St., 314; 36 W. N., 215, Execu- tion, 3248 4 Dlst. Rep., 506, Justices, 1268 1 Whart., 187, Execution, 3341b 95 Pa. St., 220, Attorneys, 3531 7 W. N., 280, Justices, 1549 81 Pa. St., 101, Quo Warranto, 2103 5 W. & S., 403, Mandamus, 1760 20 W. N., 502, Feigned Issues, 2685 2 W. N., 67, Justices, 1538 9 Watts, 272, Costs, 3124 55 Pa. St., 176, Replevin, 2203, 2204 55 Pa. St., 172, Replevin, 2168 139 Pa. St., 473, Assumpsit, 30 103 Pa. St., 172, Municipal Liens, 436,451 25 W. N., 408, Assumpsit, 57 5 W. N., 188, Assumpsit, 30 5 W. N., 188, Defenses, 2772 2 Pa. St., 27, Justices, 1617 17 Phila., 2, Municipal Liens, 436 3 Rawle, 393, Dower, 1076 162 Pa. St, 552, Assumpsit, 32 5 W. & S., 459, Justices, 1347 14 W. N., 480, Ejectments, 650 31 W. N., 263, Execution, 3186 1 Dist. Rep., 476, Replevin, 2184 8 S. & R., 459, Landlord and Tenant,1667 2 W. & S., 449, Assumpsit, 23 115 Pa. St., 78, Municipal Liens, 435 90 Pa. St., 363, Amendments, 2419 59 Pa. St., 64, Bills of Exceptions, 3068 24 W. N., 523, Justices, 1346 2 Dist. Rep., 199, Attachments, 90 4 Pa. St., 145, Dower, 1069 82 Pa. St., 537, Amendments, 2413 82 Pa. St., 537, Dower, 1035, 1071 3 W. N., 325, Justices, 1497 3 W. N., 325, Landlord and Tenant, 1725 6 S. & R., 61, Discontinuance, 3752 1 Dist. Rep., 606, Justices, 1405 7 Pa. C. C. Rep., 565, Prep, for Trial,2972 7 Pa. St., 231, Execution, 3296 23 W. N., 299, Execution, 3244 23 W. N., 300, Execution, 3244 2 W. & S., 416, Mandamus, 1801 29 Pa. St., 240, Justices, 1456 2 W. N., 626, Assumpsit, 30 11 Richardson, 326, Justices, 1194 11 Pa. St, 27, At Trial, 3023a 1 Monaghan, 759, Defenses, 2783a 7 Phila., 464, Dower, 1043 1 Grant,- 266, Execution, 3219 14 Pa. St., 413, Justices, 1296, 1299 8 Phila., 236, Justices, 1538 TABLE OF CASES. Hibert v. Lang, Hickey, Comm. v., Hickman v. Caldwell, Hickman, Simons v., Hicks V. Bank, Hickson, Uber v., Hiestand, Summy v., Hiester, City v., High, Triebel v., Hilands, Jenkinson v., Hildebiand, Porter v., Hilgert, Scott v., Hilke V. Bisenbeis, Hill, Adams v., Hiil, Comm. v., Hill V. Egan, Hill V. Hill, Hill V. Milligan, Hill V. Newman, Hill, R. B. Co. v., Hill, Weed v., Hillary, Haines v., Hilty V. Guthrie, Hilty, Knox v., Hinchman v. Richie, Hine v. Manfg. Co. Hine v. TVevor, Hinkle, Thomas v., Hinman, Perkins v., Hinnershitz v. Bernhard, Hirshfield, Graban v., Hirst, In re Hirst, McCahan v., Hise V. Geiger, Hitchcock V. Long, Hitchcock, Porter v., Hite V. Kier, Hitner's Appeal, Hoagland, Loan Ass'n r.. Hoar V. Flegal, Hoary v. McHale, Hobensack, Kee v., Hobensack, Sheetz v.. Hochstetler, Lichty r.. Hocker v. Strieker, Hocking, Ins. Co. v., Hocking, Ins. Co. v., Hodges, Chase v., Hodges, Rudderow v., Hodgins, McDonnell v., Hodgson, Sherer v., Hodgson, Sherer v., Hoe, Comm. v., Hoeckley, Haffner v., Hofer's Appeal, HofE's Appeal, Hoffa's Appeal, Hoffer, Herron v.. 165 Pa. St., 439, Defalcation, 2 Pars., 317, Justices, 4 Rawle, 376, Execution, 24 W. N., 92, Attachments, 168 Pa. St., 638, Defalcation, SECTION 2756 1211 3190 111 2756 6 Phila., 132, Landlord and Tenant, 1690 65 Pa. St., 300, Discontinuance, 3732 142 Pa. St., 39, Municipal Liens, 354 1 Dist. Rep., 385, Assumpsit, 59 146 Pa. St., 380, Assumpsit, 30 14 Pa. St., 129, Amendments, 2410 14 W. N., 305, Attachments, 75 104 Pa.St.,514,Landlord and Tenant,1650 29 Leg. Int., 126, Justices, 1413 3 Dist. Rep., 216, Justices, 1404 160 Pa. St., 119, At Trial, 3014 43 Pa. St., 521, Ejectments, 629 38 Pa. St., 237, New Trials, 3039 38 Pa. St., 151, Mechanics' Claims, 226 90 Ala., 71, Prep, for Trial, 2972 2 Miles, 122, Replevin, 2185a, 2196 9 Phila., 526, Justices, 1538 31 Pitts. Law Jour., 322, Arbitration,2909 20 W. N., 524, Mechanics' Claims, 241 Brightly Reports, 143, Torts, 549 2 Woodward, 151, Arbitration, 2902 4 Wall., 555, Attachment, 24 W. N., 119, Mechanics' Claims 19 Johns., 237, At Trial, 13 Pa. St., 518, Dower, 47 Leg. Int., 278, Justices, 9 Phila., 216, Attorneys, 7 Watts, 179, Justices, 7 W. & S., 273, Dower, 2 W. & S., 169, Execution, 98 Pa. St., 625, Sci. Pas., 38 Pa. St., 72, Amendments, 54 Pa. St., 110, Dower, 87 Pa. St., 326, Appeals, 1 Penny., 208, New Trials, 2 Dist. Rep., 686, Justices, 2 Phila., 83, Execution, 20 Pa. St., 412, Execution, 91 Pa. St., 444, Municipal Liens, 129 230 3002a 1022 1556 3530 1241, 1547 1111 3264 277 2413 1051 3.390 3037 1285 3172 3274 457 1 Dall., 225, Replevin, 2187 115 Pa. St., 407, Arbitration, 2896 47 Leg. Int., 109, Insurance, 293 2 Pa. St., 48, Actions after Death, 2218 5 W. N., 567, Ground Rents, 167 4 Dist. Rep., 305, Justices, 1225 1 Binn., 535, Costs, 3125 1 Binn., 535, Prep, for Trial, 2971 26 Leg. Int., 124, Escheats, 1156 3 Brews., 253, Landlord and Tenant, 1666 116 Pa. St., 360, Mechanics' Claims, 237 102 Pa. St., 218, Mechanics' Claims, 233 82 Pa. St., 297, Appeals, 3435 3 Rawle, 393, Dower, 1076 CXIV TABLE OF CASES. Hoffman, Balsley v., Hoffman, Bare v., Hoffman v. Dawson, Hoffman, Duff v., Hoffman v. Hoffman, Hoffman v. Kemerer, Hoffman v. Kissinger, Hoffman, Knerr v., Hoffman, McDermott v., Hoffman v. Slosson, Hoffman v. Walborn, Hogan, Wells v., Hohl V. Korn, Holben, Diehl v., Holbrooke, Ritchie v., Holburn, Poor v., Holden v. Wiggins, Holgate V. Chase, Holgate V. R. R. Co., Holker, Phelps v., HoUahan, Lewis v., Holland, Carlin v., Holland, Townsend v., Holland v. White, Holland v. White, HoUis V. Brown, HoUis V. Burns, HoUis V. Wells, HoUister v. Davis, Hollister v. HoUister, Hollister v. Hollister, Holman v. Fesler, Holme V. Karsper, Holmes, Beacom v., Holmes, Park v.. Holmes, Park v., Holmes v. Pattison, Holmes v. R. R. Co., Holsey v. TreTillo, Holton, Harmar v., Home, Bryson v., Honniter v. Brown, Hood, Benedict v., Hood V. Palm, Hook, Deerwester v.. Hook V. Hackney, Hook, Weichardt v., Hooke V. Freeman, Hooven, Biddle v., Hoover, Pennock v., Hope V. Marshall, Hope, Norman v., HofC, Horton v., Hopkins, Ex Parte, Hopkins, Keen v., Hopkins, Lea v., Hopkins, Lea v.. SECTION 13 Pa. St., 603, Replevin, 2209 79 Pa. St., 71, Prep, for Trial, 2971, 2988 11 Pa. St, 280, Justices, 1541 63 r-a. St., 191, Mechanics' Claims, 224 30 Pa. St., 417, Divorce, 794, 810, 864,868 44 Pa. St, 452, Torts, 546 1 W. & S., 277, Depositions, 2533 65 Pa. St, 126, Account Render, 311 70 Pa. St, 55, At Trial, 2988 2 W. & S., 36, Justices, 1562 1 Pears., 18, Arbitration, 2904 2 Dist. Rep., 98, Assumpsit, 52 2 W. N., 277, Assumpsit, 21 39 Pa. St., 213, Execution, 3172 7 S. & R., 458, New Trials, 3037 57 Pa. St., 415, Assumpsit, 56 3 P. & W., 469, Justices, 1349, 1553 7 Luz. L. Reg., 178, Arbitration, 2897 35 Leg. Int., 192, Municipal Liens, 441 1 Dall., 261, Attachments, 100 103 Pa. St, 425, Negligence, 1869, 1870 1 Dist Rep., 174, Justices, 1388 48 Leg. Int., 6, Ground Rents, 151 120 Pa. St, 228, Appeals, 3375, 3376 120 Pa. St, 233, Attachments, 81 159 Pa. St, 539, Assumpsit, 30 100 Pa. St, 206, Landlord and Ten- ant 1712 3 Clark, 169, Torts, 546 54 Pa. St, 508, Defalcation, 2756 6 Pa. St, 449, Depositions, 2510 6 Pa. St, 449, Divorce, 986 7 W. & S., 313, Justices, 1562 5 Binn., 471, Defenses, 2783a 13 S. & R., 190, Insolvent Laws, 3607 29 W. N., 492, Amendments, 2419 29 W. N., 492, At Trial, 3024 25 Pa. St., 484, Escheats, 1153 18 W. N., 429, Replevin, 2185 6 Watts, 402, Justices, 1188 25 Pa. St, 245, At Trial, 3023a 36 W. N., 362, Defenses, 2771 1 P. & W., 487, Costs, 3125 26 W. N., 37, Mechanics' Claims, 224 8 Pa. St., 237, Torts, 553 1 Dist Rep., 406, Justices, 1469 16 S. & R., 385, Depositions, 2533 83 Pa. St, 434, Arbitration, 2893, 2902 2 Dist. Rep., 779, Execution, 3273 120 Pa. St., 221, Ground Rents, 177 5 Rawle, 291, Municipal Liens, 411 96 Pa. St, 395, Sci. Fas., 256 2 Miles, 142, Discontinuance, 3750 4 W. N., 381, Execution, 3341g 3 P. WilUams, 152, Justices, 1194 48 Pa. St, 445, Amendments, 2435, 2443 7 Pa. St., 885, Actions after Death, 2222 7 Pa. St, 492, Sci. Fas., 250 TABLE OP CASES. CXV Hopkins, Manfg. Co. v., Hopkins v. McClelland, Hopkins, McWilliams v., Hopkins, Pedan v., Hopkins v. Stockdale, Hopkins v. Wells, Hopkins, Wright v., Hopkinson v. Cooper, Hopkinson v. Cooper, Hopple V. Bunting, Hopple, Walker v., Horam's Estate, Horbach v. Knox, Horbaeh v. Reeside, . Horn V. Roberts, Horn, Scott v., Home, Comm. v., Horner v. Horner, Homer v. Wetherell, Homer, Wilson v., Horst,HeideIberg School Dist, Horton v. Hopf, Hosack V. Weaver, Hoskinson v. Eliot, Hoskinson, Sayers v., Hosier v. Hursh, Hospital, City v., Hospital V. White, Hostetter's Appeal, Hostetter v. Pittsburg, Hotchkiss, Dickensheets v., Hough, Tucker v., Houk V. Knop, Houpt, Kessler v., Houpt V. Lewis, Houser, Imler v., Houser v. Jones, Houston, Skiles v., Howard v. Achuff, Howard, .lanney v., Howard. Janney v., Howard v. Lewis, Howard v. McKee, Howard, Miller v., Howarth v. Church, Howe, Jewel v., Howe, Ware Co. v., Howell V. Alkyn, Howell V. Bateson, Howell V. Phila., Howell V. Withers, Hower v. Bennett, Hower, City v., Hower, Wagoner v., Howsare, Koontz's Admr. v., Hubbard v. Jackson, SECTION 28 W. N., 146, At Trial, 2990 8 Phila., 302, Landlord and Tenant, 1694 1 Wh., 276, Costs, 3124, 3135 13 S. & R., 45, Amendments, 2435 117 Pa. St., 365, Defalcation, 2757 1 Chest. Co. Rep., 543, Arbitration, 2910 3 Dist. Rep., 240, At Trial, 2980 8 Phila., 8, Ejectments, 649 8 Phila., 8, Execution, 3248 3 W. N., 472, Assumpsit, 30 16 W. N., 495, Justices, 1422, 1546 59 Pa. St., 152, Partition, 2033 6 Pa. St., 377, Amendments, 2410, 2418 5 Wh., 223, New Trial, 3028 1 Ash, 45, Discontinuance, 3733 9 Pa. St., 407, Depositions, 2517 10 Phila., 164, Quo Warranto, 2100 39 Pa. St., 126, Execution, 3341g 19 W. N., 197, Landlord and Tenant,1724 59 Pa. St., 155, Bills of Exceptions, 3068 U.62 Pa. St., 301, Amendments, 2411 4 W. N., 381, Execution, 3341g 1 Yeates, 478, Replevin, 2150 62 Pa. St., 393, Amendments, 2413, 2419 110 Pa. St., 473, Ejectments, 677, 678 31 W. N., 82, New Trials, 3051 28 W. N., 434, Municipal Liens, 400 2 T. & H. Pr., 32, Ground Rents, 170 92 Pa. St., 132, Arbitration, 2906 107 Pa. St., 419, Arbitration, 2901 6 Phila., 156, Landlord and Tenant, 1724 24 W. N., 91, Assumpsit, 40 2 Watts, 72, Justices, 1538 26 Pitts. Law Jour.,160, Arbitration, 2904 2 Kulp., 337, Justices, 1470 2 Del. Co. Rep., 132, Justices, 1485 1 PhUa., 394, Justices, 1277 110 Pa. St., 254, Defalcation, 2756 19 W. N., 334, Justices, 1544 150 Pa. St., 339, At Trial, 3008 150 Pa. St., 339, Bills of Exceptions, 3065, 3071 6 Phila., 50, Divorce, 808 82 Pa. St., 409, Execution, 3248 4 Dist Rep., 70, Costs, 3120 34 W. N., 470, Mechanics' Claims, 223 3 Watts, 149, Attachments, 121 35 W. N., 374, Appeals, 3435 2 Rawle, 282, Execution, 3190 9 W. N., 463, Ground Rents, 151 38 Pa. St., 471, Municipal Liens, 482 1 Dist. Rep., 62, Defalcation, 2756 4 Dist. Rep., 323, Assumpsit, 40 93 Pa. St., 332, Municipal Liens, 480 12 W. N., 304, Feigned Issues, 2663 100 Pa. St., 506, Justices, 1500 29 W. N., 66, Statements, 3753 CXVl TABLE OP CASES. Hubbard v. Tenbrook, Hubbell, Wilson v., Huber, Burk v., Huber v. Comm., Huber, Shearick v., Hubert, Seymour v., Huckenstein v. Love, Huddy V. Sproule, Hufsmith, Heller v., Hugg, Eastwick v., Hughes' Appeal, Hughes, Fenton v., Hughes, Tizzard v., Hugus V. Glass Co., Huidekoper v. Cotton, Huling, Hewitt v., Hull, PhiUips v., Hultz, Comm. v., Hummel v. Meyers, Hummer v. School District, Hummill, Rangier v., Humphreys, Pearce v., Humphreys, People v., Hunsecker v. Thomas, Hunsicker, Bank v., Hunsicker, Weiss v., Hunt V. Ass'n, Hunt V. Ass'n, Hunt V. Gilmore, Hunt V. McFarland, Hunter's Appeal, Hunter, Barton v., Hunter v. Clark, Hunter v. Lanning, Hunter, Lucas v., Hunter, Moore v.. Hunter, Sweeney v.. Hunter v. Transportation Co., Huntingdon, Wilson v., Hantzinger, Coal Co. v., Hurd V. Swan, Hursh, Hosier v.. Hurst, Hejfenstein v., Huston V. Clark, Huston V. Donnelly, Huston V. Wilson, Hutchinson's Appeal, Hutchinson, Iron Works v., Hutchinson, Iron Works v., Hutchinson v. Potter, Hutchinson, Power Co. v., Hutchinson v. Vanscriver, Hutchinson v. Vanscriver, Huzzard v. Trego, Hyde v. Hyde, Hyman, Snow v., Hyndman, Bank v., 23 W. N., 351, Assumpsit, 18 1 Penny., 413, Justices, 1634 2 Watts, 306, Amendments, 2423 11 W. N., 496, Assumpsit, 21, 30 6 Binn., 2, Replevin, 2151 3 W. N., 423, Assumpsit, 32 98 Pa. St, 518, Amendments, 2417 4 Phila., 355, Execution, 3180 102 Pa. St., 533, Torts, 563 1 Dall., 222, New Trials, 3038 90 Pa. St., 60, Appeals, 3463n 7 Ves., 289, Bills of Discovery, 2564 3 PhUa., 261, Mechanics' Claims, 226 96 Pa. St., 160, Execution, 3297 3 W., 56, At Trial, 3022a 11 Pa. St., 27, At Trial, 3023a 101 Pa. St., 567, Execution, 3189 6 Pa. St, 469, Mandamus, 1792 26 W. N., 279, Assumpsit, 18 10 Phila., 494, Justices, 1512 37 Pa. St, 130, Amendments, 2414 14 S. & R., 23, Replevin, 2186 24 Barb., 521, Justices, 1194 89 Pa. St, 154, Mortgages, 191 2 W. N., 381, Assumpsit, 60a 3 Dist. Rep., 445, Abatement, 2391 17 W. N., 423, Insurance, 294 17 W. N., 423, Writs, 2310 59 Pa. St, 450, Defalcation, 2756 38 Pa. St, 69, Ejectments, 627 72 Pa. St., 343, Execution, 3285 101 Pa. St., 406, Execution, 3189 16 W. N., 558, Attachments, 81 76 Pa. St, 25, Mechanics' Claims, 242 1 Dist Rep., 165, Mechanics' Claims, 228 3 Binn., 475, Account Render, 333 29 W. N., 133, Attachments, 75 1 Dist Rep., 538, Statements, 73 7 W. & S., 197, Mechanics' Claims, 213 6 W. N., 300, Execution, 3248 4 Denio (N. T.), 75, At Trial, 2982 31 W. N., 82, New Trials, 3051 15 Pa. St., 358, Justices, 1243 9 W. N., 316, Arbitration, 2896 8 Phila., 337, Justices, 1251 3 Watts, 287, Replevin, 2204 82 Pa. St., 509, Partition, 1977 101 Pa. St., 359, Insurance, 294, 295 101 Pa. St., 359, Writs, 2310 11 Pa. St, 472, Landlord and Tenant,1677 3 Dist Rep., 658, Justices, 1503 6 Phila., 39, Justices, 1410 6 Phila., 39, Landlord and Tenant, 1726 35 Pa. St, 9, Execution, 3144b MMS., Divorce, 773 2 W. N., 352, Execution, 3193 42 Leg. Int., 330, Replevin, 2209 TABLE OF CASES. CXVll lams V. Hall, Ice Co., Bickford v., Ice Co., Carle v.. Ice Co., Porter v., Ickenger v. R. B. Co., Ijams, Maffitt v., Imler v. Houser, Improvement Co., Schmid v., Ingersoll v. IngersoU, Ingram, Lenore v.. In re — Ins. Co.'s Appeal, Ins. Co. V. Adams, Ins. Co. V. Bank, Ins. Co., Bavan v., Ins. Co. V. Beale, Ins. Co. V. Bergstresser, Ins. Co., Block v., Ins. Co. V. Block, Ins. Co. V. Brierely, Ins. Co., Broekway v., Ins. Co. V. Brown, Ins. Co. V. Comm., Ins. Co., Connors v., Ins. Co. V. Connors, Ins. Co. ■». Cook, Ins. Co. V. Ousick, Ins. Co., De La Cuesta v., Ins. Co., De La Cuesta v., Ins. Co., De Wolf v., Ins. Co., Duerhagen v., Ins. Co. V. Dunham, Ins. Co., Bhrgood v., Ins. Co. V. Erb, Ins. Co. V. Evans, Ins. Co. 1?. Evans, Ins. Co., Everett v., Ins. Co. V. Fisher, Ins. Co., Fleming v., Ins. Co., Fleming v., Ins. Co., Fleming v., Ins. Go. V. Gans, Ins. Co. V. Goehring, Ins. Co. V. Hallock, Ins. Co., Harold v., Ins. Co. V. Hazen, Ins. Co., Heller v., Ins. Co., Heller v., Ins. Co. V. Hocking, Ins. Co. V. Hocking, Ins. Co., Karthaus v., Ins. Co., Kennedy v., Ins. Co. V. Knight, Ins. Co., Xiardner v., Ins. Co., Liblong v., Ins. Co., Ludlow v., Ins. Co., McDermott v., Ins. Co., McNichoU v., VOIi. I. — I SECTION 4 Dist. Rep., 259, Justices, 1503 13 Phila., 67, Prod. Documents, 2452 4 Dist. Rep., 289, Justices, 1228 1 Dist. Rep., 725, Justices, 1228 20 W. N., 333, Assumpsit, 18 103 Pa. St., 266, Execution, 3189 2 Del. Co. Rep., 132, Justices, 1485 34 W. N., 461, Mechanics' Claims, 223 49 Pa. St., 251, Divorce, 788 1 Phila., 519, Justices, 1285, 1517 See the proper names. 93 Pa. St., 242, Divorce, 987 110 Pa. St., 553, At Trial, 2977 57 Pa. St., 388, Partition, 1973,1983,2032 9 W. & S., 187, At Trial, 3002a 110 Pa. St., 321, Appeals, 3434 1 Dist. Rep., 771, Assumpsit, 30 40 Leg. Int., 160, Bills of Discovery, 2556 109 Pa. St., 535, Insurance, 290 10 W. N., 45, Assumpsit, 22 4 Kulp, 207, Discontinuance, 3733 1 Dist. Rep., 583, Defenses, 2764 92 Pa. St., 72, Mandamus, 1814 1 Dist. Rep., 720, Insurance, 295 1 Dist. Rep., 115, Justices, 1283 3 Dist. Rep., 625, Justices, 1517 109 Pa. St., 158, Insurance, 290 136 Pa. St., 78, Dower, 1066 136 Pa. St., 62, Statements, 3755o 33 Pa. St., 45, Audita Querela, 3349 2 S. & R., 185, At Trial, 3002d 117 Pa. St., 460, Insurance, 292 1 Dist. Rep., 117, Defenses, 2764 17 W. N., 273, Insurance, 290 102 Pa. St., 281, Assumpsit, 32 102 Pa. St., 281, Insurance, 290 48 Leg. Int., 363, Defenses, 2767 4 W. N., 414, Mortgages, 192 Bright., 102, At Trial, 3002a 4 Pa. St., 475, At Trial, 3002a 4 Wh., 59, New Trials, 3036 91 Pa. St., 103, Appeals, 3380 99 Pa. St., 13, Arbitration, 2901 22 W. N., 151, Insurance, 292 2 Dist. Rep., 503, Defenses, 2779 17 W. N., 249, Insurance, 290 30 W. N., 547, Defenses, 2775 30 W. N., 545, Statements, 73 115 Pa. St., 407, Arbitration, 2896 47 Leg. Int., 109, Insurance, 293 1 Pears., 104, Arbitration, 2897 165 Pa. St., 179, Writs, 2232 6 Wh., 327, Depositions, 2532 32 W. N., 62, Replevin, 2148 82 Pa. St, 413, Insurance, 293 2 S. & R., 119, New Trials, 3031 3 S. & R., 604, New Trials, 3031 32 W. N., 472, Assumpsit, 36 CXVIU TABLE OP CASES. Ins. Co., Megargee v., Ins. Co., Morton v., Ins. Co. V. Musser, Ins. Co., O'Neill v., Ins. Co., Parke v., Ins. Co., Patton v., Ins. Co., Peters v., Ins. Co., Reesman v., Ins. Co. V. Reinoehl, Ins. Co., Shrom v., Ins. Co., Snowden v., Ins. Co., Snowden v., Ins. Co., Thierolf v., Ins. Co., Throop v., Ins. Co., Title Co. v., Ins. Co., Type Foundry v., Ins. Co., Werron v., Ins. Co. V. Williams, Ins. Co., Wireman v., Ireland v. Bagaley, Irish V. Ass'n, Iron Co., Bank v., Iron Co., Comm. v.. Iron Co. V. Comm., Iron Co., Green v., Iron Co., Heckscher v.. Iron Co., Many v.. Iron Co. V. Mitman, Iron Co. V. Rhule, Iron Co. V. Vanderrort, Iron Works, Duncan v.. Iron Works v. Hutchinson, Iron Works v. Hutchinson, Iron Works, Kille v., Iron Works v. Oil Co., Iron Works v. Oil Co., Iron Works, Reynolds v., Irons, Allen v., Irvine v. Bank, Irvine v. Bull, Irvine v. Kean, Irvine, McCullough v., Irvin's Appeal, Irwin V. Covode, Irwin V. Dearman, Irwin V. Hamilton, Irwin, Shaw v., Irwin, Shaw v., Irwin V. Trego, Irwin V. Workman, Israel, Phillips v., Ives, Evans v., J—., V. v., Jackson, Burgess v.. SECTION 15 Phila., 226, Prod. Documents, 2454 35 Leg. Int., 282, Assumpsit, 22 120 Pa. St., 384, Insurance, 292 166 Pa. St., 72, Insurance, 282 44 Pa. St., 422, Insurance, 293 1 Phila., 396, Insurance, 294 3 S. & R., 25, New Trials, 3030 3 Pa. C. C, 1, Arbitration, 2894 4 Pa. C. C, 161, Insurance, 302 11 W. N., 530, Insurance, 293 3 Binn., 457, At Trial, 3002d 22 W. N., 554, Insurance, 290 110 Pa. St., 37, Insurance, 290 2 Pears., 306, Arbitration, 2908 47 Leg. Int., 188, Insurance, 292 48 Leg. Int., 147, Defenses, 2792 166 Pa. St., 112, Writs, 2232 32 W. N., 353, Assumpsit, 32 20 W. N., 299, Assumpsit, 18 21 W. N., 240, Ejectments, 647 13 W. N., 372, Assumpsit, 22 31 W. N., 503, Bills of Discovery, 2590 105 Pa. St., Ill, Mandamus, 1781, 1820 113 Pa. St., 563, Mandamus, 1781, 1820 62 Pa. St., 97, Replevin, 2168 26 W. N., 525, Assumpsit, 30 9 Paige, 188, Bills of Discovery, 2564 3 Pa. St., 379, At Trial, 3022a 53 Pa. St., 93, Justices, 1557, 1558 164 Pa. St., 572, Assumpsit, 30 26 W. N., 479, Ejectments, 101 Pa. St, 359, Insurance, 101 Pa. St., 359, Writs, 26 W. N., 1, Arbitration, 122 Pa. St., 627; 22 W. N., 435, Me- chanics' Claims, 224 25 W. N., 63, Mechanics' Claims, 239,240 1 Dist. Rep., 409; 29 W. N., 478, Ex- ecution, 3256 169 Pa. St., 633, Justices, 2 W. & S., 190, At Trial, 4 W., 289, At Trial, 14 S. & R., 292, At Trial, 13 Pa. St., 438, Ejectments, 28 W. N., 60, Feigned Issues, 24 Pa. St., 162, Ejectments, 11 East, 23, Torts, 616 294, 295 2310 2942 1595 2991 3023a 2990 677, 678 2696 677 545 6 S. & R., 208, Actions after Death, 2216 25 Pa. St., 347, Costs, 3110, 3124 25 Pa. St., 347, Partition, 2048 22 Pa. St., 368, Execution, 3144b 3 Watts, 357, Defalcation, 2757 10 S. & R., 391, Execution, 33411 38 Leg. Int., 393, Arbitration, 2903 37 Law Jour. Rep. (P. & M.), 7, Di- vorce, 762 2 P. & W., 431, Justices, 1512 TABLE OF CASES, CXIX Jackson v. Carpenter, Jackson v. Clymer, Jackson, Crawford v., Jackson, Dana v., Jackson v. Edwards, Jackson, Gallagher v., Jackson v. Gleason, Jackson, Hubbard v., Jackson v. Lloyd, Jackson, Mnllin v., Jackson v. Pierce, Jacobs V. Ellis, Jacobs, Phila. v., Jacobs V. Tichenor, Jacobs V. Tobelman, Ja«oby, Gogel v., Jacoby v. Laussatt, Jacoby v. Shafer, Jacoby, Waist v., Jaffe, Davis v., JafErey's Appeal, Jailer, Comm. v., James, Bank v., James v. Commissioners, James, Graham v., James v. Keller, James, SheafE v., James v. Sterret, James v. Sterret, Jameson, People v., Jamieson v. Capron, Jamieson v. Capron, Jamieson, Spear v., Jamieson, Wilson v., Jamieson's Appeal, Jamieson, Seaton v., Janney v. Howard, Janney v. Howard, Jaquett, Lehman v., Jarechi v. Society, Jarrett, Hecker v., Jarrett, Stahl v., Jeffries v. Jeffries, Jenkins, Newall v., Jenkinson v. Hilands, Jenks V. Grace Jennings, Mohrman v., Jewel V. Howe, Jewel's Estate, City v., Johns, Black v., Johnson, Agnew v., Johnson's Case, Johnson v. City, Johnson, Comm. v., Johnson, Comm. v., Johnson v. Drill Co., Johnson, Essler v.. SECTION 3002a 2757 3002d 2035 3002a 1491 1641 Forms of Statements, 3753 2419 3002a 1973 1426 450 77 789 2758 562 1289, 1290 3748 3251 55 1201 2331 1803 1424 3 Cowan, 22, At Trial, 43 Pa. St., 79, Defalcation, 1 Rawle, 427, At Trial, 6 Pa. St., 234, Partition, 1 Cowan, 138, At Trial, 1 S. & R., 492, Justices, 6 Phila., 307 ,Justices, 29 W. N., 44 Pa. St., 82, Amendments, 2 Chest. Co., 264, At Trial, 10 Johns., 414, 417, Partition, 156 Pa. St., 253, Justices, 22 W. N., 348, Municipal Liens, 27 W. N., 35, Attachments, 36 ^,a., 842, Divorce, 5 S. & R., 117, Defalcation, 6 S. & R., 300, Torts, 105 Pa. St., 610, Justices, 62 Pa. St., 110, Discontinuance, 17 W. N., 107, Execution, 101 Pa. St, 583, Assumpsit, 7 Watts, 366, Justices, 152 Pa. St., 364, Writs, 13 Pa. St., 72, Mandamus, 13 W. N., 279, Justices, 2 Dist. Rep., 165, Mechanics' Claims, 226 2 W. N., 507, Actions after Death, 2216 4 Pa. C. C, 584, Arbitratien, 2900 48 Leg. Int., 48, Arbitration, 2899 40 III., 96, Bills of Exceptions, 3064 95 Pa. St., 15, Amendments, 2416 95 Pa. St., 15, Replevin, 2187 2 S. & R., 530, Justices, 1557 7 Pa. St., 126, Amendments, 2424 6 Pa. St., 280, Sci Fas., 249, 250 7 Watts, 535, Dower, 1105, 1109, 1110 150 Pa. St., 339, At Trial, 3008 150 Pa. St., 339, Bills of Exceptions, 3065, 3071 5 W. N., 183, Assumpsit, 30 79 Pa. St., 403, Mechanics' Claims, 226 1 Binn., 374; 3 Binn., 404, Justices, 1218 2 Rawle, 449, Execution, 33411 MMS. Divorce, 773 26 Pa. St., 159, Torts, 549 146 Pa. St., 380, Assumpsit, 30 1 W. N., 2, Justices, 1443 1 Kulp, 244, Arbitration, 2910 3 Watts, 149, Attachments, 121 26 W. N., 150, Municipal Liens, 451 68 Pa. St., 83, Assumpsit, 23 17 Pa. St., 373, Torts, ' 562 1 Ash., 157, Insolvent Laws, 3611 139 Pa. St., 330, Arbitration, 2935 6 Pa. St., 136, Appeals, 3445 2 Binn., 275, Mandamus, 1757, 1819 99 Pa. St., 216, Defalcation, 2756 25 Pa. St., 350, Justices, 1429 cxx TABLE OF CASES. Johnson, Bssler v., Johnson v. Fitzpatrick, Johnson, Pretz v., Johnson v. Fullerton, Johnson, Hessel v., Johnson v. Johnson, Johnson, Kennedy v., Johnson, Monnment Co. Johnson, Price v., Johnson, R. R. Co. v., Johnson, Rex v., Johnson v. Smith, Johnson v. Terry, Johnson v. Turner, Johnson v. Turner, Johnston v. Beckham, Johnston v. Coleman, Johnston v. Fessler, Johnston, McCanna v., Johnston v. Perkins, Jones' Appeal, Jones' Appeal, Jones V. Backus, Jones V. Backus, Jones V. Brown, Jones V. Brown, Jones V. Canal Co., Jones, Church v., Jones, Comm. v., Jones, Comm. v., Jones, Cosporus v., Jones,' Davis v., Jones, Ellison v., Jones' Estate, Jones V. Evans, Jones V. Gordon, Jones, Heller v., Jones V. Herron, Jones V. Herron, Jones, Houser v., Jones V. Jones, Jones V. Jones, Jones V. Jones, Jones, Lewis v., .Tones v Linden, Jones V. Patterson, Jones, Peck v., Jones V. Pettit, Jones V. Baiguel, Jones V. Smith, Jones, Snevely v., Jones V. Tracy, Jordan v. Jordan, Judge 1). Reinhart, Judges, Comm. v., Judges, Comm. v., SECTION 25 Pa. St., 350, Landlord and Ten- ant, 1705 27 W. N., 250, Defenses, 2771 15 W. N., 208, Attachments, 103 44 Pa. St., 466, Execution, 3244 23 W. N., 300, Execution, 3244 3 Dist Rep., 166, Divorce, 863 65 Pa. St., 451, Dower, 1086 29 W. N., 117, Account Render, 309 4 Yeates, 526, Dower, 1091 2 Wh., 275, Costs, 3124 2 Lord Raymond, 1333, Justices, 1194 29 W. N., 477, Attachments, 97 34 Conn., 259, Justices, 1194 4 W. & S., 465, Insolvent Laws, 3608 2 Ash* 433, Insolvent Laws, 3608 3 Grant, 267, Depositions, 2515 8 W. & S., 69, Insolvent Laws, 3608 7 W., 48, Justices, 1551 19 Pa. St, 438, Ejectments, 629 I P. & W., 23, Justices, 1561 II W. N., 554, Appeals, 3444 41 Leg. Int., 314, Dower, 1032 114 Pa. St., 120, Arbitration, 2907 114 Pa. St., 120, At Trial, 3023a 167 Pa. St., 395, Assumpsit, 52 1 Dist. Rep., 675, Justices, 1546 10 Phila., 570, Justices, 1456, 1489, 1491 25 W. N., 396, Assumpsit 32 3 S. & R. 158, Justices, 1202 12 Pa. St., 365, Quo Warranto, 2093, 2098, 2118 7 Pa. St., 120, Dower, 1105 12 S. & R., 60, Discontinuance, 3736 2 Kulp, 26, Arbitration, 2910 12 W. N., 388, Defalcation, 2756 1 Browne, 207, Justices, 1519 23 W. N., 302, Statements, 73 4 Binu., 68, Execution, 3144a 31 W. N., 263, Execution, 3186 1 Dist Rep., 476, Replevin, 2184 1 Phila., 394, Justices, 1277 66 Pa. St, 494, Divorce, 787, 799 23 W. N., 370, Divorce, 931 16 W. N., 259, Divorce, 925 17 Pa. St., 262, Ejectments, 677 1 Dist. Rep., 725, Statements, 73 12 Pa. St, 149, Dower, 1105, 1109 70 Pa. St, 83, Assumpsit, 30 4 W. N., 14, Justices, 1424 97 Pa. St, 437, Sci. Fas., 262 2 P. & W., 462, Justices, 1240 9 Watts, 436, Statements, 72 75 Pa. St, 417, Execution,3278,3299,3313 13 W. N., 110, 193, Divorce, 773 3 Dist Rep., 202, Execution, 3254 1 S. & R., 187, Mandamus, 1793 5 W. & S., 272, Mandamus, 1793 TABLE OF CASES. CXXl Judges, Comm. v., Judykunst, Bartholomew v.. Junior, Cornelius v.. Junk V. Canon, Junker, Reis v., Junkins, Walters v., Kaign, French v., Kaine v. Comm., Kaiser v. Weise, Kalbach v. R. R. Co., Kane v. Coyle, Kane, Wills v., Kane, Wills v., Karcher, Fretton v., Karmany, Bank v., Karnes v. McKinney, Karsper, Holme v., Karthaus v. Ins. Co., Kase V. Best, Kase V. Greenough, Kase V. Kase, Kashner v. R. R. Co., Kasper v. Newhouser, Kaster v. Welsh, Kater v. Steinruck, Kates, City v., Kates, City v., Kauffman v. Mosser, Kauffman v. Township, Kaul V. Lawrence, Kay V. Fredrigal, Kaylor v. SchafEer, Keally, Braum v., Kean, Fisher v., Kean, Harper v., Kean, Irvine v., Kear v. Rodgers, Kearney v. Pennock, Kearns, Market House v., Keasy v. Bricker, Keating v. Williams, Kee V. Hobensack, Keegan v. Sutton, Keeler's Appeal, Keeler v. Neal, Keemle, Stewart v., Keen, Bank v.^ Keen v. Hopkins, Keen v. Swaine, Keen v, Vaughan, Keenan, Railway Co. v., Keenbartz, Beinhard v., Keeney, Fish v., Keeper, Comm. v., Keeper, Comm. v., Keeper, McDowell v., Keeper, McDowell v.. 3 Binn., 273, Mandamus, 3 P. & W., 493, New Trials, 5 Phila., 171, Municipal Liens, 34 Pa. St., 286, Dower, 9 W. N., 296, Attachments, 16 S. & R., 414, Amendments, SECTION 1790 3038 460 1039 82 2435 3 W. N., 495, Mechanics' Claims, 228 101 Pa. St., 490, Mandamus, 1780 85 Pa. St., 366, Municipal Liens, 415 11 W. N., 174, Writs, 2310 20 W. N., 317, Attachments, 75 2 Grant, 47, Prod. Documents, 2454 2 Grant, 60, Execution, 3248 77 Pa. St., 423, At Trial, 3023 98 Pa. St., 65, Defalcation, 2757 74 Pa. St., 396, Ground Rents, 150 5 Binn., 471, Defenses, 2783a 1 Pears., 104, Arbitration, 2897 15 Pa. St., 101, Justices, 1554 7 W. N., 535, Assumpsit, 21 34 Pa. St., 128, Execution, 3311 41 Leg. Int., 346, Negligence, 1873 14 W. N., 128, Assumpsit, 40 157 Pa. St., 590, Appeals, 3435 40 Pa. St., 501, Defalcation, 2757 150 Pa. St., 30, Municipal Liens, 354 30 W. N., 345, Municipal Liens, 457 3 Dist. Rep., 90, Execution, 3323 1 Dist. Rep., 373, Costs, 3135 73 Pa. St., 410, Amendments, 2415 3 Pa. St., 221, Amendments, 2424 24 Pa. St., 489, Amendments, 2412 146 Pa. St., 519, Assumpsit, 30 1 Watts, 259, Amendments, 2435 11 S. & R., 280, At Trial, 2991 14 S. & R., 292, At Trial, 2990 9 Phila., 525, Justices, 1538 2 Dist. Rep., 32, Justices, 1528 103 Pa. St., 403, Mechanics' Claims, 213 60 Pa. St., 9, Mandamus, 1820 5 Watts, 382, Ground Rents, 148 2 Phila., 83, Execution, 3172 12 W. N., 292, Attachments, 81 161 Pa. St., 204, Feigned Issues, 2696 2 Watts, 424, Justices, 1453 4 S. & R., 72, Justices, 1486 I Dist. Rep., 480, Execution, 3180 48 Pa. St., 445, Amendments, 2435, 2443 3 Yeates, 561, Execution, 3144a 48 Pa. St., 477, Audita Querela, 3350 56 Pa. St., 198, Justices, 1618, 1641 6 W., 93, At Trial, 3023a 91 Pa. St., 138, Execution, 3286 9 W. N., 314, Justices, 1206 26 Pa. St., 279, Justices, 1209, 1210 II W. N., 341, Assumpsit, 46 11 W. N., 841, Justices, 1206 CXXll TABLE OF CASES. Keeper, McDowell v., Keeper, Respublica v., Keffer v. Robinson, KeifEer, Sullivan v., KelUy, Comm. v., Keim, Lawrence v., Kelm, Wetherill v., Keite v. Boyd, Keith, Commissioners v., Keith, City v., Keith V. City, Keller, Bakewell v., Keller, Care v., Keller v. Clarke, Keller v. Clinton, Keller, James v., Keller v. Labaugh, Keller v. Leib, Keller v. Michael, Keller, R. R. Co. v., Kellerman, Lehman v., Kelley, Neilor v., Kelley v. Township, Kellog, Moyer v., Kelly, Bedford v., Kelly, Bedford v., Kelly, City v., Kelly V. Eichman, Kelly V. Gilmore, Kelly V. Kelly, Kelly V. Kelly, ■Kelly V. Mahan, Kelly V. March, Kelly V. McGehee, Kelly, Newhouse v., Kelly V. Northrop, Kelly, Pentland v., Kelly, R. R. Co. v., Kelly V. Royal, Kelly V. Stepney, Kelly, Stewart v., Kelly, Walsh v., Kelsey v. Murphy, Kelso's Api)eal, Kelso, Dismore v., Kelso, Sott v., Kemerer, Hoffman v., Kendall, May v., Kenderdine, Phelin v., Kendig's Appeal, Kendrick, City v., Kenege v. Elliott, Kennard v. R. R. Co., Kennedy, Bell v., Kennedy v. Board of Health, Kennedy v. Burt, SECTION 11 W. N., 341, Torts, 511 2 Yeates, 349, Justices, 1209 2 W. N., 689, Assumpsit, 30 122 Pa. St, 135, Dower, 1080 4 Phila., 329, Quo Warranto, 2087 45 Leg. Int., 434, Prep, for Trial, 2972 1 Watts, 320, Partition, 2027 16 S. & R., 300, Actions after Death, 2216 2 Pa. St., 218, Municipal Liens, 471 1 Cent Rep., 898, Municipal Liens, 416 24 W. N., 115, Municipal Liens, 419 11 W. N., 300, Execution, 3201 77 Pa. St., 487, Dower, 1112 6 W. & S., 534, Justices, 1596 4 Dist. Eep., 216, Costs, 3135 2 Dist Rep., 165, Mechanics' Claims, 226 1 Dist Rep., 544, New Trials, 3029 1 P. & W., 220, Execution, 33411 2 Yeates, 300, Dower, 1057 67 Pa. St,300, Negligence, 1881,1893,1904 65 Pa. St., 489, Replevin, 2168 69 Pa. St, 403, Torts, 562 154 Pa. St., 440, Torts, 558 1 W. N., 134, Assumpsit, 52 61 Pa. St., 491, Justices, 1425 61 Pa. St, 491, Landlord and Tenant,1682 2 Dist. Rep., 143, Amendments, 2407 .3 Whar., 419, Justices, 1551 1 W. N., 73, Justices, 1538 13 Phila., 179, Account Render, 311 5 Law Times, 95, Arbitration, 2894 2 Yeates, 515, Dower, . 1035 15 W. N., 30, Justices, 1418, 1517 26 W. N., 493, Mechanics' Claims, 201 5 Watts, 508, Justices, 1561 159 Pa. St, 537, Ejectments, 648 6 W. & S., 483, Execution, 3218 31 Pa. St., 372, Negligence, 1885, 1895, 1897, 1898 46 Leg. Int, 108, Justices, 1571 4 Watts, 69, Insolvent Laws, 3608 16 Pa. St, 160, Amendments, 2428 34 Pa. St., 84, Dower, 1064 30 Pa. St., 340, New Trials, 3039 102 Pa. St, 7, Dower, 1043, 1058 4 Brews., 34, Prep, for Trial, 2973c 4 W. & S., 278, Justices, 1491 44 Pa. St., 452, Torts, 546 8 Phila., 244, Landlord and Tenant, 1666, 1677 20 Pa. St., 361, Torts, 543 82 Pa. St., 68, Appeals, 3435 1 Brews., 406, Justices, 1420 9 Watts, 262, Ground Rents, 148, 149 1 Phila., 41, Insurance, 294 100 Pa. St., 220, Prep, for Trial, 2973a 2 Pa. St, 366, Municipal Liens, 478 41 Leg. Int, 146, Replevin, 2177 TABLE OF CASES. CXXlll Kennedy v. Dean, Kennedy v. Ins. Co., Kennedy v. Johnson, Kennedy v. Kennedy, Kennedy v. McNickle, Kennedy v. Nedrow, Kennedy, Trout v., Kenney v. Ralph, Kensel v. Kem, Kensinger v. Smith, Kent, Bradfords v., Kenyon, Hall v., Keown, Hartman v., Kepler, Klingensmith v., Kepner's Appeal, Kem, Kensel v., Kem V. Simons, Kem, Simons v., Kem, Simons v., Kem, Souillier v., Kerper, Maurer v., Kerr, Barclay v., Kerr v. Martin, Kerr, Nesbit v., Kerr, Smith v., Kershner, Weiler v., Kerst V. Ginder, Kesler's Estate, Kessler v. Houpt, Kessler, Smith's Admr. v., Ketcherra, Uhler v., Ketchum v. Singerly, Ketner, Comm. v., Ketner, Lauer v., Keyes v. Moorhead, Keyser, Rich v.. Kidney, Cope v., Kier, Hite v., Kightlinger's Appeal, Kilbom V. Field, Kilburn v. Woodworth, Kilday, Mead v., Killacky, Comm. v., Kille V. Ege, Kille V. Iron Works, Killinger v. Reidenhauer, Kimball, Young v., Kimmel v. Kint, Kincaid v. Schultz, Kindred, Ensign v., King V. Boyles, King V. De Manneville, King V, District, King V. Faber, King V. Fox, King V. King, SECTION 46 Pa. St., 246, Costs, 3125 165 Pa. St., 179, Writs, 2232 65 Pa. St., 451, Dower, 1086 87 III., 250, Divorce, 789 2 Brews., 536; 7 Phila., 217, Discon- tinuance, 3733 1 Dall., 415, Dower, 1074 47 Pa. St., 387, Torts, 562 1 Dist. Rep., 720, Justices, 1492a 4 Phila., 87, Execution, 3172 94 Pa. St., 384, At Trial, 3023a 43 Pa. St., 474, Dower, 1026, 1041, 1076 20 W. N., 21, Arbitration, 2897 101 Pa. St., 338, Replevin, 2159 41 Ind., 341, Attorneys, 3531 94 Pa. St., 74, Appeals, 3435 4 Phila., 87, Execution, 3172 7 W. N., 359, Municipal Liens, 431 92 Pa. St., 455, Municipal Liens, 431 37 Leg. Int., 74, Municipal Liens, 490 69 Pa. St., 16, Municipal Liens, 436 102 Pa. St., 447, Attachments, 94 110 Pa. St., 130, Partition, 1963, 1969 122 Pa. St., 436, Arbitration, 2908 3 Yeates, 194, Prep, for Trial, 2971 2 W. N., 222, Replevin, 2186 109 Pa. St., 219, Justices, 1547 12 Leg. Int., 271, Prep, for Trial, 2973a 29 W. N., 15, Dower, 1066 26 Pitts. Law Jour. 160, Arbitration, 2904 44 Pa. St., 142, Amendments, 2433 1 W. N., 3, Justices, 1538 12 Phila., 169, Municipal Liens, 456, 458 92 Pa. St., 372, Justices, 1204 162 Pa. St., 265, Defenses, 2811 1 Dist. Rep., 699, Defenses, 2791 54 Pa. St., 86, Landlord and Tenant,1667 115 Pa. St., 228, At Trial, 3023a 38 Pa. St., 72, Amendments, 2413 101 Pa. St., 540, Execution, 3192 78 Pa. St., 194, Divorce, 897 5 Johns., 37, Attachments, 100 2 Watts, 110, Replevin, 2148 3 Brews., 565, Justices, 1188 82 Pa. St., 102, Amendments, 2413 26 W. N., 1, Arbitration, 2942 6 S. & R., 531, Dower, 1068 23 Pa. St., 193, Replevin, 2159 2 Watts, 431, Replevin, 2205 40 Leg. Int., 329, At Trial, 3023 35 W. N., 226; 163 Pa. St., 638, As- sumpsit, 21 31 Pa. St., 424, Justices, 1559, 1560 5 East R., 221, Justices, 1194 1 Phila., 402, Justices, 1504 51 Pa. St., 387, At Trial, 3022a 2 W. N., 196, Amendments, 2415 1 P. & W., 15, Justices, 1378 CXXIV TABLE OF CASES. King, Liebelt v., King, McKeon v., King, McKeon v.. King V. Parry, King, Rand v., King, Rand v.. King, Rand v., King, Rowen v.. King, Sleek v., King, Van Dresor v., Kingan, Bartlett v., Kiugland, Bredin v., Kingsley, Class v., Kingsley, Class v., Kingsley, Harmstead v., Kingston, Smith v., Ekinley, Gourley v., Kinley, Gourley v., Kinley, Gourley v., Kinney v. Reeder, Kint, Kimmel v., Kintz, Hall v., Kintz V. Long, Kirby v. Cash, Kirby v. Cash, Kirby, Moyer v., Kirby v. R. R. Co., Kirk V. Aechternacht, Kirk V. Dean, Kirk, Nippes v., Kirk, Price v., Kirk, R. R. Co. v., Kirkpatrick v. Lex, Kirkpatrick v. Lex, Kirkpatrick, Penna. v., Kirkpatrick, Tebay v., Kishbaugh, Schienkeisen v., Kissinger, Hoffman v., Kistler, Baer v., Kistler, Comm. v., Kitchen, Frick v., Kite, Comm. v., Klages V. R. R. Co., Klein's Estate, Klein's Estate, Kleinschmidt, Trianovski v., Klemm, Rech v., Klemmer v. R. R. Co., Kline's Appeal, Kline v. Bowman, Kline, Craig v., Kline's Estate, Kline, Gue v., Kline v. Gundrum, Kline v. Kline, Kline v. Kline, Kline, Martin v., SECTION 21 P. L. J., 144, Mechanics' Claims, 228 9 Pa. St., 213, Bills of Exceptions, 3066 9 Pa. St., 213, Landlord and Tenant,1698 6 Ad. & El., 810, Quo Warranto, 2078 26 W. N., 81, Appeals, 3376 134 Pa. St., 641, Execution, 33411 26 W. N., 81, Feigned Issues, 2713 25 Pa. St., 409, Justices, 1382, 1491 3 Pa. St., 211, Justices, 1537, 1541 84 Pa. St., 201, Execution, 3181 19 Pa. St., 343, Mechanics' Claims, 237 4 Watts, 420, Account Render, 307 48 Leg. Int., 364, Assumpsit, 30 28 W. N., 320, Defenses, 2771 3 W. N.,64, Lunatics and Drunkards,3718 120 Pa. St, 357, Municipal Liens, 426 66 Pa. St, 270, Dower, 1024, 1025, 1040, 1092, 1109 66 Pa. St, 270, Ejectments, 621 66 Pa. St., 270, Partition, 1961,1963,2035 6 Watts, 34, Landlord and Tenant, 1662 2 Watts, 431, Replevin, 2205 2 Dist. Rep., 16, Assumpsit, 57 30 Pa. St, 501, Execution, 3217 93 Pa. St., 505, Sci. Fas., 277 93 Pa. St, 505, Municipal Liens, 457 14 S. & R., 162, Justices, 1628 76 Pa. St, 506, Negligence, 1905 1 Phila., 426, Justices, 1517 2 Binn., 341, Dower, 1064 8 Phila., 299, Justices, 1388 90 Pa. St, 47, Mechanics' Claims, 222 90 Pa. St., 15, Negligence, 1882 49 Pa. St., 122, BUls of Exceptions, 3069 49 Pa. St, 122, Torts, 549 Addison Rep., 93, Justices, 1608 29 W. N., 184, Mechanics' Claims, 224 162 Pa. St., 45, Arbitration, 2861 1 W. & S., 277, Depositions, 2533 4 Rawle, 364, Execution, 3341h 149 Pa. St., 345, Quo Warranto, 2118 4 W. & S., 30, Insolvent Laws, 3607, 3608 5 S. & R., 399, Justices, 1331 34 W. N., 171, Statements, 3753 1 W. N., 250, Assumpsit, 46 I W. N., 250, Torts, 511 20 W. N., 296, Assumpsit, 40 13 W. N., 46, Justices, 1550 35 W. N., 142, At Trial, 2977 93 Pa. St, 422, Mechanics' Claims, 239 19 Pa. St, 24, Dower, 1024, 1111 65 Pa. St, 399, Replevin, 2204 64 Pa. St., 122, Dower, 1066 13 Pa. St, 60, Justices, 1551 II Pa. St, 242, At Trial, 3017 1 Phila., 383, Divorce, 923 57 Pa. St., 120, Dower, 1066 33 W. N., 326, Audita Querela, 3362 TABLE OP CASES. Kline, Moore v., Kline v. O'Donnell, Kline, Seibert v., Kline, Seibert v., KlingenBmith's Estate, Klingensmith v. Kepler, Klingensmith v. Nole, Klohs V. Reifsnyder, Klohs V. Beifsnyder, Klopp V. Witmoyer, Knapp, Carstairs v., Knapp, Erie v., Knapp, Hall v., Knapp V. Hartung, Knapp, Miller v., Knapp, Wall v., Knappenbergef v. Roth, Knauss' Appeal, Kneas v. Fitler, Knerr v. Bradley, Knerr v. Hoffman, Knight, Ins. Co. v., Knight V. R. R. Co., Knoblauch v. Hefron, Knop, Houck v., Knowles v. Lord, Knowlson, City v., Knox V. Flack, Knox V. Herod, Knox V. Hilty, Knox, Horbach v., Koecker v. Koecker, Koehler, Schnable v., Koenig v. Bauer, Koenig, Davis v., Kohl, Shallcross v., Kohler v. Luckenbaugh, Kohler v. Luckenbaugh, Kohler, Mersereau v., Kohler v. Thorn, Kolhaus V. Veit, Kohn V. Teller, Kolp V. Kolp, Koontz V. Hammond, Koontz V. Hammond, Koontz, Patterson v., Koontz's Admr. v. Howsare, Kom, Hohl v., Korstein v. Bauer, Kosek, Muier v., Kraemer v. Guarantee Co., Kraemer, Unangst v., Kraemer, Unangst v., Kraft V. Gilchrist, Kraft V. Gingrick, Kraft V. Wolf, SUCTION 1 P. & W., 129, Execution, 33411 1 Dist. Rep., 741, Assumpsit, 52 1 Pa. St., 38, Justices, 1518, 1563 1 Pa. St., 38, Prep, for Trial, 2973a 25 W. N., 266, Partition, 2029 41 Ind., 341, Attorneys, 3531 3 P. & W., 119, Justices, 1486,1490,1517 61 Pa. St., 240, Lunatics and Drunk- ards, 3685 61 Pa. St., 240, Partition, 1967, 2035 43 Pa. St., 219, Execution, 3189 35 W. N., 292, Writs, 2311 29 Pa. St., 173, Execution, 3199 1 Pa. St., 213, Costs, 3125 73 Pa. St., 290, Amendments, 2424 47 Leg. Int., 309, Justices, 1517 26 W. N., 2, Arbitration, 2938 32 W. N., 181, Justices, 1559 49 Pa. St., 419, Sci. Fas., 278 2 S. & R., 263, Replevin, 2184 16 W. N., 72, Assumpsit, 32 65 Pa. St., 126, Account Render, 311 6 Wh., 327, Depositions, 2532 13 W. N., 251, Negligence, 1888 3 Dist. Rep., 765, Justices, 1285 2 Watts, 72, Justices, 1538 4 Wh., 500, Replevin, 2199 92 Pa. St., 116, Municipal Liens, 454 22 Pa. St, 337, Appeals, 3375 2 Pa. St., 27, Justices, 1617 20 W. N., 524, Mechanics' Claims, 241 6 Pa. St., 377, Amendments, 2410, 2418 7 Phila., 364, Prep, for Trial, 2966 28 Pa. St., 181, Amendments, 2431 57 Pa. St., 168, Justices, 1512 165 Pa. St., 347, Assumpsit, 32 3 W. N., 272, Statements, 64 84 Pa. St., 258, Assumpsit, 23 84 Pa. St., 258, Writ of Inquiry, 694 2 Pears., 98, Arbitration, 2903 154 Pa. St., 180, Execution, 3257 162 Pa. St., 108; 3 Dist. Rep., 142, As- sumpsit, 48 2 W. N., 487, Depositions, 2513 3 Dist. Rep., 1, Divorce, 982 62 Pa. St., 177, At Trial, 3022a 62 Pa. St., 182, Landlord and Tenant,1725 63 Pa. St., 246, At Trial, 3008 100 Pa. St., 506, Justices, 1500 2 W. N., 277, Assumpsit, 21 4 Penny., 366, Dower, 1111 2 Dist. Rep., 638, Execution, 3279 37 W. N., 469, Appeals, 3463rr 8 W. & S., 391, Dower, 1111 8 W. & S., 391, New Trials, 3036 31 Pa. St., 470, Justices, 1547 2 Dist. Rep., 398, Assumpsit, 30 6 Phila., 310, Landlord and Tenant, 1698 CXXVl TABLE OF CASES. Kramer v. Cramp, BCramer v. Wellendorf , Kratz V. Kratz, Krans, Greenwaldt v., Krause, Lloyd v., Krause v. R. R. Co., Krause v. R. R. Co., Krauskopf v. Stem, Krauskopf v. Stem, Krauskopf v. Stem, Krebs v. Stroub, Kreider's Estate, Kreiser's Appeal, Krenzkamp, Noble v., Krier, Moore v., Krips, Allen v., Krumbhaar, Williamson v., Kuehling v. Leberman, Kuhn V. Bank, Kuhn V. Nixon, Kuhn V. North, Kuhn V. North, Kuhns V. Bank, Kuhns V. Turney, Knklence, Vocht v., Knklence, Vocht v., Kulp V. Bowen, Kulp, McCale v., Kulp, Thomas ■»., Kunkel v. Dundore Kunkle, Mahon v., Kurth, Harbach v., Knrts, Grace v., Kurtz's Appeal, Kuttner v. Grieb, Kutz, Simons v., L., B. v., Xi. V. H., L. V. W. (otherwise L.), Labaugh, Keller v., Labows, Rupp v., Lacaze, Respublica v., Lacock, Palmer v., Lacock V. White, Lacroix v. Macquart, JJafEerty v. Beale, Laird v. Campbell, Lamb's Appeal, Lamb v. Lynd, Lamb, Tyrrill v., Lanahan v. Collins, Lanback v. Black, Lancaster, Fraim v.. Lance v. Bonnell, SECTION 28 W. N., 16, Mechanics' Claims, 229 20 W. N., 331, Justices, 1457 I'Dist. Bep., 699, Divorce, 928 148 Pa. St., 517, Insolvent Laws, 3608 29 W. N., 429, Mechanics' Claims, 224 20 W. N., Ill, Assumpsit, 20 W..N., Ill, Torts, 21 W. N., 185,. Assumpsit, 21 W. N., 185, Statements, 21 W. N., 185, Torts, 116 Pa. St, 405, Ejectments, 18 Pa. St, 374, Partition, 69 Pa. St, 194, Dower, 17 W. N., 89; 111 Pa. St, ( 18 521 18 73 522 620 2023, 2024 1067, 1087 S, Assump- sit, 32 2 W. N., 724, Justices, 1538 24 W. N., 248; 119 Pa. St., 1, Sci. Fas.,256 132 Pa. St, 455, Execution, 3172 9 Phila., 160, Depositions, 2551 20 W. N., 230, Justices, 1466, 1474, 1489 15 S. & R., 118, New Trials, 3029 10 S. & R., 399, Execution, 33411 10 S. & R., 399, New Trials, 3038 68 Pa. St, 448, Defenses, 2783a 87 Pa. St, 497, Mechanics' Claims, 240 21 W. N., 518; 119 Pa. St., 365, As- sumpsit, 46 119 Pa. St, 365, Torts, 511 122 Pa. St, 78, Ejectments, 629 8 Phila., 636, Justices, 1517 4 S. & R., 271, Ejectments, 627 47 Leg. Int., 94, Statements, 73 50 Pa. St, 216, Execution, 3274 25 W. N., 301, Mechanics' Claims, 201 1 Phila., 105, Discontinuance, 3748 26 Pa. St, 465, Dower, 1025 26 W. N., 323, Assumpsit, 50 1 W. N., 553, Justices, 1549 38 L. J. Rep. (P. & M.), 35, Divorce, 766 4 Swab. & T., 115, Divorce, 760 51 Law Jour. Rep. (P. D. & A.), 23; 7 Law Rep. (P. D.), 16, Divorce, 756 1 Dist Rep., 544, At Trial, 3029 2 Dist Rep., 340, Justices, 1413 2 Dall., 118, New Trials, 3027 107 Pa. St., 346, Justices, 1426 19 Pa. St, 495, Justices, 1391, 1475 1 Miles, 156, Discontinuance, 3733, 3734 1 Miles, 51, Partition, 1991 8 W. N., 134, Assumpsit, 32 89 Pa. St., 407, Appeals, 3390 44 Pa. St., 336, Mandamus, 1767 96 Pa. St, 464, Amendments, 2410,2421 28 W. N., 287, Defalcation, 2757 1 W. N., 314, Attachments, 92 171 Pa. St, 436, Justices, 1570 14 W. N., 385, New Trials, 3027, 3042 TABLE OF CASES. CXXVll Lance v. Dugan, Land Co., Comm. v., Landis v. Evans, Landis, Laufer v., Landis v. Lyon, Landis, Neff v., Landis v. E. R. Co., Lane, Bronson v., Lane, Comm. v.. Lane's Estate, Lane v. Nelson, Lang V. Pinch, Lang, Hibert v., Langdon, R. R. Co. v., Langfeld, Lyon v., Langfeld v. McCullough, Langham, Harlan v., Lamgs V. Galbraith, Lanning, Hunter v., Lanning v. Pawson, Lantz V. Worthington, Lapsley, Chambers v., Lardner v. Ins. Co., Large v. Davis, Larimer's Appeal, Larison v. Burt, Larzelere's Appeal, Lascelles, Agar-EUis v.. Lash V. Von Neida, Latimer, Carpet Co. v., Latimer, Groetzinger v., La Touche v. Rowland, Lattimore v. Simmons, Laubach v. Meyers, Lanchner v. Rex, Lauck, Henderson v., Lauer v. Ketner, Laufer v. Landis, Laufer v. Sell, Laughlin, City v., Laughlin, Dearth v., Laughlin v. Prigg, Laussatt, Jacoby v., Lauterstein, Ferguson v., Laverty v. Vanarsdale, Laverty, Vanarsdale v., Law V. Patterson, Lawall V. Lawall, Lawrence Ex parte, Lawrence, Kaul v., Lawrence v. Keim, Lawrence, Phillips v., Lawrence v. R. R. Co., Lawrence v. Smedley, Lawrence, Strouse v.. SECTION 22 W. N., 132, Assumpsit, 32 57 Pa. St., 102, Escheats, 1147 113 Pa. St., 332, Execution, 3190 23 W. N., 460, Assumpsit, 18 71 Pa. St., 473, Execution, 3174 110 Pa. St, 204, Replevin, 2154 26 W. N., 64, Assumpsit, 32 91 Pa. St., 153, Ejectments, 629 3 W. N., 546, Mandamus, 1809 3 Dist Rep., 162, Comp. with Cred., 3485 2 Dist. Rep., 18, Statements, 73 166 Pa. St, 255; 36 W. N., 61, Execu- tion, 3248 165 Pa. St., 439, Defalcation, 2756 92 Pa. St, 21, Negligence, 1867,1869,1870 47 Leg. Int, 132, Assumpsit, 32 11 W. N., 107, Assumpsit, 22 69 Pa. St. 235, Partition, 1968 1 S. & R., 491, Justices, 1505 76 Pa. St, 25, Mechanics' Claims, 242 38 Pa. St, 480, Actions after Death, 2216 4 Pa. St, 153, Execution, 3188 7 How., 24, Discontinuance, 3749 32 W. N., 62, Replevin, 2148 12 W. N., 33, Costs, 3135a 22 Pa. St., 41, Costs, 3125 4 W. & S., 27, At Trial, 3023a 22 W. N., 100, Execution, 3190 39 L. T. (N. S.), 380, Justices, 1194 16 W. N., 93, Assumpsit, 32 165 Pa. St, 617, Defenses, 2781 23 Atl. Rep., 393, Defalcation, 2757 12 W. N., 384, Discontinuance, 3732 13 S. & R., 183, Actions after Death,2216 29 W. N., 473, Statements, 73 20 Pa. St, 464, Justices, 1246, 1268 21 Pa. St, 359, Replevin, ■ 2155, 2162 162 Pa. St, 265, Defenses, 2811 23 W. N., 460, Assumpsit, 18 141 Pa. St, 159, Arbitration, 2939 48 Leg. Int., 265, Municipal Liens, 434, 480 16 S. & R., 296, Justices, 1561 3 Dist. Rep., 418, Justices, 1507 6 S. & R., 300, Torts, 562 160 Pa. St, 427, Replevin, 2151 65 Pa. St., 507, Torts, 549 69 Pa. St, 103, Torts, 549 1 W. & S., 184, Partition, 1975 30 W. N., 497, Replevin, 2181 5 Binn., 304, Justices, 1209 73 Pa. St, 410, Amendments, 2415 45 Leg. Int, 434, Prep, for Trial, 2972 6 W. & S., 150, Defalcation, 2756 27 W. N., 572, Statements, 73 6 W. N., 42, Assumpsit, 32 160 Pai St., 421; 34 W. N., 230, Jus- , tices, 1473 CXXVlll TABLE OF CASKS. Lawrence, United States v., Lawrence, Weaver v., Laws, Phila v.. Lawyer v. Walls, Lay, Oil City v.. Layman v. Beam, Layman v. Beam, Lazeor v. Porter, Lea V. Hopkins, Lea V. Hopkins, Leafey, Collins v., Leafey, Collins v., Leberman, Kuehling v., Lebo, Comm. v., Lecky, Comm. v., Leeky v. McDermott, Lee, Andrews v., Lee, Butler v., Lee, Comm. v., Lee V. Dean, Lee V. Gould, Lee V. McMillan, Lee, Ogilsby v., Lee V. Taylor, Leech, Comm. v.. Leech, Dennison v., Leedom v. Pancake, Leeds v. Lockwood, Leggett V. Austin, Lehigh Co. v. Kupp, Lehman, Eberly v., Lehman v. Jaquett, Lehman v. Kellerman, Lehr v. Taylor, Leib V. Bolton, Leib, Keller v., Leibert, Baker v., Leigh, Rex v., Leinaweaver v. Stoever, Leineweaver v. Stoever, Lelninger's Appeal, Leiser, Albright v., Leland, Comfort v., Lelar, Comm. v., Lenon v. McCall, Lenore v. Ingram, Lentz, Comm. v., Leonard v. Comm., Leonard v. Parker, Leonard v. Smith, Lessee, Burke v., Lester v. McDowell, Letzkus, Ward v., Levan v. Millholland, Lever, Mayor v., Levick, Smith v., SECTION 3 Dall., 42, Mandamus, 1790 1 Dall., 156, Replevin, 2146 20 W. N., 63, Municipal Liens, 450 17 Pa. St., 75, Justices, 1328, 1491 164 Pa. St., 370, Assumpsit, 30 6 Wh., 181, Attachments, 94, 99 6 Wh., 181, Execution, 3273, 3278 87 Pa. St, 513, Dower, 1058 7 Pa. St., 385, Actions after Death, 2222 7 Pa. St., 492, Sci. Fas., 250 124 Pa. St., 203, At Trial, 3013 124 Pa. St., 203, Negligence, 1891, 1895 9 Phila., 160, Depositions, 2551 13 S. & R., 175, At Trial, 3017 1 Watts, 66, Justices, 1209 8 S. & R., 500, Replevin, 2150 3 P. & W., 99, Appeals, 3445 32 Barb., 75, Depositions, 2513 2 S. & R., 174, Justices, 1202 3 Rawle, 325, Justices, 1262 47 Pa. St., 398, Replevin, 2161 23 W. N., 483, Arbitration, 2901 7 W. & S., 444, Execution, 3266 154 Pa. St., 95, Assumpsit, 32 44 Pa. St., 332, Quo Warranto, 2103 9 Pa. St 164, Assumpsit, 23 4 Yeates, 183, New Trials, 3035 84 Pa. St., 73, Amendments, 2410, 2429 2 Pa. L. J., 247, Depositions, 2491 100 Pa. St., 95,Negligence,1878,1883,1891 100 Pa St, 546, Prep, for Trial, 2973a 5 W. N., 183, Assumpsit, 30 65 Pa. St, 489, Replevin, 2168 90 Pa. St., 381, Torts, 563 1 Dall., 82, Damages, 707 1 P. & W., 220, Execution, 3341i 125 Pa. St, 106, Dower, 1111 4 Burrows, 2143, Quo Warranto, 2109 1 W. & S., 160, Dower, 1070 17 S. & R., 297, Dower, 1094, 1109 106 Pa. St., 398, Ejectments, 616 2 Penny., 483, Arbitration, 2934 3 Wh., 81, Justices, 1551 1 Phila., 173, Replevin, 2214 3 S. & R., 102, Justices, 1632 1 Phila., 519, Justices, 1285, 1517 106 Pa. St, 643, Justices, 1596 3 Cent Rep., 628, Quo Warranto, 2089 72 Pa. St., 236, Amendments, 2413, 2418 4 Dist Rep., 249, Costs, 3135 2 S. & R., 383, Depositions, 2530 18 Pa. St, 91, Replevin, 2175 31 W. N., 412, Justices, 1538 114 Pa. St,. 49, Writs, 2310 59 Law Jour. Rep. (Q. B. D.), 248, Bills of Discovery, 2564 153 Pa. St, 522; 32 W. N., 79, Me- chanics' Claims, 224 TABLE OF CASES. CXXIX Levin, Haines v., Levis, Meese v.. Levy, Etting v., Levy, Llevifellyn v., Levy, Shaw v., Lewis' Appeal, Lewis' Appeal, Lewis, Baker v., Lewis, Blabon v., Lewis V. Bonnert, Lewis V. Broadbent, Lewis V. Haward, Lewis V. HoUahan, Lewis, Houpt v., Lewis, Howard i;., Lewis V. Jones, Lewis V. Lewis, Lewis, Manfg. Co. v., Lewis, Pierce v., Lewis, Trego v., Lewis, Williamson v., Lex's Appeal, Lex, Kirkpatrick v., Lex, Kirkpatrick v., Lex V. Potter, Leymer, Green v., Liblong V. Ins. Co., Library Co. v. City, Library Co., Cochran v., Library Co., Phillips v., Library Co., Phillips v., Lichty V. Hochstetter, Lieb V. Comm., Lieb, Franklin v., Liebelt v. King, Lifter, Borough v.. Light Co., Edison Co. v.. Light Co. V. Manufg. Co., Light V. Light, Lightner, Arnold v., Light's Estate, Lincoln v. Williams, Linden, Jones v., Linderman v. Berg, Linderman, Prince Co. v., Lindsay v. Corah, Lindsay, Flaherty v., Lindsay v. Sweeny, Lindsey v. Lindsey, Lindsey, Reid v., Lingenfelter v. Williams, Lingg V. Blumner, Linn, United States v., Linnard, City v., Linton, Dunlap v., Linton v. Vogel, 1869, 1870 1470 808 677 617 1418 2209 2426, 2432 1214 3287 SECTION 51 Pa. St., 412,Landlord and Tenant,1707 13 Pa. St, 384, Bills of Exceptions, 3065, 3069 10 Phila., 139, Bills of Discovery, 2590 33 W. N., 310, At Trial, 3044 17 S. & E., 99, Replevin, 2171 91 Pa. St, 359, Appeals, 3439 91 Pa. St, 359, Arbitration, 2896, 2906 33 Pa. St, 301, Bills of Exceptions, 3068 16 Leg. lut, 300, Comp. with Cred., 3483 2 Dist Bep., 698, Replevin, 2209 21 W. N., 31, Assumpsit, 32 35 L. Jour. Bep. (P. & M.), 105, Di- vorce, 764 103 Pa. St, 425, Negligence, 2 Kulp, 337, Justices, 6 Phila., 50, Divorce, 17 Pa. St., 262, Ejectments, 13 Pa. St., 79, Ejectments, 2 Dist Rep., 34, Justices, 27 W. N., 400, Replevin, 58 Pa. St, 463, Amendments, 39 Pa. St., 9, Justices, 97 Pa. St, 289, Execution, 49 Pa. St, 122, Bills of Exceptions, 3069 49 Pa. St, 122, Torts, 549 16 Pa. St, 295, Execution, 3269 3 Watts, 381, Justices, . 1390 82 Pa. St, 413, Insurance, 293 161 Pa. St., 155, Municipal Liens, 404 6 Phila., 492, Writs, 2232 28 W. N., 21, Writs, 2232, 2240 141 Pa. St., 462, Writs, 2311 91 Pa. St., 444, Municipal Liens, 457 9 W., 200, Quo Warranto, 2090, 2097 10 Lane. Bar, 73, Arbitration, 2910 21 P. L. J., 144, Mechanics' Claims, 228 4 Dist Rep., 230, Justices, 1400 32 W. N., 327, Assumpsit, 26 26 W. N., 119, Attachments, 79 21 Pa. St., 407, Dower, 1076, 1077, 1078 1 Dist, Rep., 791, Depositions, 2517 27 W. N., 21, Defalcation, 2757 12 S. & R., 103, Insolvent Laws, 3608 1 Dist. Rep., 725, Statements, 73 12 Pa. St, 301, Ejectments, 645 2 Dist. Rep., 4, Statements, 73 7 Watts, 235, Justices, 1561 7 W. N., 79, Assumpsit, 40 6 Phila., 309, Justices, 1523 14 Georgia, 657, Justices, 1194 104 Pa. St., 156, Execution, 3192 9 Atl. Rep., 653, At Trial, 2980 6 W. N., 459, Assumpsit, 30 1 Howard, 104, Discontinuance, 3749 97 Pa. St, 242, Arbitration, 2937 48 Leg. Int, 465, Torts, 574 1 Penny., 275, Justices, 1548, 1550 cxxx TABLE OF CASES. lilnville V. Dalsam, Lippincott's Estate, Iiippincott V. Cooper, Lippincott v. Cooper, Lippincott, Rushton v., Lippincott, Rushton v., Lippincott v. Whitman, Lipps V. City, Lisansky v. Gerzog, List V. Firth, List, Shaffer «., Littell, Moeck v.. Little V. Stanton, Little, Strock v., Little, Winder v., Littster v. Littster, Live Stock Co., Reck v., Liverpool, Rex v., Livezey v. Garvin, Livezey v. Hacker, Llewellyn v. Levy, Lloyd, Bethel v., Lloyd, Duncan v., Lloyd, Jackson v., Lloyd V. Krause, Lloyd V. Nourse, Loan Ass'n v. Hoagland, Loan Co., Tuttle v., Loan Co., Tuttle v., Locke V. Dougherty, Lockwood, Leeds v., Lodge, Pipher v., Lodge, Rivers v., Loeffler v. Schmertz, Loew V. Stocker, Loew V. Stocker, Loftus, Canal Co. v., Logan V. Herrou, Logan, McCuUoch v., Logan V. McGinnis, Logan, O'Neill v., Logan, Steinmetz v., Lokes v. Lokes, Long's Appeal, Long, Benscotter v.. Long v. CafErey, Long, Comm v.. Long's Estate, Long V. Girdwood, Long, Hitchcock v., Long, Kintz v., Long V. Long, Long, Mackaness v.. Long, Matthews v., Long V. McCormick, Long V. O'Rourke, Long, Wilson v., Longwell v. Bentley, SECTION 5 W. N., 528, Justices, 1537 7 Phila., 504, Dower, 1041 19 W. N., 130, Justices, 1492a 19 W. N., 130, Landlord and Tenant,1704 21 W. N., 97, Ground Rents, 170 119 Pa. St, 12, Mortgages, 191 3 W. N., 313, Assumpsit, 32 38 Pa. St., 503, Municipal Liens, 411 2 Dist. Rep. 220, Assumpsit, 40 15 W. N., 548, Execution, 3248 114 Pa. St., 486, Ejectments, 619 3 W. N., 341, Assumpsit, 32 32 Pa. St, 299, Account Render, 333 45 Pa. St, 416, Account Render, 314 1 Yea.tes, 152, Dower, 1109 151 Pa. St, 474, Justices, 1475 2 Dist Rep., 502, Assumpsit, 32 2 Burr., 731, Bills of Exceptions, 3064 16 W. N., 439, Mechanics' Claims, 228 20 W. N., 14, Mechanics' Claims, 228 33 W. N., 310, At Trial, 3044 1 Dall., 2, Partition, 1997 1 Miles, 350, Writ of Inquiry, 704 44 Pa. St, 82, Amendments, 2419 29 W. N., 429, Mechanics' Claims, 224 2 Ra-wle, 49, At Trial, 2990 87 Pa. St, 326, Appeals, 3390 6 Wh., 216, Writ of Inquiry, 693 6 Wh., 216, Prod. Documents, 2454 43 Pa. St, 88, Amendments, 2417 84 Pa. St, 73, Amendments, 2410, 2429 16 S. & R., 214, At Trial, 2990, 2991 1 Dist Rep., 724, Justices, 1282 152 Pa. St, 615, Feigned Issues, 2614 61 Pa. St, 347, Amendments, 2427 61 Pa. St, 347, At Trial, 3023 71 Pa. St, 420, Justices, 1541 8 S. & R., 459, Landlord and Tenant,1667 3 W. N., 88, Justices, 1555 12 Pa. St, 27, Depositions, 2532 34 W. N., 281, Assumpsit, 44, 45 3 Watts, 160, Ejectments, 636 14 W. N., 306, Divorce, 802 77 Pa. St, 151, Partition, 1966 167 Pa. St, 595, Appeals, 3463n 8 Philai, 548, Justices, 1388 5 Binn., 489, Insolvent Laws, 3622 168 Pa. St, 341, Appeals, 3442 150 Pa. St, 413, Attachments, 75 2 W. & S., 169, Execution, 3264 30 Pa. St., 501, Execution, 3217 1 Pa. C. C, 572, Divorce, 909 85 Pa. St, 158, Appeals, 3434 3 W. N., 512, Assumpsit,- 30 1 W. N., 134, Justices, 1536 10 Phila., 129, Municipal Liens, 468 12 S. & R., 58, Justices, 1257 23 Pa. St, 99, Partition, 1972, 1975 TABLE OP CASES. CXXXl Longwell v. Electric Co., Lorah v. Nlssley, Lord, Knowles v.. Lord V. Lord, Losee v. McFarland, Lothrop V. Wightman, Loiichelm v. Becker, Loughery, Scott v., Loughlin p. Trustees, Love, Huckensteln v.. Love v. Love, Love V. E. R. Co., Lovedeu v. Loveden, Lovett V. Lovett, Lovett, Wood v., Lovegrove v. Chrlstman, Lowenstein v. Searfoss, Lowenstein v. Sheetz, Lower, Colter v., Lowrie v. Vemer, Lovpry's Estate, Lowry v. Hall, Lowry v. McMillan, Loyd, Murphy v., Lucas v. Hunter, Lucas V. Railroad Co., Luce, Proper v.. Luce V. Snively, Luckenbaugh, Kohler v., Luckenbaugh, Kohler v., Ludlow V. Ins. Co., Ludwick, Reitenbaugh v., Ludwig's Appeal, Ludwig V. Britton, Ludwig, Siegfried v., Ludwig, Truitt v., Ludwig, Truitt v., Lukens, Calliu v., Lukens v. City, Lukens' Estate, Lukens, Ogden v., Lukens v. Rea, Lumber Co. v. Reynolds, Lumber Co., Reynolds v., Lummis v. Cozier, Lunger, Vansant v., Lusk's Appeal, Luther v. Wagner, Lutz's Appeal, Lutz, Frutchey v., Luzerne County, Appeal of, Lyle, McKenna v., Lyle V. Richards, Lyle, Whichcote v., Lynch v. Comm., SECTION 35 W. N., 374; 164 Pa. St., 533, At- tachments, 94 156 Pa. St., 329, Defenses, 2774 4 Wh., 500, Replevin, 2199 16 W. N., 496, Divorce, 917 86 Pa. St, 33, Ejectments, 630 41 Pa. St., 297, Bills of Exceptions, 3068 3 W. N., 449, Assumpsit, 30 6 W. N., 123, Assumpsit, 22 17 W. N., 269, Execution, 3199 98 Pa. St, 518, Amendments, 2417 10 Phila., 453, Divorce, 802, 884 45 Leg. Int., 370, Assumpsit, 23 2 Hagg., 2, Divorce, 778 10 Phila., 537, Dower, 1038 1 Penny., 51, Justices, 1250 164 Pa, St., 390; 35 W. N., 327, De- fenses, 2782 26 Atl. Rep., 448, Ejectments, 629 7 Phila., 361, Assumpsit, 58 35 Ind., 285, Torts, 540 3 Watts, 318, Justices, 1585 4 Dist Rep., 691, Depositions, 2491 2 W. & S., 129, Replevin, 2174 8 Pa. St., 157, Discontinuance, 3738, 3745, 3746 3 Wh., 356, Costs, 3124 1 Dist Rep., 165, Mechanics' Claims, 228 32 Pa. St., 458, Comp. with Cred., 3482 3 P. & W., 65, Amendments, 2425, 2431 4 Watts, 396, Prep, for Trial, 2973c 84 Pa. St., 258, Assumpsit, 23 84 Pa. St, 258, Writ of Inquiry, 694 2 S. & R., 119, New Trials, 3031 31 Pa. St., 131, At Trial, 3022a 101 Pa. St, 535, Dower, 1051, 1066 3 W. & S., 447, Justices, 1457 102 Pa. St., 547, Prep, for Trial, 2947 25 Pa. St, 145, Execution, 3190 25 Pa. St, 145, Justices, 1380 7 W. N., 28, Assumpsit, 30 13 W. N., 86, Municipal Liens, 418 60 Pa. St., 502, Appeals, 3442 29 W. N., 258, Defenses, 2782 29 W. N., 65, Defenses, 2778' 4 Dist Rep., 573, Attachments, 104 36 W. N., 539, Execution, 3203 35 Leg. Int, 262, Attachments, 81 15 W. N., 549, Assumpsit, 52 108 Pa. St, 152, Execution, 3203 107 Pa. St, 343, Dower, 1053 46 Leg. Int., 335, Sci. Fas., 275 167 Pa. St, 337, Execution, 3256 47 Leg. Int, 394, Insolvent Laws, 3622 155 Pa. St, 599, Arbitration, 2896 9 S. & R., 322, Dower, 1109 28 Pa. St, 73, Dower, 1054, 1065 77 Pa. St., 205, At Trial, 2978 CXXXll TABLE OP CASES. Lynch v. Cox, Lynch v. Lynch, Lynd v. Benjamin, Lynd, Lamb v., Lyndall, Comm. v., Lynn's Appeal, Lyon, Landis v., Lyon V. Langfeld, Lyon V. McManus, Lyon, R. R. Oo. v., Lyon V. Rwy. Co., Lyon, Taylor v., Lyons v. Burns, Lyons v. Miller, SECTION 23 Pa. St., 265, Amendments, 2413 25 W. N., 424, Dower, 1033 2 Miles, 172, Replevin, 2189 44 Pa. St., 336, Mandamus, 1767 2 Brews., 425, Mandamus, 1816 31 Pa. St., 44, Ejectments, 667 71 Pa. St., 473, Execution, 3174 47 Leg. Int., 132, Assumpsit, 32 4 Binn., 167, Justices, 1237 123 Pa. St., 140, Negligence, 1900, 1901, 1903 142 N. Y., 298, Prep, for Trial, 2972 12 Cent. Rep., 365, Torts, 562 47 Leg. Int, 222, Sci. Fas., 252 4 S. & R., 279, Ejectments, 627 M. V. J)., M. V. H., M., T. v., Macalester, Bank v., MacGeorge v. Chemical Co., Machette v. Magee, Machine Co., Branson v., Machine Co. v. Rice, Machine Co. v. Spencer, Machine Co. v. Spencer, Machine Co. v. Spencer, Machine Co. v. Spencer, Machine Works v. Ritter, Mack, Firmstone v., Mack, ReifE v.. Mack V. Thayer, Macaness v. Long, Mackey, Baron v., MacKinley ■». McGregor, AlacKinley v. McGregor, Mackling, Comm. v., Macknett,' Warner v., Macky v. Dillinger, Macky v. Dillinger, Maclellan, Allen v., Macquart, Lacroix v., Madden, Pittsburg v., Madden, Shannon v., Maffit V. Ijams, Magee v. Beirne, Magee, Machette v., Magee, Mills v., Magee, Reisinger v., Magill's Appeal, Magill V. Tomer, Maguire, MuUiu v., 54 L. J. Rep. (P. D. & A.), 68, Divorce, 759 34 L. J. Rep. (Prob.'M. & A.), 12, Di- vorce, 763 35 L. J. Rep. (P. & M.), 10, Divorce, 765 6 W. & S., 147, Discontinnance,3733,3734 141 Pa. St., 575, Writs, 2236 9 Phila., 24, Abatement, 2394 40 Leg. Int, 5, Insurance, 295. 1 Del. Co. Rep., 63, Justices, 1535 29 W. N., 493, Landlord and Tenant,1655 28 W. N., 287, Landlord and Tenant, 1661 147 Pa. St., 466, Replevin, 2148 147 Pa. St, 466, Forms of Statements, 37550 4 Dist. Rep., 474, Assumpsit, 30 49 Pa. St., 392, Justices, 1468 160 Pa. St, 265, Execution, 3262 2 Phila., 291, Justices, 1492 85 Pa. St, 158, Appeals, 3434 16 W. N., 10, Prep, for Trial, 2947 3 Whart., 369, At Trial, 3002d 3 Whart, 369, Replevin, 2153, 2178, 2196, 2199 2 Watts, 130, Amendments, 2434 3 Phila., 325, Dower, 1095 73 Pa. St., 85, Defalcation, 2763 73 Pa. St, 85, Replevin, 2156, 2164, 2180, 2203 12 Pa. St, 328, Divorce, 987 1 Miles, 156, Discontinuance, 3733, 3734 3 Dist Rep., 771, Justices, 1404, 1419 1 Phila., 254, Justices, 1244 103 Pa. St, 266, Execution, 3189 39 Pa. St, 50, Attachments, 78, 116 9 Phila., 24, Abatement, 2394 27 W. N., 573, Costs, 3125 158 Pa. St, 280, Assumpsit, 23 59 Pa. St, 430, Divorce, 905 6 W., 494, .Justices, 1565 1 W. N., 331, 577, Execution, 3275, 3290, 3296 TABLE OF CASES. CXXXIU Mahan, Kelly v., Maher v. Ashmead, Maher, McCallion v., Mahon v. Kunkle, Maitland's Appeal, Maize, Comm. v., Maiden, Rex v., Maley, Fertig v., Malin v. Bull, Mallon V. Gay, Malone v. Haman, Malone v. K. R. Co., Manayunk v. Davis, Mangan, Hagadom v., Manheim, Martien v., Mann v. Alberti, Mann v. Bower, Mann, Drexel v., Mann v. Mann, Mann v. Wieand, Mansbnry, Burck v., Mansfield Co. v. McEnery, Mantz, Messinger v., Manfg Co. v. Car Co., Manfg Co., Dale v., Manfg Co., Deitrich v., Manfg Co., Hartmann v., Manfg Co., Hine v., Manfg Co. v. Hopkins, Manfg Co. v. Lewis, Manfg Co., Light Co. v., Manfg Co. v. Mellon, Manfg Co. v. Moore, Manfg Co., Nevins v., Manfg Co. v. Prime, Manfg Co. v. Ruggles, Manfg Co., Scatchard v., Manfg Co., Steel Co. v., Manfg Co., Steel Co. v., Many v. Iron Co., Maple, Beltzhoover v., Marble Co. v. .Burke, March, Kelly v., Marcus, Hamburger v., Mark's Appeal, Mark v. Mark, Market Co. v. Brookes, Market Co., Dorian v., Market Co., Hayes v.. Market Co. v. Kearns, Market Co., Phila. v., Markley v. Stevens, Marlin v. Walters, Marple, Pierce v., Marr v. Marr, VOL. I. — J BECnON 2 Yeates, 515, Dower, 1035 30 Pa. St., 344, Torts, 510 4 Brews., 152, Actions after Death, 2216 50 Pa. St., 216, Execution, 3274 31 Leg. Int., 46, Appeals, 3463k 23 W. N., 572, Divorce, 802, 884 2 Salk., 431, Bills of Exceptions, 3064 5 W. N., 133, Assumpsit, 30 13 S. & B., 441, Statements, 73 28 W. N., 93, Torts, 558 5 W. N., 447, Discontinuance, 3736 157 Pa. St., 430, Statements, 73 2 Parsons, 289, Justices, 1517 1 Kulp, 181, Arbitration, 2904 3 W. N., 10, Assumpsit, 32 2 Binn., 195, Justices, 1446 8 Watts, 179, Justices, 1265 6 W. & S., 386, Bills of Exceptions, 3060 7 W. N., 507, Divorce, 939 *81 Pa. St,244,Porms of Statements,3764 102 Pa. St., 35, At Trial, 3023a 91 Pa. St., 185, Negligence, 1895 22 W. N., 107, Justices, 1468 37 Leg. Int., 333, Arbitration, 2908 3 Dist. Rep., 763; 35 W. N., 509; 167 Pa. St., 403, Writs, 2231, 2334 4 Dist Rep., 324, Defenses, 2771 5 W. N., 502, Assumpsit, 30 2 Woodward, 151, Arbitration, 2902 28 W. N., 146, At Trial, 2990 2 Dist Rep., 34, Justices, 1418 26 W. N., 119, Attachments, 79 27 W. N., 571, Arbitration, 2901 6 W. N., 270, Execution, 3248 15 W. N., 344, Ejectments, 628 14 Blatch., 371, Bills of Discovery, 2564 2 Dist Rep., 34, Writs, 2224 10 W. N., 452, Feigned Issues, 2677 158 Pa.St,238,Mechanics' Claims,213,226 33 W. N., 244, Mechanics' Claims, 224 9 Paige, 188, Bills of Discovery, 2564 130 Pa. St, 342, Assumpsit, 60c 5 W. N., 124, Prep, for Trial, 2973c 15 W. N., 30, Justices, 1418, 1517 33 W. N., 201, Execution, 3273 34 Pa. St, 36, Execution, 3181 9 Watts, 410, Partition, 1965, 1969 4 Dist. Rep., 5, Execution, 3262 19 W. N., 87, Mechanics' Claims, 201 35 W. N., 198, Execution, 3262 103 Pa. St, 403, Mechanics' Claims, 213 154 Pa. St, 93; 161 Pa. St., 522, As- sumpsit, 32 7 W. N., 357, Assumpsit, 30 24 W. N., 129, Assumpsit, 19 30 W. N., 31, Mechanics' Claims, 223 103 Pa. St, 463, Arbitration, 2935 cxxxiv TABLE OF CASES. Marrow, Comm. v^ Marsh v. Pier, Marshall v. Aber, Marshall, Hope v., Marsteller v. Marsteller, Marston v. Tryon, Martien v. Manheim, Martien *. Woodruff, Martin's Appeal, Martin, Burginhofen v., Martin v. Crompe, Martin, Haldemau v., Martin, Haldeman v., Martin v. Hall, Martin, Kerr v., Martin v. Kline, Martin, Murdock v., Martin, Stewart v., Martzell v. StauSer, Mason's Appeal, Mason v. Benson, Mason v. Mason, Masonic Home, City v., Masser, Odd Fellows v., Massey, Bamfield v., Masters v. Turner, Matchett, Fhila. v., Matchin v. Matchin, Mather v. McMichael, Mather v. McMichael, Mather, Schober v., Mather, Schober v., Mathewson, Ashcraft v., Mathias v. Sellers, Matthews v. Dalsheimer, Matthews, Forsyth v., Matthews, In re Matthews v. Long, Matthews v. Matthews, Matthews 17. Sharp, Matthews, Weidner v., Matthias v. Zearfoss, Mauger, Super v., Maurer v. Kerper, Maus V. Maus, Mansley v. Moore, Maxwell v. Perkins, Maxwell v. Perkins, May V. Kendall, May V. May, May, Eoyse v., Mayer, Bberle v.. Mayor, Caughey v.. Mayor, Comm. v., Mayor v. Lever, McAfee, Corson v.. 3 Brews., 402, At Trial, 4 Rawle, 273, Replevin, 3022a 2196, 2202 1 Dist. Rep., 770, Assumpsit, 30 96 Pa. St, 395, Sci. Fas., 256 25 W. N., 421, Justices, 1554 41 Leg. Int., 16, Execution, 3341b 3 W. N., 10, Assumpsit, 32 4 W. N., 211, Assumpsit, 30 3 Montg.Co.LawRep.,75, Ejectments,679 3 Yeates, 479, Justices, 1424 1 Ld. Ray., 340, Account Render, 323 10 Pa. St., 369, Amendments, 2435 10 Pa. St., 369, Torts, 551, 553 1 Phila., 233, Assumpsit, 23 122 Pa. St, 436, Arbitration, 2908 33 W. N., 326, Audita Querela, 3362 25 . W. N., 288, Statements, 73 2 Watts, 200, Dower, 1111 3 P. & W., 403, At Trial, 3023a 41 Pa. St, 74, Partition, 2035 & W., 287, Insolvent Laws, 3608 25 W. N., 178, Divorce, 798 160 Pa. St, 572, Municipal Liens, 404 24 Pa. St, 507, Mechanics' Claims, 227 I Camp., 460, Torts, 545 10 Phila., 482, Justices, 1469 116 Pa. St, 103, Municipal Liens, 488 6 Pa. St, 332, Divorce, 778, 779 13 Pa. St, 301, Ground Rents, 176 13 Pa. St, 301, Prep, for Trial, 2973c 49 Pa. St., 21, Assumpsit, 58 49 Pa. St, 21, Execution, 3277 5 Pa. C. C, 80, Arbitration, 2911 86 Pa. St., 486, Replevin, 2180,2196,2199 10 W. N., 371, Assumpsit, 52 14 Pa. St, 100, Bills of Exceptions, 3068 12 Irish Com. L. Rep. (N.S.), 233, Jus- tices, 1197 3 W. N., 512, Assumpsit, 30 6 W. N., 147, Divorce, 903 II W. N., 319, Assumpsit, 30 11 Pa. St, 336, Justices, 1513 3 Kulp, 228, Discontinuance, 3733 1 Leg. Rec, 125, Arbitration, 2897 102 Pa. St, 447, Attachments, 94 5 Watts, 315, Discontinuance, 3749 1 W. N., 268, Costs, 3124 93 Pa. St, 255, Justices, 1517 93 Pa. St., 255, Landlord and Tenant,1706 8 Phila., 244, Landlord and Tenant, 1666 62 Pa. St, 206, Divorce, 787 93 Pa. St, 454, Amendments, 2431 1 Rawle, 366, Execution, 3190 12 S. & R., 53, Justices, 1419 5 Watts, 152, Mandamus, 1795 59 Law Jour. Rep. (Q. B. D.), 248, Bills of Discovery, 2564 . 44 Pa. St, 288, Execution, 3284 TABLE OP CASES. CXXXV McBride v. Daniels, McBride, Stewart v., McCabe v. Moorehead, McCabe v. United States, McCaffrey, Phila. v., McCahan v. Hirst, McCahan v. Reamey, McCahan v. Reamey, McCale v. Kulp, McCall, Crousillat v., MeOall, Lenon v., McCalla v. Opple, McCallion v. Maher, McCalmont, Givens v., McCambridge v. Barry, McCamy, Canan v., McCandless' Appeal, McCandless v. McWha, McCanna v. Johnston, McCarter, Comm. v., McCarthy v. De Armit, McCarthy, Schultzman v., McCartney v. McCartney, McCarty, McNulty v., McCauley's Appeal, McClain v. Boyer, McClay v. Benedict, McClay v. Hanna, McClellan, Ex Parte, McClelland, Clark v., McClelland, Hopkins v., McClelland v. Semmens, McClintic, Blythe v., McClintock, Comm. v., McCloskey, R. R. Co. v., McClosky V. McConnel, McClure v. Bge, McClure v. Foreman, McClure v. McClure, McClure v. McClure, McClurg's Appeal, McClurg V. Schwartz, McCoUum V. Riale, McComb V. R. R. Co., McConkey v. Slate Co., McConnell v. Bank, McConnell v. Carey, McConnell, McClosky v., McConnell v. Morton, McConnell v. Gates, McConnell, Raiguel v., McCord, Moore v., McCord V. Scott, McCorkle v. Binns, McCormac v. Hancock, BECTION 92 Pa. St., 332, New Trials, 3039, 3042 1 S. & R., 202, New Trials, 3046 1 W. & S., 513, Replevin, 2204 4 Watts, 325, Actions after Death, 2219 25 W. N., 213; 47 Leg. Int., 247, As- sumpsit, 32 7 Watts, 175, Justices, 1241, 1547 33 Pa. St., 535, Appeals, 3439 33 Pa. St., 535, Arbitration, 2906 8 Phila., 636, Justices, 1517 5 Binn., 433, Account Render, 333 3 S. & R., 102, Justices, 1632 1 Pears., 150, Arbitration, 2909 4 Brews., 152, Actions after. Death, 2216 4 Watts, 460, Ejectments, 678, 680 29 W. N., 92, Execution, 3254 1 Penny., 397, Justices, 1269 98 Pa. St, 489, Partition, 1973, 2041 20 Pa. St., 183, Bills of Exceptions, 3069 19 Pa. St., 438, Ejectments, 629 98 Pa. St., 607, Quo Warranto, 2078,2098 99 Pa. St., 63, Torts, 540 5 Dist. Rep., 10, Justices, 1582 30 W. N., 132, Divorce, 802 4 W. N., 478, Justices, 1538 86 Pa. St., 187, Appeals, 3433 84 Pa. St., 417, Arbitration, 2906 1 Rawle, 424, Ejectments, 644 4 Dall., 160, Appeals, 3439 1 Dowling (K. B. P. C. R.), 81, Jus- tices, 1194 9 Pa. St., 128, Actions after Death, 2216 8 Phila., 302, Landlord and Tenant, 1694 1 Dist. Rep., 356, Justices, 1582 7 S. & R., 341, Sci. Pas., 276 36 Leg. Int., 412; 13 Phila., 26, Jus- tices, 1624 23 Pa. St., 526, Negligence, 1896 9 Watts, 17, Justices, 1486, 1490 7 Watts, 74, Execution, 3190 4 W. & S., 280, Insolvent Laws, 3608 I Phila., 117, Partition, • 2001 14 Pa. St., 134, Partition, 2004 66 Pa. St., 366, Divorce, 790 87 Pa. St., 521, Dower, 1068 35 W. N.; 389, Mechanics' Claims, 224 19 Blatch., 69, Bills of Discovery, 2564 3 Dist. Rep., 594, Writs, 2311 146 Pa. St., 79, Assumpsit, 14 48 Pa. St., 345, Partition, 1916 9 Watts, 17, Justices, 1486, 1490 II Pa. St., 398, Arbitration, 2907 4 Penny., 377, Municipal Liens, 436 25 Pa. St., 362, Execution, 3281 1 Dist. Rep., 65, New Trials, 3039 4 Watts, 11, Arbitration, 2899 5 Binny, 340, New Trials, 3037 2 Pa. St., 310, Execution, 3302 CXXXVl TABLE OF CASES. McCormack, Clark v., McCormick v. Alexander, McCormick, Bower v., McCormick, Long v., McCormick v. Miller, McCormick, Smith v., McCoy's Appeal, McCoy, Michew v., McCoy V. Reed, McCracken v. Church, McCreary, Barker v., McCreary, McMulIiu v., McCredy's Appeal, McCredy v. Fey, McCristal v. Cochran, McCrory, Bates v., McCue, Cunningham v., McCuen, City v., McCuUoch V. Logan, McCuUoch, Todd v., McCullough's Estate, McCullough V. Grishobber, McCuUough V. Irvine, McCullough, Langfeld v., McCullough, Stoke v., McCullough V. Cox, McCuUy V. Barr, McCune, Gray v., McCurdy, Railway Co. v., McCutcheon v. Allen, McCutcheon, Comm. v., McCutcheon, Miller v., McCutcheon, Murdy v., McDermott's Appeal, McDermott v. Hoffman, McDermott v. Ins. Co., McDermott, Lecky v., McDermott v. Mcllwain, McDermott, McMichael v., McDermott •». Woods, McDonald, Bodkin v., McDonald v. GifEord, McDonald v. Scaife, McDonnell v. Hodgins, McDonough, McGuiley v., McDowell V. Glass, McDowell V. Keeper, McDowell V. Keeper, McDowell V. Keeper, McDowell, Lester v., McBlduff, McEntire v., McElhinney v. McElhinney, McBlroy v. Braden, McElroy, Wilson v., McBlroy, Wilson v., McBnery, Coal Co. v., SECTION 2 Phila., 68, Justices, 1409 3 Dist. Rep., 149, Defalcation, 2757 73 Pa. St, 427, Justices, 1252 1 W. N., 134, Justices, 1536 3 P. & W., 230, Justices, 1315 2 Yeates, 164, New Trials, 3038 37 Pa. St., 125, Mechanics' Claims, 239 3 W. & S., 501, Replevin, 2189 5 Watts, 300, Execution, 3190 17 W. N., 45, Assumpsit, 30 66 Pa. St., 162, Justices, 1561 54 Pa. St., 230, Landlord and Tenant, 1727, 1733 64 Pa. St., 428, Appeals, 3440 7 W., 498, Prep, for Trial, 2973b 147 Pa. St., 225, Mechanics' Claims, 213, 239 3 Yeatea, 192, Partition, 1997 31 Pa. St., 469, Justices, 1392, 1548 14 W. N., 453, Audita Querela, 3362 3 W. N., 88, Justices, 1555 3 Pa. Rep., 445, Sei. Pas., 249 20 W. N., 472, Depositions, 2510 4 W. & S., 201, Attachments, lU 13 Pa. St., 438, Ejectments, 677, 678 11 W. N., 107, Assumpsit, 22 107 Pa. St., 39, Execution, 3341g 1 Dall., 139, Discontinuance, 3733 17 S. & R., 445, New Trials, 3030 23 Pa. St., 447, Dower, 1021, 1046 19 W. N., 163, Torts, 528 96 Pa. St., 319, At Trial, 3024 20 W. N., 365, Assumpsit, 10 2 Pars., 205, Quo Warranto, 2119 95 Pa. St., 435, Justices, 1278 8 W. & S., 252, Divorce, 787 70 Pa. St., 55, At Trial, 2988 3 S. & R., 604, New Trials, 3031 8 S. & R., 500, Replevin, 2150 75 Pa. St., 341, Landlord and Tenant,1702 17 Pa. St., 353, Execution, 3189 29 W. N., 407, Statements, 73 2 W. N., 478, 586, Justices, 1628, 1629 I Brews., 278, Appeals, 3421 II Pa. St., 381, Replevin, 2204 4 Dist. Rep., 305, Justices, 1225 27 W. N., 340, Justices, 1286 4 Watts, 389, Justices, 1563 11 W. N., 341, Assumpsit, 46 11 W. N., 341, Justices, 1206 11 W. N., 341, Torts, 511 18 Pa. St., 91, Replevin, 2175 1 S. & R., 19, Justices, 1517 13 W. N., 194, Divorce, 921 152 Pa. St., 78, Mechanics' Claims, 224 32 Pa. St., 82, Defalcation, 2757 32 Pa. St., 82, Execution, 3181 91 Pa. St., 185, Negligence, 1890 TABLE OP CASES. CXXXVll McBnery, Mansfield Co. v., McEntire v. McEldufE, McFadden v. Comm., McPadden, Comm. v., McFadden v. Rausch, McFadden v. Sallada, McFall, Gould v., McFarland's Estate, McFarland, Hunt v., McFarland, Losee v., McFarland, Mountney v., McFarland v. O'Neil, McFarland v. O'Neil, McFarland, Schott v., McFarland v. Schultz, McGary v. Barr, McGary v. Barr, McGary v. Barr, McGary v. Barr, McGarry v. Douredoure, McGarry, Phila. v., McGeary v. MeUor, McGee v. Dillon, McGee v, Fessler, McGehee, Kelly v., McGill, Ash v., McGill, Heft v., McGinnis v. Comm., McGinnis, Logan v., McGinnis v. ■ Vernon, McGinnis V. Vernon, McGittigan, Sweeny v., McGittigan, Sweeny v., McGlathery, Grier v., MeGlathery, Grier v., McGIue V. City, McGowan, Elliott v., McGowan v. Sennett, McGrath v. Donally, McGrath, Richards v., McGrath v. Schreiber, McGregor v. Haines, McGregor, MacKinley v., McGregor, MacKinley v., McGrew v. McLanahan, McGuiley v. McDonough, McGuire, Fleming v., McHale, Hoary v., McHenry, Bank v., McHenry v. Rwy. Co., McHenry, Seibert v., Mcllhenny, Adams v., Mcllree, Guy v., McUvaine, Brindle v., Mcllwain, McDermott v., SECTION 91 Pa. St., 185, Negligence, 1895 1 S. & R., 19, Justices, 1517 23 Pa. St., 12, At Trial, 2990 8 W. N., 454, Mandamus, 1811 119 Pa. St., 507, Negligence, 1900 6 Pa. St., 283, Account Render, 311 111 Pa. St., 66, Justices, 1517 28 P. L. J., 49, Dower, 1032 38 Pa. St, 69, Ejectments, 627 86 Pa. St., 33, Ejectments, 630 7 Phila., 392, Justices, 1501 155 Pa. St., 260, Defenses, 2781 155 Pa. St., 260, Justices, 1252 I Phila., 53, Audita Querela, 3347, 3349 37 W. N., 28; 168 Pa. St., 634, Me- chanics' Claims, 239, 241 47 Leg. Int., 214, Assumpsit, 18 47 Leg. Int., 214, Ground Rents, 154 25 W. N., 310, Replevin, 2210, 2212 25 W. N., 310, Statements, 73 6 Phila., 332, Justices, 1251 II W. N., 168, Municipal Liens, 486 87 Pa. St., 461, Execution, 3165, 3177 103 Pa. St., 433, Justices, 1569 1 Pa. St., 126, Landlord and Tenant, 1666, 1682 26 W. N., 493, Mechanics' Claims, 201 6 Wh., 391, Execution, 3244 3 Pa. St, 256, Ejectments, 614 74 Pa. St, 245, Appeals, 3434 12 Pa. St., 27, Depositions, 2532 67 Pa. St, 152, Justices, 1412 67 Pa. St., 149, Landlord and Tenantl724 20 Pa. St, 319, Mechanics' Claims, 242 20 Pa. St, 319, Municipal Liens, 456, 460 16 W. N., 457, Assumpsit 10 16 W. N., 457, Writs, 2302 105 Pa. St., 236, Arbitration, 2900 22 Pa. St., 198, Execution, 3219 1 Brews., 397, Landlord and Tenant 1667 6 Phila., 43, Landlord and Tenant, 1724 100 Pa.St,400, Landlord and Tenantl656 22 W. N., 312, Mechanics' Claims, 224 6 Phila., 62, Landlord and Tenant, 1707 3 Whart, 369, At Trial, 3002d 3 Whart., 369, Replevin, 2153, 2178, 2196, 2199 1 P. & W., 44, Execution, 3144a 27 W. N., 340, Justices, 1286 14 W. N., 210, Execution, 3248 2 Dist Rep., 686, Justices, 1285 20 W. N., 366, Assumpsit, 19 14 W. N., 404, Writ of Inquiry, 697 6 Watts, 301, Replevin, 2196 1 Watts, 53, Justices, 1561 26 Pa. St., 92, Comp. with Cred., 3483 9 S. & R., 74, BUls of Exceptions, 3068 75 Pa. St,341, Landlord and Tenant, 1702 CXXXVIU TABLE OP CASES. Mclntire v. Blakeley, Mclntire v. Wing, McKean, Reichenbach v., McKee, Bartram v., McKee, Howard v., McKee v. Straub, McKee, Wildee v., McKenna v. Lyle, McKeon v. King, McKeon v. King, McKeown v. Craig, McKeown v. Rwy Co., McKillip V. McKillip, McKinley, Ganlt v., McKinley, Thompson v., McKinney, Brown v., McKinney, Brown v., McKinney v. Dows, McKinney v. Fritz, McKinney, Karnes v., McKinney v. Reader, McKinney v. Reader, McKinney v. Rhoads, McKinney, Sherwood v., McKinstry, Sloan v., McKowl, Bedford v., McLanahan, McGrew v., Mclianahan v. Wyant, McLanahan v. Wyant, McLauglin, Comm. v., McLean v. Bindley, McLean, Blair v., McLean v. Wade, ■ McMahon v. Ass'n, McMann v. Caruthers, McManus v. Controllers, McManus. Lyon v., McManus, Underhill v., McMaster v. Rupp, McMasters v. Carothers, McMasters v. School, McMichael, Cavene v., McMichael, Mather v., McMichael, Mather v., McMichael v. McDermott, McMichael v. Skilton, McMillan v. Graham, McMillan, Lee v., McMillan, Lowry v., McMiUan, IJowry v., McMillan v. Red, McMnllen, Burk v., McMullin V. McCreary, McMnllin v. Orr, McNairc. Compton, McNair v. Wilcox, SECTION 10 Cent. Rep., 925, Torts, 562 113 Pa. St, 67, Ejectments, 629 95 Pa. St, 432, Replevin, 2165 1 W., 39, Justices, 1557 82 Pa. St., 409, Execution, 3248 2 Binn., 1, Partition, 1965 43 Leg. Int., 307, Torts, 549 155 Pa. St, 599, Arbitration, 2896 9 Pa. St., 213, Bills of Exceptions, 3066 9 Pa. St, 213, Landlord and Tenant, 1698 20 Pa. St, 170, Execution, 3234 15 W. N., 125, Writ of Inquiry, 697 2 S. & R., 489, Justices, 1336 2 Phila., 71, Justices, 1628 47 Pa. St, 353, At Trial, 3023a 25 W. N., 76, Justices, 1477 47 Leg. Int., 49, Justices, 1517 3 Watts, 250, Depositions, 2533 2 W. N., 173, Execution, 33411 74 Pa. St, 396, Ground Rents, 150 6 Watts, 34, Execution, 3169 6 Watts, 34, Landlord and Tenant, 1662 5 W., 343, Comp. with Cred., 3480 5 Whar., 435, Justices, 1538 18 Pa. St, 120, Justices, 1517 3 Bsp., 119, Torts, 545 1 P. & W., 44, Execution, 3144a 1 P. & W., 96, Execution, 3144a 2 P. & W., 279, Partition, 1973 120 Pa. St, 518, Mandamus, 1790 114 Pa. St, 559, Audita Querela, 3349 25 Pa. St, 77, Justices 1332 53 Pa.St,146,Account Render,304,309,830 2 Brews., 441, Mandamus, 1820 2 Am. Law Jour., 133, Interpleaders, 2730 7 Phila., 23, Mandamus, 1768 4 Binn., 167, Justices, 1237 4 Dist Rep., 404; 36 W. N., 552, As- sumpsit, 55 22 Pa. St, 298, Justices, 1566 1 Pa. St., 324, Partition, 1975, 2025 34 W. N., 456, Mechanics' Claims, 224 8 S. & R., 441, Amendments, 2430, 2435 13 Pa. St, 301, Ground Rents, 176 13 Pa. St, 301, Prep, for Trial, 2973e 17 Pa. St, 353, Execution, 3189 13 -PiL. St, 215, Partition, 1961 4 Pa. St, 140, Justices, 1425 23 W. N., 483, Arbitration, 2901 8 Pa. St, 157, Discontinuance, 3738 8 Pa. St, 157, Discontinuance, 3745,3746 4 W. & S., 237, Sci. Fas., 256 4 Pa. St, 317, Bills of Exceptions, 3069 54 Pa. St, 230, Landlord and Tenant, 1727, 1733 8 PhUa., 342, Justices, 1424, 1615 35 Pa. St, 23, Amendments, 2430 121 Pa. St, 437, Torts, 562 TABLE OF CASES. CXXXIX McNamara v. Roderick, McNamee, Morris v., McNamee, Schaffer v., McNaughton, Atkinson v., McNicholl V. Ins. Co., McNickle v. Henry, McNickle, Kennedy v., McNulty V. MeCarty, McWha, McOandless v., McWilliams, Comm. v., McWilliams v. Hopkins, Meace v. Crump, Mead v. Kilday, Mead, Posten v., Meal, Wych v., Meanor, Beringer v., Means v. Trout, Meany, Sweeney v., Mears v. Comm., Medlor v. Aulenbach, Meek v. Sancowicz, Meeker v. Brackney, Meeker, Creager v., Meeker v. Sutton, Meese v. Xievis, Meeser, Comm. v., Megargee, Dunn v., Megargee v. Ins. Co., Megargell v. Coal Co., Megary, Comm. v., Meighan, City v., Melan v. Smith, Meldren, Smith v., Meldrin, Smith v., Meldrin, Smith v., Melizet v. Melizet, Mellon's Appeal, Mellon, Maufg. Co. v., Mellon, Rea Co. v., Mellor, McGeary v., Melloy V. Deal, Menor, Mentzer v., Menough's Appeal, Mentzer v. Menor, Mentzer, Riddlesberger v., Mercein v. People, Mercein v. People, Mercein v. People, Merchant v. Odorilla, Meredith, Comm. v., Merklee, Phila. v., Merrill's Appeal, Merritt V. Quigley, Mersereau v. Kohler, SECTION 129T 2424 1258 2670 36 1043 1 Dist. Rep., 610, Justices, 17 Pa. St., 173, Amendments, 13 S. & R., 44, Justices, 27 W. N., 438, Feigned Issues, 32 W. N., 472, Assumpsit, 28 Leg. Int., 44, Dower, 2 Brews., 536,- 7 Phila., 217, Discon- tinuance, 3733 4 W. N., 478, Justices, 1538 20 Pa. St., 183, Bills of Exceptions, 3069 11 Pa. St., 61, Quo Warranto, 2081 1 Wh., 276, Costs, 3124, 3135 12 W. N., 534, Execution, 3248 2 Watts, 110, Replevin, 2148 2 C. P. Rep., 215, Discontinuance, 3741 3 P. Wms., 310, Bills of Discovery, 2564 85 Pa. St., 226, Discontinuance, 3750 16 S. & R., 349, Justices, 1512 1 Miles, 167, Partition, 1974 2 Grant, 385, Defalcation, 2757 2 P. & W., 355, Dower, 1111 4 Kulp, 85, Arbitration, 2939 35 Pa. St., 276, Justices, 1510 22 Ohio, 207, Bills of Exceptions, 3064 2 Phila., 288, Justices, 1603 13 Pa. St., 384, Bills of Exceptions, 3065, 3069 44 Pa. St., 341, Quo Warranto, 2083 6 W. N., 204, Prep, for Trial, 2973c 15 Phila., 226, Documents, 2454 8 W. & S., 342, Justices, 1398, 1551 8 Phila., 607, Justices, 1209 159 Pa. St., 495, Municipal Liens, 401 134 Pa. St, 649, Execution, 3341g 107 Pa. St., 348, At Trial, 3022a 107 Pa. St., 348, Execution, 3189 107 Pa. St., 348, Replevin, 2204 1 Pars., 77, Divorce, 923 114 Pa. St., 564, Execution, 3144a 27 W. N., 571, Arbitration, 2901 139 Pa. St., 257, Arbitration, 2897 87 Pa. St., 641, Execution, 3165, 3177 46 Leg. Int, 100; 23 W. N., 289, Attach- ments, 86, 90 8 Watts, 296, Dower, 1053 5 W. & S., 433, Justices, 1646 8 Watts, 296, Dower, 1053 7 Watts, 141, Dower, . 1069 25 Wendell, 65, Justices, 1194 8 Paige, 47, Justices, 1194 3 Hill, 399, Justices, 1194 5 W. N., 288, Attachments, 131 14 W. N., 188, Lunatics and Drunk- ards, 3696 159 Pa. St., 515, Municipal Liens, 343 16 W. N., 491, Dower, 1043, 1112 1 Dist Rep., 505, Defenses, 2814 2 Pears., 98, Arbitration, 2903 cxl TABLE OP CASES. Mesker v. Frothingham, Messinger v. Mantz, Metts, Butcher v., Metz 17. Bbersole, Metzgar, Hardy v., Menrer's Appeal, Mevey's Appeal, Meyer, Bank v., Meyer v. Cadwalader, Meyers, City v., Meyers v. Cochran, Meyers, Hummel v., Meyers, Laiubach v., Meyers v. Ranch, Michael, Keller v., Michener v. City, Michew v. McCoy, Mickle's Admr. v. Miles, Middleman, Gord v., SECTION 3256 1468 3023a 1430 2150 1 Dist Rep., 120, Execution, 22 W. N., 107, Justices, 1 Miles, 153, At Trial, 3 Dist. Rep., 672, Justices, 2 Teates, 347, Replevin, 119 Pa. St., 115, Lunatics and Drunk- ards, 3655 4 Pa. St., 80, Sci. Fas., 276 59 Pai St, 361, Execution, 3308 1 Dist. Rep., 274, New Trials, 3030 18 W. N., 329, Justices, . 1253 33 W. N., 250, Assumpsit, 36 26 W. N., 279, Assumpsit, 18 29 W. N., 473, Statements, 73 4 Dist Rep., 333, Assumpsit, 52 2 Yeates, 300, Dower, 1057 118 Pa. St, 535, Municipal Liens, 410,462 3 W. & S., 501, Replevin, 2189 1 Grant, 320, Ground Rents, 150 25 W. N., 556, Justices, 1330 256 118 Pa. St, 546, Ground Rents, 150 118 Pa.St,546,Landlord and Tenant,1660 1 Grant, 320, Ground Rents, 150 76 Pa. St., 357, Divorce, 924 3 P. & W., 95, Justices, • 1540 24 Pa. St, 143, At Trial, 3023a 108 Pa. St, 235, Ground Rents, 176 16 Pa. St, 300, Execution, 3173 159 Pa. St, 562, 579, Feigned Issues,2639 100 Pa. St, 585, At Trial, 3002a 86 Pa. St, 454, Mechanics' Claims, 239 Middleton's Excr. i;. Middleton, 106 Pa. St, 252, Sci. Fas., Middleton, Page v., Middleton, Page v., Miles, Mickle's Admr. v., Miles V. Miles, Miles V. Tanner, Miles V. Williamson, Millard, Foulke v., Miller's Appeal, Miller's Appeal, Miller v. Bealer, Miller v. Bedford, Miller v. Boyd, Miller, Caldwell v.. Miller, Chase v.. Miller, Clippinger v., Miller, Connolly v.. Miller v. Criswell, Mller, Duffield v., Miller v. Dnnlap, Miller's Estate, Miller's Estate, Miller, Fidelity Co. v., Miller v. Poutz, Miller, Givens v., Miller v. Hershey, Miller v. Howard, Miller, Irp re Miller v. Knapp, Miller, Lyons v., Miller, McCormick v.. Miller v. MeCutcheou, Miller v. Miller, Miller v. Miller, Miller v. Miller, 12 W. N., 353, Justices, 1550 46 Pa. St, 233, Costs, 3124 41 Pa. St, 403, Appeals, 3376 1 P. & W., 64, Attachments, 75 95 Pa. St, 513, At Trial, 3023a 3 Pa. St, 449, Justices, 1550 92 Pa. St, 287, Torts, 563 21 W. N., 285, Arbitration, 2935 159 Pa. St, 575, Appeals, 3439 166 Pa. St, 108, Feigned Issues, 2639 6 W. N., 553, Assumpsit, 22 2 Teates, 418, Replevin, 2209 62 Pa. St, 133,Landlord and Tenant,1724 59 Pa. St, 64, Bills of Exceptions, 3068 Miller, Mulvary v., Miller, Praun v., 4 Dist. Rep., 70, Costs, 3120 15 W. N., 551, Justices, 1217 47 Leg. Int, 309, Justices, 1517 4 S. & R., 279, Ejectments, 627 3 P. & W., 230, Justices, 1315 2 Pars., 205, Quo Warranto, 2119 5 Pa. O. C, 592, Divorce, 929 3 Binn., 30, Divorce, 990 147 Pa. St, 545; 27 W. N., 23, Sci. Fas., 249, 252 1 Browne, 339, Justices, 1519 3 Dist. Rep., 536, Attachments, 88 TABLE OP CASES. cxli Miller v. Preston, Miller v. Railroad Co., Miller, Roland v., Miller, Ross v., Miller, Short v., Miller v. Smith, Miller, Steinman v.. Miller, Stokes v.. Miller, Thomas v., Miller v, TJmbehower, Miller v. Warden, Miller v. Weeks, Miller v. Wilson, Millet V. Allen, Millholland, Levan v., Milligan, City v., Milligan's Estate, Milligan, Ex parte, Milligan, Hill v., Milligan v. Phipps, Milligan, Whitton v., Milligan, Wright v., Millikin v.' Gardner, Millikin, Wright v.. Mills, Christian v., Mills V. David, Mills V. Magee, Miltimore v. Miltimore, Miner v. Graham, Minich v. Basom, Mining Co., Boyer v.. Mink, Richards v., Mink V, Shaffer, Minnis, Stratton v., Minor v. Neal, Mishler v. Comm., Mitchell, Baugh v., Mitchell, Bratton v., Mitchell V. Bratton, Mitchell, Brothers v., Mitchell, Comm. v., Mitchell, Freedley v., Mitchell V. Harris, Mitchell V. Mitchell, Mitchell V. Newman, Mitchell, Stewart v., Mitchell, Williamson v., Mitman, Iron Co. v., Mizell, Plank v., Moe V. Smiley, Moe V. Smiley, Moeck V. Littell, Moffit, Gardy v., Moffit V. Rynd, SECTION 30 W. N., 240; 154 Pa. St., 63, Execu- tion, 3341a 2 C. P. Rep., 11, Arbitration, 2897 3 W. & S., 390, At Trial, 3023a 14 W. N., 253, Justices, 1290 21 W. N., 482; 120 Pa. St., 470, Me- chanics' Claims, 213 1 Phila., 173, Torts, 563 12 W. N., 244, Mechanics' Claims, 239 10 W. N., 241, New Trials, 3036 31 W. N., 177, Depositions, 2532 10 S. & R., 31, Actions after Death, 2216 111 Pa. St., 300, Replevin, 2157, 2184 22 Pa. St., 89, Amendments, 2424 24 Pa. St, 114, Actions after Death, 2216 3- W. N., 374, Mechanics' Claims, 228 114 Pa. St., 49, Writs, 2310 147 Pa. St., 338, Municipal Liens, 383 33 W. N., 197; 1 Dist. Rep., 511, Exe- cution, 3273, 3282 4 Wallace, 2, Justices, 1199 38 Pa. St., 237, New Trials, 3039 31 W. N., 561, Mechanics' Claims, 201 32 W. N., 31, Ground Rents, 151 31 W .N., 469, Justices, 1290 37 Pa. St., 456, Justices, 1349 152 Pa. St, 507, Justices, 1304 16 W. N., 393, Ejectments, 677 22 W. N., 515, Justices, 1350 27 W. N., 573, Costs, 3125 40 Pa. St, 151, Dower, 1050 24 Pa.. St., 491, Ground Rents, 171 2 Dist Rep., 709, Mandamus, 1787 2 Chest Co. Rep., 331, Arbitration, 2910 46 Leg. Int, 138, Assumpsit, 27 23 W. N., 348, Assumpsit 21 2 Munford (Va.), 329, Detinue, 727 1 Pa. St, 403, Justices, 1587 62 Pa. St, 55, Amendments, 2435 36 W. N., 228; 166 Pa. St, 577, As- sumpsit, 32 7 Watts, 113, Dower, 1092 5 Watts, 70, Ejectments, 629 157 Pa. St., 484, Ejectments, 624 82 Pa. St., 343, Mandamus, 1815 2 Pa. St, 100, Discontinuance, 3750 2 Clark, 443, Partition, 2044 8 Pa. St, 126, Dower, 1055 4 Penny., 443, Arbitration, 2896 13 S. & R., 287, Justices, 1557 1 P. & W., 9, Justices, 1510 3 Pa. St, 379, At Trial, 3022a 1 Dist Rep., 757, Assumpsit, 30 125 Pa. St., 136, Abatement, 2391 125 Pa. St., 136, Negligence, 1874, 1889 3 W. N., 341, Assumpsit, 32 14 W. N., 438, Justices, 1507 69 Pa. St, 380, Amendments, 2419, 2420 cxlii TABLE OF CASES. Mohan v. Butler, Mohr V. Warg, Mobrman v. Jennings, Monaghan v. Ferry Co., Moncreiffe, Mordaunt v., Monges, Phillips v., Monier, Hess v., Monahan v. Strenger, Monteith, Bush v., Montgomery v. Nicholas, Montgomery v. Poorman, Montgomery, Scott Township v. Montgomery, Taylor v., Monument Co. v. Johnson, Moock V. Conrad, Moodalay v. Morton, Mooney v. Rogers, Moor, Wiley v., Moore v. Bank, Moore, Biddle v., Moore v. Copley, Moore v. Coxe, Moore V. Dunn, Moore v. Dunn, Moore, Galbraith v., Moore v. Heiss, Moore v. Hunter, Moore v. Kline, Moore v. Krier, Moore, Manfg Co. v., Moore, Mausley v., Moore v. McCord, Moore v. Phillips, Moore v. R. B. Co., • Moore v. Rowbotham, Moore v. Shenk, Moore v. Smith, Moore, Solly v., Moore v. Somerset, Moore, Stout v., Moore v. Wait, Moore v. White, Moorehead, McCabe v., Moorehead v. Schofield, Moorhead, Haines v., Moorhead, Keyes v., Morch V. Raubitscheck, Morch V. Raubitscheck, Mordaunt v. Moncreiffe, Moreberger v. Hackenburg, Morford v. Cook, Morgan's Appeal, Morgan, Bank v., Morgan v. Bank, Morgan, Briggs v.. SECTION 17 W. N., 434, Landlord and Tenant, 1693 26 Pa. St., 106, Execution, 3293 1 Kulp, 244, Arbitration, 2910 9 W. N., 368, Arbitration, 2937 43 Law Jour. Rep. (P. & D.), 49, Di- vorce, 780 4 Whar., 226, Defalcation, 2736 1 Dist Rep., 606, Justices, 1405 1 Phila., 376, Arbitration, 2905 2 W. N., 112, Audita Querela, 3362 9 Lan. Bar, 49, Aj-bitration, 2908 6 Watts, 384, Justices, 1264 ,95 Pa. St., 444, Negligence, 1899 20 Pa. St., 443, Mechanics' Claims, 239 29 W. N., 117, Account Render, 309 32 W. N., 329, Appeals, 3435 1 Bro. Ch., 469, Bills of Discovery, 2564 8 Phila., 297, Landlord and Tenant, 1730 17 S. & R., 438, Insolvent Laws, 3607 5 S. & R., 41, New Trials, 3032 3 Pa. St., 161, At Trial, 3023a 35 W. N., 563; 165 Pa. St, 294, At Trial, 3020 10 W. N., 135, Justices, 1170 28 W. N., 63, Audita Querela, 3362 147 Pa. St, 359, Feigned Issues, 2690 2 Watts, 86, Account Render, 311 4 Yeates, 261, Writ of Inquiry, 704 3 Binney, 475, Account Render, 333 1 P. & W., 129, Execution, 3341i 2 W. N., 724, Justices, 153S 6 W. N., 270, Execution, 3248 1 W. N., 268, Costs, 3124 1 Dist. Rep., 65, New Trials, 30.39 154 Pa. St, 204, Assumpsit, 30 11 Phila., 348, Justices, 1517 44 Leg. Int, 264, Torts, 527 3 Pa. St, 13, Replevin, 2187 2 W. N., 433, Assumpsit, 32 1 Dist Rep., 688, Assumpsit, 30 6 W. & S., 262, Assumpsit, 30 7 W. N., 456, Defalcation, 2756 I Binn., 219, Justices, 1255. 1492 II W. N., 206, Justices, 1252 1 W. & S., 513, Replevin, 2204 III Pa. St., 584, Torts, 563 2 Pa. St, 65, Justices, 1561 1 Dist. Rep., 699, Defenses, 2791 33 W. N., 567, Appeals, 3434 33 W. N., 567, Assumpsit 48 43 Law Jour. Rep. (P. & D.), 49, Di- vorce, 780 13 S. & R., 28, At Trial, 3008 24 Pa. St, 92, Amendments, 2417 110 Pa. St, 271, Arbitration, 2904 35 W. N., 484, Defenses, 2771 3 P. & W., 391, Statements, 71 2 Haggard, 339, Divorce, 770 TABLE OF CASES. cxliii Morgan v. Morgan, Morgan, Peale v., Morgan, Pool v., Morgan, Shuff v., Morgan, Walker v., Morrell, Oppenheimer v., Morris, Barton v., Morris, Borton v., Morris V. Buckley, Morris, Driesbach v., Morris V. Guier, Morris v. McNamee, Morris, Ruch v., Morris ■». Shafer, Morris v. Sickler, Morris, Smalley v., Morris, Tarin v., Morrison, Forney v., Morrison v. Henderson, Morrison v. Henderson, Morrison, Penrod v., Morrison, Reed v., Morrison v. Weaver, Morrison, Wilson v.. Morrow v. Morrow, Morrow, Thompson v., Morss, Clark v., Morss V. Gritman, Morton, Brick Co. v., Morton v. Ins. Co., Morton, McConnel v., Morton, Moodalay v., Moss V. Greenberg, Mosser, Kauffman v., Mott V. Danforth, Motter V. Welty, Motzer, Culler v., Mouille, Hayes v., Moulson V. Hargrave, Mouutney v. McFarland, Moyer, Fernsler v., Moyer, Haines v., Moyer v. Kellog, Moyer v. Kirby, Muier v. Kosek, Muirhead v. Fitzpatrick, Mulherrin, Henry v., Mulherrin v. R. R. Co., Mulholm V. Cheny, Mullen V. Wallace, Mulligan v. Devlin, Mullin V. Jackson, Mullin V. Maguire, Mullin, O'Donnell v., MuUison V. Mullison, Mullison, Nagle v., Mulvary v. Miller, SECTION 16C Pa. St., 450, Mortgages, 191 MS., Feigned Issues, 2658 10 W., 53, Justices, 1423 7 Pa. St., 125, Justices, 1510 2 W. N., 173, Assumpsit, 32 118 Pa. St., 189, Mechanics' Claims, 239 2 Miles, 109, Mechanics' Claims, 243 2 Miles, 109, Defenses, 2800 8 S. & R., 211, Bills of Exceptions, 3065 94 Pa. St., 22, Justices, 1518 5 W. N., 132, Assumpsit, 22 17 Pa. St., 173, Amendments, 2424 28 Pa. St, 245, Replevin, 2187, 2190 93 Pa. St., 489, Execution, 3174 3 Kulp, 167, Arbitration, 2909 33 W. N., 171, At Trial, 3022 2 Dall., 115, Assumpsit, 17 1 Leg. Rec, 85, Arbitration, 2897 22 W. N., 8, Mechanics' Claims, 229 24 W. N., 38, Mechanics' Claims 239 2 P. & W., 126, Torts, 549 12 S. & R., 18, Dower, 1039, 1044 4 S. & R., 190, Justices, 1492 1 Kulp, 67, Arbitration, 2927 152 Pa. St., 516, Partition, 2019 5 S. & R., 289, Dower, 1064, 1095 28 W. N., 301, Replevin, 2209 10 Phila., 573, Arbitration, 2908 2 Dist. Rep., 559, Mechanics' Claims, 228 35 Leg. Int., 282, Assumpsit, 22 11 Pa. St., 398, Arbitration, 2907 1 Bro. Ch., 469, Bills of Discovery, 2564 3 Dist. Rep., 247, Mechanics' Claims, 229 3 Dist. Rep., 90, Execution, 3323 6 Watts, 304, Torts, 549 2 Dist. Rep., 39, Assumpsit, 30 13 S. & R., 356, Dower, 1112 14 Pa. St., 48, Replevin, 2156, 2180 1 S. & R., 201, Depositions, 2484 7 PhilA,., 392, Justices, 1501 3 W. & S., 416, Torts, 546 1 Woodward, 171, Arbitration, 2900 1 W. N., 134, Assumpsit, 52 14 S. & R., 162, Justices, 1628 2 Dist. Rep., 638, Execution, 3279 5 W. & S., 506, Defalcation, 2761 1 Dist. Rep., 607, Justices, 1228 81 Pa. St., 366, Negligence, 1906 Add., 301, Replevin, 2149 2 Grant, 389, Insolvent Laws, 3608 2 Dist. Rep., 685, Defenses, 2811 2 Chest, Co., 264, At Trial, 3002a 1 W. N., 331, 577, Execution, 3275, 3290, 3296 27 Pa. St., 202, Justices, 1457 13 W. N., 314, Divorce, 914 34 Pa. St., 48, Negligence, 1900, 1902 1 Browne, 339, Justices, 1519 cxliv TABLE OF CASES. Mumford v. Deyoe, Mumma's Appeal, Mund V. Vanfleet, Mundell, Devine v., Munhall, Strawiek v., Munhall, Strawiek v., Munich v. Munich, Munley v. City, Munshower v. Patton, Munson, Tryon v., Munson, Tryon v., Murdock v. Martin, Murdy v. McCutcheon, Mnrphy v. Bank, Murphy, Borland v., Murphy v. Borland, Murphy v. Chase, Murphy, Cook v.. Murphy v. Elder, Murphy v. Ellis. Murphy v. Flood, Murphy v. Flood, Murphy, Kelsey v., Murphy v. Loyd, Murphy v. Murphy, Murray, Ager v., Murray v. Charleston, Murray, Comm. v., Murray's Estate, Murray v. Haslett, Murray, Reed v., Murray, Tucker v., Murray v. Weigle, Murtland v. Floyd, Musgrave, Bailey v., ' Musselman, De Crano v., Musser v. Gardner, Musser, Groff v., Musser, Ins. Co. v., Mussleman's Appeal, Myers v. Baltzell, Myers v. Bott, Myers, Brown v., Myers v. Brown, Myers v. Comm., Myers, Hummel v., • Myers v. Stauffer, Mylin, Breneman v., Mylin, Good v., Myrick v. Thompson, Nagle V. Mullison, Naglee, Turnpike Co. v., Naile, Comm. v., Nass, Stamer v., Navigation Co. v. Parr, Navigation Co. v. Richards, SECTION 4 Dist. Rep., 575, Justices, 1302 127 Pa. St., 474, Attorneys, 3537 2 Phila., 41, Landlord and Tenant, 1686 13 W. N., 267, Costs, 3135a 27 W. N., 195, Mechanics' Claims, 216,229 139 Pa. St, 163, Mechanics' Claims, 231 33 Pa. St, 378, Justices, 1557 4 Dist. Rep., 117, New Trials, 3038 10 S. & R., 334, At Tyial, 2978 77 Pa. St., 250, Sci. Fas., 256, 260 77 Pa. St., 250, Mortgages, 191 25 W. N., 288, Statements, 73 95 Pa. St., 435, Justices, 1278 20 Pa. St, 415, Quo Warranto, 2093, 2102, 2118 4 W. N., 472, Dower, 1043 92 Pa. St., 86, Dower, 1043, 1111 103 Pa. St, 260, Ground Rents, 151 30 W. N., 335, Mechanics' Claims, 224 4 W. N., 212, Execution, 324S 1 Dist Rep., 397, Mechanics' Claims, 224 2 Grant, 411, Bills of Exceptions, 3066 2 Grant, 411, Execution, 3341i 30 Pa. St, 340, New Trials, 3039 3 Wh., 356, Costs, 3124 8 Phila., 357, Divorce, 984 105 U. S., 131, Execution, 3201 96 U. S. Rep., 442, Appeals, 3463ee 11 S. & R., 73, Quo Warranto, 2095 13 W. N., 552, Escheats, 1152 19 Pa. St., 356, Justices, 1509 11 Pa. St., 334, At Trial, 3023a 2 Dist Rep., 497, Assumpsit, 32 118 Pa. St, 159, Sci. Fas., 260 32 W. N., 6, Assumpsit, 23 2 S. & B., 219, Amendments, 2423, 2427 7 Phila., 208, Execution, 33411 66 Pa. St., 242, Amendments, 2418 3 S. & R., 262, Assumpsit, 60a 120 Pa. St., 384, Insurance, 292 65 Pa. St., 480, Dower, 1040 37 Pa. St, 491, Execution, 3300 10 W. N., 259, Justices, 1477 29 W. N., 393, Mechanics' Claims, 224 38 Leg. Int., 72, Arbitration, 2909 110 Pa. St, 217, Mandamus, 1778 26 W. N., 279, Assumpsit, 18 22 W. N., 412, Justices, 1424 2 Dist Rep., 296, Attachments, 114 13 Pa. St, 538, At Trial, 3015 99 U. S. Rep., 294, Appeals, 3463ee 34 Pa. St, 48, Negligence, 1900, 1902 9 S. & R., 227, Justices, 1504 88 Pa. St, 429, Escheats, 1149 3 Grant, 240, Justices, 1249 4 W. & S., 362, Prep, for Trial, 2971 57 Pa. St, 142, At Trial, 3017 TABLE OP CASES. cxlv Naylon, Bard v., Neafie v. Patterson, Neal, Gault v., Neal, Keeler v., Neal, Minor v., Neall V. Hart, Nease, Black v., Nedrow, Kennedy v., Neel V. Neel, Neel, Penna. Salt Co. v., Neel's Admr. v. Neel, Neely's Appeal, Neely's Appeal, Neely, Gibbs v., Neely v. Grantham, NefE, Borough v., NefE V. Landis, Negley, Ballentine v., Neigh, Person v., Nell V. Oolwell, Neilor v. Kelley, Nellis V. Reiter, Nelson, Lane v., Nelson v. TJ. S., Nesbit, Blind Co. v., Nesbit, Comm. v., Nesbit V. Greaves, Nesbit V. Kerr, Nesbit, Pontius v., Nesbit, Pontius v., Nevill, Weisenburger v., Nevins v. Manfg. Co., Newall V. Jenkins, Newbold's Appeal, Newbold v. Pennock, Newbold v. Pennock, New Brig, Harper v., Newhart v. Wolfe, Newhouse v. Kelly, Newhouser, Kasper v., Newkumet, City v., Newlin v. Palmer, Newlin v. Scott, Newlin's Petition, Newlin's Petition, Newman, Hill v., Newman, Mitchell v., Newmeyer, Penna. Co. v., Newton, Comm. v., Newton, Comm. v., Newton, Comm. v., Nicholas, Buck v., Nicholas v. Carr, Nicholas, Montgomery v., NichoUs, United States v., Nichols, Borland v., SECTION 33 W. N., 251, Assumpsit, 44 42 Leg. Int., 395, Replevin, 2155 6 Phila., 61, Landlord and Tenant, 1712 2 Watts, 424, Justices, 1453 1 Pa. St., 403, Justices, 1587 115 Pa. St., 354, Torts, 540 37 Pa. St., 433, Execution, 3280 1 Dall., 415, Dower, 1074 19 Pa. St., 323, Ejectments, 677 54 Pa. St., 9, New Trials, 3029 59 Pa. St., 347, Amendments, 2423 23 W. N., 336, Dower, 1066 124 Pa. St., 406, 411, 426, Dower, 1066 7 Watts, 305, Execution, 3188 58 Pa. St., 433, Execution, 3276 102 Pa. St., 476, Appeals, 3435 110 Pa. St., 204, Replevin, 2154 158 Pa. St., 475, Ejectments, 586 52 Pa. St., 199, At Trial, 3022a 66 Pa. St., 216, Execution, 3227 69 Pa. St., 403, Torts, 562 2 W. N., 203, Assumpsit, 31 2 Dist. Rep., 18, Statements, 73 1 Pet. C. C, 236, Depositions, 2545 • 3 Dist. Rep., 696, Costs, . 3135 34 Pa. St., 398, Justices, ' 1520 6 W. & S., 120, Insolvent Laws, 3608 3 Yeates, 194, Prep, for Trial, 2971 40 Pa. St., 309, Appeals, 3434 40 Pa. St, 309, Execution, 3267 1 Dist. Rep., 143, Limitations, 3640 15 W. N., 344, Ejectments, 628 26 Pa. St., 159, Torts, 549 2 W. N., 472, Divorce, 945 32 W. N., 370; 154 Pa. St, 591, As- sumpsit, 19, 23, 32 154 Pa. St, 592, Defenses, 2775 Gilpin, 536. Attachments, 131 102 Pa.St,561, Audita Querela, 3349,3350 5 Watts, 508, Justices, 1561 14 W. N., 128, Assumpsit, 40 I Dist. Rep., 558, Municipal Liens, 451 II S. & R., 98, Amendments, 2434 26 Pa. St, 102, Execution, 3309 123 Pa. St., 541, Courts, 3576 123 Pa. St., 541, Mandamus, 1791 38 Pa. St., 151, Mechanics' Claims, 226 4 Penny., 443, Arbitration, 2896 129 Ind., 409, At Trial, 2972 1 Grant, 453; 2 Phila., 262, Attorneys, 3531 1 Grant, 453, Courts, 3571 1 Grant, 453, Justices, 1324 8 S. & R., 316, Statements, 71 6 Luz. Leg. Reg., 204, Arbitration, 2896 9 Lan. Bar, 49, Arbitration, 2908 4 Yeates, 251, Execution, 3144a 12 Pa. St., 38, Dower, 1024, 1070 cxlvi TABLE OF CASES. Nichols V. Nichols, Nicholson v. Fitzpatrick, Nicholson, Sleeper v., Nickerson v. Nickerson, Nickle V. Baldwin, Nicklin, Elliott v., Niesly, Bassler v., Nippes V. Kirk, Nisbet V. Patton, Nissley, Lorah v., Nittinger v. Alexander, Nixon, Kuhn v., Nixon, Woods v., Noble 17. Krenzkamp, Noggle, State v., Nole, Elingensmith v., Nole, Klingensmith v., Noll V. Swinford, Norman v. Hope, Norris, Dodd v., Norris' Estate, Norris v. Gould, Norris, Hawn v., Norris v. Hassler, Norris v. Town, Norris, Williard v.. North, Kuhn v., North, Kuhn v., Northern Liberties v. Church, Northen Iiiberties v. Coates, Northern Liberties v. O'Neill, Northern Liberties, Pray v., Northern Liberties v. Swain, Northern Liberties, Thomas v., Northrop, Kelly v., Norton V. Borough, Norton, Brick Co. v., Norton's Case, Nonrse, Lloyd v., Novinger, Armstrong v., Null, Adams v.. Null, Fries v., Nussear v. Arnold, Nutz V. Barton, Nutz V. Reutter, Nyce, Fisher v., Nye's Appeal, Nyman's Appeal, Oberle v. Schmidt, Obermyer, Helfrich v., O'Brien, Brown v., O'Byrne v. City, O'Connor v. Welsh, Odd Fellows v. Masser, O'Dea V. O'Dea, O'Donnell, Bradley v., O'Donnell, Bradley v., 3 Duer, 642, Justices, 2 Phila., 205, Assumpsit, 1 Phila., 348, Execution, 13 W. N., 210, Divorce, 4 W. & S., 290, Justices, 5 Price, 641, Torts, SECTION 1194 23 3180 987 1352 545 1 S. & R., 430, Bills Of Exceptions, 3070 8 Phila., 299, Justices, 1388 4 Rawle, 120, Torts, 562 156 Pa. St., 329, Defenses, 2774 17 W. N., 284, Replevin, 2186 15 S. & R., 118, New Trials, 3029 Add., 131, Replevin, 2147 17 W. N.,89; 111 Pa. St, 68, Assumpsit,32 13 Wis., 380, Bills of Exceptions, 3064 3 P. & W., 120, Justices, 1486 3 P. & W., 119, Justices, 1490, 1517 2 Pa. St., 187, Mechanics' Claims, 239 2 Miles, 142, Discontinuance, 3750 3 Camp., 519, Torts, 545 27 P. L. J., 234, Dower, 1079 17 Phila., 318, Account Render, 307 4 Binn., 77, Ejectments, 627 23 Fed. Rep., 581, At Trial, 2982 1 W. N., 51, Execution, 3180 2 Rawle, 56, Execution, 3144a 10 S. & R., 399, Execution, 33411 10 S. & R., 399, New Trials, 3038 13 Pa. St, 104, Municipal Liens, 411, 446 15 Pa. St., 245, Municipal Liens, 448 1 Phila., 427, Justices, 1517 31 Pa. St, 69, Municipal Liens, 411 13 Pa. St, 113, Municipal Liens, 411 13 Pa. Si, 117, Municipal Liens, 411 159 Pa. St, 537, Ejectments, 648 43 Leg. Int., 187, Mnnicipal Liens, 475 2 Dist. Rep., 559, Mechanics' Claims, 237 15 W. N., 395, Justices, 1207 2 Rawle, 49, At Trial, 2990 8 Pa. St, 412, Landlord and Tenant, 1672 5 W. & S., 363, Justices, 1512 32 W. N., 237, At Trial, 3014 13 S. & R., 323, Depositions, 2516 9 Phila., 526, Justices, 1538 1 Watts, 229, Actions after Death, 2217 60 Pa. St, 109, Justices, 1424 126 Pa. St., 341, Dower, 1072 71 Pa. St, 447, Execution, 3181 5 W. N., 225, Assumpsit, 32 15 Pa. St., 113, Dower, 1057 3 Clark, 121, Prep, for Trial, 2971 93 Pa. St., 225, Municipal Liens, 461 29 W. N., 92, Assumpsit, 40 24 Pa. St., 507, Mechanics' Claims, 227 1 Cent. Rep., 785, Divorce, 802 40 Pa. St, 479, At Trial, 3023a 40 Pa. St., 479, Costs, 3125 TABLE OF CASES. cxlvii O'Donnell, Kline v., O'Donnell v. Mnllin, O'Donnell v. Poike, O'Donnell v. Rorer, Odorilla V. Baizley, Odorilla, Merchant v., OfEerman, Ogden v., Ogden V. Beatty, Ogden, DufEy v., Ogden V. Lukens, Ogden V. Offerman, Ogden, Rex v., Ogilsby V. Lee, O'Grady's Case, O'Hara v. O'Hara, O'Hara, Turnbull v.. Oil City V. Lay, Oil Co.'s Appeal, Oil Co. V. Carothers, Oil Co. V. Forsyth, Oil Co., Iron Works v., Oil Co., Iron Works v., Oil Co., Titus v., D'Keefe v. O'Keefe, Olds V. Erie, Dldwine, Pott v., Oliver's Case, Oliver, Dixon v., Oliver Bros., Anderson v., OUis, Wistar v., OUis, Wistar v., Olmstead, People v., Olmsted's Appeal, Olmsted, Ta'ber v., O'Nail V. Craig, O'Neil, Connell v., O'Neil, Connell v., O'Neil, Elbert v., O'Neil, McParland v., O'Neil, McParland v., O'Neil V. Whitecar, O'Neill V. Ins. Co., O'Neil, Logan v., O'Neill, Northern Liberties v., O'Neill, Boot, v., Oniel V. Chew, Opera Co., Webb v., Oppenheimer V. Morrell, Opple, McCalla v., Orbann, Traction Co. v., Order of Vesta, Comm. v., O'Reilly, City v., Ormsby, Blackburn v., Ormsby v. Grinolds, Ormsby v. Ormsby, Ormsby, Swayze v., SECTION 1 Dist, Rep., 741, Assumpsit, 52 27 Pa. St., 202, Justices, 1457 2 Dist. Rep., 790, Feigned Issues, 2690 4 Dist. Rep., 146, Feigned Issues, 2696 47 Leg. Int., 83, Attachments, 131 5 W. N., 288, Attachments, 131 2 Miles, 40, Assumpsit, 30 26 W. N., 524, Assumpsit, 30 64 Pa. St., 240, Landlord and Tenant,1712 29 W. N., 258, Defenses, 2782 2 Miles, 40, Assumpsit, 30 10 Barn.&Oress.,230,Quo Warranto, 2102 7 W. & S., 444, Execution, 3266 4 W. N., 199, Attorneys, 3530 2 Dist. Rep., 452, Divorce, 930 4 Yeates, 446, New Trials, 3031, 3032 164 Pa. St., 370, Assumpsit, 30 118 Pa. St., 138, Prep, for Trial, 2973a 63 Pa. St, 379, New Trials, 3027, 3042 48 Pa. St., 291, New Trials, 3038 122 Pa. St., 627; 22 W. N., 435, Me- chanics' Claims, 224 25 W. N., 63, Mechanics' Claims, 239, 240 1 Dist. Rep., 204, Defenses, 2798 34 W. N., 531, Divorce, 776 79 Pa. St, 380, Municipal Liens, 472 7 Watts, 173, Replevin, 2172 1 Ash., Il8, Insolvent Laws, 3611 5 W., 509, At Trial, 3023a 27 W. N., 123, Bills of Exceptions, 3065 77 Pa. St., 291, Justices, 1425 77 Pa. St,291, Landlord and Tenant, 1672 27 Barb., 9, Justices, 1194 86 Pa. St., 284, Escheats, 1157 158 Pa. St, 351, Assumpsit 36 56 Pa. St, 161, Execution, 3169 32 W. N., 256, At Trial, 3008 32 W. N., 256, Bills of Exceptions, 3076a 102 Pa. St, 303, Dower, 1078 155 Pa. St, 260, Justices, 1252 155 Pa. St., 260, Defenses, 2781 1 Phila., 446, Justices, 1553 166 Pa. St., 72, Insurance, 282 34 W. N., 281, Assumpsit, 44, 45 1 Phila., 427, Justices, 1517 24 Pa. St, 326, Amendments, 2430 1 Dall., 379, Attachments, 78, 115 3 Dist. Rep., 825, Attachments, 81 118 Pa. St., 189, Mechanics' Claims, 239 1 Pears., 150, Arbitration, 2909 119 Pa. St., 37, Negligence, 1891, 1900, 1902, 1914 33 W. N., 1, Quo Warranto, 2075a 32 W. N., 166, Municipal Liens, 480 41 Pa. St., 97, Assumpsit, 30 42 Leg. Int, 415, Justices, 1290 1 Phila., 578, Divorce, 939 2 Watts, 494, Partition, 2003 cxlviii TABLE OF CASES. Ome V. Coal Co., O'Rourke, Duck v., O'Rourke, Long v.. Orphan Asylum Appeal, Orr, McMullin v., Orwig, In re Osbom V. Bank, Osborne v. Everitt, Osborne, Hartzell v., Otte, Baird v., Ottlnger v. Ottinger, Ottinger v. Ottinger, Ousel, Wile v., Overseers, Porter v., Owen's Appeal, Owen V. Shelhamer, Owens, Packer v., Owens V. R. R. Co., Owens, Ramsdell v., Oxley V. Cowperthwaite, Oxnard, Wolfe v., Oyster, Hall v., P., H. v.. Packer's Appeal, Packer v. Owens, Packer v. Taylor, Packing Co., In re Packington, Corbett v., Page V. Gardner, Page V. Middleton, Page V. Middleton, Paine v. Godshall, Palairet v. Snyder, Palethorp's Estate, Palm, Hood v., Palmer, In re Will of, Palmer v. Comm., Palmer v. Comm., Palmer v. Lacock, Palmer, Newlin v.. Palmer, Waite v., Palmer, Wilcox v.. Pancake, Leedom v., Pancoast, Stockham v., Pantall v. Dickey, Paris V. Hein, Park, Comm. v., Park V. Holmes, Park V. Holmes, Park V. Sweeny, Parke v. Ins. Co., Parker's Appeal, Parker, Cochran v., Parker, Leonard v., SECTION 114 Pa. St, 172, Ejectments, 622 19 W. N., 497, Mechanics' Claims, 240 10 Phila., 129, Municipal Liens, 468 111 Pa. St., 135, Municipal Liens, 425 8 Phila., 342, Justices, 1424, 1615 31 Leg. Int., 20, Attorneys, 3530 32 W. N., 158, Assumpsit, 22 103 Pa. St., 421, Justices, 1280 15 W. N., 142, Justices, 1517 2 Dist Rep., 449, New Trials, 3037 17 S. & R., 142, Depositions, 2528 17 S. & R., 142, Feigned Issues, 2639 1 Dist. Rep., 188, Assumpsit, 30 82 Pa. St, 275, Mandamus, 1758 78 Pa. St., 511, Appeals, 3433 3 Binn., 45, Justices, 1492 164 Pa. St, 186; 35 W. N., 423, Ap- peals, 3434 95 Mo., 169, Prep, for Trial, 2972 30 W. N., 174, Replevin, 2206 1 Dall., 349, Replevin, 2186 152 Pa. St, 623, Mechanics' Claims, 201 168 Pa. St, 399, Attachments, 81 3 Law Rep. (P. M.), 126, Divorce, 767 6 Pa. St, 277, Sci. Fas., 249, 250 164 Pa. St, 186; 35 W. N., 423, Ap- peals, 3434 2 Dist Rep., 443, Justices, 1261 4 Dist Rep., 57, Mechanics' Claims, 239 6 Barn. & Cress., 268, Forms of State- ments, 3754w 1 Dist Rep., 539, Justices, 1450 118 Pa. St., 546, Ground Rents, 150 118 Pa. St,546,Landlord and Tenantl660 29 Leg. Int., 12, Justices, 1418, 1517 106 Pa. St, 227, Ground Rents, 177 160 Pa. St, 316, Appeals, 3442 8 Pa. St., 237, Torts, 553 19 Atl. Rep., 137, Feigned Issues, 2656 6 S. & R., 244, Justices, 1604 6 W. N., 468, Escheats, 1158 107 Pa. St., 346, Justices, 1426 11 S. & R., 98, Amendments, 2434 78 Pa. St, 192, Amendments, 2419 163 Pa. St, 109, Assumpsit, 30 4 Yeates, 183, New Trials, 3035 1 Dist Rep., 135, Attachment, 93 123 Pa. St, 431, Justices, 1286 6 W. N., 124, Justices, 1549 9 Phila., 481, Mandamus, 1810 29 W. N., 492, Amendments, 2419 29 W. N., 492, At Trial, 3024 39 Pa. St, 111, Justices, 1563 44 Pa. St., 422, Insurance, 293 44 Pa. St., 309, Divorce, 793 6 S. & R., 549, Justices, 1513 72 Pa. St., 236, Amendments, 2413, 2418 TABI.E OF CASES. cxlix Parkinson v. Parkinson, Parks V. Watts, Parrish's Appeal, Parry, Gable v.. Parry, King v., Parson v. Winslow, Partridge v. Powell, Pasek V. Vockroth, Patrick, Rubinsky v., Patrol, Boyd v., Patterson, Ass'n v., Patterson, Clark v., Patterson, Haydeu v., Patterson, Jones v., Patterson v. Koontz, Patterson, Law v., Patterson, Neafie v., Patterson v. Patterson, Patterson v. Peironnet, Patterson, Rising v., Patterson v. Sample, Patterson v. School, Patterson, Scott v., Patterson, Snyder v., Patterson, Trimbath v., Patterson, Ward v., Pattison, Holmes v., Patton, Emery v., Patton, Frick v., Patton V. Ins. Co., Patton, Munshower v., Patton, Nisbet v., Patton V. R. R. Co., Paul V. Cunningham, Paul V. Harden, Paul V. Hassall, Paul V. Paul, Paul, Thouron v., Paul, Tisdall v., Paul V. Vankirk, Paring Co. v. Donegan, Paving Co. v. Weir, Paving Co. v. Young, Pawson, Lanning v., Payne v. Grant, Payne, Wilcox v., Peacock v. Bell, Peacock, Struthers v., Peale v. Morgan, Pearsall, Elliott v., Peck V. Jones, Pedan v. Hopkins, Pedan, Reed v., Pedan, Reed v.. Peel, Dean v., Peironnet, Patterson v., vol/. I. — K 2 Law Rep. (P. & D.), 27, Divorce, 903 18 W. N.,99; 112 Pa. St., 4, Assumpsit, 58 83 Pa. St., Ill, Mechanics' Claims, 237 13 Pa. St, 181, Defalcation, 2756 6 Ad. & El., 810, Quo Warranto, 2078 1 Grant, 160, Mechanics' Claims, 206 35 W. N., 576, Writs, 2311 3 Dist. Rep., 150, Defalcation, 2756, 2757 2 Dist. Rep., 695, Justices, 1478 20 W. N., 53, At Trial, 3024 96 Pa. St., 469, Execution, 3244, 3245 6 Binn., 128, Appeals, 3434 51 Pa. St., 261, Justices, 1647 12 Pa. St., 149, Dower, 1105, 1109 63 Pa. St., 246, At Trial, 3008 1 W. & S., 184, Partition, 1975 42 Leg. Int., 395, Replevin, 2155 27 Pa. St., 40, Appeals, 3434 7 Watts, 337, Justices, 1457, 1492 5 Wh., 316, Assumpsit, 30 4 Yeates, 315, Execution, 3144a 92 Pa. St., 229, Mechanics' Claims, 213 30 W. N., 324, Defenses, 2771 161 Pa. St., 98, Forms of Statements,3764 76 Pa. St., 277, 280, Landlord and Ten- ant, 1693, 1701, 1702 46 Pa. St., 372, New Trials, 3039 25 Pa. St, 484, Escheats, 1153 9 Phila., 125, Audita Querela, 3348, 3349 2 Rawle, 20, Justices, 1415 1 Phila., 396, Insurance, ' 294 10 S. & R., 334, At Trial, 2978 4 Rawle, 120, Torts, 562 96 Pa. St., 169, Amendments, 2415, 2419 9 Pa. St., 106, Justices, 1345 9 S. & R., 23, Amendments; 2435 42 Leg. Int, 17, Execution, 3203 36 Pa. St, 270, Dower, 1043, 1082 6 Wh., 615, Account Render, 311 8 W. N., 357, Discontinuance, 3735 6 Binn., 124, Justices, 1596 4 Dist Rep., 243; 36 W. N., 261, Me- chanics' Claims, 226 3 Dist Rep., 32, Mechanics' Claims, 226 166 Pa. St, 267, Assumpsit, 30 38 Pa. St, 480, Actions after Death, 2216 7 W. N., 409, Discontinuance, 3733 88 Pa. St, 154, Arbitration, 2903 1 Saunder's Rep., 96, Courts, 3585 3 W. N., 517, Actions after Death, 2217 MMS., Feigned Issues, 2658 4 Clark, 157, Dower, 1049 70 Pa. St, 83, Assumpsit, 30 13 S. & R., 45, Amendments, 2435 8 S. & R., 263, Audita Querela, 3362 8 S. & R., 263, Statements, 67, 71 5 East, 45, Torts, 545 7 Watts, 337, Justices, 1457, 1492 cl TABLE OP CASES. Pelletier, Comm. v., Pendleton v. Richey, Penn District, Ely v., Pennell's Appeal, Pennell, City v., Pennington, Ellis v., Pennock v. Hoover, Pennock, Kearney v., Pennock, Newbold v., Pennock, Newbold v., Penna. v. Kirkpatrick, Penna. Oo.'s Appeal, Penna. Co., Bondz v., Penna. Co., Bondz v., Penna. Co. v. Newmeyer, Penna., Richter v., Penna. v. Stoughton, Penna., Wasson v., Penna., West v., Penna. Salt Co. v. Neel, Pennypacker v. Dear, Penny-packer v. Umberger, Penrod v. Morrison, Pentland v. Kelly, Pentz V. Clark, People V. , People V. Allison, People V. Baker, People V. Brooks, People V. Chegary, People V. De Mill, People V. Humphreys, People V. Jameson, People, Mercein v.. People, Mercein v., People, Mercein v.. People V. Olmstead, People V. Turner, People's Perry Co. v. Beers, Pepper v. City, Pepper v. City, Pepper, City v.. Pepper, City v.. Pepper's Estate, Pepper, Robb v., Pereyra's Appeal, Peril, Richie v., Perkins, Comm. v., Perkins, Comm. v., Perkins, Comm. v., Perkins v. Hinman, Perkins, Johnson v., Perkins, Maxwell f., Perkins, Maxwell v., SECTION 8 W. N., 516, Assumpsit, 22 32 Pa. St., 58, At Trial, 3023a 1 Phila., 18, Mandamus, 1835 2 Pa. St., 216, Municipal Liens, 411, 444 169 Pa. St., 301, Municipal Liens, 408 2 W. N., 29, Justices, 1549 5 Rawle, 291, Municipal Liens, 411 2 Dist Rep., 32, Justices, 1528 32 W. N., 370; 154 Pa. St., 591, As- sumpsit, 19, 23, 32 154 Pa. St., 592, Defenses, 2775 Add., 193, Justices, 1608 101 Pa. St., 576, Execution, 3189 138 Pa. St., 155, At Trial, 3002b 27 W. N., 123, Bills of Exceptions, 3065 129 Ind., 409, Prep, for Trial, 2972 104 Pa. St., 511, Negligence, 1913 106 Pa. St., 458, Justices, 1426 25 P. L. J., 184, Negligence, 1873 64 Pa. St., 195, Escheats, 1148 54 Pa. St., 9, New Trials, 3029 166 Pa. St., 284, Appeals, 3462 22 Pa. St., 495, Prep, for Trial, 2973a 2 P. & W., 126, Torts, 549 6 W. & S., 483, Execution, 3218 100 Pa. St., 446, Execution, 3189 19 Wendell, 16, Justices, 1194 68 111., 151, Attorneys, 3531 31 Sickles. 78, Divorce, 802 35 Barb., 85, Justices, 1194 18 Wendell, 637, Justices, 1194 15 Mich., 164, Quo Warranto, 2106 24 Barb., 521, Justices, 1194 40 111., 96, Bills of Exceptions, 3064 25 Wendell, 65, Justices, 1194 8 Paige, 47, Justices, 1194 3 Hill, 399, Justices, 1194 27 Barb., 9, Justices, 1194 52 Amer. Dec, 302, Attorneys, 3531 20 Howard, 393, Attachments, 125, 130 114 Pa. St., 96, At Trial, 3022a 114 Pa. St., 96, Municipal Liens, 409, 417, 485 16 W. N., 331, Municipal Liens, 423 19 W. N., 109; 115 Pa. St., 291, Munici- pal Liens, 422 3 Dist. Rep., 175, Depositions, 2551 11 W. N., 497, Courts, 3570 126 Pa. St., 220, Partition, 2048 1 Dist. Rep., 374, Justices, 1278 124 Pa. St., 36, Courts, 3571 124 Pa. St., 36, Justices, 1208 43 Pa. St., 401, Mandamus, 1763 19 Johns., 237, At Trial, 3002a 1 P. & W., 23, Justices, 1561 93 Pa. St., 255, Justices, 1517 93 Pa. St., 255, Landlord and Tenant, 1706 TABLE OF CASES. cli Perkins V. Perkins, Perot, Skinner v., Perrin, Bank v., Perry v. Brinton, Perry v. Dickens, Perry v. Dickens, Perry v. Perry, Person v. Neigh, Peter v. Schlosser, Peterman, Ramage v., Peters v. Ins. Co., Peters, Willing v., Peterson v. Barry, Peterson, Bonanan v., Peterson v. Sinclair, Peterson v. U. S., Petition of Newlin, ' Petition of Newlin, Petition of Raudenbnsh, In re Petriken v. Collier, Pettit V. Jones, Pettit, Sharp v., Pettit, Sharp v., Pettit, Walter^ v., Pfoutz, Shuman v., Phelin v. Kenderline, Phelps V. Holker, Phila. V. Baker, Phila. V. Bradfield, Phila. V. Brooke, Phila. V. Burgin, Phila. V. Cox, Phila., Craig v., Phila. V. Dibeler, Phila. V. Edwards, Phila., Fell v., Phila., Fisher v., Phila., Hammett v., Phila. V. Market Co., Phila. V. Merklee, Phila. V. R. R. Co., Phila. V. Rwy. Co., Phila^ V. Scott, Phila., Wood v., Phila. Club., Evans v., Phillips V. Comm., Phillips, Gratz v., Phillips, Gratz v., Phillips V. Hull, Phillips V. Israel, Phillips V. Lawrence, Phillips V. Library Co., Phillips V. Library Co., Phillips V. Monges, Phillips, Moore v., Phillips, Scott v., SECTIOM 16 W. N., 48, Divorce, 902 1 Ash., 57, Prod. Documents, 2454 172 Pa. St., 15, Mortgages, 191 13 Pa. St., 202, Municipal Liens, 411 105 Pa. St., 83, Attorneys, 3537 105 Pa. St., 83, Matters Preliminary, 3 3 Common Pleas Rep., 163, Dower, 1035 52 Pa. St., 199, At Trial, 3022a 81 ta.. St., 439, Justices, 1252 25 Pa. St., 349, At Trial, 3022a 3 S. & R., 25, New Trials, 3030 12 S. & R., 177, Assumpsit, 32 4 Binn., 481, New Trials, 3034 9 Wendell, 503, Attorneys, 3531 83 Pa. St., 250, Execution, 3303 2 Wash. C. C, At Trial, 3023 123 Pa. St., 541, Courts, 3576 123 Pa. St., 541, Mandamus, 1791 120 Pa. St., 328, Mandamus, 1818 7 W. & S., 392, Depositions, 2513 4 W. N., 14, Justices, 1424 1 Yeates, 389, Dower, 1023 3 Yeates, 38, Dower, 1109 2 Dist. Rep., 198, Arbitration, 2897 1 P. & W., 61, Justices, 1457 20 Pa. St., 361, Torts, 543 1 Dall., 261, Attachments, 100 140 Pa. St., 11, Assumpsit, 30 159 Pa. St., 517, Municipal Liens, 343 81 Pa. St., 23, Municipal Liens, 409 50 Pa. St., 539, Municipal Liens, 409 1 Dist. Rep., 280, Execution, 2144a 89 Pa. St., 265, Municipal Liens, 409, 416 147 Pa. St., 261, Defenses, 2809 78 Pa. St, 62, Municipal Liens, 409 81 Pa. St., 58, Municipal Liens, 409, 473 4 Brews., 395, At Trial, 2990 65 Pa. St., 164, Municipal Liens, 411, 412 154 Pa. St, 93; 161 Pa. St, 522, As- sumpsit, 32 159 Pa. St, 515, Municipal Liens, 343 3 W. N., 492, Assumpsit, 32 28 W. N., 388; 143 Pa. St, 444, Courts, 3576 93 Pa. St., 25, Mechanics' Claims, 242 27 Pa. St, 502, Amendments, 2411, 2418 1774 2108 333 2424 3189 3341i 2756 ,2240 2311 2756 30 3264 50 Pa. St, 107, Mandamus, 98 Pa. St, 394, Quo Warranto, 3 Binn., 475, Account Render, 1 Binn., 588, Amendments, 101 Pa. St, 567, Execution, 10 S. & R., 391, Execution, 6 W. & S., 150, Defalcation, 28 W. N., 21, Writs, 2232, 141 Pa. St., 462, Writs, 4 Whar., 226, Defalcation, 154 Pa. St, 204, Assumpsit, 140 Pa. St., 51, Execution, clii TABLE OF CASES. Phillips, Springer v., Phillips, Whelen v., Phillips, Whelen v., Phipps, Milligan v., Pidcock V. Bye, Pidcock V. Bye, Pier, Marsh v., Pierce, Coolbaugh v., Pierce v. Electric Co., Pierce, Jackson v., Pierce v. Lewis, Pierce v. Marple, Pierce v. Post, Pierce v. Scott, Pierce, Wheeler v., Pierce v. Wunder, Pierce, Ziegler v., Pierie v. Pierie, Pigeon V. Receivers, Pipher v. Lodge, Piemay, De Thoneox v., Pittsburg's Appeal, Pittsburg V. Cluley, Pittsburg, Comm. v., Pittsburg, Comm. v., Pittsburg, Hartupee v., Pittsburg, Hostetter v., Pittsburg V. Madden, Pittsburg, Seely v., Pittsburg V. Walter, Place, Gosline v., Plank, Burkholder v., Plank V. Mizell, Piatt's Appeal, Piatt, Carmalt v., Pleasants v. Cowden, Pleasants, Ross v., Pleasants, Ross v., Plummer v. Bamett, Plunkett V. Sauer, Poike, Hagy v., Poike, O'Donnell v., Pollard's Case, Pollock V. Hall, Pontius V. Nesbit, Pontius V. Nesbit, Pool V. Morgan, Pool V. White, Poor V. Colburn, Poor V. Colburn, Poor District of EJioz, Poor District of Warsaw v.. Poor District of Warsaiw v. Poor District of Knox, Poorman, Montgomery v., Porter v. Gunnison, Porter v. Hildebrand, SECriON 71 Pa. St., 60, Ground Rents, 177 140 Pa. St., 33, Execution, 3264 26 W. N., 363, Sci. Pas., 261 31 W. N., 561, Mechanics' Claims, 201 3 Rawle, 194, At Trial, 3023a 3 Rawle, 183, Dower, 1111 4 Rawle, 273, Replevin, 2196, 2202 8 S. & R., 418, At Trial, 3023a 28 W. N., 311, Attachments, 75 10 Johns., 414, Partition, 1973 27 W. N., 400, Replevin, 2209 30 W. N., 31, Mechanics' Claims, 223 6 Phila., 494, Courts, 3570 4 W. & S., 344, Ground Rents, 150 167 Pa. St., 416, Mechanics' Claims, 226 25 W. N., 466, Sci. Fas., 247 23 W. N., 27, Prep, for Trial, 2973c 7 Phila., 405, Divorce, 906 1 Dist. Rep., 434, Defalcation, 2756 ' 16 S. v& R., 214, At Trial, 2990, 2991 17 W. N., 284, Attachments, 81 118 Pa. St., 458, Municipal Liens, 415 66 Pa. St., 449, Municipal Liens, 476 34 Pa. St., 496, Mandamuj, 1844 14 Pa. St., 177, Quo Warranto, 2101 131 Pa. St., 535, Arbitration, 2901 107 Pa. St., 419, Arbitration, 2901 3 Dist Rep., 771, Justices, 1404, 1419 414 466 1212 2949 30 802 3023a 3282 1997 2004 2973a 2756 2690 2690 1785 82 Pa. St., 360, Municipal Liens, 69 Pa. St., 365, Municipal Liens, 32 Pa. St, 520, Justices, 69 PaL St, 225, Prep, for Trial, 1 Dist. Rep., 757, Assumpsit, 80 Pa. St, 501, Divorce, 7 W., 322, At Trial, 7 W. & S., 379, Execution, 11 Pa. St, 353, Partition, 19 Pa. St, 157, Partition, 13 Ati. Rep., 953, Prep, for Trial, 101 Pa. St, 356, Defalcation, 160 Pa. St, 522, Feigned Issues, 2 Dist Rep., 790, Feigned Issues, 127 Pa. St, 507, Mandamus, 4 Dall., 222; 2 Yeates, 42, Discontinu ance, 3733 40 Pa. St., 309, Appeals, 3434 40 Pa. St, 309, Execution, 3267 10 W., 53, Justices, ' 1423 171 Pa. St, 500, At Trial, 3014 57 Pa. St, 415, Assumpsit, 58 57 Pa. St, 415, Execution, 3298, 3305 107 Pa. St, 301, Appeals, 3376 107 Pa.. St, 301, Appeals, 3376 6 Watts, 384, Justices, 1264 2 Grant, 300, Defenses, 2783a 14 Pa. St., 129, Amendments, 2410 TABLE OF CASES. cliii Porter v. Hitchcock, Porter v. Ice C5o., Porter, Lazeor v., -Porter v. Overseers, Portland, The, Portsmouth v. Donaldson, Post, Pierce v., Post V. Wallace, Posten V. Mead, Poterie, Stedman v., Pott V. Oldwine, Potter, Comm. v., Potter V. Hartnett, Potter, Hutchinson v., Potter, Lex v., Potterfield, Cathcart v., Potts, Blackiston v., Potts, Bradley v., Potts, Bradley v.. Potts, Bradley r., Powell V. Campbell, Powell, Elliott v., Powell Estate, Powell, Partridge v., Powell V. Roderick, Powell V. Shank, Powell V. Smith, Powell, Weaver v., Powers' Appeal, Power, Bank v., Power 4'. Power, Power V. Winsor, Power Co. v. Hutchinson, Powers, Assurance Co. v., Powers, Stiles i'., Prahl V. Smaltz, Prawn i: Miller, Pray v. Northern Liberties, Prentzel, Brooks v., Presbyterian Corporation v, Wallace, Preston, Miller v., Price, Comm. ■;;., Price, Duumire v.. Price V. Harrell, Price V. .Johnson, Price V. Kirk, Price V. Glass, Price, R. R. Co. «., Price Co., Fleishman v., Priestly V. Ross, Prigg, Laughlin v., SECTION 98 Pa. St., 625, Sci. Fas., 277 1 Dist Rep., 725, Justices, 1228 87 Pa. St., 513, Dower, 1058 82 Pa. St., 275, Mandamus, 1758 2 S. & R., 197, Appeals, 3434 32 Pa. St., 202, Account Render, 311 6 Phila., 494, Courts, 3570 110 Pa. St., 121, Appeals, 3434 2 C. P., Rep., 215, Discontinuance, 3741 27 W. N., 270, Assumpsit, 36 7 Watts, 173, Replevin, 2172 3 Luz. Leg. Reg., 209, Justices, 1194 28 W. N., 120; 29 W. N., 567, As- sumpsit, 30, 32 11 Pa. St., 472,Landlord and Tenaut,1677 16 Pa). St., 295, Execution, 3269 5 Watts, 163, Sci. Fas., 275 2 Miles, 388, Assumpsit, 44 33 W. N., 570; 2 Dist. Rep., 797, As- sumpsit, 18 33 W. N., 570, Writ of Inquiry, 692 32 W. X.. 426, Defenses, 2775 2 Phila., 42, Landlord and Tenant, 1685 10 Watts, 453, Replevin, 2168 163 Pa. St., 349, Comp. with Cred., 3495 35 W. N., 576, Writs, 2311 1 Dist. Rep., 120, Justices, 1289 3 W., 235. Justices, 1386 2 Watts, 126. Replevin, 2168 148 Pa. St., 372, Arbitration, 2897 120 Pa. St., 320, Divorce, 799, 903, 907, 933 2 W. N., 275, Prod. Documents, 2449 7 W., 205, Partition, 1965 3 W. N., 360, Assumpsit, 21 3 Dist. Rep., 658, Justices, 1503 12 Phila., 377, Mortgages, 196 1 Ash., 407, Justices, 1442 6 W. N., 571, Assumpsit, 32 3 Dist. Rep., 536, Attachment, 88 31 Pa. St., 69, Municipal Liens, 411 10 W. N., 319, Discontinuance, 3733 3 Rawle, 126, Execution, 3144a 30 W. X., 240; 154 Pa. St., 63, Exe- cution, 3341a 1 Wh., 1, Mandamus, 1800 12 W. X., 179, Landlord and Tenant,1725 34 W. N., 442; 161 Pa. St., 530, As- sumpsit, 32 4 Yeates, 526, Dower, 1091 90 Pa. St.. 47, Mechanics' Claims, 222 2 W .N., 472, Assumpsit, 30 96 Pa. St., 256, Negligence, 1912 27 W. N., 312, Assumpsit, 47 11 Pa. St., 410, Justices, 1484, 1486, 1490 3 Dist. Rep., 418, Justices, 1507 cliv TABLE OF CASES. Prime, Manfg. Co., Prince Co. v. Linderman, Pringle V. Gaw, Pringle V. Gaw, Pringle V. Gaw, Pringle V. Pringle, Printing Co., Halberstadt v., Printing Co. v. Wehrly, Prison Inspectors v. Comrs., Pritchard v. Denton, Pritts V. Richey, Probst's Appeal, Proper v. Luce, Prospect Brewing Co., In re Protzman v. Wolff, Providence Co. v. Chase, Publishing House v. Valentine, Pulte, Comm. v., Purcil, Bar v., Purdy, Dewart v., Purviance v. Dryden, Pyle V. Gallagher, Quayle, Queen «., Queen v. Barnardo, Queen v. Barnardo, Queen, Dariey v., Queen v. Quayle, Quelln V. Quelin, Quick V. Gritman, Quigg, Saunders v., Quigley, Merritt Vi, Quigley v. Quigley, Quigley, Shortz »., Quigley v. Trust Co., Quin, Comm. v., Quin, Comm. v., Quinn v. Ass'n, Quinu V. Ass'n, Quinn v. Ass'n, Quinn, Ferguson v., Quinu V. Shafto, Quinn v. Woodhouse, Radford, Evans v., Raff V. Raff, Rafferty v. Clark, RafEerty, Ferguson v., Rafferty v. Haldron, Raiguel, Jones v., Raiguel v. McConnell, Railroad Co.'s Appeal, Railroad Co.'s Appeal, Railroad Co.'s Appeal, Railroad Co. v. Adams, Railroad Co., Bagby v., SKCIION 14 Blatch., 371, Bills of Discovery, 2564 2 Dist. Rep., 4, Statements, 73 5 S. & R., 536, Dower, 1093 5 S. & R., 534, Ejectments, 621 6 S. & R., 298, New Trials, 3038 59 Pa. St, 281, Dower, 1085 2 Dist. Rep., 320, Feigned Issues, 2676 157 Pa. St., 415,. Justices, 1480 16 S. & R., 317, Mandamus, 1812 8 Watts, 371, Justices, 1492a 29 Pa. St., 71, Dower, 1021 163 Pa. St., 423, Feigned Issues, 2639 3 P. & W., 65, Amendments, 2425, 2431 127 Pa. St., 523, Mandamus, 1785 4 Dist. Rep., 473, Justices, 1301 108 Pa. St., 319, Feigned Issues, 2695 , 3 Dist. Rep., 242, Costs, 3126 37 Leg. Int., 493, Justices, 1201 2 Phila., 259, Justices, 1284 29 Pa. St., 113, Partition, 2032 3 S. & R., 402, Statements, 65 I Chest. Co. Eep., 449, Arbitration, 2897 II Ad. & El., 508, Quo Warranto, 2078 58 Law Jour. Rep. (Q. B.), 553, Jus- tices, 1197 59 La-n; Jour. Rep. (Ch.),345,Justices,1197 12 CI. & Finn., Quo Warranto, 2079 11 Ad. & El., 508, Quo Warranto, 2078 1 Dist. Rep., 677, Divorce, 924 3 Pa. C. C. Rep., 610, Arbitration, 2902 112 Pa St., 546,Insolvent Laws,3608,3610 1 Dist. Rep., 505, Defenses, 2814 10 W. N., 388, Justices, 1250 1 Binn., 222, Bills of Exceptions, 3066 3 Dist. Rep., 275, Ground Rents, 177 1 W. N., 313, Quo Warranto, 2120 1 W. N., 401, Quo Warranto, 2096 100 Pa. St, 382, Assumpsit, 10 100 Pa. St, 382, Insurance, 293 100 Pa. St, 382, Writs, 2233 23 W. N., 38, Municipal Liens, 430 31 W. N., 502, Statements, 73 26 Pa. St, 333, Amendments, 2424 2 Phila., 370, Landlord and Tenant, 1679 25 W. N., 155, Divorce, 864 18 W. N., 378, Justices, 1354 128 Pa. St, 337, Replevin, 2165 'i'81 Pa. St., 438, Replevin, 2204 97 Pa. St, 437, Sci. Fas., 262 25 Pa. St., 362, Execution, 3281 70 Pa. St, 355, Mechanics' Claims, 245 99 Pa. St., 177, Account Render, 304 70 Pa. St, 355, Execution, 32f>3 55 Pa. St., 499, Negligence, 1881 86 Pa. St, 291, Attachments, 104 TABLE OP CASES. clv Railroad Co., Bank v., Railroad Co. v. Bautom, Railroad Co. v. Berry. Railroad Co., Borough v.. Railroad Co., Botsford v., Railroad Co. v. Bowers, Railroad Co. v. Boyer, Railroad Co., Bricker v.. Railroad Co. i;. Butler, Railroad Co., Childs v., Railroad Co., City v., Railroad Co., Coakley v.; Railroad Co. v. Colvin, Railroad Co. v. Commissioners, Railroad Co. v. Comm., Railroad Co., Comm. ■;;., Railroad Co., Comm. v., Railroad Co., Comm. v., Railroad Co. v.' Comm., Railroad Co., Comm. v., Railroad Co., Comm. v.. Railroad Co., Comm. v., Railroad Co., Comm. v.. Railroad Co., Conroy v.. Railroad Co. v. Conway, Railroad Co., Coxe v., Railroaxi Co., Cummings v., Railroad Co. v. Davenport, Railroad Co., Davenport v., Railroad Co., Davenport v., Railroad Co., Davenport v.. Railroad Co. v. Decatur, Railroad Co. v. Decker, Railroad Co., Dowling v., Railroad Co., Drake' u. Railroad Co'., Eby v., Railroad Co., Felts v., Railroad Co., Felts v.. Railroad Co., Felts v., Railroad Co., E'leming v., Railroad Co., Flower v., Railroad Co. ■;;. Franz, Railroad Co., Gates v., Railroad Co., Gerhard v., Railroad Co., Graham v., Railroad Co., Graham v., Railroad Co., Greenwood v., Railroad Co., Harkins v., Railroad Co., Hartman v., Railroad Co., Haverly v., Railroad Co. v. Heister, Railroad Co., Herbein v., Railroad Co., Hess v., 'Railroad Co. v. Hill,'' Railroad Co., Holgate v., Railroad Co., Holmes v., SECTION S W. N., 252, Writs, 2310 54 Pa. St., 495,Negligence,1886,1894,1897 68 Pa. St., 279, Bills of Exceptions, 3071 27 W. N., 177, Municipal Liens, 480 141 U. S. Rep., 250, Prep, for Trial, 2972 124 Pa. St.. 183, Negligence 1870 97 Pa. St., 91, Negligence, 1868 132 Pa. St., 1, Negligence, 1912 57 Pa,. St., 335, Negligence, 1890, 1892 27 W. N., 510, Torts, 558 12 Phila., 479, Municipal Liens, 469 5 Clark, 444, Negligence, 1879, 1890, 1900 118 Pa. St., 230, Negligence, 1909 21 Pa. St., 9, Mandamus, 1822 39 Pa. St., 403, Appeals, 3463bb 132 Pa. St., 591, Escheats, 1151 114 Pa. St., 340, Escheats, 1151 3 Dist. Rep., 116, Mandamus, 1781 120 Pa. St., 537, Mandamus, 1844 114 Pa. St., 340, Quo Warranto, 2094 58 Pa. St., 26, Quo Warranto, 2126 25 W. N., 404, Quo Warranto, 2094 10 W. N., 400, Quo Warranto, 2102 1 Pitts., 440, Negligence, 1879 17 W. N., 429, Negligence, 1869, 1877 11 W. N., 386, Insurance, 294 92 Pa. St., 82, Negligence, 1908 154 Pa. St., Ill, Assumpsit, 32 2 Dist. Rep., 784, Prod. Documents, 2454 MMS., Bills of Discovery, 2561 36 W. N., 132; 166 Pa. St., 480, Bills of Discovery, 2571 147 U. S. Rep., 190, Municipal Liens, 446 84 Pa. St., 419,Negligence,1876,1890,1893 21 W. N., 527, Negligence, 1872 21 W. N., 122, Statements, 73 6 W. N., 385, Writs, - 2311 160 Pa. St., 503, Appeals, 3435 170 Pa. St., 432, At Trial, 2986b 170 Pa. St., 432, Courts, 3576 134 Pa. St., 477, Negligence, 1911 132 Pa. St., 524, Prep, for Trial, 2971 24 W. N., 321, Negligence, 1895 32 W. N., 333, Appeals, 3434 12 Phila., 394, Negligence, 1908 25 W. N., 65, Attachments, 80 26 W. N., 203, Attachments, 81 3 Del. Co. Rep., 415, Arbitration, 2908 11 W. N., 120, Negligence, 1887 22 W. N., 84, Prep, for Trial, 2971 23 W. N., 439, Torts, 562 8 Pa. St., 445, Justices, 1615 9 Watts, 272, Costs, 3124 7 Pa. 0. C. Rep., 565, Prep, for Trial,2972 90 Ala., 71, Prep, for Trial. 2972 35 Leg. Int., 192, Municipal Liens, 441 18 W. N., 429, Replevin, 2185 clvi TABLE OF CASES. Railroad Co., Ickenger v., Railroad Co. v. Johnson, Railroad Co., Kalbach v., Railroad Co., Kashner v., Railroad Co. v. Keller, Railroad Co. v. Kelly, Railroad Co., Kennard v., Railroad Co., Kirby v., Railroad Co. v. Kirk, Railroad Co., Klages v., Railroad Co., Klemmer v., Railroad Co., Knight v., Railroad Co., Kraiise v., Railroad Co., Krause v., Railroad Co., Landis v., Railroad Co. v. Langdon, Railroad Co., Lawrence v.. Railroad Co., Love v., Railroad Co., Lucas v., Railroad Co. v. Lyon, Railroad Co., Malone v., Railroad Co. v. McCloskey, Railroad Co., McComb v., Railroad Co., Miller v., Railroad Co., Moore v.. Railroad Co., Mulherrin v., Railroad Co., Owens v., Railroad Co., Patton v., Railroad Co., Phila. v., Railroad Co., Phila. v., Railroad Co. v. Phila., Railroad Co. v. Price, Railroad Co., Ricai-d v., Railroad Co. v. Roberts, Railroad Co. v. Robinson, Railroad Co. v. Rosenzweig, Railroad Co. v. School District, Railroad Co., Schroeder v., Railroad Co., Seiple v., Railroad Co., .Slatteny v., Railroad Co., Slatteny v., Railroad Co. v. Snowdon, Railroad Co. v. Snowdon, Railroad Co., State v., Railroad Co., Stone v., Railroad Co., Struble v., Railroad Co., Timlow v., Railroad Co., Township v., Railroad Co., Usher v.. Railroad Co. v. Vandever, Railroad Co. v. Walsh, Railroad Co., Warner v., Railroad Co., Whitemarsh Twp. v.. Railroad Co., Wigton v., Railroad Co., Williams v., SECTION 20 W. N., 333, Assumpsit, 18 2 Wh., 275, Costs, 3124 11 W. N., 174, Writs, 2310 41 Leg. Int., 346, Negligence, 1873 67 Pa. St.,300, Negligence,1881,1893,1904 31 Pa. St., 372, Negligence 1885, 1895, 1897, 1898 1 Phila., 41, Insurance, 294 76 Pa. St., 506, Negligence, 1905 90 Pa. St., 15, Negligence, 1882 34 W. N., 171, Statements, 3753 35 W. N., 142; 163 Pa, St., 521, At Trial, 2977 13 W. N., 251, Negligence, 1888 20 W. N., Ill, Assumpsit, 18 20 W. N., Ill, Torts, 521 26 W. N., 64, Assumpsit, 32 92 Pa. St., 21, Negligence,1867,1869,1870 27 W. N., 572, Statements, 73 45 Leg. Int., 370, Assumpsit, 23 32 Pa. St., 458, Comp. with Cred., 3482 128 Pa.St.,140,Negligence,1900,1901,1903 157 Pa. St., 430, Statements, 73 23 Pa. St., 526, Negligence, 1896 19 Blatch., 69, Bills of Discovery, 2564 2 C. P. Rep., 11, Arbitration, 2897 11 Phila., 348, Justices, 1517 81 Pa. St., 366, Negligence, 1906 95 Mo., 169, Prep, for Trial, 2972 96 Pa. St., 169, Amendments, 2415, 2419 3 W. N., 492, Assumpsit, 32 33 Pa. St., 41, Municipal Liens, 441 7 W. N., 87, Municipal Liens, 441 96 Pa. St., 256, Negligence, 1912 89 Pa, St., 193, Negligence, 1907 8 W. N., 6, Ejectments, , 627 44 Pa. St., 175, Negligence, 1875, 1890 113 Pa. St., 519, Negligence, 1900 3 Penny., 518, At Trial, 3023 47 Iowa, 375, Prep, for Trial, 2972 129 Pa. St., 425, Negligence, 1872 21 W. N., 556, Statements, 73 21 W. N., 556, Torts, 571 161 Pa. St., 201, Appeals, 3435 166 Pa. St., 236, Attachments, 88 2 Cent. Rep., 726, Mandamus, 1779 132 Pa. St., 206, Negligence, 1910, 1913 23 W. N., 197, Statements, 73 11 W. N., 218, Assumpsit, 32 8 W. & S., 365, Mandamus, 1802 126 Pa. St., 206, Negligence, 1888 36 Pa. St., 298, Negligence, 1890, 1895 29 W. N., 410, Statements, 73 1 Dist. Rep., 248, Statements, 73 8 W. & S., 365, Mandamus, 1802 47 Leg. Int., 4, Statements, 28 W. N., 283, Writs. 73 2232 TABLE OF CASES. clvii Railroad Co., Williams v., Railroad Co. v. Zebe, Railway Co. v. Boudrou, Railway Co. v. Boyle, Railway Co., Bradley v., Railway Co., Campbell v.. Railway Co., City v., Railway Co., City v., Railway Co., Comm. v., Railway Co., Comm. v., Railway Co., Cook v.. Railway Co. v. Bllsey, Railway Co., Hamill v.. Railway Co., Harrisburg v., Railway Co. v. Keenan, Railway Co., Lyon v.. Railway Co. v. McCurdy, Railway Co., McHenry v., Railway Co., McKeown v., Railway Co., Phila. v., Railway Co. v. Phila., Railway Co., Reg. v.. Railway Co., Rex v., Railway Co. v. Stuttler, Railway Co., White v., Raiman, Henry v., Ralph, Kenney v., Ralston's Appeal, Ralston v. Cummir.s, Ralston v. Ralston, Ramage v. Peterman, Rambo, Apple v., Ramey, Tatham v., Ramey, Tatham i'., Rambler v. Brotherline, Ramsay, Hermann v., Ramsay, Hermann v., Ramsay, Smith v., Ramsdell v. Owens, Ramsay, AUshouse v., Rand v. Caflisch, Rand, Harland v.. Rand v. King, Rand v. King, Rand v. King, Randall, Crowell v., Randall v. Wait, Range v. Culbertson, Rangier v. Hummill, Rank v. Rank, Rank v. Shewey, Rankin, Beatty v., Rankin, Boyle v., Rapp, Haines v.. SECTION 27 W. N., 511, Writs, 2311 33 Pa. St.,318, Negligence, 1879, 1890, 1895 92 Pa. St., 475, Negligence, 1871 29 W. N., 20, Justices, 1538 34 W. N., 78, Execution, 3168 27 W. N., 79, Assumpsit, 18 33 W. N., 522; 2 Dist. Rep., 705, As- sumpsit, 36 28 W. N., 388; 143 Pa. St., 444, Courts, 3576 20 Pa. St., 518, Quo Warranto, 2102 53 Pa. St., 62, Quo Warranto, 2126 1 W. N., 319, Negligence, 1871 85 Pa. St, 283, Replevin, 2175 MMS., Writ of Inquiry, 697 1 Dist. Rep., 192, Defenses, 2793 56 Pa. St., 198, Justices, 1618, 1641 142 N. Y., 298, Prep, for Trial, 2972 19 W. N., 163, Torts, 528 1-1 W. N., 404, Writ of Inquiry, 697 15 W. N., 125, Writ of Inquiry, 697 28 W. N., 388; 143 Pa. St., 444, Courts, 3576 92 Pa. St., 100, Municipal Liens, 439 10 Ad. & El., 531, Mandamus, 1757 2 Bam. & Alder., 646, Mandamus, 1757 54 Pa. St., 375, Negligence, 1884 61 Wis., 536, Prep, for Trial, 2972 25 Pa. St., 354, At Trial, 3023a 1 Dist. Rep., 720, Justices, 1492a 93 Pa. St., 133, Divorce, 791, 802, 884 2 Yeates, 436, New Trials, 3030 2 Dist. Rep., 242, Divorce, 776 25 Pa. St., 349, At Trial, 3022a 13 Pa. St., 9, Justices, 1584 82 Pa. St., 130, Amendments, 2421 82 Pa. St., 130, Dower, 1040 1 Pears., 462, Arbitration, 2904 5 W. N., 188, Assumpsit, 30 5 W. N., 188, Defenses, 2772 6 S. & R., 573, Appeals, 3416 30 W. N., 174, Replevin, 2206 6 Whart., 331, Prep, for Trial, 2973a 36 W. N., 198, Courts, 3576 27 Pa. St., 511, Mechanics' Claims, 224 26 W. N., 81, Appeals, 3376 134 Pa. St., 641, Execution, 3341i 26 W. N., 81, Feigned Issues, 2713 10 Pet., 368, Appeals, 3463ee 48 Pa. St., 127, Justices, 1564 168 Pa. St., 324, Appeals, 3390 37 Pa. St., 130, Amendments, 2414 21 W. N., 399, Arbitration, 2895 4 W., 218, At Trial, ' 2990 139 Pa. St., 358, Landlord and Tenant, 1650 22 Pa. St., 168, Replevin, 2158 2 W. N., 595, Assumpsit, SO clviii TABLE OF CASES. Rapp, Scheid v., Rappalo, Stoughton v., Ratcliffe, Rogers v., Rathbone, Bannan v., Rathbone, Bogart v., Raubitscheck, Morch v., Raubitseheck, Morch v., Rauch, Myers v., Raudenbush's Petition, In re Rausch, McFaddeu v., Ravill V. Satterfit, Raw v. Stevenson, Ray's Appeal, Ray, Berwald v., Re — in re — Rea, Lukens v., Rea V. Titman, Rea Co. v. Mellon, Read, Dungan v.. Reader, McKinney v., Reader, McKinney v., Reading, Bentley v., Realf V. Realf, Ream's Appeal, Reamer v. Bell, Reamey, McCahan v., Reamey, MeCahan v., Reber v. Wright, Receivers, Pigeon v., Receivers, Tube Co. v., Receveuve, Grimley v., Reeh v. Klemm, Reck V. Live Stock Co., Red, McMillan v., Reddie v. Scoolt, Redding, Finch v., Redheffer v. Fitter, Reece v. Haymaker, Reed v. Buck, Reed v. Cist, Reed, Colviu v., Reed, Comm. v., Reed, Gilmore v., Reed, McCoy v.. Reed v. Morrison, Reed v. Murray, Reed v. Pedan, Reed v. Pedan, Reed v. Reed, Reed, Rhoads v., Reed v. Williard, Reel V. Elder, Reen, Strauss v., Rees, Comm. v., Rees V. Fisler, Rees, Spicer v., Reese, Baker v., SECTION 22 W. N., 438, Mechanics' Claims, 233 3 S. & R., 559, Replevin, 2166 23 Pa. St., 184, Justices, 1557' 3 Grant, 259, Justices, 1480 1 Pa. St., 188, Justices, 1567 33 W. N., 567, Appeals, 8434 33 W. N., 567, Assumpsit, 48 4 Dist. Rep., 333, Assumpsit, 52 120 Pa. St., 328, Mandamus, 1818 119 Pa. St., 507, Negligence, 1900 Holt N. P., 451, Torts, 545 24 Pitts. L. J., 145, Execution, 3244 157 Pa. St., 603, Feigned Issues, 2693 165 Pa. St., 192, Assumpsit 60 See proper names, 29 W. N., 65, Defenses, 2778 3 Dist. Rep., 458, Audita Querela, 3358 139 Pa. St., 257, Arbitration, 2897 167 Pa. St., 893, Execution, 3248 6 Watts, 34, Execution, 3169 6 Watts, 34, Landlord and Tenant, 1662 22 W. N., 60, Discontinuance, 3733 77 Pa. St., 81, Divorce, 781, 864, 865 157 Pa. St., 444, Justices, 1606 79 Pa. St., 292, Assumpsit, 32 33 Pa. St., 535, Appeals, 3439 83 Pa. St., 535, Arbitration, 2906 68 Pa. St., 471, Amendments, ' 2418 1 Dist. Rep., 434, Defalcation, 2756 86 W. N., 256, Attachment, 93 21 W. N., 573, Torts, 539 18 W. N., 46, Justices, 1550 2 Dist. Rep., 502, Assumpsit, 32 4 W. & S., 237, Sci. Fas., 256 Peakes' Rep., 240, Torts, 545, 546 32 W. N., 196, Appeals, 3468o 7 Phila., 338, Justices, 1512 164 Pa.St,575,Mechanics' Claims,239,242 32 W. N., 204, Execution, 3273 7 S. & R., 183, Actions after Death, 2216 55 Pa. St, 880, Divorce, 783, 784 59 Pa. St., 425, Justices, 1202 76 Pa. St., 462, Defalcation, 2760, 2761, 2762 5 Watts, 300, Execution, 3190 12 S. & R., 18, Dower, 1039, 1044 11 Pa. St., 334, At Trial, 3028a 8 S. & R., 263, Audita Querela, 8362 8 S. & R., 263, Statements, 67, 71 1 W. & S., 235, Dower, 1053 89 Pa. St., 438, Mortgages, 187 47 Leg. Int., 132, Assumpsit, 80 62 Pa. St., 808, Dower, 1071 41 Leg. Int., 54, Replevin, 2185 8 Wh., 124, Replevin, 2186 8 Clark, 187, Arbitration, 2909 5 Rawle, 119, Justices, 1427 30 W. N., 487, Assumpsit, 30 TABLE OF CASES. clix Reeside, Horbach v., Reesman v. Ins. Co., Reeves, Davis v.. Reeves v. Reeves, Refining Co., Steel Co. v., Refowich. v. Rice, Reg. V. Railway Co., Regina v. Smith, Rehn, Cockley v., Reichenbach v. McKeau, Reichenbacli v. Ruddach, Reichenbach v. Ruddach, Reichenbach v. Ruddach, Reid V. Lindsay, Reid V. Wood, Reidenhauer, Kilinger a., ReifE V. Mack, Reifsnyder, Klohs v., Reifsnyder, Klohs v., Reifsnyder, Rennyson v., Reigart, Bank v., Reigart, Comm. ■;;., Reiger v. EUmaker. Reilley v. City, Reilly v. Daly, Reilly v. Union, Reinhard v. Keenbartz, Reinhart, Borough v., Reinhart, Cooke v., Reinhart, Cooke v., Reinhart, Judge v., Reinheimer v. Hemingway, Reinholdt v. Alberti, Reinoehl, Ins. Co. v., Reis V. Junker, Reisinger v. Magee, Reist V. Heilbrenner, Reitenbaugh v. Ludwick, Reiter, Nellis v., Rementer v. Erwin, Remick v. Boyd, Remington, Caldwell v., Renninger v. Dillon, Rennyson v. Reifsnyder, Renz V. Renz, Repplier, Coulter v., Respublica v. Arnold, Respublica v. Clarkson, Respublica v. Commissioners, Respublica v. Gaoler, Respublica v. Keeper, Respublica v. Lacaze, Ressler, GrofE v., Ressler's Admr., GrofE v., SECTION 5 Wh., 223, New Trials, 3028 3 Pa. C. C. Rep., 1, Arbitration, 2894 2 Clark, 314, Partition, 1969 12 Phila., 188, Divorce, 811 48 Leg. Int., 25, Mechanics' Claims, 201 4 Penny., 449, Arbitration, 2900 10 Ad. & El., 531, Mandamus, 1757 16 Eng. L. & Bq. R., 221, Justices, 1194 2 Dist. Rep., 331, Justices, 1475 95 Pa. St., 432, Replevin, 2165 121 Pa. St., 18, Mandamus, 1784 121 Pa. St., 18, Bills of Exceptions, 3064 127 Pa. St., 564, New Trials, 3036 104 Pa. St., 156, Execution, 3192 102 Pa. St., 312, Justices, 1398 6 S. & R., 531, Dower, 1068 160 Pa. St., 265, Execution, 3262 61 Pa. St., 240, Lunatics and Drunk- ards, 3685 61 Pa. St., 240, Partition, 1967, 2035 1 Dist. Rep., 758, Statements, 73 4 Pa. St., 477, Comp. with Cred., 3482 14 S. & R., 216, Quo Warranto, 14 S. & R., 121, Dower, 60 Pa. St., 467, Municipal Liens, 464, 467, 481 159 Pa. St., 606, Assumpsit, 36 12 W. N., 93, Writ of Inquiry, 707 6 W., 93, At Trial, 3023a 41 Leg. Int., 337, Negligence, 1 Rawle, 321, Appeals, 1 Rawle, 321, Justices, 1428, 1625 3 Dist. Rep., 202, Execution, 3254 35 Pa. St., 432, Replevin, 2199 1 Binn., 470, Execution, 3341a 4 Pa. C. C. Rep., 161, Insurance, 302 9 W. N., 296, Attachments, 82 158 Pa. St., 280, Assumpsit, 23 11 S. & R., 131, Actions after Death, 2216, 2222 31 Pa. St., 131, At Trial, 3022a 2 W. N., 203, Assumpsit, 31 11 W. N., 194, Detinue, 723 11 W. N., 312; 99 Pa. St., 555, Re- plevin, 2168 2 Wh., 137, Amendments, 2425 2 Dist. Rep., 819, Assumpsit, 40, 44 1 Dist. Rep., 758, Statements, 73 22 W. N., 226, Divorce, 15 Pa. St., 208, Defalcation, 3 Yeates, 263, Justices, 1 Yeates, 46, Mandamus, 4 Yeates, 181, Mandamus, 2 Yeates, 258, Justices, 2 Yeates, 349, Justices, 2 Dal., 118, New Trials, 27 Pa. St., 71, Justices, 27 Pa. St., 71, Justices, 2096 1032 1876 3375 894 2760 1200 1788, 1819 1833 1202 1209 3027 1353 1562 cb TABLE OF CASES. Eestein, Schlecht v., Retalllck, Beates v., Reutscher, Fox v., Reutter, Nutz v., Rex V. Barker, Rex V. Clark, Rex V. Greenhill, Rex v. Johnson, Rex, Lauchner v., Rex V. Leigh, Rex V. Liverpool, Rex V. Maiden, Rex V. Ogden, Rex V. Railway Co., Rex V. Rex, Rex V. Serrt, Rex V. Thompson, Reynolds v. Barnes, Reynolds v. Baylor, Reynolds, Chambers v., Reynolds, Christy v., Reynolds, Comm. v., Reynolds v. Iron Works, , Reynolds, Lumber Co. v., Reynolds v. Lumber Co., Reynolds v. Reynolds, Reynolds v. Reynolds, Reynolds, Weidensaul v., Reznor v. Supplee, Rhees v. Fairchild, Rhey v. Baird, Rhodes' Estate, Rhoads, Ahl i-., Rhoads' Appeal, Rhoads v. Fitzpatrick, Rhoads, McKinney v., Rhoads v. Reed, Rhule, Iron Co. v., Riale, McColIum v., Ricard v. R. R. Co., Rice V. Comm., Rice V. Constein, Rice, Refowich v., Rice V. Foy, Rice, Machine Co. v., Rich V. Keyser, Richard v. Allen, Richard's A,ppeal, Richards v. Bisler, Richards v. Gas Co., Richards, Lyle v., Richards v. McGrath, Richards v. Mink, Richards, Navigation Co. v., Richards, Phila. v., SECTION 3 W. N., 95, Justices, 1548 23 Pa. St., 288, Amendments, 2427, 2435 147 Pa. St., 240, Forms of Statements, 37541 1 Watts, 229, Actions after Death, 2217 3 Burrows, 126, Mandamus, 1755 8 T. R., 220, Justices, 1520 4 Ad. & El., 624, Justices, 1194 2 Lord Raymond, 1333, Justices, 1194 20 Pa. St., 464, Justices, 1246, 1268 4 Burr., 2143, Quo Warranto, 2109 2 Burr., 731, Bills of Exceptions, 3064 2 Salk., 431, Bills of Exceptions, 3064 10 Barn.& Cress.,230,Quo Warranto,2102 2 Barn. & Alder., 646, Mandamus, 1757 3 S. & R., 533, Partition, 2024 7 T. R., 152, Justices, 1520 2 T. R., 18, Justices, 1520 76 Pa. St., 427, Execution, 3341g 3 C. P. Rep., 54, Costs, 3135a 2 Dist. Rep., 402, Justices, 1517 4 Phila., 8, Execution, 3191 17 S. & R., 367, Justices, 1260 1 Dist. Rep., 409, Execution, 3256 4 Dist. Rep., 573, Attachments, 104 36 W. N., 539, Execution, 3203 45 Law Jour. Rep. (P. D. & A.), 89; , Law Rep., 1 P. & D., 405, Divorce, 757 169 Pa. St., 626, Execution, 3201 49 Pa. St., 73, Torts, 562 2 W. N., 401, Assumpsit, 32 160 Pa. St., 555, Depositions, 2517 51 Pa. St., 85, Justices, 1509 2 W. N., 188, Dower, 1078 84 Pa. St., 319, Defalcation, 2757 39 Pa. St., 186, Appeals, 3442 166 Pa. St., 294, Assumpsit, 32 5 W., 343, Comp. with Cred., 3480 89 Pa. St., 438, Mortgages, 187 53 Pa. St., 93, Justices, 1557, 1558 35 W. N., 389, Mechanics' Claims, 224 89 Pa. St., 193, Negligence, 1907 18 B. Monroe, (Ky.), 472, Attorneys, 3531 89 Pa. St., 477, Arbitration, 2909 4 Penny., 449, Arbitration, 2900 2 Dist. Rep., 333, Justices, 1475 1 Del. Co. Rep., 63, Justices, 1535 54 Pa. St., 86, Landlord and Tenant, 1667 117 Pa. St., 199, Execution, 3196 100 Pa. St., 52, Ejectments, 616 3 W. N., 485, Assumpsit, 30 25 W. N., 61, Forms of Statements, 3753 9 S. & R., 322, Dower, 1109 100 Pa. St., 400, Landlord and Tenant, 1656 46 Leg. Int., 138, Assumpsit, 27 57 Pa. St., 142, At Trial, 3017 23 W. N., 339, Municipal Liens, 479, 480 TABLE OF CASES. clxi Richards v. Richards, Richards v. Rote, Richardson v. Snyder, Richardson, State v., Richardson, Stewart v., Richart, Baker v., Richelson, Dimenstein v., Richer, Comm. v., Richey's Appeal, Richey, Pendleton v., Richey, Pritts v., Richie, Hinchman i;., Riehley, Cutler v., Richter v. Penna. Co., Rickards, Still well v., Ricketts v. Unangst, Ricketts v. Unangst, ' Riddle's Appeal, Riddle v. Stevens, Riddlesberger v. Mentzer, Ridgely v. Dobson, Ridgway v. Stewart, Riehl V. Vockroth, Riland v. Eckert; Riueman, Byster v., Riner v. Riner, Ringwalt v. Brindle, Riser, Comm. v., Rising V. Patterson, Risk, ChafEees v., Risk, Cope v., Ristine v. Ristine, Ritchie v. Hinchman, Ritchie ». Holbrooke, Ritchie v. Peril, Ritter, Machine Works v., Rivers v. Lodge, Roach V. Chapman, Roat V. Frear, Robb V. Pepper, Robb's Petition, Robbins, Phila. v., Robbins, Seltzer v., Robert's Appeal, Roberts. Augheubaugh v., Roberts v. Bank, Roberts, Bergman v., Roberts, Coates v., Roberts, Coates v., Roberts, Farel v., Roberts, Horn v., Roberts, R. R. Co. v., Roberts v. Sharp, Roberts, Smith v., Robins' Appeal, Robinson's Appeal, Robinson's Appeal, SECTION 1 Grant, 392; 3T Pa. St., 225, Divorce, 798 68 Pa. St., 248, Partition, 2032 6 W. N., 414, Assumpsit, 21 40 N. H., 272, Justices, 1194 3 Yeates, 200, Prep, for Trial, 2971 2 Dist. Rep., 195, Justices, 1375 34 W. N., 295, Prep, for Trial, 2972 13 W. N., 142, Justices, 1287, 1520 22 W. N., 154, Mortgages, 192 , 32 Pa. St., 58, At Trial, 3023a 29 Pa. St., 71, Dower, 1021 Brightly Reports, 143, Torts, 549 151 Pa. St., 195, Arbitration, 2890m 104 Pa. St., 511, Negligence, 1913 31 W. N., 419, Amendments, 2433 15 Pa. St., 90, Execution, 3189 15 Pa. St., 90, Justices, 1458 104 Pa. St., 171, Execution, 3341g 2 S. & R., 537, Statements, 64, 66 7 Watts, 141, Dower, 1069 3 W. & S., 118, Writ of Inquiry, 696 4 W. & S., 383, Comp. with Cred., 3483 I Dist. Rep., 80, Defalcation, 2756 23 Pa. St., 215, Sci. Pas., 249 II Pa. St., 147, Justices, 1551 166 Pa. St., 617, Limitations, 3640 59 Pa- St., 51, Execution, 3289, 3291 147 Pa. St., 342, Justices, 1403 5 Wh., 316, Assumpsit, 30 24 Pa. St., 432, Comp. with Cred., 3483 21 Pa. St., 66, Justices, 1522 4 Rawle, 460, Divorce, 788 Brightly Rep., 143, Torts, 549 7 S. & B., 458, New Trials, 3037 1 Dist. Rep., 374, Justices, 1278 4 Dist. Rep., 474, Assumpsit, 30 I Dist. Rep., 724, Justices, 1282 22 Howard, 129, Attachments. 126, 130 167 Pa. St., 614, Mechanics' Claims, 228 II W. N., 497, Courts, 3570 1 Dist. Rep., 367, 640, Depositions, 2505 18 W. N., 39, Municipal Liens, 452 18 W. N., 113, Justices, 1608 92 Pa. St., 407, Appeals, 3439 4 W. N., 181, Assumpsit, 30 19 Pa. St., 71, Replevin, 2176 61 Pa. St., 497, Justices, 1492 4 Rawle, 110, Justices, 1385 4 Rawle, 110, Interpleaders, 2730 1 Dist. Rep., 743, Arbitration, 2896 1 Ash., 45, Discontinuance, 3733 8 W. N., 6, Ejectments, , 627 33 W. N., 524; 3 Dist. Rep., 136, As- sumpsit, 36 45 Leg. Int., 454, Arbitration, 2894 1 W. N., 238, Dower, 1041 36 Pa. St., 81, Feigned Issues, 2693 62 Pa. St., 213, Partition, 2008 clxii TABLE OF CASES. Robinson, Academy v., Robinson v. Atkins, Robinson, Brubaker r., Robinson, Ex parte, Robinson v. Floyd, Robinson v. Glancy, Robinson v. Glancy, Robinson, KefEer v., . Robinson, R. R. Co. v., Robinson v. Transportation Co, Robinson v. Vogel, Rockey v. Burkhalter, Rockwell, Colwell v., Roderick, McNamara v., Roderick, Powell v., Rodgers, Kear v., Rodman v. Thalheimer, Rodney v. Washington, Rodrique v. Curcier, Rogers v. Bennett, Rogers, Cox v., Rogers' Estate, Rogers, GriflSin v., Rogers, Mooney v., Rogers v. Ratcliffe, Rogers v. Walker, Rogers v. Waterman, Roland v. Miller, Rolland v. Comm., Romano, Apreda v., Romberger v. Henry, Roop, Comm. v., Roop V. Roop, Root, Hauberger v., Root V. O'Neill, Root, Schofield v., Rorer, O'Donnell v.. Rose V. Turnpike Co., Roseberry, Wei3el v., Roseman v. Haydock, Rosenberger v. Hallowell, Rosengarten, Wharton v., Rosenthal v. Ehriicher, Rosenthal v. Ehriicher, Rosenzweig, R. R. Co. v., Ross and BUsbree's Appeal, Ross, Commissioners v., Ross, Evans v., Ross, Fitch v., Ross V. Miller, Ross V. Pleasants, Ross v. Pleasants, Ross, Priestly i'., Ross V. Soles, Ross, Stewart v., SECTION 37 Pa. St., 210, Amendments, 2411 2 W. N., Ill, Assumpsit, 52 3 P. & W., 295, Account Render, 309 19 Wall., 505, Attorneys, 3531 32 W. N., 5, Assumpsit, 23 69 Pa. St., 8§, Appeals, 3443 69 Pa. St., 89, Partition, 2008 2 W. N., 689, Assumpsit, 30 44 Pa. St, 175, Negligence, 1875, 1890 ,14 Atl. Rep., 860, At Trial, 3002a MMS., Assumpsit, 48 68 Pa. St., 221, Replevin, 2187 11 W. N., 552, Sci. Fas., 256 1 Dist. Rep., 610, Justices, 1297 I Dist. Rep., 120, Justices, 1289 9 Phila., 525, Justices, 1538 75 Pa. St., 232, Replevin, 2178 42 Leg. Int, 160, Dower, 1111 15 S. & R., 81, Amendments, 2425 16 S. & R., 243, Justices, 1491 77 Pa. St., 160, Dower, 1076, 1078 32 W. N., 176, Feigned Issues, 2654 38 Pa. St., 382, Comp. with Ored., 3483 8 Phila., 297, Landlord and Tenant, 1730 23 Pa. St., 184, Justices, 1557 6 Pa. St., 371, Lunatics and Drunk- ards, 3664 25 Pa. St, 182, Execution, 3172 3 W. & S., 390, At Trial, 3023a 82 Pa. St., 306, At Trial, 2978, 3172 24 W. N., 124, Attachments, 78 167 Pa. St, 314; 36 W. N., 215, Execu- tion, 3248 15 W. N., 419, Justices, 1172 35 Pa. St, 59, Amendments, 2427 5 Pa. St, 108, At Trial, 3023a 24 Pa. St, 326, Amendments, 2430 12 Phila., 333, Justices, 1218 4 Dist. Rep., 146, Feigned Issues, 2696 3 Watts, 46, Justices, 1554 13 S. & R., 178, Amendments, 2433 21 W. N., 121, Assumpsit, 17 3 Phila., 330; 35 Pa. St., 371, Execu- tion, 3172 3 W. N., 258, Justices, 1285 32 W. N., 221, At Trial, 3008 32 W. N., 221, Bills of Exceptions, 3076a 113 Pa. St, 519, NegUgence, 1900 15 W. N., 217, Sci. Fas., 250 3 Biuney, 520, New Trials, 3030, 3041 107 Pa. St, 231, Dower, 1111 4 S. & R., 557, Attachments, 98 14 W. N., 253, Justices, 1290 II Pa. St., 353, Partition, 1997 19 Pa. St, 157, Partition, 2004 11 Pa. St., 410, Justices, 1484, 1486, 1490 1 Watts, 43, Costs, 3125 1 Yeates, 148, Depositions, 2511 TABLE OP CASES. clxiii Ross, Stryker v., Rosseter, Comm. v., Rostain, Allen v., Rote, Richards v., Roth's Appeal, Roth, E^appenberger v., Roup V. Waldhouer, Rowbotham, Moore v., Rowe, Dilley v., Rawe, Dilley v., Rowe, Rushton v., Rowen v. King, Rowland, La Touche v., Royal, Kelly v., Royer v. Bank, Royer, Directors of the Poor Royer v. Swazey, Royer v. Tate, Koyse v. May, Rubeck v. Gardner, Rubicum i;. Williams, Rubinsky v. Patrick, Ruch V. Morris, Ruddach, Reichenbach v., Ruddach, Reichenbach v., Ruddach, Reichenbach v., Rudderon v. Hodges, Ruff V. Ruff, Ruffner, Welty v., Ruggles, Manfg Co. v., Rule, Phila. v., Rumsey v. Wynkoop, Runkle v. Comm., Ruoff's Appeal, Rupp V. Labows, Rupp, Lehigh Co. v., Rupp, McMaster v., Rush V. Able, Rush v. Ass'n, Rush V. Cavenaugh, Rush, Collins v., Rushton V. Lippincott, Rushton V. Lippincott, Rushton V. Rowe, Russell, Ass'n v., Russell, Buchwalter v., Russell V. Chiirch, Russell, Culligan v., Russell V. Smith, Rutter's Appeal, Ryan, Comly v., Ryers, City v., Rynd, Moffit v., Ryon, Fillman v., SECTION 20 W. N., 271, Arbitration, 2910 2 Binn., 360, Mandamus, 1819 11 S. & R., 362, Bills of Exceptions, 3068 68 Pa. St., 248, Partition, 2032 94 Pa. St., 186, Execution, 3276 32 W. N., 181, Justices, 1559 12 S. & R., 24, Justices, 1446 44 Leg. Int., 264, Torts, 527 23 W. N., 491, Torts, • 521 23 W. N., 491, Forms of Statements, 43753a 64 Pa. St., 63, Execution, 3308 25 Pa. St., 409, 410, Justices, 1382, 1491 12 W. N., 384, Discontinuance, 3732 46 Leg. Int., 108, Justices, 1571 4 W. N., 86, Assumpsit, 32 v., 43 Pa. St., 146, Dower, 1028, 1047 10 W. N., 432, Torts, 510 1 P. & W., 227, Appeals, 3433 93 Pa. St., 454, Amendments, 2431 7 Watts, 455, Escheats, 1145 1 Ash., 230, Landlord and Tenant, 1701, 1706 2 Dist. Rep., 695, Justices, 1478 28 Pa. St., 245, Replevin, 2187, 2190 121 Pa. St., 18, Bills of Exceptions, 3064 127 Pa. St., 564, New Trials, 3036 121 Pa. St., 18, Mandamus, 1784 5 W. N., 567, Ground Rents, 167 85 Pa. St., 333, Execution, 3310 9 Pa. St., 224, Partition, • 2002 2 Dist. Rep., 34, Writs, 2224 93 Pa. St., 15, Municipal Liens, 415 1 Yeates, 5, Assumpsit, 60c 97 Pa. St., 328, Mandamus, 1816 26 Pa. St., 219, Feigned Issues, 2661,2662 2 Dist. Rep., 340, Justices, 1413 100 Pa. St.,95, Negligence,1878,1883,1891 22 Pa. St., 298, Justices, 1566 90 Pa. St., 153, Mechanics' Claims, 238 4 Pa. C. C. Rep., 523, Arbitration, 2908 2 Pa. St., 187, Amendments, 2438 7 S. & R., 155, At Trial, 3023a 21 W. N., 97, Ground Rents, 170 119 Pa. St., 12, Mortgages, 191 64 Pa. St., 63, Execution, 3308 36 W. N., 260, Mortgages, 186 119 Pa. St., 495, Arbitration, 2896 65 Pa. St, 14, Interpleaders, 2730 2 W. N., 440, Justices, 1283 1 Phila., 425, Justices, 1492 8 Atl. Rep., 170, Execution, 3201 5 Wh., 263, Assumpsit, 30 27 W. N., 71, Municipal Liens, 354 69 Pa. St, 380, Amendments, 2419,2420 36 W. N., 391, Amendments, 2421 clxiv TABLE OF CASES. Sadler v. Slobaugh, Sage, Comm. v., Sager v. Galloway, Sallada, McFaddan v., Sailer, Herman v., Salter v. Griffith, Sample, Patterson v., Sancowicz, Meek v., Sanderson, Cochran v., Sands v. Fritz, Sanger, Phila v., Sanger, Phila v., Sangston, Chaffe v., Sanson, Comm. v., Sargeant v. Clark, Sargeant 17. Clark, Sarkey, TJlrich v., Sarmiento, Grimm v., Sarver, Stevens v., Satterfit, Rarill v., Sanr, Plunkett v., Sannders v. Qnigg, Sauter v. CairrolJ, Savage, City v.. Saving Fund v. Gilmore, Savings Bank's Appeal, Savings Institution v. Bank, Sapwyers, Williams v., Sayers v. Hoskinson, Sayre, Smith v., Scaife, McDonald v., Scanlon v. Suter, Scatchard v. Manfg. Co., SchaefEer, Stewart v., Schaeffer, Thacher v., Schafer v. Brotherhood, SchafEer, Kaylor v., SchaSer i'. lIcNamee, Schaifer's Estate, Schall's Appeal, SchaU, Welsh v., Scheetz, Friedly v., Scheffiers v. Stewart, Scheid v. Rapp, Schempp v. Fry, Schenck v. Uber, Schenley v. Comm., Scheuer, Cohu v., Schick 17. Goenner, Schick V. Goenner, Schienkeisen v. Kishbangh, Schlag 17. Phila., Schlatter v. Etter, Schleeht v. Restein, Schlicter v. Schlicter, Sehlicter v. Schlicter, Schloss, Conrow i'., SECTION 3 S. & R., 388, Justices, 1557 34 W. N., 225; 2 Dist Rep., 553, Jus- tices, 1215 113 Pa. St, 500, Ejectments, 680 6 Pa. St., 283, Account Render, 311 25 W. N., 408, Assumpsit, 57 7 W. X., 288, Assumpsit, 21 4 Yeates, 315, Execution, 3144a 4 Kulp, 85, Arbitration, 2939 151 Pa. St., 591, Appeals, 3463o 84 Pa. St., 15, Replevin, 2209 5 W. N., 335, Municipal Liens, 474 8 W. X., 151, Municipal Liens, 486 10 Watts, 265, Replevin, 2187, 2212 67 Pa. St., 322, At Trial, 2975c, 2995a 108 Pa. St, 588, Appeals, 3445 108 Pa. St, 588, Arbitration, 2892, 2896 6 S. & R., 285, Justices, 1486 43 Leg. Int, 129, Arbitration, 2934 29 Leg. Int, 46, Justices, 1268 Holt N. P., 451, Torts, 545 101 Pa. St, 356, Defalcation, 2756 112 Pa. St,546,Insolvent Laws,3608,3610 1 Dist Rep., 122, Justices, 1375 22 W. N., 3, Municipal Liens, 420 3 Dist Rep., 823, Defenses, 2775 96 Pa. St, 298, Dower, 1044 61 Pa. St, 391, At Trial, 3015 155 Pa. St, 129, Assumpsit, 30 110 Pa. St., 473, Ejectments, 677, 678 26 W. N., 314, Attachments, 88 11 Pa. St, 381, Replevin, 2204 158 Pa. St, 275, Appeals, 3435 10 W. N.. 452, Feigned Issues, 2677 33 W .N.. 365, Assumpsit, 32 19 W. N., 566, Torts, 539 22 W. N., 312, Statements, 73 24 Pa. St, 489, Amendments, 2412 13 S. & R., 44, Justices, 1258 155 Pa. St., 250, Appeals, 3439 40 Pa. St, 170, Dower, 1025, 1061 1 Dist Rep., 114, Arbitration, 2903 9 S. & R., 156, Amendments, 2435 11 W. N., 106, Assumpsit, 32 22 W. N., 438, Mechanics' Claims, 233 165 Pa. St, 510, Execution, 3261 81 Pa. St, 31, Mechanics' Claims,223,224 36 Pa. St, 29, Municipal Liens, 487 115 Pa. St, 178, Replevin, 2204 21 W. N., 63. Assumpsit, 18 21 W. X.. 63, Torts, 522 162 Pa. St, 45, Arbitration, 2861 42 Leg. Int, 354, Municipal Liens, 479 13 S. & R,. 36, Statements, 69 3 W. N., 95, Justices, 1548 10 Phila., 11, Discontinuance, 3742 10 Phila., 11, Divorce, 864 55 Pa. St, 28, Bills of Exceptions, 3062 TABLE OF CASES. clxv Schloss, Conrow v., Schlosser, Peter v., Schmertz, Loeffler v., Schmick, Snyder v., Sehmid v. Improvement Co., Schmidt Oberle v., Schmidt, Schnable v., Schmidt, Schnable v., Schnable v. Koehler, Schnable v. Schmidt, Schnable v. Schmidt, Schneider v. Coal Co., Schneider v. Schneider, Schnitzler v. Hammill, Schober v. Mather, Schober v. Mather, Schoch, Collins v., Schoch, Collins v., Schock, Comity v., Schoenberger v. Hackman, Schofield, Bank v., Schofield, City v., Schofield V. Ferrers, Schofield, Moorehead v., Schofield, Phila. v., Schofield V. Root, Schollenberg v. Seldonridge, School, McMasters v., School, Patterson v., School Directors v. Anderson, School Directors, Comm. v., School District's Appeal, School District, Hummer v., School District, R. R. Co. v., Schooley v. Turner, Schoonover v. Banking Co., Schott, Goodwin v., Schott V. McFarland, Schotte V. Schotte, Schreiber, McGrath v., Schricon, Foreman v., Schrimpton v. Bertolet, Schroeder v. Galland, Schroeder v. R. R. Co., Schryock v. Buckman, Schultz V. Asay, Schultz, Kineaid v., Schultz, McFarland v., Schultz, Shannon v., Schultzman v. McCarthy, Schwartz's Estate, Schwartz, McClurg v., Schwenk v Umsted, Schwilke's Appeal, Scoolt, Eeddie v., VOIi. I. — L SECTION 55 Pa. St., 28, Mandamus, 1784, 1849 81 Pa. St., 439, Justices, 1252 152 Pa. St., 615, Feigned Issues, 2614 166 Pa. St, 429, Execution, 3173 34 W. N., 461, Mechanics' Claims, 223 5 W. N., 225, Assumpsit, 32 21 W. N., 153, Statements, 73 21 W. N., 153, Torts, 521 28 Pa. St, 181, Amendments, 2431 21 W. N., 153, Statements, 73 21 W. N., 153, Torts, 521 98 Pav St, 470, Arbitration, 2909 9 W. N,. 253, Divorce, 944 1 W. N., 471, Execution, 3341i 49 Pa. St., 21, Assumpsit 58 49 Pa. St, 21, Execution, 3277 14 W. N., 485, Mechanics' Claims, 242 14 W. N., 485, Municipal Liens, 457 18 W. N., 326, Justices, 1219 37 Pa. St, 87, Amendments, 2423 36 W. N., 361, Defenses, 2771 166 Pa. St, 389, Municipal Liens, 383 46 Pa. St, 438, Replevin, 2204 111 Pa. St., 584, Torts, 563 25 W. N., 388, Municipal Liens, 438 12 Phila., 333, Justices, 1218 49 Pa. St, 84, Amendments, 2419 34 W. N., 456, Mechanics' Claims, 224 92 Pa. St, 229, Mechanics' Claims, 213 45 Pa. St, 388, Mandamus, 1798 4 Dist Rep., 314, Mandamus, 1754, 1843 113 Pa. St, 176, Municipal Liens, 421 10 PhUa., 494, Justices, 1512 3 Penny., 518, At Trial, 3023 3 Kulp, 150, Arbitration, 2909 1 Dist Rep., 733, Statements, 73 159 Pa. St, 552, Assumpsit, 32 1 Phila., 63, Audita Querela, 3347, 3349 8 W. N., 236, Divorce, 786 22 W. N., 312, Mechanics' Claims, 224 8 W. & S., 43, Assumpsit 23 155 Pa. St, 638, At Trial, 2980 26 W. N., 33, Mechanics' Claims, 224 47 Iowa., 375, Prep, for Trial, 2972 22 W. N., 289; 121 Pa. St, 248, Me- chanics' Claims, 240 2 Penny., 416, Mechanics' Claims, 228 40 Leg. Int, 329, At Trial, 3023 37 W. N., 28; 168 Pa. St, 634, Me- chanics' Claims, 239, 241 87 Pa. St, 481, Mechanics' Claims, 240 5 Dist Rep., 10, Justices, 1582 42 Leg. Int, 16, Dower, 1035 87 Pa. St, 521, Dower, 1068 6 S. & R., 351, Prep, for Trial, 2971 100 Pa. St, 628, Feigned Issues, 2639 Peake's Rep., 240, Torts, 545, 546 clxvi TABLE OF CASES. Scott V. Ames, Scott, Bacon v., Scott V. Barnes, Scott, Brown v., Scott, City v., Scott V. Coal Co., Scott, Cosgrove v., Scott V. Croasdale, Scott, Donahoo v., Scott V. Hilgert, Scott ■17. Horn, Scott V. Loughery, Scott, McCord v., Scott, Newlin v., Scott V. Patterson, Scott, PhUa v., Scott, Phila v., Scott V. PhUUps, Scott, Pierce v., Scott V. Scott, Scott Township v. Mont- gomery, Scranton School District's Api)eal, Scranton v. Barnes, Scull V. Shakespear, Seabrook v. College, Searfoss, Lowenstein v., Seaton v. Barry, Seaton v. Jamison, Sechrist v. Connellee, Seely v. Pittsburgh, Segelbaum, City v., Seibert's Appeal, Seibert Fernstler v., Seibert v. Kline, Seibert v. Kline, Seibert v. McHenry, Seidenstriker v. BuSum, Seider v. Seider, Seiders v. Giles, Seiple V. R. R. Co., Seitz V. Buffnm, Seitz V. BufEum, Seitzinger v. Steinberger, Selden v. Ass'n, Selden, Cozad v., Seldonridge, SchoUenberg 17., Selfridge v. Tilghman, Selfridge, Uhler v.. Sell, Laufer v., Sellers, Mathias v.. Seltzer v. Bobbins, Semayne's Case, Seminary v. Borough, Semmens, McClelland v., Senneff, Clapp v., SECTION 4 Penny., 475, Ejectments, 647 32 W N.., 194, Assumpsit, 32 7 Pa. St., 134, Justices, 1242 51 Pa. St., 357, Execution, 3312 8 W. N., 405, Defenses, 2769 89 Pa. St., 231, Amendments, 2433 8 W. N., 28, Justices, 1329 1 Teates, 75, Dower, 1044 12 Pa. St, 45, Mechanics' Claims, 204 14 W. N., 305, Attachments, 75 9 Pa. St., 407, Depositions, 2517 6 W. X., 123, Assumpsit, 22 4 Watts, 11, Arbitration, 2899 26 Pa. St., 102, Execution, 3308 30 W. N., 324, Defenses, 2771 93 Pa. St., 25, Mechanics' Claims, 242 3 W. N., 562, Municipal Liens, 458 140 Pa. St., 51, Execution, 3264 4 W. & S., 344, Ground Rents, 150 110 Pa. St., 387, At Trial, 3022a 95 Pa. St, 444, Negligence, 1899 113 Pa. St, 176, Municipal liens, 421 147 Pa. St, 461, Appeals, 3435 75 Pa. St, 297, Attachments, 130, 136 65 Pa. St, 74, Mechanics' Claims, 243 26 Atl. Rep., 448, Ejectments, 629 4 W. & S., 183, Partition, 2040 7 Watts, 533, Dower, 1105, 1109, 1110 3 P. & W., 388, Justices, 1261 82 Pa. St, 360, Municipal Liens, 414 151 Pa. St., 172, Municipal Liens, 439 73 Pa. St, 359, Execution, 3180 114 Pa. St., 196, Ejectments, 615 1 Pa. St, 38, Justices, 1518, 1563 1 Pa. St, 38, Prep, for Trial, 2973a 6 Watts, 301, Replevin, 2196 14 Pa. St, 159, Justices, 1509 5 Wh., 208, Dower, 1109 141 Pa. St, 93, Partition, 1977 129 Pa. St, 425, NegUgence, 1872 14 Pa. St, 69, Amendments, 2421 14 Pa. St, 69, Justices, 1551 12 Pa. St, 379, Justices, 1267 2 W. N., 481, Assumpsit, 30 2 Dist Rep., 664, Execution, 3251 49 Pa. St, 84, Amendments, 2419 1 W. N., 61, Assumpsit, 60d 1 Phila., 580, Justices, 1327 141 Pa. St, 159, Arbitration, 2939 86 Pa. St, 486, Replevin, 2180,2196,2199 18 W. N., 113, Justices, 1608 1 Smith's Lead. Cases, *183, Execu- tion, 3186 1.53 Pa. St, 583, At Trial, 3024 1 Dist Rep., 356, Justices, 1582 7 Phila., 214, Justices, 1410 TABLE OF CASES. clxvii Sennett, McGowan v., Senseman's Appeal, Serrt, Rex v., Setterly v. Yearsley, Seward, Smith v., Seymour, Bratton v., Seymour v. Hubert, Shafer, Jacoby v., Shafer, Morris v., Shaffer v. List, Shaffer, Mink v., Shaffer v. Shaffer, Shaffer v. Watkins, Shafto, Quinn v., Shakespear D-The Maggie Cain, Shakespea/r, Cain v., ^ Shakespear v. Cain, Shakespear, Scull v., Shallcross v. Kohl, Shank, Powell v., Shank v. Warfel, Shannon v. Broadbent, Shannon, Comm. v., Shannon, Greenaeakman v. Speakman, Spear v. Jamieson, Specht, Buchanan v., Speer v. Bidwell, Si)eer, Dnnlop v., Speers v. Sterrett, Speicher, Backentoss v., Speidel's Appeal, Spencer v. Bloom, Spencer, Coleman v., Spencer, Machine Co. v., Spencer, Machine Co. v., Spencer, Machine Co. v., Spicer v. Rees, Spitz, Borland v., Splane, In re Spots, Sprenkel v., Sprenger, Comm. ;;., Sprenkel v. Spots, Spring Garden v. "Wistar, Springer, Amndel v., Springer, Amndel v.. Springer v. Groom, Springer v. Phillips, Sproule, Ashton v., Sproule, Hnddy v., Spunk, Curry v.. Squire, Enfield v., Stackhouse, Brown v., Stadelman, Bank v., Stadelman v. Trust Co., Stafford v. Ames, Stahl V. Jarrett, Stahlman's Estate, Stains, Bamett v., Stair, Beitzel v., Stamer v. Nass, Stanford, Bunce v., Stanley, Britton v., Stanley v. Garrigues, Stanton, Little v., Starbuck v. Starbuck, Starr, Biddle v., Starr's Estate, State r. Noggle, SECnoN 11 Phila., 213, Divorce, 787 11 W. N., 83, Arbitration, 2900 1 W. & S., 378, Justices, 1512 3 P. & W., 389, Justices, 1317 12 W. N., 312, Insurance, 293 31 Pa. St., 523, Amendments, 2412 6 Whar., 416, Quo Warranto, 2134 2 Pars., 232, Justices, 1285, 1413, 1517 9 W. & S., 182, Actions after Death,2222 1 Dist. Kep., 119, Justices, 1395 2 S. & R., 530, Justices, 1557 1 Phila., 252, Justices, 1275, 1285 44 Pa. St., 23, Arbitration, 2898 3 Binn., 169, Execution, 3158 29 Pa. St., 192, Defalcation, 2756, 2759 31 Pa. St, 324, Replevin, 2177, 2178 107 Pa. St., 18, Dower, 1051 30 W. N., 128, Justices, 1291 1 Phila., 271, Documents, 2452 29 W. N., 493; 28 W. N., 287, Land- lord and Tenant, 1655, 1661 147 Pa. St., 466, Replevin, 2148 147 Pa. St., 466, Forms of Statements, 3755o 5 Rawle, 119, Justices, 1427 153 Pa. St., 590, Justices, 1461 123 Pa. St, 527, Attorneys, 3510 2 Tr. & H. Pr., 1538n. 11, Detinue, 719 5 Binn., 353, Quo Warranto, 2123 2 Tr. & H., Pr., 1538 n.. Detinue, 719 18 Pa. St, 195, Municipal Liens, 411, 463 71 Pa. St, 398, Actions after Death, 2216 71 Pa. St, 398, Discontinuance, 3750 21 W. N., 242, Torts, 563 71 Pa. St, 60, Ground Rents, 177 35 Pa. St, 492, Bills of Exceptions, 3066 4 Phila., 353, Execution, 3180 23 Pa. St, 58, Mechanics' Claims, 239 3 Dist Rep., 349, Justices, 1290 32 W. N., 407; 155 Pa. St., 582, Land- lord and Tenant, 1655, 1661 153 Pa. St, 634, Assumpsit, 30 6 W. N., 134, Assumpsit, 22 9 Pa. St, 343, Torts, 563 2 Rawle, 449, Execution, 33411 26 P. L. J.,113,Landlord and Tenant,1651 20 W. ^^, 274, Assumpsit, 40 2 Dist Rep., 337, Mechanics' Claims, 228 3 Grant, 240, Justices, 1249 27 Pa. St., 265, Justices, 1491 1 Wh., 267, New Trials, 3028 1 W. N., 28, Assumpsit, 60d 32 Pa. St, 299, Account Render, 333 59 Law Jour. Kep. (Probate), 20, Di- vorce, 824 9 Pa. St, 461, Partition, 1983 40 Leg. Int, 5, Dower, 1033 13 Wis., 380, Bills of Exceptions, 3064 TABLE OP CASES. clxxiii State V. R. K. Co., State V. Richardson, State, Thomas v.. State V. Todd, State V. Tunstall, Stauffer v. Commissioners, Stauffer, Martzell v., Stauffer, Myers v., Steadwell, Simes v., Steamship Co. v. Haas, Steckel v. Weber, Stedman v. Bradford, Stedman i;. Poterie, Steel, Adelman v., Steel, Eppelsheimer v., Steel V. Goodwin, Steel Co. V. Manfg. Co., Steel Co. V. Manfg. Co., Steel Co. V. Refining Co., Steel Works v. Hallgarten, Steele, Brown v., Steele v. Steele, Steer, Warren v., Steer, Warren v., Steffen v. Hartzell, Stehley v. Harp, Stehman v. Wehrly, Stelner, Davis v., Steinman, Ex parte, iSteinmain v. Hendjrson, Steinman v. Miller, Steinmets v. Logan, Steinruck, Kater v., Stephens' Appeal, Stephenson v. Brown, Stepney, Kelly v., Sterling, Bell v., Stern, Krauskopf v., Stern, Krauskopf v., Stem, Krauskopf v., Stemberger, Cot Co. v., Sterrett v. Electric Co., Sterrett, James v., Sterrett, James v., Sterrett, Speers v., Stetler, Townsend v., Stetler, Church v., Stevens, Markley v., Stevens, Riddle v., Stevens v. Sarver, Stevens, Wanamaker v., Stevenson, PhUa. v., Stevenson, Raw v., Stevenson, Ward v., Stewart's Appeal, SECTION 2 Cent Rep., 726, Manda.mus, 1779 40 N. H., 272, Justices, 1194 58 Ala., 365, Attorneys, 3531 4 Ohio, 351, Bills of Exceptions, 3064 51 Texas, 81, Attorneys, 3531 1 Watts, 300, Sci. Pas., 249 3 P. & W., 403, At Trial, 3023a 22 W. N., 412, Justices, 1424 12 W. N., 292, Assumpsit, 52 31 W. N., 79, Landlord and Tenant, 1664, 1683 20 Pa. St., 435, Justices, 3 Phila., 258, Justices, 27 W. N., 270, Assumpsit, 34 Leg. Int., 134, Arbitration, 21 W. N., 380, Defa.lcation, 113 Pa. St, 288, Attachments, 158 Pa. St., 238, Mechanics' 1547 1418 36 2927 2756 81,104 Claims, 213, 226 33 W. N., 244, Mechanics' Claims, 224 48 Leg. Int, 25, Mechanics' Claims, 201 15 W. N., 47, Replevin, 2157, 2165 110 Pa. St, 588, Mechanics' Claims, 223 11 W. N., 21, Divorce, 986 118 Pa. St., 529, Writ of Inquiry, 711 118 Pa. St, 529, Ejectments, 687 5 Whar., 448, Justices, 1266 5 S. & R., 544, Justices, 1551 1 Dist. Rep., 649, Writs, 2224 14 Pa. St, 275, At Trial, 3002d 95 Pa. St, 220, Attorneys, 3531 94 Pa. St., 313, Mechanics' Claims, 240 12 W. N., 244, Mechanics' Claims, 239 3 Watts, 160, Ejectments, 636 40 Pa. St., 501, Defalcation, 2757 38 Pa. St, 15, Sci. Fas., 249, 250 147 Pa. St., 300, At Trial, 3012 4 Watts, 69, Insolvent Laws, 3608 12 Phila., 230, Assumpsit, 22 21 W. N., 185, Assumpsit, 18 21 W. N., 185, Statements, 73 21 W. N., 185, Torts, 522 12 W. N., 290, Depositions, 2491 44 Leg. Int, 253, Mandamus, 1817 4 Pa. C. C. Rep., 584, Arbirtation, 2900 48 Leg. Int, 48, Arbitration, 2899 29 Pa. St, 192, Defalcation, 2756, 2759 5 Kulp, 11, Discontinuance, 3733 26 Pa. St, 246, Mechanics' Claims, 213 7 W. N., 357, Assumpsit, 30 2 S. & R., 537, Statements, 64, 66 29 Leg. Int, 46, Justices, 1268 43 Leg. Int., 56, Attachments, 81 6 Pa. O. C. Rep., 287; 25 W. N., 367, Municipal Liens, 438 24 Pitts. Law Jour., 145, Execution, 3244 15 Pa.St,21,Amendments,2411,2417,2418 110 Pa. St, 410, Dower, 1085 clxxiv TABLE OP CASES. Stewart, Aiken v., Stewart v. Baldwin, Stewart v. Bank, Stewart v. Bowen, Stewart v. Brown, Stewart, City v., Stewart v. City, Stewart, Crawford v., Stewart v. Eisenhower, Stewart v. K'eemie, Stewart v. Kelly, Stewart v. Martin, Stewart v. McBride, Stewart v. Mitehel, Stewart v. Phila., Stewart v. Richardson, Stewart, Kidgway v., Stewart v. Ross, Stewart v. SchaefEer, Stewart, SehefiEers v., Stewart,* XJlshafer 17., Stewart, Wilkinson v., Stewartson v. Watts, Stileman, Caldwell v.. Stiles, Amos t'.. Stiles, Girard v., StUes V. Griffith, Stiles V. Powers, StiUman, Wetherill v., StiUwell V. Rickards, Stines, Hibbs v., Stitt, Thompson v., Stoekdale v. Campbell, Stockdale, Hopkins v., Stocker, Loew v., Stocker, Loew v., Stockham v. Boyd, Stockham v. Pancoast, Stoever, Leinaweaver v., Stoever, Leineweaver v.. Stoke V. McCullough, Stokes, Borland v., Stokes V. Deakyne, Stokes, Elton v., Stokes V. Harrison, Stokes V. Miller, Stokes, Smith v., Stone V. R. B. Co., Stonebreaker v. Short, Storage Co. 17. Foundry Co., Storrick, Silvergood v., Stouch, Hawk v., StouSEer, Furnace Co. v., Stoughton, Penna. Co. v., Stoughton V. Rappalo, Stout V. Moore, Stout V. Stout, SECTION 63 Pa*. St., 30, Bills of Exceptions, 3068 1 P. & W., 461, Costs, 3124 11 S. & R., 267, Bills of Exceptions, 3065 49 Pa. St., 245, Account Render, 333 2 S. & R., 461, Partition, 1971 1 W. N., 242, Municipal Liens, 464, 467 4 Cent. Rep., 674, Municipal Liens, 418 38 Pa. St., 34, Attachments, 81 4 Dist. Rep., 565, Justices, 1531 4 S. & R., 72, Justices, 1486 16 Pa. St, 160, Amendments, 2428 2 Watts, 200, Dower, 1111 1 S. & R., 202, New Trials, 3046 13 S. & R., 287, Justices, 1557 4 Cent Rep., 674, Municipal Liens, 418 3 Teates, 200, Prep, for Trial, 2971 4 W. & S., 383, Comp. with Cred., 3483 I Yeates, 148, Depositions, 2511 33 W. N., 365, Assumpsit, 32 II W. N., 106, Assumpsit 32 71 Pa. St., 170, Actions after Death, 2221 85 Pa. St, 255, Replevin, 2162 8 Watts, 392, Execution, 3144a 1 Rawle, 212, At Trial, 3002d 1 W. N., 414, Justices, 1627 4 Yeates, 1, Amendments, 2435 3 Yeates, 82, Replevin, 2170 1 Ash., 407, Justices, 1442 65 Pa. St, 105, Assumpsit, 32 31 W. N., 419, Amendments, 2433 8 PhUa., 236, Justices, 1538 56 Pa. St, 156, Partit'on, 2002 1 Phila., 520, Justices, 1388 117 Pa. St, 365, Defalcation, 2757 61 Pa. St, 347, Amendments, 2427 61 Pa. St, 347, At Trial, 3023 22 W. N., 118, Attachments, 76 1 Dist. Rep., 135, Attachments, 93 17 S. & R., 297, Dower, 1094, 1109 1 W. & S., 160, Dower, 1070 107 Pa. St, 39, Execution, 3341g 120 Pa. St, 278, Torts, 563 2 Dist Rep., 143, Mechanics' Claims, 201 39 Leg. Int, 159; 12 W. N., 240, Jus- tices, 1429, 1634 2 W. N., 382, Prep, for Trial, 2973a 10 W. N., 241, New Trials, 3036 10 W. N., 6, Mechanics' Claims, 224 132 Pa. St, 206, Negligence, 8 Pa. St., 155, Depositions, 1910, 1913 2511 105 Pa. St, 248, Mechanics' Claims, 213 1 Watts, 532, Justices, 1430 5 S. & R., 157, Justices, 1634 127 Pa. St, 336, Replevin, 2167 106 Pa. St, 458, Justices, 1426 3 S. & B., 559, Replevin, 2166 7 W. N., 456, Defalcation, 2756 44 Pa. St, 457, Amendments, 2416 TABLE OF CASES. clxxv Stove Co.'s Estate, Stoy, Geyger v., Stoy V. Tost, Stranahan v. Wright, Strang v. Adams, Stratton v. Minnis, Straub v. Dimm, Straub, McKee v., Strauss v. Reen, Straw, Trump v., Strawbridge, City v., Strawick v. Munhall, Street, Brown v., Strenger, Monohan v., Strieker, Hocker v., Strickhouser, Wolfram v., Strimpler, Albrecht v., Strock V. Comm., Strock V. Little, Strode, Ulsh v., Stroh V. Uhrich, Strohoecker, Feather v., Strong V. Bass, Strong, Hell v., Stroop V. Swarts, Stroub, Krebs v., Strouse v. Becker, Strouse v. Lawrence, Struble v. R. R. Co., Struthers v. Peacock, Stryker v. Ross, Stull V. Title Co., Stumm, Conn v., Sturges' Appeal, Stuttler, Railway Co. v., Subers, Faunce v., Sugden v. Sugden, Suier v. Wilbraham, Suit Co., Davison v., Sullivan v. Keiffer, Sully V. Baum, Sully, Dutill v., Summy v. Hiestand, Sunday v. Snayberger, Super V. Mauger, Supervisors v. Brodhead, Supervisors, Comm. v., Supplee, Reznor v.. Supply Co., Friend v.. Surety Co., Borden v., Surety Co., Borden v., Surety Co., Tonti v., Suter, Scanlon v., Sutton, Keegan v., Sutton, Meeker v., SECTION 166 Pa. St., 296, Comp. with Cred., 3485 1 Dall., 135, Justices, 1203 12 S. & R., 385, Justices, 1486, 1492 29 W. N., 282, Execution, 3301 4 Dist. Rep., 212, Execution, 3323 2 Munford (Va.), 329, Detinue, 727 27 Pa. St, 36, Escheats, 1155 2 Binn., 1, Partition, 1965 41 Leg. Int., 54, Replevin, 2185 1 Pears., 29, Arbitration, 2904 4 W. N., 215, Justices, 1398 27 W. N., 195; 139 Pa. St, 163, Me- chanics' Claims, 216, 229, 231 6 W. & S., 221, Assumpsit, 30 1 Phila., 376, Arbitration, 2905 1 Dall., 225, Replevin, 2187 1 W. & S., 379, Insolvent Laws, 3608 7 Pa. St, 477, Defenses, 2783 90 Pa. St, 272, Assumpsit, 22 45 Pa. St., 416, Account Render, 314 13 Pa. St, 433, Ejectments, 629 1 W. & S., 57, Justices, 1348 3 P. & W., 505, Partition, 2040 35 Pa. St, 333, Execution, 3300 44 Pa. St, 264, Ejectments, 679 12 S. & R., 76, Actions after Death, 2216 116 Pa. St, 405, Ejectments, 620 44 Pa. St., 206, Execution, 3174 160 Pa. St, 421; 34 W. N., 230, Jus- tices, 1473 23 W. N., 197, Statements, 73 3 W. N., 517, Actions after Death, 2217 20 W. N., 271, Arbitration, 2910 26 W. N., 97, Statements, 73 31 Pa. St, 14, Justices, ' 1244 86 Pa. St., 413, Execution, 3192 54 Pa. St, 375, Negligence 1884 1 W. N., 248, Assumpsit, 23 22 W. N., 136, Costs, 3135a 22 W. N., 10, Mechanics' Claims, 244 4 Dist. Rep., 237, Justices, 1503 122 Pa. St, 135, Dower, 1080 1 W. N., 115, Writ of Inauiry, 696 9 W. N., 573, Assumpsit, 21 65 Pa. St, 300, Discontinuance, 3732 4 Dist. Rep., 296, Justices, 1570 1 Leg. Rec, 125, Arbitration, 2897 7 Cent Rep., 496, Mandamus, 1858 29 Pa. St, 124, Mandamus, 1804 2 W. N., 401, Assumpsit, 32 165 Pa. St, 652, Assumpsit, 32 33 W. N., 502; 159 Pa. St, 465, At- tachments, 83 2 Dist Rep., 245, Attachments, 86 MMS. Prod, of Documents, 2450 158 Pa. St, 275, Appeals, 3435 12 W. N., 292, Attachments, 81 2 Phila., 288, Justices, 1603 clxxvi TABLE OP CASES. Sutton V. Sutton, Swain, Northern Liberties v., Swain 17. Phila., Swaiue, Keen v., Swan, Cluggage v., Swan, Hurd v., Swank, Comm. v., Swarts, Stroop v., Swayze 1>. Ormsby, Swazey, Royer v., Sweeney v. Girolo, Sweeney v. Hunter, Sweeny, Lindsay v., Sweeny v. McGittigan, Sweeny v. McGittigan, Sweeny v. Meany, Sweeny, Park v.. Sweet V. Williams, Sweeting v. Wanamaker, Sweigard v. "Wilson, Swinford, Noll v., Swires v. Brotherline, Swisher, Comm. 17., Sylvester, Arthur v., Sylvester, Arthur v., T. V. M., Taber 17. Olmsted, Tack Works v. Sowers, Tagg 17. Bowman, Tainter, Warder 17., Tallant, Croasdale 17., Tallman, Bower 17., Tammany, Wray 17., Tanner, Miles 17., Tarin 17. Morris, Tassey 17. Church, Tate, Royer 17., Tate 17. Tate, Tatham 17. Ramey, Tatham 17. Ramey, Tatham 17. Wardens of Phila., Tavernor 17. Ditchfield, Taylor, Ass'n f., Taylor v. Birmingham, Taylor r. Brown, Taylor's Case, Taylor 17. Comm., Taylor, Comm. 17., Taylor, Comm. v., Taylor 17. Comm., Taylor (•. Express Co., Taylor v. Gould, Taylor i'. Hanlon, Taylor, Lee i;., SECTION 929 411 449 3144a 3037 2982 26 W. N., 398, Divorce, 13 Pa. St., 113, Municipal Liens, 22 W. N., 120, Municipal Liens, 3 Teates, -561, Execution, 4 Binn., 150, New Trials, 4 Denio (N. T.), 75, At Trial, 79 Pa. St, 154, Quo Warranto, 2088, 2109, 2125, 2133 12 S. & R., 76, Actions after Death, 2216 2 Watts, 494, Partition, 2003 10 W. N., 432, Torts, 510 32 W. N., 404, Justices, 1284 29 W. N., 133, Attachments, 75 6 Phila., 309, Justices, 1523 20 Pa. St, 319, Mechanics' Claims, 242 20 Pa. St, 319, Municipal Liens, 456, 460 1 Miles, 167, Partition, 1974 39 Pa. St, 111, Justices, 1563 162 Pa. St, 94, Execution, 3190 4 Dist Rep., 246; 36 W. N., 279, Ex- ecution, 3266, 3294 106 Pa. St, 207, Arbitration, 2935 2 Pa. St, 187, Mechanics' Claims, 239 41 Pa. St, 135; 48 Pa. St, 68, Ex- ecution, 3189 3 Dist Rep., 662, Costs, 3135 105 Pa. St, 233, Defalcation, 2757 105 Pa. St, 233, Torts, 562 35 Law J. Rep. (P. & M.), 10, Divorce,765 158 Pa. St, 351, Assumpsit 36 11 W. N., 83, Arbitration, 2900 108 Pa. St, 273, Defalcation, 2757 4 Watts, 270, Sci. Fas., 256, 260 3 W. N., 375, Actions after Death, 2216 5 W. & S., 556, Replevin, 2184 13 Pa. St, 394, Execution, 3263 3 P. & W., 95, Justices, 1540 2 Dall., 115, Assumpsit, 17 4 W. & S., 141, Amendments, 2432, 2434 1 P. & W., 227, Appeals, 3433 2 Grant 150, Justices, 1355, 1553 82 Pa. St, 130, Amendments, 2421 82 Pa. St, 130, Dower, 1040 2 Phila., 246, Mandamus, 1761 35 L. Jour. Rep. (P. & M.),51,Divorce, 761 1 Del. Co. Rep., 378, Arbitration, 2894 29 Pa. St, 306, Dower, 1040, 1081 3 Dist. Rep., 570, Writs, 2238 I Pears., 191, Insolvent Laws, 3608 103 Pa. St, 96, Feigned Issues, 2648 II Phila., 386, Justices, 1215 36 Pa. St, 263, Mandamus, 1853 103 Pa. St, 97, Mandamus, 1773 9 Phila., 272, Replevin, 2186 57 Pa. St, 152, Defalcation, 2757 103 Pa. St, 504, Torts, 563 1.T.4 Pa. St, 95, Assumpsit, 32 TABLE OF CASES. clxxvii Taylor, Lehr t;., Taylor v. Lyon, Taylor v. Montgomery, Taylor, Packer v., Taylor, Ward v., Taylor, Ward v., Taylor v. Young, Taylor v. Young, Taylor v. Young, Taylor, Young v., Teal, Weigley v.. Teal, Weigley v., Tebay v. Kkkpatrick, Tees, Ewing v., Telegraph Co. v. Comm., Telegraph Co., Conrad v., Telegraph Co., Ferguson v., Telegraph Co. v. Friend, Telephone Co. v. Comm., SECTION 90 Pa. St., 381, Torts, 563 12 Cent. Rep., 365, Torts, 562 20 Pa. St., 443, Mechanics' Claims, 239 2 Dist. Rep., 443, Justices, 1261 1 Pa. St., 238, Discontinuance, 3749 1 Pa. St., 238, Justices, 1458 71 Pa. St., 81, Actions after Death, 2220 71 Pa. St., 81, Sci. Fas., 256 71 Pa. St., 81, Mortgages, 191 2 Binn., 231, Execution, 3144a 23 W. N., 521, Assumpsit, 17 23 W. N., 521, Torts, 524 29 W. N., 184, Mechanics' Claims, 224 1 Binn., 450, New Trials, 3027 114 Pa. St., 592, Mandamus, 1820, 1823 162 Pa. St., 204, Assumpsit, 151 Pa. St., 211, Statements, 114 Pa. St, 592, Mandamus, 17 W. N., 505, Mandamus, Telephone Co. v. Telephone Co.,46 Leg. Int., 200, Insurance, Teller, Burke v., Teller, Kohn v., Temple, Wisecarver v., Tenbrook, Hubbard v., Terry, Ex Parte, Terry, Johnson v., Terry v. Wenderoth, Terry v. Wenderoth, Thacher v. Schaeffer, Thackaray, Bevan v., Thackaray, Bodey v., Thalheimer, Rodman v., Thamm v. Hamberg, Tharp, Downey v., Thayer, Dougherty v., Thayer, Mack v., The Belfast, In re The Hine v. Trevor, 30 73 1844 1782 295 3125 2513 3277 18 3570 1194 73 1 Dist. Rep., 23, Costs, 2 W. N., 487, Depositions, 146 Pa. St., 42, Execution, 23 W. N., 351, Assumpsit, 128 U. S., 290, Courts, 34 Conn., 259, Justices, 29 W. N., 517, Statements, 29 W. N., 517, Forms of Statements, 3770 19 W. N., 566, Torts, 539 28 W. N., 473; 48 Leg. Int., 439, Me- chanics' Claims, 240 28 W. N., 470, Mechanics' Claims, 240 75 Pa. St., 232, Replevin, 2178 2 Brews., 528, Landlord and Tenant, 1667 63 Pa. St., 322, Defalcation, 2757 78 Pa. St., 172, Execution, 3292 2 Phila., 291, Justices, 1492 7 Wallace, 624, Attachments, 129 4 Wallace, 555, Attachments, The Maggie Cain, Shakespear v.3 W. N., 167, Attachments, 129 139 The Moses Taylor, In re The Queen, Darley v., Theis, City v., Thielens, White v., Thierolf v. Ins. Co., Thilow V. Traction Co., Thom, Kohler v., Thomas v. Afflick, Thomas v. Ass'n, Thomas, Clymer v., Thomas, Comm. v., Thomas V. Harris, Thomas, Heidelbaugh v., Thomas v. Hinkle, Thomas, Hunsecker v., Thomas V. Kulp, Thomas v. Miller, 4 Wallace, 411, Attachments, 127, 128 12 Clark & Finelly, 520, Quo War- ranto, 2079 12 W. N., 239, Municipal Liens, 461 106 Pa. St., 173, Assumpsit, 52 110 Pa. St., 37, Insurance, 290 4 Dist. Rep., 83, Justices, 1228 154 Pa. St., 180, Execution, 3257 16 Pa. St, 14, Justices, 1537, 1579 3 Phila., 425, Justices, 1537 7 S. & R., 178, Amendments, 2426 35 W. N., 255, Mandamus, 1772 43 Pa. St, 231, Dower, 1047, 1056 10 W. N., 141, Execution, 3341g 24 W.' N., 119, Mechanics' Claims, 230 89 Pa. St, 154, Mortgages, 191 4 S. & R., 271, Ejectments, 627 31 W. N., 177, Depositions, 2532 clxxviii TABLE OF CASES. Thomas v. Northern Liberties, Thomas, Phila. v., Thomas, Shurtz v., Thomas v. Simpson, Thomas v. State, Thomas v. Thomas, Thomas v. Winpenny, Thompson's Appeal, Thompson v. Barkley, Thompson, Bonnaffon v., Thompson, Caldwell v., Thompson, Crackall v., Thompson, Davis v., Thompson v. Bwing, Thomiwon, Glenn c, Thompson v. McKinley, Thompson v. Morrow, Thompson, Myrick v., Thompson, Rex v., Thompson v. Stitt, Thompson v. Thompson, Thornton v. Bonham, Thornton v. Britton, Thouron v. Paul, Throop V. Ins. Co., Tibbal v. Cahoon, Tibbs, Dawson v., Tichenor, Jacobs v., Tiehenor, Alexander v., Tieman v. Binns, Tilghman, Coxe v., Taghman, Sel&idgd v., Tilton V. Beecher, Timbrell, Weedon v.. Time Co. v. Geiger, Timlow V. Railroad Co., Tisdall V. Paul, Title Co., Hankey v.. Title Co. V. Ins. Co., Title Co., StnU r., Titman, Rea v., Titus r. Oil Co., Tizzard v. Hughes, Tobelman, Jacobs v., Todd V. McCulloch, Todd, State v., Todd V. Todd, Tolan. Gill v., Tombler v. Dinan, Tomer, Magill v., Tonti V. Surety Co., Toole V. Toole, Toomey's Appeal, Toone i". Toone, Topping, Willey v., Topson V. Sipe, SECTION 13 Pa. St, 117, Municipal Liens, 411 9 W. N., 240, Municipal Liens, 488 8 Pa. St., 359, Dower, 1047 3 Pa. St., 60, Dower, 1027, 1040 58 Ala., 365, Attorneys, 3531 124 Pa. St, 646, Divorce, 774 13 W. N., 93, Defalcation, 2756 11 W. N., 414, Costs, 313.5a 27 Pa. St, 263, New Trials, 3033, 3042 83 Pa. St, 460, Execution, 3307 1 Rawle, 370, Justices, 1528 1 Salk. Rep., 354, Divorce, 892 12 Cent Rep., 721, Torts, 563 1 Brews., 67, Mandamus, 1786 75 Pa. St.,389, Landlord and Tenant,1667 47 Pa. St, 353, At Trial, 3023a 5 S. & R., 289, Dower, 1064, 1095 99 U. S. Rep., 294, Aw)eals, 3463ee 2 T. R., 18, Justices, 1520 56 Pa. St, 156, Partition, 2002 10 Phila., 131, Divorce, 773, 926 2 Pa. St, 102, Writ of Inquiry, 691 28 W. X., 467, Amendments, 2419 6 Wh., 615, Account Render, 311 2 Pears., 306, Arbitration, 2908 10 Watts, 232, Replevin, 2204, 2209 4 Yeates, 349, Depositions, 2531 27 W. N., 35, Attachments, 77 1 Phila., 120, Lunatics and Drunk- ards, 3718 92 Pa. St, 248, Dower, 1066 1 Wh., 282, Amendments, 2424, 2430 1 PhUa., 580, Justices, 1327 59 N. Y., 177, Divorce, 915 5 T. R., 360, Torts, 545 147 Pa. St, 399, Assumpsit, 30 11 W. N., 218, Assumpsit, 32 8 W. N., 357, Discontinnance, 3735 1 Dist Rep., 657, Statements, 73 47 Leg. Int, 188, Insurance, 292 26 W. X., 97, Statements, 73 3 Dist Rep., 458, Audita Querela, 3358 1 Dist Rep., 204, Defenses, 2798 3 Phila., 261, Mechanics' Cl^ms, 226 36 La., 842, Divorce, 789 3 Pa. Rep., 445, Sci. Fas., 249 4 Ohio, 351, Bills of Exceptions, 3064 149 Pa. St, 60; 24 W. N., 31, Divorce, 794,795 18 W. N., 50, Replevin, 2186 4 Pa. C. C. Rep., 309, Torts, 522 6 W., 494, Justices, 1565 MJXS., Prod, of Documents, 2450 1 W. N., 96, Divorce, 927 2 W. N., 682, Dower, 1078 10 Phila., 174, Divorce, 903, 904 146 Pa. St, 427, Mechanics' Claims, 224 116 Pa. St, 588, Dower, 1062 TABLE OF CASES. clxxix Totten, Bradley v., Towanda Gas Co., Betz v., Town, Norris v., Townsend, Haines v., Townsend v. Holland, Townsend, Silverthorn v., Townsend, Silverthorn v., Townsend v. Stetler, Township v. Gardner, Township, GifEen v.. Township, KauSman v.. Township, Kelley v., Tracey, Goodrich v., Tracey, Williams v.. Traction Co., Harvey v., Traction Co. v. Orbann, Traction Co., Thilow v., Tracy, Jones v., Transit Co. v. Weston, Transportation Co., Hunter v., Transportation Co.,Kobinson v. Travis v. Brown, Treasurer v. Shannon, Trego, Huzzard v., Trego, Irwin v., Trego V. liewis, Trevillo, Holsey v., Trevor, The Hine v., TrianoTSki v. Kleinschmidt, Triebel v. High, Trimbath v. Patterson, Trimble v. Barnard, Tripner v. Abrahams, Tripner v. Abrahams, Tritt V. Crotzer, Trout, Church v.. Trout V. Kennedy, Trout, Means v., Truitt V. Ludwig, Truitt V. Liudwig, Trumbore, In re Trump V. Straw, Trustees, Comm. v., Trustees, Gummer v., Trustees, Loughlin v., Trust Co., Comm. v., Trust Co., De Coursey v.. Trust Co., In re Trust Co., Quigley v., Trust Co., Stadelman v.. Trust Co. V. Trust Co., Tryon v. Carlin, Tryon, Marston v., Tryon v. Munson, SECTION 7 W. N., 16, Mechanics' Claims, 204 97 Pa. St., 367, Execution, 3271 1 W. N., 51, Execution, 3180 1 Chest. Co. Eep., 146, Justices, 1485 48 Leg. Int., 6, Ground Rents, 151 37 Pa. St., 263, Sci. Fas., 275 37 Pa. St., 263, Municipal Liens, 457 5 Kulp, 11, Discontinuance, 3733 16 W. N., 348, Justices, 1555 4 W. & S., 327, Justices, 1551 1 Dist Eep., 373, Costs, 3135 154 Pa. St., 440, Torts, 558 3 P. & W., 64, Insolvent Laws, 3607 95 Pa. St., 308, Arbitration, 2896 26 W. N., 231, Prep, for Trial, 2972 119 Pa. St., 37, NegHgence, 1891, 1900, 1902, 1914 4 Dist. Rep., 83, Justices, 1228 75 Pa. St., 417, Execution, 3278,3299,3313 121 Pa. St., 485, Torts, 563 1 Dist. Rep., 538, Statements, 73 ,14 Atl. Rep., 860, At Trial, 3002a 43 Pa. St, 9, Prep, for Trial, 2949 51 Pa. St., 221, Mandamus, 1820 35 Pa. St., 9, Execution, 3144b 22 Pa. St., 368, Execution, 3144b 58 Pa. St., 463, Amendments, 2426, 2432 6 Watts, 402, Justices, 1188 4 Wallace, 555, Attachments, 129 20 W. N., 296, Assumpsit, 40 1 Dist. Rep., 385, Assumpsit, 59 76 Pa. St., 277, Landlord and Ten- ant, 1693, 1701, 1702 15 W. N., 127, Depositions, 2509 47. Pa. St., 220, Ejectments, 639 47 Pa. St., 228, New Trials, 3036 13 Pa. St., 458, Interpleaders, 2730 28 Pa. St., 153, Mechanics' Claims, 239 47 Pa. St., 387, Torts, 562 16 S. & R., 349, Justices, 1512 25 Pa. St., 145, Execution, 3190 25 Pa. St., 145, Justices, 1380 39 Leg. Int., 356, Attorneys, 3531 1 Pears., 29, Arbitration, 2904 6 S. & R., 508, Mandamus, 1796 50 Wis., 247, At Trial, 3002a 17 W. N., 269, Execution, 3199 35 W. N., 87, Assumpsit, 60 81 Pa. St., 217, Landlord and Tenant, 1683, 1734 3 Dist. Rep., 205; 34 W. N., 14, Man- damus, 1781 3 Dist. Rep., 275, Ground Rents, 177 6 W. N., 134, Assumpsit, 22 4 Dist. Rep., 381, Assumpsit, 18 5 Watts, 371, Ejectments, 627 41 Leg. Int., 16, Execution, 3341b 77 Pa. St., 250, Sci. Pas., 256, 260 clxxx TABLE OF CASES. Tryon v. Munson, Tryon, PHla. v., Tube Oo. V. Keceivers, Tucker v. Bitting, Tucker v. Hough, Tucker v. Murray, Tunstall, State v., .Turbull V. O'Hara, Turner, Johnson v., Turner, Masters v., Turner, People v., Turner, Schooley v., Turney, Kuhns v., Turnpike Co. v. Baily, Turnpike Co., Comm. v., Turnpike Co., DufEy v.. Turnpike Co. v. Hendel, Turnpike Co. v. Naglee, Turnpike Co., Rose v., Tuttle V. Loan Co., Tuttle V. Loan Co., Tutton V. Addams, Twibill, Brenckman v., Tyler v. Bannon, l^ler, Society «., T^pe Foundry v. Ins. Co., Tyrrill v. Lamb, Tyson, City v., U. V. J., Tiber v. Hickson, Uber, Schenck v., Tiber, Phila v., Tlhler v. Ketcherra^ Tlhler v. Selfridge, Uhrieh, Stroh v., TIlp V. Campbell, -TJlrich ■». Sarkey, Tllsh V. Strode, Tllshafer v. Stewart, Tlmbehower, Miller v., Umberger, Pennypacker 17., Umsted, Schwenk v., Unangst, Anthnoy v., Unangst «. Kraemer, TInangst v. Kraemer, Unangst, Ricketts v., TInangst, Ricketts v., Tlnderhill v. McManus, Unger, Gere v.. Union, Reilly v., United States v. Lawrence, United States v. Linn, United States, McCabe i;., United States, Nelson v., United States v. NichoUs, SECTION 77 Pa. St., 250, Mortgages, 191 35 Pa. St., 401, Municipal Liens, 411 36 W. N., 256, Attachments, 93 32 Pa. St., 428, At Trial, 3002d 24 W. N., 91, Assumpsit, 40 2 Dist Rep., 497, Assumpsit, 32 51 Texas, 81, Attorneys, 3531 4 Yeates, 446, New Trials, 3031, 3032 4 W. & S., 465; 2 Ash., 433, Insolvent Laws, 3608 10 Phila., 482, Justices, 1469 52 Amer. Dec, 302, Attorneys, 3531 3 Kulp, 150, Arbitration, 2909 87 Pa. St., 497, Mechanics' Claims, 240 37 Ohio, 104, Prep, for Trial, 2972 1 Penny., 458, Quo Warranto, 2091 9 S. & R., 59, Mandamus, 1822 11 S. & R., 123, Discontinuance, 3731 9 S. & R., 227, Justices, 1504 3 Watts, 46, Justices, 1554 6 Wh., 216, Writ of Inquiry, 693 6 Wh., 216, Prod, of Documents, 2454 45 Pa. St., 67, Account Render, 340 7 W. N., 188, Assumpsit, 30 30 W. N., 372, Costs, 3126 2 Dist. Rep., 693, Assumpsit, 21 48 Leg. Int., 147, Defenses, 2792 96 Pa. St., 464, Amendments, 2410, 2421 9 W. N., 367, Assumpsit, 60c 37 Law Jour. Rep. (P. & M.), 7, Di- vorce, 762 6 Phila., 132, Landlord and Tenant,1690 81 Pa. St., 31, Mechanics' ClaimB,223,224 1 W. N., 160, Municipal Liens, 480 1 W. N., 3, Justices, 1538 1 W. N., 61, Assumpsit, 60d 1 W. & S., 57, Justices, 1348 19 Pa. St., 361, Dower, 1067 6 S. & R., 285, Justices, 1486 13 Pa. St., 433, Ejectments, 629 71 Pa. St, 170, Actions after Death, 2221 10 S. & R., 31, Actions after Death, 2216 22 Pa. St, 495, Prep, for Trial, 2973a 6 S. & R., 351, Prep, for Trial, 2971 4 Dist. Rep., 304, Arbitration, 2837 8 W. & S., 391, Dower, 1111 8 W. & S., 391, New Trials, 3036 15 Pa. St, 90, Execution, 3189 15 Pa. St, 90, Justices, 1458 4 Dist Rep., 404; 36 W. N., 552, As- sumpsit, 55 24 W. N., 7, Assumpsit, 32 12 W. N., 93, Writ of Inquiry, 707 3 Dall., 42, Mandamus, 1790 1 Howard, 104, Discontinuance, 3749 4 Watts, 325, Actions after Death, 2219 1 Pet C. C, 236, Depositions, 2545 4 Yeates, 251, Execution, 3144a TABLE OF CASES. clxxxi United States, Peterson v., United States v. Wagner, Unknown Owner, City v., Urch, Butler v., Urian, Smith v., Usher v. Kailroad Co., Valentine, Publishing House v. Van Amringe v. BUmaker, Vanarsdale v. Laverty, Vanarsdale, Laverty v., Van Arsdalen, Whitaker v., Vandalore, Graham v., Vandergrift, Chase v., Vanderslice, Beidman v., Vanderslice v. Garven, * Vandervort, Iron Co. v., Vandever v. Baker, Vandever, Railroad Co. v., Van Dresor v. King, Vandyke v. Christ, Vandyke, Comm. v., Vandyke v. Vandyke, Van Dyke, Wells v., Vanfleet, Mund v., Van Horn, Hepperd v., Vankirk, Paul v., Van Lear v. Van Lear, Vanleer v. Vanleer, Vann v. Downing, Vanormer v. Ford, Vansant v. Boileau, Vansant v. Lunger, Vanscriver, Hutchinson v., Vanscriver, Hutchinson v., Vansyckel's Appeal, Vanvalzal v. Croman, Van Bliet v. Conrad, Van Bliet v. Conrad, Van Vrankin, Phila. v., Vaughan, Keen v., Vaux, Snyder v., Veit, Kohlhaus v., Vensels' Appeal, Vensels' Appeal, Veon V. Oreaton, Verner, Lowrie v., Vernon, McGinnis v., Vernon, McGinnis v., Vesta (Order of), Comm. v., Vickers, Wright v., Victor V. Alrams, Viereck, Hains v..' Vocht V. Kuklence, Vocht V. Kuklence, VOL. I. — M SECTION 2 Wash. C. C, At Trial, 3023 L. R. (2 Oh. Ap.), 582, Bills of Discov- ery, 2564 23 W. N., 271, 371, Municipal Liens, 457 2 Grant, 247, Justices, 1247 11 W. N., 284, At Trial, 3002a 126 Pa. St., 206, Negligence, 1888 , 3 Dist. Rep., 242, Costs, 3126 4 Pa. St., 283, Depositions, 2497 69 Pa. St., 103, Torts, 549 65 Pa. St., 507, Torts, 549 2 W. N., 98, Justices, 1549 2 Watts, 131, Justices, 1551 88 Pa. St., 217, At Trial, 3004 2 Bawle, 334, Discontinuance, 3748 14 S. & R., 273, Writs, 2297 164 Pa. St., 572, Assumpsit, 30 13 Pa. St., 121, Dower, 1061 36 Pa. St., 298, Negligence, 1890, 1895 34 Pa. St., 201, Execution, 3181 7 W. & S., 373, Feigned Issues, 2712 57 Pa. St., 34, Replevin, 2186 26 W. N., 228, Divorce, 787 109 Pa. St., 330, At Trial, 3023a 2 Phila., 41, Landlord and Tenant, 1686 2 W. N., 67, Justices, 1538 6 Binn., 124, Justices, 1596 4 Yeates, 3, New Trials, 3034 13 Pa. St., 211, Divorce, 786 28 W. N., 260, At Trial, 2995 98 Pa. St, 177, Assumpsit, 23 1 Binn., 444, Appeals, 3434 15 W. N., 549, Assumpsit, 52 6 Phila., 39, Justices, 1410 6 Phila., 39, Landlord and Tenant, 1726 13 Pa. St., 128, Justices, 1289 1 Dist. Rep., 190, Feigned Issues, 2690 95 Pa. St., 494, At Trial, 3024 95 Pa. St., 494, New Trials, 3029 39 Leg. Int., 402, Municipal Liens, 478 48 Pa. St., 477, Audita Querela, 3350 2 Rawle, 423, Replevin, 2161, 2168 3 Dist. Rep., 142; 162 Pa. St., 108, As- sumpsit, 48 77 Pa. St, 71, Dower, 1024 77 Pa. St, 71, Partition, 2033 27 W. N., 57, Negligence, 1884 3 Watts, 318, Justices, 1585 67 Pa. St., 152, Justices, 1412 67 Pa.St.,149,Landlord aand Tenant,1724 33 W. N., 1, Quo Warranto, 2075a 81 Pa. St., 122, Partition, 1973 2 Dist Rep., 781, Attachments, 75 2 Phila., 40, Justices, 1471 21 W. N., 518; 119 Pa. St, 365, As- sumpsit, 46 119 Pa. St, 365, Torts, 511 clxxxii TABLE OF CASES. Vockroth, Pasek v., Vockroth, Reihl v., Vogel, Linton v., Vogel, Robinson v., VoneifE v. Braunreuter, Von Neida, Lash v., Vought V. Sober, W., L. v.. Wade, McLean v., Wadlinger, Borough v., Wadlinger, City v., Wagenseller, Smith v., Wager, Bank v., Wagner, Brown v., Wagner v. Graham, Wagner, Luther v., Wagner, U. S. v., Wagner v. Wagner, Wagoner v. Hower, Wainwright, Barclay v., Wainwright, Barclay v., Wait, Moore v.. Wait, Randall v., Waite V. Palmer, Wakeling, Webster v., Wakely v. Hart, Walbom, Hoffman v., Walbridge's Appeal, Walden v. Berry, Waldron v. Waldron, WaUiouer, Roup v.. Walker v. Anshutz, Walker v. Bush, Walker v. Canal Co., Walker, Collins v., Walker v. Gibbs, Walker v. Hopple, Walker v. Morgan, Walker, Rogers v.. Walker, Shoemaker v.. Walker, Smith 17., Walker v. Wardell, Wall, Ex Parte, Wall, Freeman v.. Wall V. BZnapp, Wallace, Bailie v., Wallace, Bruner »., Wallace v. Clingen, Wallace, Comm. v., Wallace, Corporation v., Wallace e. Harmstead, Wallace, Mullen v., Wallace, Post v., SECTION 3 Dist. Rep., 150, Defalcation, 2756, 2757 1 Dist. Rep., 80, Defalcation, 2756 1 Penny., 275, Justices, 1548, 1550 MMS., Assumpsit, 48 1 Dist. Rep., 645, Assumpsit, 30 16 W. N., 93, Assumpsit, 32 73 Pa. St, 51, Justices, 1327 51 L. J. Rep. (P. D. & A.), 23; 7 Law Rep. (P. & D.), 16, Divorce, 756 53 Pa. St., 146, Account Render, 304, 309, 330 48 Leg. Int, 384, Justices, 1406 142 Pa. St., 308, Justices, 1406 21 Pa. St., 491, At Trial, 2990 6 W. & S., 147, Discontinuance, 3733 23 W. N., 252, Mortgages, 191 14 W. N., 343, Justices, 1644 107 Pa. St., 343, Dower, 1053 L. R. (2 Ch. App.), 582, Bills of Discov- ery, 2564 9 Pa. St., 214, Costs, 3125 12 W. N., 304, Feigned Issues, 2663 5 W. N., 162, Assumpsit, 32 86 Pa. St.,191, Mechanics' Claims,224,227 1 Binn., 219, Justices, 1255, 1492 48 Pa. St., 127, Justices, 1564 78 Pa. St, 192, Amendments, 2419 2 W. N., Ill, Mechanics' Claims, 226 1168 2904 1620 1553 923, 959 1446 131 1643 3144b 81 2435 1422, 1546 32 6 Binm, 318, Justices, 1 Pears., 18, Arbitration, 95 Pa. St, 466, Justices, 48 Pa. St, 456, Justices, 55 Pa. St, 231, Divorce, 12 S. & R., 24, Justices, 6 W. & S., 519, Attachments, 30 Pa. St, 357, Justices, 29 Leg. Int., 381, Execution, 6 W. X., 175, Attachments, 2 Dall., 211, Amendments, 16 W. N., 495, Justices, 2 W. N., 173, Assumpsit, 6 Pa. St., 371, Lunatics and Drunk- ards, 3664 2 S. & R., 554, Dower, 1021, 1033, 1039 1 W. N., 415, Justices, 1.536 25 W. N., 131, Assumpsit, 23 107 U. S. Rep., 265, Attorneys, 3531 3 Luz. Legal Reg., 33, At Trial, 2990 26 W. N., 2, Arbitration, 2938 10 W., 228, Insolvent Laws, 3608 4 W. N., 53, Assumpsit, 30 9 Pa. St, 51, Interpleaders, 2730 114 Pa. St, 405, Appeals, 3375 3 Rawle, 126, Execution, 3144a 44 Pa. St., 492, Ground Rents, 149 2 Grant, 389, Insolvent Laws, 3608 110 Pa. St, 121, Appeals, 3434 TABLE OF CASES. clxxxiii Wallen v. Wallen, Wallingford v. Duulap, Walls V. Campbell, Walls, Lawyer v.. Wain V. Freedland, Wain's Heirs v. Phila., Walridge's Appeal, Walsh V. Greenwood, Walsh V. Kelly, Walsh, R. R. Co. v., Walter's Appeal, Walter v. Bechtol, Walter, Comm. v., Walter, Comm. v., Walter, Comm. v., Walter, Phila. v., Walter, Pittsbnrg v., Walters, Borough v., Walters v. Junkins, Walters, Marlin v., Walters v. Pettit, Walthour v. Spangler, Waltman, Gay v., Walton, Ex Parte, Waltram v. Waltram, Wanamaker v. Stevens, Wanamaker, Sweeting v., Wanamaker v. Wanamaker, Wan dell, Ward v., Ward, Ballard r.. Ward V. Harligan, Ward V. Letzkus, Ward V. Patterson, Ward, Phila. v., Ward V. Stevenson, Ward V. Taylor, Ward V. Taylor, Ward V. Wandell, Warden, Walker v., Warden v. Bichbaum, Warden, Miller v., Wardens of Phila., Tatham Warder v. Tainter, Ware Co. v. Howe, Warfel, Comm. v., Warfel, Shank v., Warfield v. Fox, Warg, Mohr v., Warner's Appeal, Warner v. Augenbaugh, Warner v. Caulk, Warner v. Maeknett, Warner V. R. R. Co., Warner v. Smith, Warner, Wetherill v., Wamock, Darrah v., SECTION 1 Dist. Rep., 684, Divorce, 939 14 Pa. St., 31, At Trial, 3023 23 W. N., 506, Assumpsit, 57 17 Pa. St, 75, Justices, 1328, 1491 2 Miles, 161, Depositions, 2517 II W. N., 314, Municipal Liens, 462 95 Pa. St., 466, Justices, 1620 2 Dist. Rep., 64, Justices, 1347 34 Pa. St., 84, Dower, 1064 29 W. N., 410, Statements, 73 70 Pa. St., 392, Divorce, 793 5 Rawle, 228, Justices, 1492 99 Pa. St., 184, Prep, for Trial, 2973c 83 Pa. St., 105, Quo Warranto, 2089,2118 86 Pa. St., 15, Quo Warranto, ^109, 2126 39 Leg. Int., 42, Municipal Liens, 483 69 Pa. St., 365, Municipal Liens, 466 29 W. N., 483, Landlord and Tenant,1712 16 S. & R., 414, Amendments, 2435 24 W. N., 129, Assumpsit, 19 2 Dist. Rep., 198, Arbitration, 2897 31 Pa. St., 523, Amendments, 2412 89 Pa. St., 453, Arbitration, 2892, 2893 2 Wh., 501, Justices, 1201 19 W. X., 181, Divorce, 934 43 Leg. Int., 56, Attachments, 81 4 Dist. Rep., 246; 36 W. N., 279, Exe- cution, 3266, 3294 10 Phila., 466, Divorce, 987 10 Pa. St., 98, Landlord and Tenant, 1685 89 Pa. St., 358, Adoption, 3474 1 W. X., 72, Justices, 1420 31 W. X., 412, Justices, 1538 46 Pa. St., 372, New Trials, 3039 16 W. X., 76, Municipal Liens, 457 15 Pa. St.,21,Amendments,2411,2417,2418 1 Pa. St., 238, Discontinuance, 3749 1 Pa. St., 238, Justices, 1458 10 Pa. St., 98, Landlord and Tenant,1685 25 W. X., 131, Assumpsit, 23 14 Pa. St., 121, Lunatics and Drunk- ards, 3685 III Pa. St., 300, Replevin, 2157, 2184 v., 2 Phila., 246, Mandamus, 1761 4 Watts, 270, Sci. Fas., 256, 260 35 W. N., 374, Appeals, 3435 .33 W. X., 357, Justices, 1606 14 S. & R., 205, Justices, 1503 55 Pa. St., 382, Feigned Issues, 2639 26 Pa. St., 106, Execution, 3293 13 W. X., 505, Attachments, 104 15 S. & R., 9, Replevin, 2190, 2204 3 Whar., 193, Defalcation, 2756 3 Phila., 325, Dower, 1095 1 Dist. Rep., 248, Statements, 73 2 W. X., 107, Assumpsit, 30, 32 6 Phila., 182, Partition, 2041 1 P. & W., 21, Justices, 1548 clxxxiv TABLE OF CASES. Warren v. Steer, Warren v. Steer, Wartman, Drum v., Washburn's Appeal, Washington Avenue, Washington, Rodney v., Wasson v. Pa. Co., . Water Co., Borough v.. Waterman, Rogers v., Waters v. Wing, Waters v. Wolf, WatMns, Shaffer v., Watkins, Woods v., Watmongh, Whelen v., Watson V. Bagaley, Watson v'. City, Watson V. Phila., Watson V. Wehrly, Watson V. Wetter, Watterson's Appeal, Watts V. Vox, Watts, Hardy v.. Watts, Hardy v., Wa. St, 186, Municipal laens, 436 11 W. N., 271, Assumpsit, 52 14 W. N., 59, Arbitration, 2896 2 Miles, 140, Assumpsit 30 45 Leg. Int, 394, Municipal Liens, 432 3 Dist Rep., 42, Partition, 1961 120 Pa. St, 228, Appeals, 3375, 3376 120 Pa. St, 233, Attachments, 81 2 T. & H. Pr.,Sec. 1531,Ground Rents,170 19 Pa. St, 495, Justices, 1391, 1475 11 W. N., 206, Justices, 1252 171 Pa. St, 500, At Trial, 3014 61 Wis., 536, Prep, for Trial, 2972 10 Watts, 217, Attachments, 103 106 Pai St, 173, Assumpsit, 52 5 Rawle, 61, New Trials, 3037 5 Rawle, 61, Partition, 2022 1 Phila., 446, Justices, 1553 3 Clark's App. Cases, 16, At Trial, 3009 1 Phila., 515, Justices, 1389 89 Pa. St, 131,Landlord and Tenant,1663 8 W. & S., 365, MandamuB, 1802 3 W. N., 313, Assumpsit 32 108 Pa. St., 366, Arbitration, 2942 32 W. N., 31, Ground Rents, 151 25 Pa. St, 197, Replevin, 2187 90 Pa. St, 311, Mandamus, 1794 1 Miles, 395, Partition, 1970 10 Phila., 81, Insolvent Laws, 3611 TABLE OF CASES. clxxxvii Wieand, Mann v., Wiedner v. Matthews, Wiggins, Holden v., Wightman, Lothrop v., Wigton's Appeal, Wigton V. R. R. Co., Wilber, Haggerty v., Wilbraham, Suier v., Wilbur's Appeals, Wilcox V. Borough, WUcox, McNair v., Wilcox V. Palmer, Wilcox V. Payne, WUdee v. McKee, Wile V. Ousel, Wiler, Braddee v., Wiler V. Griffith, Wiley V. Braddee, WUey, Govett v., Wiley V. Moor, WUgus V. Whitehead, Wilkinson's Appeal, Wilkinson v. Brice, Wilkinson v. Brice, Wilkinson v. Stewart, Willard v. Norris, Willey V. Topping, Williams v. Bentley, Williams v. Bower, Williams v. Butcher, Williams, Cox v., Williams v. Danziger, Williams, Hallowell v., Williams, Hennegan v., Williams, Ins. Co. v., Williams, Keating v., Williams, Lincoln v., Williams, Lingenfelter v., Williams v. R. R. Co., Williams, Rubicum v., Williams v. Sawyers, Williams v. Shields, Williams, Sweet v., Williams, Tracey v., Williamson's Case, Williamson, Comm. v., Williamson v. Krumbhaar, Williamson v. Lewis, Williamson, Miles v., Williamson v. Mitchel, Williard, Reed v., Williard v. Williard, Willing V. Brown, Willing, Griffith v., Willing V. Peters, Wills V. Kane, SECTION *81 Pa. St.,244,Forms of Statements,3764 11 Pa. St, 366, Justices, 1513 3 P. & W., 469, Justices, 1349, 1553 41 Pai St., 297, Bills of Exceptions, 3068 28 Pa. St., 161, Mechanics' Claims, 213 47 Leg. Int., 4, Statements, 73 16 Johnson's Rep., 287, Execution, 3186 22 W. N., 10, Mechanics' Claims, 244 10 W. N., 101, Appeals, 3435 2 Dist. Rep., 721, Justices, 1420, 1520 121 Pa. St., 437, Torts, 562 163 Pa. St, 109, Assumpsit, 30 88 Pa. St., 154, Arbitration, 2903 43 Leg. Int, 307, Torts, 549 1 Dist Rep., 188, Assumpsit, 30 10 Watts, 362, Justices, 1645 45 Leg. Int, 486, Municipal Liens, 445 10 W., 362, Justices, 1645 13 W. N., 98, Justices, 1549 17 S. & R., 438, Insolvent Laws, 3607 89 Pa. St, 131,Landlord and Tenant,1663 65 Pa. St, 189, Execution, 3158 30 W. N., 30, Assumpsit, 32 148 Pa. St, 153, Defenses, 2774 85 Pa. St., 255, Replevin, 2162 2 Rawle, 56, Execution, 3144a 146 Pa. St, 427, Mechanics' Claims, 224 27 Pa. St, 302, Prep, for Trial, 2973a 1 Dist Rep., 88, Assumpsit, 32 1 W. N., 304, Audita Querela, 3349, 3350 39 Leg. Int, 108, Ground Rents, 167 91 Pa. St, 232, Arbitration, 2906 4 Pa. St., 339, Justices, 1453 4 W. N., 458, Justices, 1634 32 W. N., 353, Assumpsit, 32 5 Watts, 382, Ground Rents, 148 12 S. & R., 105, Insolvent Laws, 3608 9 Ati. Rep., 653, At Trial, 2980 27 W. N., 511; 28 W. N., 283, Original Writs, 2232, 2311 1 Ash., 230, Landlord and Tenant, 1701, 1706 155 Pa. St., 129, Assumpsit, 30 2 W. N., 176, Assumpsit, 30 162 Pa. St, 94, Execution, 3190 95 Pa. St, 308, Arbitration, 2896 26 Pa. St, 9, Justices, 1197, 1198, 1213 10 PhUa., 490, Mandamus, 1780 132 Pa. St, 455, Execution, 3172 39 Pa. St., 9, Justices, 1214 24 Pa. St., 143, At Trial, 3023a 1 P. & W., 9, Justices, 1510 47 Leg. Int, 132, Assumpsit, 30 56 Pa. St, 119, Ejectments, 678 7 S. & R., 467. Partition, 1972 3 Binn., 317, Account Render, 305 12 S. & R., 177, Assumpsit 32 2 Grant, 47, Prod, of Documents, 2454 clxxxviii TABLE OP CASES. Wills V. Kane, Willy, Day v., Wilson V. Bank, Wilson, Beaver Falls Co. v., Wilson V. Campbell, Wilson V. Colwell, Wilson V. Comm., Wilson, Comm. v., Wilson V. Ellis, Wason V. Forder, Wilson V. Gray, Wilson V. Hathaway, Wilson V. Hayes, Wilson V. Homer, Wilson V. Hubbell, Wilson V. Huntingdon, Wilson, Huston v., Wilson V. Jamieson, Wilson V. Long, Wilson V. McElroy, Wilson V. McElroy, Wilson, MUler 17., Wilson V. Morrison, Wilson V. Shapiro, Wilson, Sweigard v., Wilson, Wetherill v., Wilt, Snyder v., Wilt, Sommer v., Winchester v. Costello, Winder v. Little, Wing V. Bradner, Wing, Mclntire v., Wing, Waters v., Wingett's Estate, Winn, Wheeler v., Winnemore, Comm. v.. Winner, Grundy v., Winpenny, Thomas v., Winpenny v. Winpenny, Winslow, Parson v., Winsor, Power v.. Winter v. Phila., Winter v. Winter, Winters, Boyer v., Winters v. De Turk, Wirebach v. Bank, Wireman v. Ins. Co., Wise, Bank v., Wise, Comm. v.. Wise, Flannery v., Wisecarver v. Temple, Wisler, Comm. v., Wissler v. Herr, Wistar v. OUis, Wistar v. Ollis, Wistar v. Phila., SECTION 2 Grant, 60, Execution, 3248 3 Brews., 43, Sci. Fas., 276 45 Pa. St., 488, Amendments, 2418, 2419 83 Pa. St., 83, Execution, 3203 1 DaU., 126, Ejectments, 578 3 Watts, 212, Appeals, 3434 10 S. & R., 373, Justices, 1530 25 W. N., 148, Mandamus, 1785 28 Pa. St, 238, Execution, 3181 30 Pa. St.,129, Mechanics' Claims,228,237 8 Watts, 25, Replevin, 2196, 2204 8 Phila., 235, Justices, 1543 18 Pa. St, 354, Original Writs, 2310 59 Pa. St, 155, BUls of Exceptions, 3068 1 Penny., 413, Justices, 1634 7 W. & S., 197, Mechanics' Claims, 213 3 Watts, 287, Replevin, 2204 7 Pa. St, 126, Amendments, 2424 12 S. & R., 58, Justices, 1257 32 Pa. St, 82, Defalcation, 2757 32 Pa. St, 82, Execution, 3181 24 Pa. St, 114, Actions after Death, 2216 1 Kulp, 67, Arbitration, 2927 2 Dist Rep., 367, Assumpsit, 52, 53 106 Pa. St, 207, Arbitration, 2935 26 W. N., 231, Assumpsit, 60c 15 Pa. St, 59, Depositions, 2478 4 S. & B., 19, New Trials, 3038 2 Pars., 279, Landlord and Tenant, 1658 1 Yeates, 152, Dower, 1109 162 Pa. St, 72, Attachments, 88 113 Pa. St, 67, Ejectments, 629 59 Pa. St, 211, Depositions, 2526 6 Pa. C. C. Rep., 383, Costs, 3135a 53 Pa, St, 122, Bills of Exceptions, 3068, 8071 1 Brews., 356; 2 Brews., 378, At Trial, 2991 1 Phila., 400, Discontinuance, 3737 13 W. N., 93, Defalcation, 2756 40 Leg. Int, 232, Divorce, 860, 952 1 Grant, 160, Mechanics' Claims, 206 3 W. N., 360, Assumpsit 21 15 W. N., 329, Municipal Liens, 470 7 PhUa., 369, Divorce, 770 3 Kulp, 29, Arbitration, 2911 25 W. N., 511, Dower, 1112 97 Pa. St, 543, At Trial, 2990 20 W. N., .299, Assumpsit, 18 3 Watts, 400, Justices, 1645 3 Dist Rep., 290, Justices, 1196 2 Woodward, 431, Arbitration, 2909 146 Pa. St, 42, Execution, 3277 11 W. N., 513, Quo Warranto, 2100 162 Pa. St., 552, Assumpsit, 32 77 Pa. St, 291, Justices, 1425 77 Pa. St,291, Landlord and Tenant,1672 111 Pa. St, 604, Municipal Liens, 425 TABLE OF CASES. clxxxix Wistar, Phila. v., Wistar v. Phila., Wistar, Spring Garden v., Withers v. Gillespy, Withers, Howell v., Witmer, Helsey v., Witmoyer, Klopp v., Woglam V. Cowi)erthwaite, Wolbert V. Fackler, Wolf's Appeal, Wolf V. Binder, Wolf V. Comm., Wolf V. Hano, Wolf, Kraft v., Wolf V. Phila., Wolf, Waters v., Wolfe, Newhart v., Wolfe V. Oxnard, Wolff, Protzman v.. Wolfram v. Strickhouser, Wolfran v. Eyster, Wolf ran v. Eyster, Wood V. Anderson, Wood, Camp v., Wood, City v.. Wood V. Colwell, Wood V. Colwell, Wood V. Colwell, Wood, Comm. v., Wood, Ebert v.. Wood V. Lovett, Wood V. Phila., Wood, Phila. v., Wood, Reid v., Wood Co. V. Berry Co., Woodhouse, Quinn v.. Woodruff, Martien v., Woods, Allen v.. Woods V. Brolasky, Woods, McDermott v.. Woods V. Nixon, Woods V. Watkins, Woodward v. Carson, Woodward's Case, Woodward v. Garey, Woodward, Phila. v., Woodward, Singerly v., Woodward, Wheeler v., Woodworth, Day v., Woodworth, Kilbum v., Woog, De Wald v., Wooley's Bstate,7m re Woolridge, Beam v., Worcester v. Clark, Work V. Bennett, Workman, Irwin v., Wormelsdorf v. Heifner, SECTION 10 W. N., 275, Municipal Liens, 447 86 Pa. St., 215; 9 W. N., 98, Munici- pal Liens, 448, 451, 459 18 Pa. St., 195, Municipal Liens, 411, 463 7 S. & R., 10, Depositions, 2511 1 Dist. Rep., 62, Defalcation, 2756 4 Dist. Rep., 290, Justices, 1228 43 Pa. St., 219, Execution, 8189 2 Dall., 68, Replevin, 2207 32 Pa. St., 453, Justices, 1302, 1305 22 W. N., 93, Adoption, 3466 28 W. N., 133, Assumpsit, 17 64 Pa. St., 252, Mandamus, 1807 1 Dist. Rep., 700, Execution, 3189 6 Phila., 310, Landlord and Tenant, 1698 105 Pa. St., 25, Municipal Liens, 433, 489 34 W. N., 409, Mechanics' Claims, 224 102 Pa. St.,561, Audita Querela,3349,3350 152 Pa. St, 623, Mechanics' Claims, 201 4 Dist. Rep., 473, Justices, 1301 1 W. & S., 379, Insolvent Laws, 3608 7 Watts, 38, Amendments, 2435 7 Watts, 38, At Trial, 3022a 25 Pa. St., 407, Amendments, 2423 10 Watts, 118, Justices, 1379 4 Phila., 156, Municipal Claims, 477 34 Pa. St., 92, Audita Querela, 3369a 34 Pa. St., 92, Execution, 3227 34 Pa. St., 92, Actions after Death, 2220 3 Binn., 414, Costs, 3135 1 Binn., 216, Partition, 1997 1 Penny., 51, Justices, 1250 27 Pa. St., 502, Amendments, 2411, 2418 4 Phila., 156, Municipal Liens, 477 102 Pa. St., 312, Justices, 1398 4 Dist. Rep., 141, Assumpsit, 21 26 Pa. St, 333, Amendments, 2424 4 W. N., 211, Assumpsit, 30 24 Pa. St, 76, At Trial, 3023a 2 W. N., 198, Justices, 1538 29 W. N., 407, Statements, 73 Add., 131, Replevin, 2147 37 Pa. St., 458, Assumpsit, 30 86 Pa. St, 176, Execution, 3304 1 Ash., 107, Insolvent Laws, 3611 42 Leg. Int, 490, Replevin, 2184 13 W. N.,' 372, Municipal Liens, 434 8 W. N., 339, Prep, for Trial, 2973d 66 Pa. St, 158, Prep, for Trial, 2973a 13 Howard (U. S.), 371, Torts, 543 5 Johns., 37, Attachments, 100 158 Pa. St, 497, Mechanics' Claims, 229 6 Pa. St, 351, Appeals, 3433 3 Pa. C. C. Rep., 17, Ejectments, 678 2 Grant, 84, Dower, 1058 70 Pa. St., 484, Torts, 562 3 Watts, 357, Defalcation, 2757 104 Pa. St, 1, Justices, 1543 cxc TABLE OF CASES. Wortham, Cock v., Worthington, Easton v., Worthington, Lantz v., Worthington v. Worthington, Wray v. Tammany, Wright V. Cheyney, Wright, Clement v., Wright V. Crane, Wright V. Cnmpsty, Wright V. Darlington, Wright's Estate, Wright, Evans v., Wright V. Ewen, Wright, Ferguson v., Wright V. Funck, Wright 17. Guy, Wright V. Guy, Wright, Hellings v., Wright V. Hopkins, Wright V. Mililgan, Wright V. Millikin, Wright, Reber v., Wright, 8tranahan v., Wright V. Viekers, Wnnder, Pierce v., Wyant, McLanahan v., Wyant, McLanahan v., Wych V. Meal, Wyncoop, Rumsey v., Wynn v. Bellas, Yardley v. Clothier, Xeager v. Puss, Tearsley v. Flanigen, Yearsley, Setterly v., Yeat, Clark v., Yeomans, Sherwood v., Yerkes' Appeal, Yocum, Hambleton v., Yost V. Eby, Yost V. HefEner, Yost V. Smith, Yost, Stoy v., Young V. Abbey, Young V. Algeo, Young's Appeal, Young V. Bickel, Young, Colvin i".. Young, Comm. v., Young V. Cooper, Young V. Cooper, Young, Druckenmiller v.. Young V. Herdic, Young, Herdic r., Young V. Kimball, Young, Paving Co. r., Young's Petition, SECTION 2 Stra., 1054, Torts, 545 5 S. & R., 130, Replevin, 2150, 2204 4 Pa. St., 153, Execution, 3188 5 P. L. J., 74, Execution, 3219 13 Pa. St, 394, Execution, 3263 10 Phila., 469, Assumpsit, 22 40 Pa. St., 250, Replevin, ,2168 13 S. & R., 447, Writ of Inquiry, 693 41 Pa. St, 102, Account Render, 311 108 Pa. St, 373, Attachments, 81 20 Phila., 85, Feigned Issues, 2649 MMS., Assumpsit ^ 44 Leg. Int, 179; 24 W. N., Ill, As- sumpsit, 52 7 Phila., 92, Account Render, 309 94 Pa. St, 26, Replevin, 2205 10 S. & R., 227, Account Render, 306 10 S. & R., 227, Justices, 1266, 1492 14 Pa. St, 373, Amendments, 2423 3 Dist. Rep., 240, At Trial, 2980 31 W. N., 469, Justices, 1290 152 Pa. St, 507, Justices, 1304 68 Pa. St, 471, Amendments, 2418 29 W. N., 282, Execution, 3301 81 Pa. St, 122, Partition, 1973 25 W. N., 466, Sci. Fas., 247 1 P. & W., 96, Execution, 3144a 2 P. & W., 279, Partition, 1973 3 P. Wms., 310, Bills of Discovery, 2564 1 Yeates, 5, Assumpsit, 60c 34 Pa. St, 160, Arbitration, 2906 1 Dist Rep., 46, Defalcation, 2756 9 W. N., 557, Bills of Exceptions, 3068 22 Pa. St.,489, Mechanics' Claims,226,237 1 Phila., 517, Justices, 1456 4 Binn., 185, Justices, 1428 98 Pa. St, 453, Discontinuance, 3741 14 W. N., 510, Costs, 313Da 108 Pa. St, 304, Feigned Issues, 2639 23 Pa. St., 327, Amendments, 2433 69 Pa. St, 68, Execution, 3172, 3174 105 Pa. St, 628, Execution, 3189 12 S. & R., 385, Justices, 1486, 1492 1 Dist Rep., 43, Justices, 1413 3 Watts, 223, Execution, 3244 108 Pa. St, 17, Dower, 1084, 1085 1 S. & R., 467, Partition, 2021 168 Pa. St, 449, Justices, 1504 2 Pears., 163, Quo Warranto, 2109, 2126 6 W. X., 43, Ejectments, 635 6 W. X.. 43, Original Writs, 2297 27 Pa. St, 97, Amendments, 2412, 2417 55 Pa. St, 172, Replevin, 2168 55 Pa. St, 176, Replevin, 2203, 2204 23 Pa. St, 193, Replevin, 2159 166 Pa. St. 267, Assumpsit, 30 9 Pa. St, 216, Appeals, 3375 TABLE OP CASES. CXCl Young V. Taylor, Young, Taylor v., Young, Taylor v., Young, Taylor v., Young, Wickersham v., Youngblood, Earhart v., Youngs V. Hannas, Zappe, Oomm. v., Zearfoss, Matthias v., Zebe, Railroad Co. v., Zeidler, Ferris v., Zeigler v. Gram, Zell V. Arnold, Zieger v. Zieger, Ziegler's Appeal, Ziegler, Beitler v., Ziegler v. Fisher, Ziegler v. Pierce, Ziegler, Sharpless v., Zimmerly v. Commissioners, Zimmermann, Bom v., Zimmerman v. Camp, SECTION 2 Binn., 231, Execution, 3144a 71 Pa. St., 81, Actions after Death, 2220 71 Pa. St., 81, Sci. Fas., 256 71 Pa. St., 81, Mortgages, 191 1 Miles, 395, Partition, 1970 27 Pa St, 331, Forms of Statements, 3764 1 Pa. 0. 0. Rep., 579, Dower, 1048 153 Pa. St., 498, At Trial, 3016 3 Kulp, 228, Discontinuance, 3733 33 Pa. St.,318,Negligence, 1879,1890,1895 5 Phila., 529, Justices, 1287 13 S. & R., 102, Justices, 1259 2 P. & W., 292, Costs, 3125 14 W. N., 122, Divorce, 861 35 Pa. St., 173, Dower, 1025 1 P. & W., 135, Account Render, 341 3 Pa. St., 365, Ejectments, 629 23 W. N., 27, Prep, for Trial, 2973c 92 Pa. St, 467, Assumpsit, 52, 57 25 Pa. St, 134, Justices, 1428 8 Phila., 233, Assumpsit, 52 155 Pa. St, 152, Appeals, 3463o CHAPTER I. OF MATTERS PEELIMINABY TO BEINGING SUIT. § 1. Your services will generally not be invoked until settle- ment is hopeless. Wherever it is possible, the lawyer should counsel some effort to avoid litigation. Even when it is necessary to sue, and the defendant is not about to leave the jurisdiction, it is best to address him somewhat in this form : Law Office of A. B., To Mr. C. D., No. (or to C. D., Esq.) Dear Sib: A claim against you has been placed in my hands for collection by Mr. E. F. If you intend to settle it, I shall be happy to see you at my office to-morrow morning at 9 o'clock. Otherwise, please refer me to your counsel. Very respectfiiUy yours, A. B. If the claim involve items of account, avoid stating the amount in your letter. I have known a lawyer's mistake in this behalf to embarrass a recovery. Remember here and everywhere that your letter may be read to a jury. Shun carefiilly all threats. If necessary to hint at a criminal prosecution, reserve this for a personal interview with the defen- dant's counsel. If you however write, some form like this may be adopted : Sie: Mr. E. F. has called on me and stated the particulars of his complaint against you. As you are familiar with the details, I need not here repeat them. My purpose in writing is simply to suggest that you see Mr. E. F. or myself as soon as possible. Very respectfiiUy yours. § 2. When parties are brought together, use all honorable efforts to make them settle. This remark applies not only to the period before suit brought, but to every subsequeijt stage of the war. Directly after you have gained a half-way victory is a very opportune time to negotiate. Your enemy will be slightly dis- heartened by your success. Your difficulty here and all through VOL. I. — 1 2 PRACTICE IN PENNSYLVANIA. your professional life may not be so much with the adversary as with your client. Write over your doorway, " Cave Clierdem." Eepeat the words at every interview. As to settlements, you can honorably represent the chances of war, the risks of litigation, the advantages of closing at once, the saving of time, of fees, and costs. When all arguments fail, do not get cross with your client; do not exclaim, as the great Eldon did (when at the bar) to an obstinate litigant : " You infernal fool, if you do not settle I will begin to call you hard names." On the contrary, say to him, " Perhaps you are right. Go home, think it over," etc. § 3. Fees. No subject is more delicate than the treatment of fees. As a general rule, be at first indifferent to your compensa- tion. If asked, leave the matter with the client. Secure his con- fidence, his friendship. These may be better to you than gold. In criminal cases you can be more strict. After rendering some service — at the second or third interview you can ask for your fee. Some practitioners feel a delicacy as to speaking upon this subject. A letter can be written in such cases : Dear Sie: If convenient, please send me a check for $ , as my retainer in the case we spoke of this morning. Very respectftilly yours. Clients have different habits upon the subject. Some never give it a thought. Bankers, brokers, persons of wealth, as a general rule, expect the lawyer to broach the question. You must feel your way. I would advise if the client be a person of position to wait patiently. More is gained by courtesy than with the sledge-hammer. It is narrated of Colonel IngersoU that he made no demand for a fee all through the long trials of the Star Route Cases. As to contingent fees — Chief Justice Sharswood denounced them. But their legality has been sustained by the Supreme Court in Perry v. Dickens, 105 Pa. St., 83(1884), and cases cited J6., 89. I would recommend that they only be accepted where the client would otherwise, as from poverty, be without redress, and that they be accompanied with the fullest proofs and the clearest explanations. § 4. Deal with no female client except in the presence of her male relative. Let all receipts state the entire amount collected — thus : A. B. V. C. D. Eeceived 1887, of E. F., four hundred and thirty dollars, which with seven ^j, dollars costs due E. F., and thirty dollars allowed him for his professional services, make four hundred and sixty-seven ^^ dol- lars in fall for the amount received in above case, and in ftill to date. OF MATTEES PEELIMINAEY TO BRINGING SUIT. 3 § 5. Yon should keep a mem. book, a docket, an office directory, a small book to be called a Trial-List, a receipt-book, and some account-books — such as a cash-book and ledger. In your docket every case should be entered the day you issue a writ or enter an appearance. It should be indexed under names of both plaintiff and defendant. § 6. In yonr trial-list book all cases should be entered as soon as at issue, with court, term, number, and names of counsel. At stated periods before the appearance of the Court Trial-Lists you should consult this book and see that every case you wish to try is entered by the clerk on the forthcoming list. § 7. Your cash-book should contain a record of all receipts and personal expenditures. Do not say ; " I can always tell what cash I have on hand." The habit of writing down your expenses will make you ashamed of their amount if they are unwise. Remem- ber Lord Bacon's advice : " It is less dishonorable to abridge petty charges (expenses) than to stoop to petty gettings." Nor should you be seduced by even the possession of property to ignore the counsel of prudence. When Boswell inherited an estate. Dr. John- son advised : " Begin your new course of life with the least show and the least expense possible. Begin with timorous parsimony. Let it be your first care not to be in any man's debt." § 8. Your mem. book should contain an entry of all engage- ments, and every case should in some form of entry be present to your eye from its birth to its death. For instance, when you com- mence a suit which will require from the opposite party an affidavit of defense, you should enter it on your mem. book as of the day for the judgment. When you enter a rule to plead another note should be made. When at issue mem. it for the Trial-List, and so mem. it on to its grave. § 9. Your receipt-book should evidence all your payments. When you make a collection, write instantly to the client, and when he calls have the receipt prepared for his signature. Let every voucher contain the words — in full to date. Your office directory should contain the names and addresses of all clients and of all whom you sue. CHAPTER II. COMMENCEMENT AND PROSECUTION OF ASSUMPSIT. § 10. By Summons. Except ia cases of Foreign Attachment, Domestic Attachment, or Attachment for Fraud, you commence suit upon promissory notes, due-bills, book accounts, bills of ex- change, and in all cases ea; contractu (save the rare instances here- after noted), by issuing a summons. To do this you draw a praecipe in form like the following : A. B. ] CD. j No. 16 Blank St. Sie: lasue summons in assumpsit retomable sec. leg. E. F., To Plaintiff's Attorney. Prothonotary of the Court of Common Pleas. (Insert date.) (State the county.) The abbreviations sec. leg. mean aecuvdvm legum, according to law. In GWer v, McGlathery, 16 W. N., 457 (1885), the prcecipe was not signed by plaintiff nor by any attorney, but upon D. W. Sellers, Esq., undertaking to direct the plaintiff to sign the prcecipe as the court might order, the rule to quash the writ was dischai^ed. Praecipe for summons to be directed to sheriff" of another cownty. Such a writ is authorized by Act April 24, 1857, section 1 (P. L., 318), and Act April 8, 1868 (P. L., 70), Br. Purd., 1060, section 146 n. The first Act permits suit to be brought " in any county where the property insured may be located," and the second Act extends the first to life and accident companies. The process may be directed " to the sheriff of either of the counties in this Com- monwealth." See Quinn v. Fidelity Association, 100 Penna. St., 382 (1882), and Act of May 13, 1889, § 1 (P. L., 198), Br. Purd., 1060, section 145, A88XJMPSIT. 5 In the Court of Common Pleas, No. , of the County of Philadelphia, ^- ^- 1 Of June Term, 1890. X.- T "• ^ 1 No. hue Insurance Company. ) To Prothonotary Common Pleas, Philadelphia County. Sie: Issue summons assumpsit in above case, returnable sec, leg. Writ to be directed to sheriff of Allegheny County. Plaintiff's Attorney. (Date.) § 11. Where yon sue on behalf of a firm your prceoipe should give the names of all the members. Bear in mind that initials are not names. Your praecipe and other papers should not describe a man as F. Smith. Give the full name as Francis Smith. Sup- posing that you sue a firm for a firm, your precept will be like this : John Smith and Peter Jones, copartners under the firm of Smith & Company, V. Samuel Bobinson and James Johnson, copartners under the firm of Bobinson & Company, No. 425 Blank Street. It is not necessary to insert the residence of the defendant in the prcEcipe, but it is convenient to do so and may afterwards save difficulty. § 12. If the plaintiffs or defendants were a firm, and have dis- solved partnership before you bring suit, insert the word late before the word copartners, so that they will be described as late copartners wilder the firm of, etc. § 13. If one of the firm has died you state it thus : John Smith, who survived Peter Jones, which said Peter Jones in his lifetime and said John Smith were copartners under the firm of, etc. You do not name the executor or administrator of the dead partner. Where one of several defendants dies after suit brought, the plaintiff may bring in the executor or administrator of deceased defendant, and proceed at same time against him and the survivor ; but he cannot be compelled to do this. Ashe v. 6uie, 97 Pa. St., 493 (1881). § 14. Associations or clnbs for social or charitable purposes and the like are not proper partnerships {lb., 499). If you sue an association not incorporated, insert in your praecipe the names of all the members, and add, transacting business as (give the name of the association). MeConndl v. Bank, 146 Pa. St., 79 (1892). If you sue a corporation, write the corporate name as the de- fendant. 6 PRACTICE IN PENNSYLVANIA. Assumpsit against joint tenants, etc., in oil or gas wells. The Act of May 6, 1891 (P. L., 41), provides that any person perform- ing labor or furnishing materials in drilling or operating oil or gas wells may bring assumpsit against a joint owner, joint tenant, or tenant in common having an interest therein to recover the pro rata share due by such owner, and such interest shall be subject to levy and sale on execution, and such owner paying such pro rata share shall have right of action to the same extent as is given laborers, provided that no such owner shall be required to pay any share of the expenses of operations commenced and carried on without his authority or consent. § 15. Do not use the word please in any praecipe, nor sign Yowrg truly. I have seen such phrases ; they are, however, out of place. As an officer of the court, it is your privilege to command the issuing of writs of right. § Id. In the large counties the work of the prothonotary's office is performed by clerks ; the praecipe is in such counties delivered to the writ clerk, who prepares the summons. The seal of the court is affixed and the fee paid at the main desk. In the sheriff's office original process and writs in the nature of summons are given to the appearance clerk, the service being made by deputies. You should see the deputy in special cases and give him full instructions. Watch every officer at every step. Returns, as a matter of fact, are rarely made on return-day. § 17. If there be fifteen days between the teste and return-day of your summons file with your praecipe " a concise statement of plain- tiff's demand, accompanied by copies of all notes, contracts, book entries, or a particular reference to the records of any court within the county in which the action is brought, if any, upon which the plaintiff's claim is founded, and particular reference to such record or to the record of any deed or mortgage or other instrument of writing recorded in such county, shall be sufficient in lieu of the copy thereof. The statement shall be signed by the plaintiff or his attorney, and in the action of assumpsit shall be replied to by affidavit." These are the words of the Act of May 25, 1887. (P. L , 271.) When a bill of exchange, promissory note, or other instrument is copied, write before the names of all parties signing, indorsing, accepting, etc., the word (signed), and when there are indorsers write " indorsed " and copy the indorsement. Copy of assignment of bond. If the suit is upon a bond which has been assigned to plaintiff, the assignment should also be copied. How to describe plaintiff when assignee. If the instrument sued ASSUMPSIT. 7 on is negotiable, i. e., a promissory note, bill of exchange, etc., payable to bearer or order, the suit must be brought in name of holder without describing him as assignee, or without naming any party to his use. When it does not contain the words " order or bearer," and the plaintiff's title is by assignment, then the suit must always be in the name of the assignor to use of plaintiff. Thus, if the claim were upon a note signed by John Doe, simply promising to pay to Richard Roe $500 without adding the words " order or bearer " after Roe's name, and Roe should write upon its back " I assign this note to A." and sign his name, A. could not issue writ against Doe in his own name, but the praecipe should be headed " Richard " Roe to the use of A. id. ' John Doe.' " Sometimes, but not often, there are several such assignments. A. may have transferred it to B., B. to C, C. to D., etc. In such a case it would be " Richard Roe to the use of A., to the use of B., to the use of C, to the use of D. against John Doe." This form is all dispensed with when the words " order or bearer " appear on the face of the note. Uo copy of protest necessary. Where the suit is against the indorser, and the note has been protested, the attorney need not file a copy of the protest ; he need only say, at the foot of his copy and above his signature, " duly protested for non-payment." Wlien indorser liable though note not protested. It will, of course, be understood that an indorser will in certain cases be held liable, although the note has not been protested, as when he may have waived protest, or may have been notified in due season of non- payment of the note. When assignee of bond may sue in his own name. Where the suit is upon a bond and the plaintiff is not the original obligee but holds by assignment, he is permitted by Act of 28 May, 1715, sec- turn 3 (1 Sm., 90), to sue in his own name, provided the assign- ment shall have been made " under hand and seal before two or more credible witnesses." If there is such assignment, a copy thereof should be filed with the copy of the bond. If the assignment is not under seal or not in presence of two witnesses, the action would again have to be in the name of the original party to the use of the assignee, as above stated in the case of promissory notes not negotiable. Separate suits against maker and indorser. It is hardly neces- sary to add that separate suits may be brought and prosecuted at the same time to judgment and execution against all parties liable on notes and bills of exchange, whether makers, drawers, indorsers, or 8 PKACTICE IN PENNSYLVANIA. acceptors; Tarin v. Morris, 2 Dallas, 115 (1790); Beebe v. West Branch Bank, 7 W. & S., 375 (1844); and the plaintiff may at the same time be selling the goods of the maker of a note and levy- ing upon the lands of an indorser. Xo detail of credits necessary. In filing a copy of a book account it is unnecessary and frequently dangerous to attach a copy of all the credits ; good faith, of course, requires that no plaintifiF should claim more than is justly due, and whenever there has been a pay- ment the attorney should add at the foot of his copy, and above his signature, as follows : " The defendant is entitled to a credit, or credits, to the sum of dollars," or " the plaintiff claims upon the above a balance of dollars." If the attorney undertake to give the items of the credits, his client may be preju- diced if there has been any mistake in dates. A merchant might give a receipt and enter a credit as of a dif- ferent date, though both referred to the same payment. The de- fendant might be dishonorable enough to claim two credits instead of one; This embarrassment is avoided and full faith observed by giving the defendant a general credit in the copy filed, without reference to dat€s or items. Herein, as in all other matters, be particular to comply with every requirement of the law, but be careful not to go one hair's breadth beyond. Compare all copies carefully. The attorney should be careful to compare the copies he files with the originals, and never trust another with this important part of his duty. His signature is regarded as his certificate to the correctness of the copy. A very important case, in which a large amount was involved, was commenced against a man in failing circumstances. The plaintiff and his attorney were very anxious to secure judgment at the earliest possible moment. On the day for entering judgment for want of an affidavit of defense it was discovered that an affi- davit of defense had been filed, stating that the defendant had never issued checks like the copies filed. This led to an examina- tion of the copy, which showed that the defendant's name had been entirely omitted, although the paper had been prepared by a very careful gentleman. If you serve a copy of this statement on the defendants " not less than fifteen days before the return-day of the writ, it shall be the duty of the defendant in the action of assumpsit to file an affidavit of defense on or before the return- day." (Section 4, Act May 25, 1887.) The statement may be ASSUMPSIT. y served independently of the writ, aud even before the writ is served. Boseman v. Haydock, 21 W. N., 121 (1888). Failing to serve your statement fifteen days before the return- day, you may file it " on or at any time after the return-day, and in the action of assumpsit unless the defendant shall file a sufficient affidavit of defense within fifteen days after notice that the said statement has been filed, the plaintiff may move for judgment for want thereof." {Sedion 6, Act May 25, 1887.) The statement can be filed at any time before, or on, or after the return-day ; and you can enter judgment fifteen days after service of the writ and statement, but not before the return-day. Wdgley v. Teal, 23 W. N., 521 (1889). The Copy of Statesaent served should set forth the names of the plaintiffs of record, and a copy of the affidavit to the statement. TFoZ/v. Binder, 28 W. 'S., 133 (1891). § 18. The following Exiles of Court have been adopted in Phila- delphia : The plaintiff shall serve a copy of the statement of claim on the de- fendant or his attorney of record if he has one at least fifteen days before moving for judgment for default, except for want of an appearance. Such copy may be served by the sheriff with the .writ, and his return shall be in lieu of the affidavit otherwise required. If the defendant resides out of the county and has no attorney of record, the copy may be served on him wherever he may be found by messenger or registered letter. If the residence of the defendant is unknown and he has no attorney of record, the copy intended for him, to be marked " defendant's copy," may be served by leaving it with the prothonotary, who shall deliver it to the defendant or his attorney on request. An affidavit of the time, place, and manner of serving such copy shall be filed in all cases, except where service is made by the sheriff. When the defendant's copy is filed in the prothonotary's office, the rea- sons for so filing it must be stated in detail in the affidavit. Plaintiff's statement shall contain a specific averment of facts sufficient to constitute a good cause of action. Such statement shall be supported by an affidavit of the truth of the mat- ters alleged as the basis of the claim, and shall in all cases, where damages are capable of liquidation, contain an explicit averment of the amount claimed to be justly due. A copy of the affidavit of defense must be served on the plaintiff or his attorney within forty-eight hours after the filing thereof. Judgment by default of any kind may be moved before and entered by the prothonotary, who shall assess the damages in all cases in which the amount thereof is set forth with certainty in the statement of claim filed. These rules were adopted in C. P, 2, 8, and 4 on July 9, 1887, and in C. P. 1 on July 16, 1887. 10 PKACTICE IN PENNSYLVANIA. Under the Act and these rules the statement must be sworn to either by the legal or the use plaintiff: Sohieh v. Goenner, 21 W. N., 63 (1888); in tort or trespass as well as in assumpsit: Krauskopf v. /Sem, 21 W. N., 185 (1888), and a bill of particulars may be ordered. Ibid. If the statement be amended, the amendment must be sworn to : lokmger v. E. R., 20 W. N., 333 (1887). An affidavit of defense is necessary in all cases of assumpsit. In Krause v. R. E., 20 W. ¥.,111 (1887), G. P. No. 4, of Philadel- phia, in a very able opinion of Aenol,d,'J., decided : 1. That the Act of 1887 applies to cases brought before its 2. It is constitutional. 3. That a claim cannot be founded upon an implied promise to pay damages caused by the negligence of the defendant. 4. Oyer of the writ is not demandable. The writ may be issued in trespass and a statement filed in assumpsit, and vice versa. The variance is not a good cause of demurrer or plea in abatement. Affidavit of defense must be filed in answer to statement on ap- peal cases : Laufer v. Landis, 23 W. N., 460 (1889). In Philadelphia County, executors and administrators are re- quired to file affidavit of defense. The Philadelphia Court Rule is as follows : Sec. 4, b. An affidavit of defense shall be required from executors, ad- ministrators, guardians, committees, and others sued in a representative capacity : Provided, that an affidavit by the defendant in said cases, stating that he has made diligent inquiry and has not been able to obtain sufficient information to enable him to set forth particularly the nature and character of the defense, but that he believes there is a just and legal defense, shall be deemed a sufficient compliance with this rule. Adopted March 7, 1893. Prior to the adoption of this rule it had been held that executors and administrators need not file affidavits of defense : WiremMn v. Ins. Co., 20 W. N., 299. In Brooks v. Bank, 23 W. N., 502 (1889), a statement and affidavit were signed by B., with a scroll after his signature ; the word " cashier" did not appear^ nor was there any averment in the affidavit of his official position. The affidavit set up that the state- ment was insufficient, the court below entered judgment and allowed the word "cashier" to be added. The Supreme Court refused to reverse on such a technicality. A statement to recover for goods sold and delivered did not aver delivery, but a bill of particulars annexed, sworn to as a copy of book entries and showing a charge, cured the defect. Hubbard v. Tenbrook, 23 W. N., 351 (1889). ASSUMPSIT. 11 If a statement under the Act of 1887 refer to the record of a suit in another county, it should exhibit a full copy of the record — the rule is otherwise where the record is in the county where the suit is brought. Campbell v. Rwy Co., 27 W. N., 79 (1890). Judgment for want of an affidavit of defense cannot be entered during the pendency of a plea in abatement. Hummel v. Myers, 26 W. N., 279 (1890). An action of assumpsit may be brought in the common pleas upon the judgment of a justice of the peace of the State. Alexander V. ArUrs, 1 District Eep., 359 (1892). A suit for damages for the breach of a written contract to convey land is in assumpsit. Bradley v. Potts, 33 W. N., 570 (1893). An affidavit of defense is not required in an action for a penalty. Bartoe v. G-uckert, 158 Pa. St., 124 (1893). An affidavit of defense is required in a suit for damages for breach of a written contract to sell land. Bradley v. Poits, 2 Dist. Eep., 797 (1893). Judgment for want of a sufficient affidavit may be entered in a suit upon the bond of an employ^ if the statement present the facts in a full, clear, and explicit manner, so that the damages can be liquidated and assessed. Trust Oo. v. Trust Co., 4 Dist. Eep., 381 (1895). An affidavit of defense must be filed to an action on a replevin bond since the Act of 1887. McG-ary v. Barr, 47 Leg. Int., 214 (1890). Municipal corporations need not file affidavits of defeiise. Municipal cor- porations shall not be required to file affidavits of defense in actions of assumpsit. Act of April 26, 1893 (P. L., 26). § 19. The Old Practice. A perusal of the Act of May 25, 1887, discloses no direct repeal of the old laws requiring the filing of affidavits of defense. They are not inconsistent with the new statute, and the common Pleas has in two Counties held the old affidavit of defense law to be still in force. Commonwealth v. Mc- Cutcheon (Beaver Co.), 20 W. N., 365 (1887) ; Bank v, McHenry (Philadelphia Co.), lb., 366 (1887). But in Gould v. Gage, 20 W. N., 553, 118 Pa. St., 559 (1888), a copy.of note was filed— not signed by plaintiflF's counsel. He afterward claimed to treat said copy as a statement under the provisions of the Act of May 25, 1887. The Supreme Court held he was not entitled to judgment (1) because the copy was not a "statement accompanied by" a copy of the note, etc., as required by the Act; (2) it was not signed as required. It would appear to be much easier to proceed 12 PEACTICE IN PENNSYLVANIA. under the Act of 1887, and to treat the old laws as repealed. New- bold V. Pennoek, 154 Pa. St., 591 (1893). Judgment for want of affidavit cannot be entered nnder a rnle of court. In Marlin v. Walters, 24 W. N., 129 (1889), it was ruled that the Act of 1887 superseded a rule of court. The plaintiff in this case entered judgment, to which he was entitled under a rule of court in Warren County. The court below struck it off. The Supreme Court affirmed the judgment. Mitchell, J., said : " The act was undoubtedly intended as a step towards uniformity of prac- tice. * * * £f the plaintiff wants to hold the defendant to an affidavit immediate on his coming into court, i. e., on the return- day, he must serve a copy of the statement. If, however, he chooses to wait till the defendant is in court, as required to be on the return- day, then plaintiff need only jUe his statement and give notice. Under this system the defendant is not bound to any unreasonable diligence, nor in any danger of being taken unaware. He knows he must be served either with a copy before the return-day, or with notice after it." § 20. Under the old laws affidavits of defense were required in sd. fax. sur mortgages, recognizances in error, records, mechanics' claims, suits on records, bills, bonds, notes, instruments of writing for payment of money, bail bonds, and insolvent bonds. Under the old law affidavits of defense were not required where the book account charged commission for the sale of a house and items of money paid. Fenn v. Early, 113 Pa. St., 264 (1886). § 21. Under the old practice, the following instruments have been held to be within the Affidavit of Defense Law : Recognizance to dissolve foreign attachment. Gfilser v. Dialogue, 4 W. N., 10 (1877). Recognizance of bail in error. Beck v. Courtney, 13 W. N., 302 (1883). Recognizance entered into in Quarter Sessions to support recog- nizer's family. Mvher v.' Commonwealth, 11 W. N., 496 (1882). Recognizance of bail for stay of execution is a -record, and re- quires affidavit of defense without copy of recognizance being filed. Salter v. Griffiih, 7 W. N., 288 (1879). Book entries containing words understandable only to the trade. Brown v. Dupuy, 4 W. N., 491 (1877). Copy of bill, being also copy of book entries, the heading of the bill being surplusage. Richardson v. Snyder, 6 W. N., 414 (1879). A bond conditioned for payment of costs in an equity suit, in- cluding master's fee. Kase v. Greenough, 7 W. N., 535 (1879). ASSUMPSIT. 13 An averment filed with copy of a note alleging that the interest agreed upon in the note is permitted by the lex lod contractu. Smith V, Bdster, 11 W. N., 353 (1882). A contract of surety on a lease. Hohl v. Korn, 2 "W", N., 277 (1876). Exemplification of record of foreign judgment. Power v. Winsor, 3 W. N., 360 (1877), and so ruled in Mink v. Shaffer, 23 W. IS., 348 (1889). Mortgage where mortgagor alive and executor of terre tenant defends. BvM, v. SuUy, 9 W. N., 573 (1881). Under the Act of 1887 an affidavit must be filed to a suit on a claim-property bond. Byrne v. Hayden, 23 "W. N., 306 (1889). Foreign Judgment. €f plaintiff file a statement claiming under judgment recovered in another State and attaching a copy of the record, the defendant must file his affidavit or judgment may be entered. Mink v. Shaffer, 23 W. N., 34 (1889). In an action on a foreign judgment where the averment is made that the defendant appeared by attorney, an affidavit of defense denying that the attorney who so appeared was authorized, or that said attorney was defendant's regularly retained counsel, is suffi- cient. Society v. Tyhr, 2 Dist. Eep., 693 (1893). The statement need not aver that the court had jurisdiction of the subject-matter or of the person of the defendant or the nature of the action. Minlc v. Shaffer, supra. In this case there was no " denial by the defendant of his identity with the defendant in the judgment, or of the plaintiff's identity, or of the authority of the counsel of record to appear for him." In an action on a foreign judgment, if the record is defectively certified, the court will not give judgment for want of a sufficient affidavit of defense if it suggests the defect in the certificate. Ensign v. Kindred, 35 W. N., 226 ; 163 Pa. St., 688 (1894), overruling Mnk v. Shaffer, 23 W. N., 348 (1889), upon this point. An action upon a foreign record may be brought although an appeal is pending in the foreign forum, even if such appeal by the laws of such State is a supersedeas. The supersedeas is only to the execution. Wood Co. v. Berry Co., 4 Dist. Eep., 141 (1895). § 22. Under the old practice the following were held not to be within the Affidavit of Defense Law : Deed from a third party to defendant, not signed by him, for premises " under and subject to " certain mortgage debts of which the plaintiff was assignee. Morris v. Ghder, 5 W. N., 132 (1878). A mortgage, not containing a covenant to pay, in an action of debt. FiddUy Co. v. Miller, 6 W. N., 553 (1879). 14 PRACTICE IN PENNSYLVANIA. CoDtracts of decedent. Wright v. Cheyney, 10 Phila., 469 (1873). Non-negotiable note. Bell v. Sterling, 12 Phila., 230 (1877). A policy of insurance. Morton v. Ivs. Co., 35 Leg. Int., 282 (1878). Bond of indemnity. Scott v. Lmighery, 6 W. K, 123 (1878). Contract of suretyahip. Bunting v. Allen, 6 W. N., 157 (1878). Sd. fa. against widow and heirs to charge real estate. Stadel- man v. Trust Co., 6 W. N., 134 (1878). Bond of a lunatic's committee. Strode v. Gomm., 90 Pa. St., 272 (1879). Amendment after statutory time for judgment does not put plaintiff in better position for judgment. Bradley v. Dusenherry, 7 W. N., 146 (1879). Book entries when debt contracted by a married woman dum sola. LaTigfeld v. McCuUough, 11 W. N., 107 (1881). A premium note of Mutual Ins. Co., payable at such times and in such amounts as directors may require, together with certificate stating time and amount of assessment. Ins. Co. v. Brierly, 10 W. N., 45 (1881). Book entries which are merely mem. do not entitle plaintiff to judgment. Irish v. As^n, 13 W. N., 372 (1883). Administration bond. Commonwealth v. Pdletier, 8 W. N., 516 (1880); Comm. v. Cblgan, 19 W. N., 131 (1887). Since the Act of 1887 it has been decided that an action to recover a penalty under the Acf of Congress for taking usurious interest is an action ex delicto, and an affidavit of defense is not required. Osbom v. Bank, 32 W. N., 168 (1893). It may be proper to remark here that at every stage of every case the practitioner should consult the Digests of Laws, the Digests of Decisions, and the Rules of Court. § 23. Taking judgment for want of an appearance and for want of an affidavit of defense. The Act of 1887 does not provide for judgment for want of an appearance — see section 61 of this book. It enables the plaintiff by filing and serving a concise state- ment of his demand, accompanied by copy, etc. (or by reference to records, etc., and signed by the plaintiff or his attorney, see sections 61-66), to take judgment if no affidavit of defense or an insuffi- cient affidavit be filed. The summons requires the entry of an appearance, and the laws permitting judgment by default for want of an appearance are not expressly repealed by the Act of 1887. It would seem, therefore, that judgments for want of an appear- ance may still be entered. ASSUMPSIT. 15 Proceeding by Act of 1887 is safer, because in order to take judgment for want of appearance a narr. had to be filed under the old law. Now the declaration " shall consist of a concise state- ment," etc. The pleader must, therefore, file a statement under the Act of 1887 as the first step in his case. The trouble of serving his copy is very slight, and if he get a judgment for want of an affi- davit of defense it is much more likely to be a finality. It would be best, therefore, to avoid taking judgment for want of an appear- ance, and to take the judgment for want of an affidavit of defense. But lest some special reason might present itself for taking judgment for want of an appearance the following Note of Decisions may serve as a guide. Judgment for want of appearance. Under Act of 1836. As to Summons. In computing ten days before return-day, re- turn-day itself is not to be counted. Service on October 28 — return-day November 7, service is good. Black v. Johns, 68 Pa. St., 83 (1871), Agnew, J. Judgment cannot be entered until fourteen full days after service of writ. Service on October 28, return-day November 7. Judg- ment entered November 11 held proper. Ihid. Same point. Asm. v. Gardiner (C. P. No. 1), 2 W. N., 95 (1875). In case of two returns of nihil equivalent to a service, service is presumed to have been made on return-day of alias writ. Favnce V. Svhers (C. P. No. 4), 1 W. N., 248 (1875). As to Declaration (now statement). Under Act of 1836 narr. must be filed before return-day. Formian v. Schricon, 8 W. & S., 43 (1844). If narr. not filed before' return-day, the judgment is irregular. Dennison v. Leech, 9 Pa. St., 164 (1848), Rogers, J. Black V. Johns, 68 Pa. St., 88 (1871), Agnew, J. KohJer v. Luckmbaugh, 84 Pa. St., 258 (1877), Gordon, J., and a rule of court otherwise is invalid. Vanormer v. Ford, 98 Pa. St., 177 (1881), Paxson, J. But such judgment is irregular, not void, and to a sd. fa. thereon a plea of nul tiel record will not avail. Hersch v. Groff, 2 W. & S., 449 (1841). To take advantage of such irregular judgment the defendant must act promptly. Kohler v. Luckenbaugh, 84 Pa. St., 258 (1877). The safe practice is : 1. To file statement with the prcedpe at least three days before the return-day. 2. See that it conforms strictly to Act of 1887, section 61 of this book. Do not trust to your memory, but look at section 61 and compare your work with the law. 16 PRACTICE IN PENNSYLVANIA. 3. Let fifteen days intervene between the service of summons and judgment; and although they have elapsed do not sign judgment until the fourth day after the return-day. 4. Before proceeding look at your S.ules of Court. If no appearance entered, and you are entitled to judgment as above, take it thus : File with prothonotary the following paper : A, B. ) V. \G.V. , Term, 188 . No. . CD. ] And now on motion of E. F., plaintiff's attorney, judgment against the above-named defendant for want of an appearance. In Philadelphia the prothonotary enters judgments by default. Act of April 22, 1889 (P. L., 41), provides: " That the courts of this Commonwealth may, by rule or stand- ing order, authorize the prothonotary to enter judgment upon praecipe for want of an appearance, for want of a declaration or plea, or for want of an affidavit of defense, and to enter judgment thereon with the same effect as if moved for in open court." If your statement contain a copy of a note, or if the cause of action show a sum certain to be due, the prothonotary can assess your damages on your order. (Section 23.) But there may be many cases in which proof will be needed to ascertain the amount of damages. In such cases a writ of inquiry of damages is issued. For the law as to this writ — ^the prcedpe, etc. — see chapter en- titled Wi-it of Inquiry of Damages. The judgment for want of affidavit of defense can be entered fifteen days after notice of the filing of the statement, but not until the return-day. Under the Act of 1887, if the statement be served prior to the return-day and more than fifteen days have intervened between the service of the statement and entry of the judgment, a judgment may be entered if the return-day has passed. Newbold v. Permock, 154 Pa. St., 592 (1893). Whenever entitled to judgment for want of an affidavit of de- fense, you should examine the docket and inquire of the clerk. Sometimes affidavits are filed and not docketed. If entitled to judgment you can enter it, under the Philadelphia rules, before the prothonotary. Under the old law, upon every regular day for these judgments, the docket was placed before one of the judges at 11 A. M. The attorney mentioned the number of the case. The judge turned to it, and if satisfied, said "judgment." Under the Act of 1887, you ASSUMPSIT. 17 give to the prothonotary a paper indorsed Judgment for want of affidavit of defense and assessment of plaintiff' s damages. You can use the following as a form : A. ] V. yC.F. , March Term, 1888, No. 20. B. J And now, March. 20, 1888, judgment for want of an affidavit of defense. Prothonotary to assess the plaintiff's damages. To the Prothonotary : Sir : Assess the plaintiff's damages, sec. reg. CD., pro plff. March 20, 1888. The prothonotary assesses the plaintiff's damages as follows : Amount of note, copy filed $1000 00 Interest on do. from March 20, 1887, to March 20, 1888 . . 60 00 Protest 1 87} $1061 37J 1 (The prothonotary signs here.) Interest is recoverable on coupons in the payment of which de- fault has been made. Lme v. R. R. Co., 45 Leg. Int., 370 (1888). You should then order &fi.fa. by the following : A. ] V. ^ C. P. , March Term, 1888, No. 20. B. j Sie: Issue R. Fa. returnable «ec. Ug. Eeal debt, $1061.37}. Interest from March 20, 1888. To the Prothonotary C. P. CD., Plaintiff's Attorney. March 20, 1888. The real debt is the amount at which the damages have been assessed. If there be a waiver of the exemption law, note on the writ before handing it to the sheriff " exemption waived." No execution can issue under the Act of 1887, where judgment for want of a plea has been entered, until damages are assessed. The time within which execution must issue does not run from the entry of judgment. Walker v. Wardell, 25 W. N., 131 (1889). Opening judgment. The court will open a judgment for want of an affidavit of defense on satisfactory evidence of the existence of a good defense, if seasonable application be made. Barbe v. Davis, 1 Miles, 118 (1835). Martin v. Hall, 1 Phila., 233 (1851). Nichol- son V. FUzpatriek, 2 Id., 205 (1852). voi,. I. — 2 18 PEACTICB IN PENNSYLVANIA. Lost note. Where judgment is entered in a suit on a promissory note which is lost, the court will control the execution until the defendant is protected either by indemnity from the plaintiff or by the statute of limitations. Rdsinger v. Magee, 158 Pa. St., 280 (1893). Where same defendants file insufficient affidavits. Where suit is brought against a number of stockholders in an unincorporated bank, and some of the defendants file an insufi&cient affidavit of defense, and the others do not file any affidavit, the plaintiffs should move for judgment against aU of the defendants. If he take judg- ment only against those filing insufficient affidavits, it wiU be reversed. Bobinson v. Floyd, 32 W. N., 6 (1893). MurOand v. Floyd, Id., 6 (1893). § 24. It is best to have your papers ready, and if there are other suits gainst the same defendants, be first with your judgment and levy. Beneath defendant's name write all places where a levy is to be made. In large counties there is in the sheriff's office an execution clerk. Give the_^. fa. to him ; ascertain the deputy who is to make the levy ; see and instruct him. He should take possession of all personal property belonging to the defendant. On original writs you pay the sheriff for service. On writs of execution $1 is due in advance in counties of population over 300,000. (Act April 1, 1887, P. L., 15.) Your client should be notified of the judgment and execution. Where circumstances seem to require extra precaution, a clerk of the plaintiff should accompany the deputy sheriff when the levy is made. A watchman should be placed in charge and your client should watch the watchman. Many articles of value might be spirited away. In counties of over 300,000 a watchman's fee ($2 per day) is a 1^ cost (Act April 1, 1887, P. L., 16), provided a watchman is necessary. Your client should attend the sale. If he see fit, he can get the sheriff to employ an auctioneer. § 25. When siibseq[Tient writs of fi. fa. are issued, the same form of prcecipe can be used, employing for the second execution the word alias, for the third pluries, for the fourth 2d pluries, etc. You must see to it that the first writ is actually returned before another is ordered. When defendant becomes entitled, after judgment, to a credit, be sure to give it to him. Note on prcecipe, and see that prothonotary notes on execution, " Credit defendant, $ ." Instead of a fi. fa. your client may wish to attach moneys or goods on deposit, or debts due to the defendant. For this purpose ASSUMPSIT. 19 an attachment in execution is the appropriate writ. It is treated of in its proper place. § 26 ' Should an affidavit of defense be filed, examine it carefully to see if it is sufiScient. If clearly so, you must at once enter a rule to plead. The rules applicable to statements are given in the next chapter. The following Rules are in force in Philadelphia : Rules to declare or plead may be entered in the prothonotary's office at any time after the return-day of the writ, and on failure to declare or plead within fifteen days after written notice to do so, served upon the adverse party, or his or her attorney of record, with copy of declaration or state- ment, the prothonotary shall, on motion in writing, enter a judgment of non proi. against the plaintiff for want of a declaration or statement, or judgment against the defefidant for want of a plea, or at the request of the plaintiff enter a plea and place the case on the trial-list. Judgments by default may be set aside or opened at the discretion of the court, when deemed necessary for the purposes of justice. But the court or any judge thereof may enlarge the time to declare or plead on cause shown. Bnle to plead : A. A. ) B. J , P. No. 1, March Term, 1888, No. 200. B. To the Prothonotary of the Court of Common Pleas No. 1, of Philadelphia County. SiE : Enter rule on defendant to plead in fifteen days, or judgment sec. reg. CD., Plaintiff's Attorney. (Date.) Serve notice with copy of statement. If no plea filed, write for it. If your adversary after being warned will not plead, you can sign judgment for want of a plea. ENTERING JUDGMENT FOE WANT OP A PLEA. A. ] V. \ C. P. No. 1, March Term, 1888, No, 200. B. J To Esq., Defendant's Attorney. Deae Sie : Enclosed find copy of statement filed in the above case. Please take notice of a rule on defendant to plead in fifteen days or judgment sec. reg. Very respectfliUy yours, E. F., Plaintiff's Attorney. (Date.) Ciiy and County of Philadelphia, ss. on oath says that on the day of he served the original notice whereof the above is a true and correct copy on Esq., the defendant's attorney, with a copy of the statement 20 PBACTICB IN PENNSYLVANIA. filed in this case, personally (or by leaving said notice and statement with an adult in charge of his office). Sworn to and subscribed ) before me, 1888. J Indorse the above : A. } V. [ C. P. No. 1, March Term, 1888, No. 200. B. j Proof of service on defendant's attorney of statement and of notice of rule to plead. To the Prothonotary C. P. SiE : Enter judgment against the above-named defendant for want of a plea tec. reg. E. F., Plaintiff's Attorney. (Date.) You file this and assess the damages as directed by section 23. IfpUa fikd. File replication — if necessary. Grenerally the pleas are non assumpsit, payment, and set-off. The replication to these will be non solvit, no set-off, similiter and issue. A. B. V. CD. Indorsememt of Seplication. C. P. No. , Term, 1890, No. B^lieaMon. E. F., pro plff. Enclose a copy to the defendant's attorney. Where only a simi- liter is required the replication is gradually falling into disuse. The case being at issue, order it on the trial-list and prepare for trial. Demanding plea waives a^vdavit of defense. Where a plea is entered upon the plaintiff's motion he cannot thereafter object to the sufficiency of the affidavit of defense. Edison Co. v. lAghi Co., 32 W. N., 327 (1893). § 27. If yon regard the affidavit as insufficient, do not enter any rule to plead, but take a rule for judgment. This is done by hand- ing to the court clerk A. ] V. \ C. P. No. 1, March Term, 1887, No. 200. B. ] And now, March 20, 1887, on motion of C. D., Esq., plaintiff's attorney, rule on defendant to show cause why judgment should not be entered for want of a sufficient affidavit of defense. Betumable (here insert the next rule day — generally the succeeding Saturday). ASSITMPSIT. 21 Of this you give notice to the defendant's attorney. Compelling the filing of a plea bars plaintiff from taking judg- ment for want of affidavit of defense. Siehards v. Mmk, 46 Leg, Int., 138 (1889), § 28. Yon mast then prepare yonr paper-book for the court. Judge Mitchell's excellent work on Motions and Eules should be frequently consulted. The paper-book upon this rule should follow this form : A. ] V. }G.F. , March Term, 1887, No. 200. B. J Plaintiff's paper-book sur rule for judgment for want of a sufficient affi- davit of defense. STATEMENT AND COPY OF NOTE FILED. These last words must, of course, be changed according to cir- cumstances. If you filed a copy of a long book acc.ount, the court will not care to see all the entries. Copy only the heading, the first item, and give the first and last dates and the amount. If the affidavit raise some special question touching the copy, insert the account at length, or so much as may be necessary to enable a judge to understand the case. If the copy filed be of many notes or a long bond, the same remarks apply. You then write COPT OF AFFIDAVIT OF DEFENSE. This should be inserted at length. You add plaintiff's points, and state your objections to the affidavit, citing authorities. § 29. The great req^oisites of a paper-book are : 1. To give the court all necessary information in the smallest compass. 2. To have it clear and legible. Many of those handed up cannot be read. Blurred press-copies should be put in the waste- basket. 3. The substance of each case cited should be stated from the syllabus. Do not say, " 'Chis point is clearly ruled in," and then cite a score of cases, leaving to the judge the labor of examining the books, and as he finds many of them entirely inapplicable, con- demning your laziness or your ignorance. 22 PEACTICE TS PENNSYLVANIA. § 30. As a sample of a correct method of citation, and as furnish- ing information as to affidavits held to be insufficient, the following brief may be consulted : In OmUy v. Byan, 5 Wh., 263 (1839), the defendant attacked the plaintiff's title to the bill. He swore that after it was due it was held by Douglass, Wood & Co., who, being indebted to defendant, agreed to set off one claim against the other. The District Court of Philadelphia gave judgment, and the Supreme Court affirmed it. Rogers, J., said : " It is an essential ingredient in the defense that Wood, Douglass & Co. should have been the owners as well as the holders of the bill." In JSising v. Patterson, 5 Wh., 316 (1839), the affidavit was much stronger. The defendant swore that there was a jnst and legal defense to the claim ; that the two bills of exchange sued on were at the time of their maturity owned by the payees, who had subsequently made a certain agreement with defendant, under which defendant had made some payments, and which he was ready to comply with in other respects. The defendant also swore that this agreement was binding on the plaintifis. He added that " he hoped and expected ta prove that the plaintiff are not the owners of the paper, but that it belongs to the payees, who hope by this action to avoid their contract, entered into as above." The District Court of Philadelphia gave judgment. The Supreme Court declined hearing Mr. Bai^dall for the defendant in error. In Ogdeny. Offerman, 2 Miles, 40 (1836), the affidavit disclosed this de- fense : That defendant had not occupied the premises named in the lease sued upon, and " from information defendant verily believed the plaintiff had occupied the property during a greater portion of the time." This was held to be insufficient as alleging neither ouster, eviction, nor surrender. In Dawes v. White, 2 Miles, 140 (1837), the affidavit stated that there was a just and legal defense, the nature and character of which were that the check sued on was given for lottery tickets. It was held to be defective because the tickets might have been sold in another State, where the transaction was not prohibited, and the defendant was required to add that the sale took place in Pennsylvania. In Brick V. Coster, 4 W. & S., 494, the action was on a bond, given for pur- chase-money of land. The deed contained a general warranty. The affidavit stated the existence of adverse outstanding claims prior to the purchase. It was held insufficient in not alleging that the claims were good. In Brown v. Street, 6 W. & S., 221 (1843), the maker of the note swore to a full defense as against the payee. He then added : " The plaintiff is a particular and intimate friend of the payee, and deponent believes that the payee is the real plaintiff, who uses the name of the plaintiff to accomplish a recovery. The consideration of said note has totally failed ; and if said Aldridge succeeds through the name of Street in obtaining payment of the same from the defendants, the defendants will suffer great injustice." The District Court gave judgment, and in the Supreme Court Mr. St. George T. CampbeU, for defendant in error, was not heard. Eogers, J., said : " The plaintiff is the holder of a note which is negotiable ; and to put him on proof of consideration as between him and the payee, it must be shown that it was obtained or put into circulation by fraud or undue ASSUMPSIT — INSUFFICIENT AFFIDAVITS. 23 means. Some fact must be "alleged from which we can reasonably infer that the note came into the hands of the holder by fraud or without con- sideration." In Moore v. Somerset, 6 W. & S., 262 (1843), the indorser received a no- tice, which would have been too late if the parties lived in the same town. The affidavit was clear and fidl save on this point. The hardship of the de- fendant's case was that he did not know the maker's address. The court below entered judgment, and, in affirming it, the Supreme Court said : " But the defendant may have been unable to swear to the place of his (the maker's) residence. Very well. He is bound affirmatively to make out a case of negligence, and must swear to facts enough to constitute it. If he cannot do that, he cannot swear to a defense. In this case every fact sworn to may be true, and yet the plaintiff be entitled to recover. It ia said that, as the note is dated at Philadelphia, the presumption is that the drawer resided there also. But a defendant is bound to swear to facts, not presumptions." * In Bryan v. Harrison, 37 Pa. St., 233 (1860), the affidavit presented a Ml defense, save that it omitted to aver " that the money for which the suit was brought was deposited with defendant under the illegal ' agreement ' de- scribed by defendant." The judgment was affirmed. Black V. Halstead, 39 Pa. St., 64 (1861). The defendant swore to a de- fense as against the payees, and then added that " he had been informed and had reason to believe, that the note sued upon in this case remained in possession of the payees," etc. It was held that the affidavit was insuffi- cient. The defendant must add that he expects to prove the averments, or set out specially the sources of his information, or the facts upon which his belief rests." So, too, it was held in the same case to be insufficient to state that the plaintiff claimed to have two notes, one of which was a forgery, without adding an averment that the note in suit was not actually given by the defendant. In Woods V. WatUns, 37 Pa. St., 458 (1861), the defendant swore that he had carefully examined the notes, that he had no recollection whatever of having signed the same, and that he knew there was no consideration for them. This was held to be insufficient. ■ In Blackburn v. Ormsby, 41 Pa. St., 97 (1861), the objection to the affi- davit was very technical, but judgment was entered against the defendant. He swore that the plaintiff had agreed to accept a bond and mortgage in ftill for the claim — ^that he had the instruments prepared, " and with these documents offered plaintiff to carry out his agreement with him in good faith and to its flill extent." But because he did not swear that he " ten- dered " the papers the court entered judgment, and the Supreme Court affirmed. In Anspaeh v. Bast, 52 Pa. St., 356, the affidavit set up an agreement to take payment of the note out of coal to be mined. It then averred a general stoppage of coal operations, etc. The Supreme Court held that if there were a defense, still the affidavit was defective in not averring that the mines had been diligently and constantly worked. In Peek V. Jones, 70 Pa. St., 83, the defense was set up that a public high- way had been opened over the land described in the mortgage in suit. Sharswood, J., said : " An affidavit of defense which is required by law or rule of court to set 24 PRACTICE IN PENNSYLVANIA. out the nature and character of the same, ought to aver distinctly, either upon knowledge or information and belief, every fact necessary to constitute a defense. Nothing should be left to mere inference. The affidavit in this case does not, for this reason, sustain the contention of the plaintiffs in error. " It does not allege that the plaintiff below knew, at the time of the con- tract of sale of the lot, the fact that Bedford Avenue, as laid out in the recorded general plan of the district, passed over it, or that he concealed that fact from the defendants. There is no greater presumption that he knew it than that they knew it." Banl V. Gregg, 79 Pa. St., 384 (1875), was a case in which the affidavit was held to be insufficient. The defendant undertook to deny plaintiff's title to the note, thus, " to the best of deponent's knowledge and belief the plaintiffs were not the owners, but the same was owned by Brady & Co." The Supreme Court said : " Its insufficiency is apparent. It does not purport to be made on the affiant's actual personal knowledge, and it is defective in not setting forth the sources of his information, or asserting any expectation of ability to prove the facts alleged." Judgment affirmed. To a recognizance of bail in error, an affidavit alleging that all the cognizors did not acknowledge to owe and be indebted, and suit having been brought against those bound and those not bound, the deponent is not liable, is insufficient. Warner v. Smith, 2 W. N., 107 (1876). On appeal from justice, affidavit alleging want of jurisdiction by the justice and not setting forth facts relied on to establish want of jurisdiction is insufficient. Williams v. Shields et al., 2 W. N., 176 (1876). To promissory notes, an affidavit alleging that under a morlgage given as collateral for the notes, plaintiff had caused the mortgaged premises to be sold or converted in some way at a ruinous sacrifice and had bought or obtained possession thereof himself, allowing defendants a credit of but $3200, when the property so wrongfally held and obtained was worth not less than $7000, is vague and insufficient. Price et al. v. Glass, 2 W. N., 472 (1876). To a draft on " Eidgway Gibbs, Treasurer, No. 56 South Third Street," and accepted " Ridgway Gibbs, Treas.," an affidavit that defendant accepted draft as treasurer and alleging usury is insufficient. Gibbs v. Union Banking Co., 2 W. N., 472 (1876). To suit on a lease made by plaintiff as agent of certain companies, an affi- davit alleging that the property was that of the companies for which he styled himself agent, that prior to the time for which the rent is claimed the defendant gave up the premises, and both plaintiff and his companies, afterward and during the time for which the rent is claimed, entered upon, used, and continue to use the premises, but not alleging directly a surrender and acceptance, is vague and insufficient. Phila. Mre Exting. Co. v. Brainerd, Agent, etc., 2 W. N., 473 (1876). An affidavit alleging payments, but not distinctly alleging them to be on account of the demand in suit, is insufficient. Selden v. Building Asso., 2 W. N., 481 (1876). An affidavit alleging a balance due on a partnership account without alleging a settlement and balance found due is insufficient. Haines v. Bapp, 2 W. N., 595 (1876). The copy of note filed contained no words of negotiability. The narr. filed contained common counts, and appended thereto a second copy of the ASSUMPSIT — INSUFFICIENT AFFIDAVITS. 25 note containing words of negotiability. The affidavit alleged want of nego- tiability. Held, that second copy corrected the first, and that affidavit was insufficient. Foster et al. v. The Bank, 2 W. N., 617 (1876). To copy of note filed by indorsee the maker filed an affidavit alleging failiue of consideration, but not stating the cause or reason thereof. As failure was either the fault of the maker or arose fi-om a cause known to him, he should have stated the cause, and affidavit was insufficient. Bright V. HewM, 2 W. N., 626 (1876). To a bond, an affidavit that the bond was executed at the time that an agent with authority from the plaintiflfe represented that certain acts would be done, but not asserting that agent was authorized to make these acts conditions of the bond, is insufficient. Keffer et al. v. Robinson et al., 2 W. N., 689 (1876). An affidavit setting off damage received by the failure of plaintiffs to fiilfil a contract, which deponent was informed and believed amounted to $3000, but not setting forth damages so as to show that they were the direct and immediate consequences of the alleged breach, is insufficient. Sitgreaves v. Griffiths et al., 2 W. N., 705 (1876). To a recognizance of bail, an affidavit impugning the record not on ground of fraud or mistake, but on ground that the obligation was not prop- erly acknowledged, is insufficient. Mirst v. Ayers et al., 2 W. N., 722 (1876). To a book account which credited defendant with draft, and then charged Mm with the amount of draft and protest, the entry being, " Cash paid draft returned $800," an affidavit alleging that plaintiff had never paid $300, and that such entry was not within the affidavit of defense law, is insuffi- cient. Binswanger v. Msher, 3 W. N., 340 (1877). An affidavit of set-off not stating item, time, or any other particular to render claim tenable is insufficient. Loucheim v. Becker, 3 W. N., 449 (1877). An affidavit setting off unliquidated damages on breach of contract is in- sufficient. Hoppk V. Bunting, 3 W. N., 472 (1877). An affidavit alleging former recovery and not setting forth the record thereof is insufficient. Richards v. Bisler, 3 W. N., 485 (1877). An affidavit alleging fraud and not distinctly setting forth the facts is insufficient. Matthews v. Lmg, 3 W. N., 512 (1877). To sei.fa. sur morlgage of $7000, an affidavit alleging that defendant received but $6650, and not alleging usury, injustice, or fraud, is insuffi- cient. Bruno- v. Wallace, 4 W. N., 53 (1877). To sei.fa. sur mortgage, an affidavit alleging an agreement of extension, but not setting forth the agreement to show He items, is insufficient. Berkey v. Whitaker, 4 W. N., 137 (1877). To a guarantee of prompt payment indorsed on a promissory note, an affi- davit that defendant received nothing for the guarantee, and that the one to whom the guarantee was made is not named in the writing, is insuffi- cient. Douglass v. Secmd National Bank, 4 W. N., 163 (1876). To a note drawn by " A., executor," to the order of A. personally, an affidavit that payment was not demanded of the maker at maturity, and that notice of its dishonor was not given to the indorser, and that the note was not protested, is insufficient. Aughenhaugh v. Roberts, 4 W. N., 181 (1876). To a book account, an affidavit alleging that plaintiff had agreed to accept defendant's notes in settlement, but not alleging tender of the notes, is in- sufficient. Martien v. Woodruff et al., 4 W. N., 211 (1877). 26 PEACTICB IN PENNSYLVANIA. To a promissory note defendant filed an affidavit alleging that plaintiff held the note as indorsee without consideration and for the purpose of de- priving defendant of a set-off against the claim of the payee, viz.: that pre- vious to the giving of the note payee sold a carload of window-shade rollers to defendant ; that defendant ordered another load of the same kind and quality, for which note in suit was given ; that upon opening said rollers they were very inferior, the difference in value being $134.80, and that the loss sustained by the deponent would far exceed $134.80. Held, that affi- davit did not show a liability for the quality of the rollers, and was, there- fore, insufficient. Qmlston v. OUy National Bank, 4 W. N., 297 (1877). To book entries, an affidavit alleging that the entries were in trade terms and abbreviations which were not intelligible, but not alleging that de- fendant cannot understand them, is insufficient. Brown et al. v. Dupuy et al., 4 W. N., 491 (1877). An affidavit alleging that lumber had been deceitfully piled so as to con- ceal the defects, and concluding, " all of which to the best of defendant's knowledge and belief," is defective because it omits the scienter and does not say that defendant " expects to prove," etc. Boothe v. Alexander, 4 W. N., 492 (1877). To a claim by withdrawing member for amount paid to a building asso- ciation, an affidavit alleging that losses have occurred, but not stating that they occurred before the withdrawal, is insufficient. Building Asso. v. /Silverman, 4 "W. N., 546 (1877). To an executory contract for the payment of money, an affidavit alleging that defendant is entitled to have decided by a jury whether plaintiff has performed his part of the contract is insufficient. Fertig v. Maley, 5 W. N., 133 (1878). An affidavit denying or amending a written agreement, but which is not clear and full and alleges neither fraud, misrepresentation, nor wrongful suppression of the alleged verbal agreement, is insufficient. Lehman v. Jaquett,5W.'S., 183(1878). To promissory notes, an affidavit alleging that plaintiff held as collateral for the notes mortgages to the full amount of $30,000, that he had sued out the mortgages and bought in the properties for $17,000, when by proper management plaintiff could have realized much more than he did, is insuffi- cient. Smith V. Bunting, 5 W. N., 186 (1878). An affidavit averring information and belief, but not that " deponent ex- pects to be able to prove " the facts alleged, is insufficient. Sermann v. Ramsey, 5 W. N., 188 (1878). To an exemplification of a foreign judgment, an affidavit denying the sufficiency of the exemplification, but not denying the debt evidenced, is insufficient. Hartmann v. Mfg. Co., 5 W. N., 502 (1878). To a promissory note, an affidavit that suit was brought in plaintiff's name to prevent deponent from defeating the payment of the note in the hands of a note broker, that plaintiff paid for the note with the money of another, but not distinctly averring that he is not a holder for value, is in- sufficient. lAngg v. Blummer, 6 W. N., 459 (1879). To a promissory note, an affidavit averring that the note was without con- sideration and that indorsee took it for an antecedent debt (instead of " as collateral security for ") is insufficient. Bardsley v. Delp, 6 W. N., 479 (1879V A supplemental affidavit may set up a new and different defense, but such ASSUMPSIT — INSUFFICIENT AFFIDAVITS. 27 a course will subject it to close scrutiny. An affidavit averring verbal state- ments to modify a written agreement but not averring that the written agreement was signed on the faith of the verbal statements, is insufficient. Callin V. Lukens, 7 W. N., 28 (1879). An affidavit averring facts in evidence of a surrender, but not averring a surrender accepted by the landlord, is insufficient. Brenckmann v. Twihill, 7 W. N., 188 (1879). An affidavit averring a set-off of damages by breach of warranty as to the amount of goods sold to defendant, but not averring that more than the actual value of the goods was paid before an inventory and examination of the goods were made, is insufficient. Markley v. Stevens, 7 W. N., 357 (1879). To suit by indorsee against maker of a note, an affidavit averring that the note was given in New York, that it was usurious, and that under a statute of New York and the decisions thereimder said note was void in the hands of third persons, but not' particularizing the statute and the decisions, is insufficient. Boughton v. Bank, 9 W. N., 519 (1881). In a suit on a foreign judgment where the record shows the summons was properly served, an affidavit of defense averring the process was not legally served is insufficient ; the affidavit must show wherein the service was de- fective. Motter V. Welty, 2 Dist. Eep., 39 (1892). An affidavit of defense in an action for goods sold and delivered is not sufficient which sets forth the agreement of plaintiffs to give defendant the exclusive agency for the sale of the goods, and that they took away the agency without cause and deprived defendant of large profits, and that sub- sequently the parties agreed to compromise, but did not compromise as agreed. This was a mere accord without satisfaction. Braum v. Keally, 146 Pa. St., 519 (1892). An affidavit averring that defendant's signature was obtained by duress, but not setting forth the facts which sustain the allegation, is insufficient. In an agreement of sale it was agreed that if the vendor failed to tender a deed within a stipulated time, he should return the bargain money, and also forfeit $500 to the vendee ; an affidavit alleging this $500 to be a penalty, and not liquidated damages, is insufficient. Matthewn v. Sharp, 11 W. N., 319 (1882). To a recognizance entered into in Quarter Sessions for payment of $4 per week for support of recognizor's family, an affidavit averring that shortly after recognizance was entered defendant returned to his family and con- tributed all his earnings to their support, but that soon after his return his health failed and he was compelled to abandon his occupation, and from that time has been unable to earn steady wages, is insufficient. Huber v. Gommmwealth, 11 W. N., 496 (1882). To a recognizance of bail in error, an affidavit averring that the writ was taken to a refusal to set aside an execution, which was a matter of discretion with the court, and not the subject of a writ of error, and that therefore the recognizance was without consideration and void, is insufficient. Beck V. Courtney, 13 W. N., 302 (1883). An affidavit averring payment and that defendant is not indebted, but not setting out the facts and details of the payment, is insufficient. Mc- Orackm v. Presbyterian Church, 17 W. N., 45 (1886). An affidavit averring a limited partnership, but not setting out specifically 28 PEACriCE IN PENNSYLVANIA. each compliance with each requirement of the Act, is insufficient. Gonrow V. Oravemtine, 17 W. N., 204 (1886). An averment in an affidavit that goods charged were excessive in amount is too vague. JenSmson v. Hilands, 146 Pa. St., 380 (1892). An affidavit of defense ought to exhibit a copy of a paper set up as a de- fense in order that the court may judge of its legal effect. The defendant averred simply that the contractor had not " ftdly complied with his con- tract with the city " without furnishing a copy of the contract. The Supreme Court held that the affidavit was insufficient. Erie v. Butler, 120 Pa. St., 374 (1888), Paxson, J. Reed v. WiUiard, 47 Leg. Int., 132 (1890). An affidavit of defense averred that plaintiffs were sole agents of a firm who were indebted to defendant and who had assigned the amount sued on to defendant by a certain order directed to plainti£&. The affidavit did not state the plaintifis accepted the order and was therefore insufficient. Heckscher v. Iron Go., 26 W. N., 525 (1890). An affidavit of defense which refers to an injunction granted by the court of another State is insufficient without attaching a copy of the decree, and injunction. Kraft v. Gingrich, 2 Dist. Eep., 398 (1893). If an affidavit of defense refer to the statutes of another State it must attach copies thereof or it is insufficient. Time Co. v. Geiger, 147 Pa. St., 399 (1892). In an action to recover for yam sold and delivered by sample, the affidavit of defense set forth that defendant had suffered great loss by reason of claims made by customers because of the inferior quality of the yam. The affidavit was insufficient in not alleging the quantity, quality, or market price of the yam purchased. Ogden v. Beatty, 26 W. N., 524 (1890). A suit was brought to recover royalties for the use of two patents. Under the agreement royalties were to be paid until the patents expired or were declared invalid. An affidavit of defense which failed to aver either feet was held insufficient. Hardwick v. GcUbraith, 27 W. N., 573 (1891). When an affidavit of defense avers the payment of all arrearages on a mutual policy of life insurance, but does not set forth how it was paid, in what amounts, or to whom, it is insufficient. Solly v. Moore, 1 Dist. Eep., 688 (1892). An affidavit of defense to a,sci.fa. sur municipal claim for paving, setting forth that the street had previously been graded and macadamized at the expense of abutting owners, was in good order and needed no repair when the paving was done, is insufficient. It did not aver the city approved the kind or quality of the previous paving. Phila. v. Baker, 140 Pa. St., 11 (1891). An affidavit of defense for cigars sold which avers a warranty must set forth whether it is in writing or not and its terms. YimAff-^. Braunreuter, 1 Dist. Rep., 645 (1892). An affidavit of defense setting forth that the plaintiff was not entitled to bring an action in Pennsylvania because it was a foreign corporation and had not complied with the Act of April 22, 1874, prohibiting such corpora- tion from doing business in Pennsylvania without known place of business and authorized agents therein, but which failed to aver that plaintiff was doing business in said State, is insufficient. Campbell Co. v. Bering, 139 Pa. St., 473 (1891). An affidavit of defense to a foreign judgment which does not allege pay- ment is not sufficient. Potter v. Hartnett, 28 W. N., 120 (1891). ASSUMPSIT — INSUFFICIENT AFFIDAVITS. 29 Where defendant sets up a contract as his defense his affidavit should distinctly aver the authority of one not a party to the suit to make the contract. Class v. Kingsley, 48 Leg. Int., 364 (1891). An averment in an affidavit of defense that certain items of credit were omitted from plaintiff's statement, without specifying them, is insufficient. Baher v. Reese, 30 W. N., 437 (1892). In a suit for assessments against one insured in a mutual insurance com- pany, the affidavit of defense setting forth merely that the assessment was greatly in excess of the needs of the company is insufficient. Ins. Co. v. Bergstresaer, 1 Dist. Eep., 771 (1892). In a suit for goods sold and delivered, bought by sample and represented to be as good as the sample, an affidavit of defense should state whether the warranty was express or implied, its terms, and the market value of the goods, with reasonable accuracy. The affidavit must not be general or evasive. Wile v. Ousel, 1 Dist. Eep., 188 (1891). In a suit to recover attorney fees an affidavit of defense averring that the original actions were managed unskilfully, but not stating in what such unskilflilness consisted, is not sufficient. Chain v. Hart, 28 W. N., 317 (1891). When a statement avers the sum sued for is justly due and the work per- formed at request of defendant, and a copy of book entries is attached an affidavit of defense averring that such copy is defective, without replying to the other averments in the statement, is insufficient. Ashman v. Weigley, 29 W. N., 569 (1892) In suit on an award, if the affidavit of defense does not aver that material errors in the proceeding will be proved by the arbitrators themselves, it is insufficient. Plank v. Mizell, 1 Dist. Eep., 757 (1892). Where suit is brought by parties styling themselves " heirs at law " of a decedent, an averment in the affidavit of defense that plaintiffs " are not all the heirs," is insufficient, without naming those omitted. Bakes v. Reese, 30 W. N., 437 (1892). In an action for the value of flour sold to defendant an affidavit of defense averring that the flour was of bad quality and that the defendant sustained loss of custom, is insufficient. He must set forth what he was able to sell the flour for, the quantity and value of the flour taken back, and the prices, as well as the reasons for customers refusing to pay. Marshall v. Aher, 1 Dist. Eep., 770 (1892). Where a judgment of a magistrate was reversed on certiorari and judg- ment entered for defendant with costs, this is no bar to a recovery in the Common Pleas on the same cause of action. Jenkinson v. Milands, 146 Pa. St., 380 (1892). An affidavit of defense to a paving claim, which avers that the paving re- ferred to in the claim is not original paving, without stating when or with what material the street was originally paved, is insufficient — so, too, an affidavit which avers fraud and misrepresentation as to the kind of pave- ment without stating by whom the misrepresentations were made or fraud committed, is insufficient. Harrisburg v. Baptist, 156 Pa. St., 526 (1893). An affidavit of defense to an action for rent is insufficient which sets forth that the premises were wholly unfit and uninhabitable and dangerous to life, wherefore they were vacated. Hollis v. Brown, 159 Pa. St., 539 (1894). 30 PEACTICE IN PENNSYLVANIA. In an action for damages against a telegraph company for feilure to send a message, an aflBdavit of defense is insufficient wMcli avers that the de- fendant transmitted the message promptly and correctly over its own lines to the terminus thereof and delivered it for transmission to another com- pany, without describing the company or stating the terminus. Conrad v. Telegraph (Jo., 162 Pa. St., 204 (1894). An affidavit of defense which consists of short, disjointed sentences setting forth no pacticulax or specific facta, but constituting single and unconnected propositions involving conclusions of law, is insufficient. The facts should be specifically and sufficiently detailed to enable the court to say whether they amount to a defense. Bank v. Stadelman, 153 Pa. St., 634 (1893). In a suit for rent, if the affidavit of defense admits the rent due, but denies the right of plaintiflF to recover pending a contest over a will under which the plaintiff claims the demised premises, the court will make abso- lute the rule for judgment and order defendant to pay the money into court pending the contest. Dietrich v. Dietrich, 154 Pa. St., 92 (1893). In an action on a foreign judgment where the record shows an appear- ance for defendant, an averment in the affidavit of defense that if such ap- pearance was entered deponent had no knowledge of it, is evasive, inasmuch as it does not deny that defendant authorized such appearance. Moore v. PhUlipg, 154 Pa. St., 204 (1893). An affidavit of defense to an action against the surety on a replevin bond is insufficient which sets up matters disputed in the replevin and settled by verdict. Oox v. Hartranft, 154 Pa. St., 457 (1893). Where defendants, through their agent, purchased goods, an affidavit of defense to an action for the purchase money, setting forth that the goods were of inferior quality and that the agent had no authority to purchase goods except of a certain quality, was held to be insufficient, there being no allegation that the plaintiife knew that the agent's authority was lim- ited. Williamg v. Sawyers, 155 Pa. St., 129 (1893). An affidavit of defense in a suit on a bill of exchange against the drawee, which sets up that the bill was given in part payment of a certain accom- modation draft obtained by fraud, but fails to aver that plaintifTs were not bona fide holders for value before maturity, although charging them with notice of the alleged fi-aud, is insufficient. Bank v. Fitler, 155 Pa. St., 210 (1893). In an action against the sureties of an administrator to recover the amount of an award, an affidavit of defense is insufficient which merely avers want of diligence in collection without stating that any notice was given the plaintiff to proceed. Comtn. v. Degitz, 167 Pa. St., 400 (1895). In an action for the price of an engine, an affidavit of defense which avers that it was not furnished according to representations or as agreed, without averring what the agreement was or the representations were, is insufficient. Machine Works v. Bitter, 4 Dist. Eep., 474 (1895). In an action upon a lease for rent, an affidavit of defense is insufficient which sets up a mere representation by the plaintifa agent as to some future act outside the lease, contrary to its terms, and not averred to be false or firaudulent. Wilcox y. Palmer, 163 Pa. St., 109 (1894). An affidavit of defense to a municipal claim for paving, that the defendant had paid for grading a street, and that in paving the grade has been raised, but not averring the higher grade increased the cost of paving, is insuffi- cient. Oil Gity V. Lay, 164 Pa. St., 370 (1894). ASSUMPSIT — SUFFICIENT AFFIDAVITS. 31 In an action to recover the cost of paving a footway the affidavit of de- fense averred^ that part of the work was not in accordance with the proper grade required by the city, and would have to be taken up and relaid, but did not aver the cost of relaying the pavement. It was adjudged insuffi- cient. Paving Co. v. Young, 166 Pa. St., 267 (1895). An affidavit of defense to an action by a foreign corporation to recover a subscription to its stock, is insufficient which merely avers that the plaintiff is a foreign corporation and has not filed a statement in the office of the Secretary of State^^as required by the Act of 1881. Iron Co. v. Vandervcyrt, 164 Pa. St., 572 (1894). § 31. Items not denied by affidavit of defense shall be taken as admitted. In Nellis v. Beiter, 2 W. N., 203 (1875), the plaintiff filed a copy of book entries supported by affidavit. The affidavit of defense set up that the prices were in excess of a parol contract under which the goods had been purchased, but there were no particulars given. The court below (Stek- KETT, P. J.) admitted the copy filed under exception, and the Supreme Court affirmed because " the defendants filed no denial of the items of the account under the rules of court." § 32. The following affidavits have been held sufficient : In Christy v. Bohkn, 5 Pa. St., 38 (1846) a gci. fa. on a recognizance of bail was issued. An affidavit of defense was filed averring that the plain- tiff in the original action issued a,fi.fa , made a levy, and the sheriff col- lected enough money to pay debt, interest, and costs. Affidavit was held sufficient, although it was objected that in fact the fund raised by the sherift had never been paid to the plaintiff, but had been received by the landlord under his claim for rent. That the defendants named as owners in «cj. fa. tur claim are minors. Walker v. Morgan, 2 W. N., 173 (1875). In Reamtr v. Bell, 79 Pa. St., 292 (1875), the affidavit was held to be sufficient because the defendant swore that he was " informed, verily be- lieved, and expected to be able to prove that the plaintiff had no title to the note sued on." It also disclosed a good defense as against the payee of the note, and that the note had been specially indorsed to E. McCurdy, who was not the plaintiff, and who had not indorsed the note. Upon the face of the paper filed the plaintiff was not the owner of the note. That deponent is informed, believes, and expects to be able to prove that the judgment sought to be revived has been paid by a sherifi's sale, describing it, but excusing omission of details of payments because depo- nent was unable after effort to obtain inspection of the sheriffs docket. The judgment was sixteen years old. Moore v. Smith, 2 W. N., 433 (1876) ; Sharswood, J. Affidavit upon belief and expectation to prove is enough if defendant do not know the &cts. Beznor v. Supplee, 2 W. N., 401 (1876) ; Woodward, J. To a promissory note, an affidavit that note had been given as a subscrip- tion to a church upon the express condition that the lot on which the building was erected should be conveyed to the church, which condition had not been complied with, and that deponent verily believed and expected to be able to prove that the note had been passed to plaintiff to exclude this defense, is sufficient, lb. 32 PKACTICE IN PENNSYLVANIA. To book entries charged to mining company, a bill of exchange drawn on defendant by Bevan & Wallace, and orders on the defendant drawn by the same firm ; an affidavit alleging that defendant never was and is not now a member of the firm of Bevan & Wallace, which firm purchased the goods sued for ; that he was a member of the mining company, but that the mining company never authorized the purchase of the goods ; that defen- dant believed that plaintiff had charged the goods to Bevan & Wallace, which firm was indebted to the mining company, is sufficient. Martien v. Manheim, 3 W. N., 10 (1876). To ici. fa. mr mortgage, an affidavit that defendant had executed the mortgage on the promise that it would not be called in for three years, and that no interest is due, is sufficient. Lippineott v. Whitman, 3 W. N., 313 (1877). To suit on a promissory note by indorsee, an affidavit that indorsee had not received the note for value before maturity, but that he held it simply to deprive defendant of the defense of a feilure of consideration, and setting forth the facts of the failure of consideration, is sufficient. Moeek v. Littell, 3 W. N., 341 (1876). To sci./a. «Mr judgment, an affidavit that the whole amount of the judg- ment had been paid by illegal and usurious interest to plaintiff, is suffi- cient. ' Seymour v. Bubert, 3 W. N., 428 (1877). To sei.fa. gur mechanic's lien, an affidavit setting forth that the portion of the street paved had, by its deed of dedication, been reserved for market houses, is sufficient. Philadelphia v. Fhila. & Read. R. R., 3 W. N., 492 (1877). To suit on note by indorsee, an affidavit that payee took a note to nego- tiate for benefit of himself and defendant, but instead of so doing he deliv- ered it to plaintiff as collateral security for a pre-existing debt, and that note in suit is an extension of said note, is sufficient. Rm/er v. Keystone Naiimal Bank, 4 W. N., 86 (1877). To contract, an affidavit setting forth details of verbal statements, and that writing was signed on the faith of these verbal statements, is sufficient. Barclay v. Wainwright, 5 W. N., 162 (1878). To a suit on a note by a subsequent indorsee against second indorser, an affidavit alleging that plaintiff holds the note sued on for the benefit of first indorser, and that the note really belongs to fij:st indorser, is sufficient. Oberk v. Schmidt et al., 5 W. N., 225 (1878). An affidavit alleging set-off of $100 for professional services rendered to plaintiff by defendant as an attomey-at-law in and about the business of the plaintiff within six years last past, is sufficient. Lawrence v. Smedley, 6 W. N., 42 (1878). To a book account, an affidavit that goods charged to defendant indi- vidiially were purchased by a partnership is sufficient. Dtuenhury v. Bradley, 6 W. N., 413 (1879). To copy of note drawn " to order of Susanna P. Prahl " and indorsed " Mrs. Prahl," defendant filed an affidavit alleging that the amount of the note was due to some one, but, as he expected to prove, due to the personal representative of Susanna P. Prahl ; that he believed the note was not in- dorsed by her voluntarily, her husband being the indorsee. Held, that, as plaintiff had not shown his title to the note, the indorsement differing from the name of payee, judgment could not be given. Prahl v. Smoltz, 6 W. N., 571 (1879). ASSUMPSIT — STJPFIC!IENT AFFIDAVITS. 33 An affidavit setting forth an agreement by creditors of defendant with him and with each other to settle for thirty per cent, and in a certain way is sufficient, unless it appear from the agreement that it was to be signed by all the creditors before being of force and effect. Laird v. Campbell, 8 W. N., 134 (1880). In suit by indorsee against indorser an affidavit alleging that note was indorsed on the assurance that note would be paid on a mortgage, on which defendant was liable, and stating fects which clearly reveal actual fraud in the obtaLuing and use of the indorsement, is sufficient. Smith v. Building Assodatim, 9 W. N., 168 (1880). To suit on bonds guaranteed by the P. & R. K. R. Co., an affidavit alleg- ing that under its charter and the laws of the Commonwealth the railroad company had no corporate power to make the guarantee, is sufficient. (The guarantee was authorized by private Act, March 20, 1872, of which the court could not take judicial notice.) Timhm v. P. & B. B. B. Co., 11 W. N., 218 (1882). An affidavit specifying misrepresentations made by plaintiff in selling the machine for the price of which suit is brought, and stating that the machine was exhibited to defendant in a dark room without windows, and among other machines, so that defendant was compelled to rely on plaintiff's state- mente, is sufficient. Scheffers v. Stewart, 11 W. N., 106 (1881). To recognizance of bail in error, an affidavit that recognizance was to be given for costs only, that the words, " debt, damages, and," were inserted without defendant's knowledge or consent, and contrary to express under- standing and agreement, is sufficient as to debt and damages. Ecoff v. Oillespie, 13 W. N., 564 (1883). An affidavit that indorsee took the note as collateral security for a pre-existing debt, and setting forth that the note was without consideration, is sufficient. Carpenter v. The Bank, 15 W. N., 623 (1884). To suit on a lease for rent, an affidavit alleging an agreement in the lease that lessee might purchase the premises, and that lessee had tendered the purchase-money agreed on, and was now ready to pay it with interest, is sufficient. Zraerr v. Bradley, 16 W. N., 72 (1884). In suit on bond executed more than twenty years, but containing indorsed receipts dated within twenty years, an affidavit suggesting presumption of payment is sufficient. La»h v. Vm Neida, 16 W. N., 93 (1885). In suit by indorsee against limited partnership on its note, an affidavit that note was given without consideration for the use of the payee, that it was not authorized by the company, and that the Act of Assembly under which defendant was formed forbids such loaning of credit unless a majority of the members in number and value consent, is sufficient. Bank v. Hardware Co., 16 W. N., 104 (1885). To book account, an affidavit alleging that defendant did not buy the goods on his own credit, but as the agent of his wife, who was conducting business under a deed of trust, and that plaintiff knew thereof, is sufficient. NohU V. Krenzkamp, 17 W. N., 89 ; 111 Pa. St., 68 (1888). To a recognizance of bail in error, an affidavit alleging coverture is suffi- cient. Warner v. Smith, 2 W. N., 107 (1876). An affidavit is sufficient which avers fraud in procuring the note sued on, and its particulars, with plaintiff's participation therein. Gere v. Unger, 24 W. N., 7 (1889). vol.. I. — 3 34 PfiACTICE IN PENNSYLVANIA. In OUy V. McCaffrey, 25 W. N., 213 (1889), a rule for judgment for want of a sufficient affidavit of defense was taken in a suit on a municipal claim. Stereett, J.: " Assuming, as we must, in cases such as this, that every material averment of fact in the affidavit of defense is true, we think there is sufficient to entitle the defendant to a jury trial. * * * We are not at liberty to go outside of the case * * * for the purpose of considering extraneous facts, either in support of or against the line of defense disclosed by the affladvit." The affidavit here alleged that the defendant had a full defense to the whole of the plain tiffs claim, that the liens did not set forth the work with sufficient particularity, nor give a sufficient description of -the premises or of the buildings thereon, and that no public street had been opened through the grounds and no damages had been assessed as alleged. In Church v.- Jbraes, 25 W. N., 396 (1890), suit was brought in the name of a church to recover certain ftmds, books, and papers which it was alleged the defendant received as treasurer of the church and on demand refused to deliver to his successor in office. The statement averred that the term for which the defendant was elected as treasurer had expired, that the trus- tees had elected V. in his place, and that V. made the demand which was refused. The affidavit set forth that V. was not the treasurer and that the trustees had never demanded of the defendant to return the books, etc.; it further averred that the suit was not brought by the corporation church, but by certain seceders. The lower court gave judgment for want of a suffi- cient 'affidavit. The Supreme Court reversed. Steekett, J.: " The rule for judgment must be regarded in the nature of a demurrer to the affidavit * * * every material averment of feet contained therein must be accepted as true ; if, therefore, either of those averments contain what, in law or equity, amounts to a substantial defense to the plaintiffs claim, the court erred in entering * * * judgment." * * * In Lyon v. Langfdd, 47 Leg. Int., 132 (1890), the affidavit of defense averred that after the debt was contracted $160 was paid on account, and that subsequently a partner of the defendant settled the balance, and that plaintiff admitted to the affiant the debt was fully paid. At the time of making his affidavit the defendant was absent from home and could not fiimish details as if at home and with access to his books. Held, the affi- davit was sufficient. Fiske V. Bank, 25 W. N., 454 (1890). Fiske & Co. wrote to the bank, " We wiU honor B.'s drafts with biU of lading attached." The bank cashed two of these drafts of K. on Fiske & Co. with bills of lading attached. Fiske & Co. refused to honor the drafts or to receive the merchandise. It was sold, and the bank sued Fiske & Co. for the difference between the pA)ceeds of the sale and the amount of the drafts. Held, that an affidavit was sufficient which averred that the drafts were for more than the mer- chandise was worth, and that it was a custom known to the bank that only two-thirds or three-fourths of the value of the merchandise was advanced on drafts. An action was brought against a railroad company for not delivering its stock in exchange for the bond and coupons of a second railroad, accord- ing to an alleged agreement. The statement set forth the bond, the pro- ceedings on the mortgage securing the bond, the sale of the road to a trustee for the bondholders, and the agreement of the first railroad to assume the duties of trustee and issue iU stock to the holders. The affidavit of defense averred that the conveyance of the trustee to the first railroad ASSUMPSIT — SUFFICIENT AFFIDAVITS. 35 was free and discharged from all trusts whatsoever. Held, sufficient. Landis v. R. B., 26 W. N., 64 (1890). In Amer. Academy of Music v. Bert, 47 Leg. Int., 222 (1890), suit was brought upon a lease to recover a stipulated sum for the privilege of occu- pying the Academy for dramatic representations upon certain nights. The defendant's affidavit of defense set up that he gave notice nearly three months previous to the engagements of his desire to cancel the lease, that under the custom of the theatrical profession one month's notice was ample, and that plaintiff knew of this custom, as the house was leased for theatrical performances. Held, a sufficient affidavit of defense. When the sufficiency of an affidavit of defense is considered, averments of counsel at the argument, or facts not contained in the record or fairly deducible therefrom, cannot be regarded. City v. McCaffrey, 47 Leg. Int., 247 (1890). An affidavit calling attention to the fact that upon the face of the book account the contract had'been completed more than six years before suit brought, and that defendant made no new promise, is a sufficient claim of the Statute of Limitations. Fritz v. Hathaway, 26 W. N., 273 (1890). When a mechanic's lien has been filed for ranges furnished, an affidavit of defense is sufficient which alleges they were portable stoves physically un- connected with the freehold. Williams v. Bower, V Dist. Kep., 88 (1891). In an action on a not* by an indorsee an affidavit of defense is sufficient which avers duress — failure by lessor to furnish steam, causing defendant damage beyond the amount of the note — and that plaintiff is not a bona fide holder, but that lessor brings suit in plaintiff's name. Devlin v. Bums, 23 Atl. Eep., 375 (1892). An affidavit of defense to action on a foreign judgment is sufficient which sets forth that plaintiflfe agreed that defendant should enter their service and in addition to his wages that the judgment should be discharged, and that he did so enter their service and remained until he left by mutual agree- ment. Fotter V. HartneU, 29 W. N., 567 (1892). "Where suit is brought on a promissory note by an indorsee against the maker, the affidavit is sufficient if it aver that the note was obtained by fraudulent representations and that the defendant believes it was transferred to plaintiff without consideration to avoid this defense. Boomer v. Henry, 2 Dist Kep., 367 (1893). Where assumpsit is brought for rent, if the tenant in his affidavit of defense avers a surrender of the lease and an acceptance by the agent of the land- lord, it is sufficient. Be Moral v. Falkenhagen, 30 W. N., 39 (1892). Where an affidavit of defense avers a custom, it should be stated posi- tively and not " on information and belief with expectation of ability to prove ;" if made by a dealer to whom the custom is well known, it should be so averred. Weld v. Barker, 153 Pa. St., 466 (1893). An affidavit of defense setting up the payment by a third party of a sum of money less than the amount of a judgment, with the imderstanding that it should be in fiill satisfection of the judgment, is sufficient, since such payment by a third party is a valid accord and satisfaction. Fowler v. Smith, 153 Pa. St., 689 (1893). See Willing v. PeUrs, 12 S. & E., 177 (1824) ; Tucker v. Murray, 2 Dist. Rep., 497 (1893). Where suit is brought on a note and the affidavit of defense sets up that the note was given in payment for certain doors, blinds, etc., warranted as to size and without opportunity of inspection, which articles were not as 36 PEACTICE IN PENNSYLVANIA. represented, could not be used by defendant, and were sold by Mm at a loss, the affidavit is sufficient. Bacon v. Scott, 32 W. N., 194 (1893). An affidavit of defense to a claim for paving is sufficient if it aver that the street upon which the paving was done is occupied by the tracks of a railway company, which under its charter is required to pay for the paving of streets occupied by its tracks. Phila. v. Market Co., 154 Pa. St., 93 (1893) ; 161 Id., 522 (1894) ; (My v. Bowman, 36 W. N., 138 ; 166 Pa. St., 393 (1895). An affidavit of defense is sufficient which avers, in an action for goods sold and delivered, that the goods were furnished defendants as managers of a business entered upon for the benefit of all parties and as a contribution to the stock of the business by plaintiffs. Lee v. Taylor, 154 Pa. St., 95 (1893). An affidavit of defense, which avers that the claim upon which suit is brought is identical with the set-off used by plaintiff in another action be- tween the same parties where the plaintiff was defendant, is sufficient. B. JR. Co. V. Davenport, 154 Pa. St., Ill (1893). In a suit on a promissory note the affidavit of defense set up that the note was delivered in payment of an annual premium upon a policy upon defendant's life, issued by the plaintiff, and that plaintiff's agent agreed that if defendant lived " tUl the maturity of the note he would be entitled to a rebate of 30 per cent." Be!d, sufficient. Ing. Co. v. WiUiams, 32 W. N., 353 (1893). An affidavit of defense to an action on a policy for the value of a horse insured, averring that the horse was removed beyond the limits permitted by the policy, is sufficient to prevent judgment. Beck v. Live Stock Co., 2 Dist. Eep., 502 (1892) ; Ins. Go. v. Evang, 102 Pa. St., 281 (1883). In an affidavit of defense the established and approved form is either to set forth the facts affirmatively for the court to judge as to their sufficiency, or if affiant cannot state them of his own knowledge : " that he is informed, believes, and expects to be able to prove them," etc. The expression " has abundant reason to believe " is not sufficient. Newbold v. Pennock, 32 W. N., 370 (1893). In an action on a promissory note an affidavit of defense is sufficient which sets forth that the note was given in payment of a drug store ; that plaintiff had falsely and fraudulently misrepresented the Jreceipts of the business, and in furtherance of his fraud filled the bottles with colored waters ; had shown the accumulated receipts of many days as the receipts of a single day, and just before defendant took possession had removed all the costly and useftil drugs. Goodwin v. Schott, 159 Pa. St., 552 (1894). Where an action is brought to recover money paid for an interest in certain alleged banking concessions, an affidavit of defense is sufficient which avers the concessions were in existence when plaintiff invested, and a trust formed, but the concessions were subsequently revoked, and that all the money invested had been applied to expenses. Frishmvih v. Barker, 159 Pa. St., 549 (1894). In an action upon a judgment in another State an affidavit of defense setting forth that defendant was not served with process and did not appear is sufficient. Price v. Sarrell, 34 W. N., 442 (1894) ; 161 Pa. St., 530 (1894). Overruling Lance v, Dugan, 22 W. N., 132 (1888) ; Wetherill v. Stillman, 65 Pa. St., 105 (1870) ; and reversing Stewart v. Sehaeffer, 33 W. N., 365 (1893). In a suit on a foreign judgment an affidavit of defense is sufficient which ASSUMPSIT — SUFPICIBNT AFFIDAVITS. 37 sets forth there was no personal service on defendant in the foreign jurisdic- tion. Wiasler v. Berr, 162 Pa. St., 552 (1894). An affidavit of defense is sufficient which denies the grounds of liability averred in the statement and those which arise by implication from the averments made. The defendant is not obliged to go into a detailed history of such denial. Sarlier v. Fairchild, 168 Pa. St., 246, 348 (1895). In an action to recover the price of a carload of cabbage, an affidavit of defense is sufficient which sets forth the custom of the trade as to shipping and packing, and that plaintiff failed to observe the custom, whereby the cabbage underwent a process of sweating, fermentation, and decay. Davis V. Kcenig, 165 Pa. St., 847 (1895). In an action for rent an affidavit of defense is sufficient which sets forth an actual eviction by title paramoimt. Friend v. Supply Co., 165 Pa. St., 652 (1895). An affidavit of defense is sufficient in an action to recover the price of coal against defendant ^d others trading as a certain company, which avers the defendant was not a member during the period said coal was sold and delivered, and that plaintiff knew it. Bhoads v. Fitzpatrick, 166 Pa. St., 294 (1895). An affidavit of defense to a sci. fa. sur municipal claim which denies that the city authorized the work to be done is sufficient. Oity v. Fyre, 36 W. N., 216 (1895). An affidavit of defense, in an action for damage for failure to deliver goods, which avers that plaintiff told defendant in purchasing his goods that a competitor had offered to sell at a certain price, whereby defendant agreed at the figure named to sell the plaintiff, and.that said statement was fiilse and maliciously and intentionally made to secure a sale below the market price, is sufficient. Smith v. Smith, 166 Pa. St., 568 (1895). An affidavit of defense to an action to recover the price of certain oil de- livered, which sets forth a warranty, and that said oil was not famished as warranted, is sufficient. Where an affidavit of defense sets up a warranty as shown by the correspondence and alleges the goods were not of the quality contracted for, it is sufficient. Baugh v. Mitchell, 36 W. N., 228 ; 166 Pa. St., 577 (1895). Bdieves and expects to prove. An affidavit of defense averring " that deponent is informed and verily believes," to which is added " his expectation of ability to prove," is sufficient. Lems v. Broad- bent, 21 W. N., 31 (1887). Affidavit by a stranger. In Griel v. Buchius, 114 Pa. St., 190 (1886), Mr. Justice Paxson said : " When a defendant puts in a stranger's affidavit, it must show upon its face sufficient reason why it was not made by the defendant himself; that a real dis- ability existed which prevented him from making it, and the cir- cumstances giving rise to the disability." An affidavit made by counsel of defendant, without assigning reason why it is not made by defendant, is insufficient. Such a defect may be cured by a supplemental affidavit made by the de- fendant before judgment entered. Wilhmson v. Brice, 30 W. N., 30 (1892). 38 PRACTICE IN PENNSYLVAJSIA. § 33. It will be noticed that the year is mentioned in connec- tion with each decision. This is important ; it assists you ; it helps the judge; it shows you have examined the case and have not simply snatched it from a Digest. I learned this habit from David W. Sellers, Esq., and have found it excellent practice. § 34. The court may think defendant should be allowed time to file a sapplemental affidavit. This will impose on you anew the labor of fresh paper-books and of a notice to your opponent that you will call up the rule. If yon succeed, you proceed as if judgment had been entered for want of an affidavit. If your rule be discharged and you have not filed a statement, you file it, with rule to plead, etc. If you have already filed a statement, you simply rule the defendant to plead, as already noted. As to the form of statement, etc., see that title. § 35. All papers should be neatly indorsed with : Number. Term. Year. Name of plff. 1 V. V Court. Name of deft. J Name of the paper. Name of counsel. A prothonotary may refuse to receive a paper unindorsed. Here, as everywhere, a man is known by his works. A slovenly indorsed paper placed upon a record is undying evidence' of the pleader's laziness ; and it is remarkable that those who have the least busi- ness and the most time are in the preparation of their papers the most negligent. Do not sneer at these suggestions and call details trifles. Remember Augustin's grand saying : " Minima sunt min- ima, sed magnum esse in minimis bonum est." (Trifles are trifles, but to be great in trifles is good.) § 36. If the affidavit admit a part of the claim, you can take a rule for judgment for the amount admitted. FORM OF RULE. A. B. V. } C. P. No. , Term, 1890, No. C. D. ) And now (date), on motion of plaintiff rule on defendant to show cause why judgment should not be entered for the amount admitted to be due in the affidavit of defense filed in the above case. Rule returnable (date) 10 a.m. Indorsement. A. B. V. } C. P. No. 1, Term, 1890, No. C. D. ] Bule /or Judgment for amount admitted in the affidavit of defense. E. F., pro plff. ASSUMPSIT — IP AFFIDAVIT ADMIT PART OF CLAIM. 39 Hand your rule to the court clerk, notify the other side, and prepare your paper-books. If you obtain judgment, assess your damages. Plaintiff may take judgment for amount admitted by affidavit of de- fense, and may proceed for balance. In all cases now pending, or here- after to be commenced, in the several courts of this Commonwealth in which affidavits of defense have been or may be filed to part of the claim of the plaintiff or plaintiffs, the plaintiff or plaintiflfe may take judgment for the amount admitted to be due and have execution for the collection of the same, and the cases shall be proceeded in for the recovery of the balance of the demand of the plaintiff or plaintifis, if anything more should be justly due to such plaintiff or plaintifis. Act of May 31, 1893 (P. L., 185). Under the Act of 1893, two judgments may be entered against a defendant in the same suit : one for the amount admitted to be due in the affidavit of defense, and the other on a verdict of the jury for the balance. A judgment may be entered against the defendant for the amount admitted, with costs to date, and a judgment may be en- tered against the plaintiff for subsequent costs on failure to estab- lish his claim to the residue. If the affidavit of defense admits certain items to be due, but avers the payment of a larger sum on account of the indebtedness, and it does not appear to what items the payment was applied, judgment will uot be given. City v. Railway Co., 33 W. N., 522 ; 2 Dist. Eep., 705 (1893). The judgment for the amount admitted by the affidavit of de- fense may be entered by the prothonotary upon the praecipe of plaintiff or his attorney. Roberts v. Sharp, 33 W. N., 524 (1894). Judgment cannot be entered for an amount admitted to be due, under the Act of May 31, 1893, where certain amounts claimed by the plaintiff are denied by defendant, even though the court decides the affidavit is insufficient as to such part. ReiUy v. Daly, 159 Pa. St., 606 (1894). Where judgment is moved for the amount admitted to be due, as to which the affidavit of defense alleges that tender was made before suit, judgment will be entered without costs. McNichoU v. Ins. Co., 32 W. N., 472 (1893). The Act of May 31, 1893j does not apply to causes at issue. De Marat v. Entrehin, 33 W. N., 160 (1893). Where the affidavit of defense disputes the entire claim, the court will not inquire as to the insufficiency of the affidavit in part and give judgment for that part, with leave to proceed for the balance. Meyers v. Cochran, 33 W. N., 250 (1893). In Taber v. Olmsted, 168 Pa. St., 351 (1893), by a special order previous to the Act of 1893, judgment was entered for the amount 40 PHACnCB IN PENNSYLVANIA. admitted to be due in the affidavit of defense, without waiver as to the right to go to a jury on the balance. In Stedman v. Fot^e, 27 W. N., 270 (1890), and Blydrnddn V. Haselime, 140 Pa. St., 120 (1891), judgments for the amounts admitted were allowed, under the Rules of Court. Judgment for the amount admitted to be due, under the Act of 1893, may be entered by the prothonotary on the order of plaintiffs attorney; and if improperly entered, defendant maiy enter a rule to strike it off. Roberts v. Sharp, 3 Dist. Rep., 136 (1894). § 37. You will thus observe that in all cases ex contractu you proceed by summons, file your papers, and press for judgment for want of an affidavit of defense. Where the paper filed is, in your judgment, sufficient as a defense, you put the case at issue by ruling defendant to plead. § 38. Cases may occur in which the court refuses judgment, holding the affidavit of defense sufficient ; yet you may prefer to obtain the opinion of the Supreme Court. This you can do by excepting and appealing. (See Act April 18, 1874, Br. Purd., 789, section 11, and Act of May 9, 1889, P. L., 158.) But you must have a clear case for judgment in order to reverse. CMffith y. Sitgreaves, 2 W. N., 707 (1876). Where a rule for judgment for want of a sufficient affidavit of defense is discharged in open court, in presence of plaintiff's coun- sel, the ruling should be then and there excepted to and the court requested to seal a bill. Oomm. v. Fleming, 157 Pa. St., 644 (1893). § 39. By Capias. For breach of promise to marry, actions for fines, penalties for moneys collected by a public officer, for miscon- duct, or neglect in office or in any professional employment, your client can issue a capias instead of a summons. It was decided in the Centennial Cases, Blanco v. Bosch, 3 W. N., 171 (1876), that there can be no arrest for debt arising ex con- tractu without a special allocatur founded upon an affidavit bring- ing the case within the Act of 1842. § 40. Philadelphia rules as to affidavit to hold to bail. The following are the Philadelphia rules : No bail shall be required in actions of trespass vi et armis, in actions for libels, slanderous words, malicious prosecution, conspiracy, or false impris- onment, unless an affidavit of the cause of action be made and filed before the issuing of the writ. In all actions of trover and conversion the affidavit to hold to bail shall set forth the circumstances under which the defendant has possessed him- self of the goods, the particulars of which they consist, and the value of ASSUMPSIT. 41 them, and in what maimer the defendant has converted them to his own use. A rule to show cause of action and why the defendant shall not be dis- charged on common bail must be moved for within six days from the return-day of the process. Such rule may be heard and decided by a single judge at such time and place as he may appoint. Sequirements of affidavit to hold to bail. Whether required by rule of coart or not required, as a preliminary to the capias, draw plaintiff's aflBdavit to hold to bail. Put in it all thjs essential words of a narr. from the best precedents of declarations. The affidavits to hold to bail must contain defendant's name ; it is not sufficient to name him in the caption and refer to him as " defen- dant." Flaherty v. Lindsay, 7 W. IS., 79 (1879); H(mer v. Ben- nett, 4 Dist. Eep., 323 (1895). Where a capias is served on the wrong person, the proper prac- tice is to take a rule to show cause why he should not be discharged on common bail. Idsansky v. Qerzog, 2 Dist. Rep., 220 (1892). In Diehl v. Forthuher, 16 W. N., 227 (1885), a capias was issued for an assault. The affidavit did not state where the assault was made. Arnold, J., said : " An affidavit to hold to bail should be drawn with as much precision and fulness in essential matters as a narr., although less formality is required. The place where the offense occurred is as essential in the affidavit as the venue is in a declaration." The rule to discharge on common bail was made absolute. So, too, in TrianovsU v. Klmnschmidt, 20 W. N., 296 (1887). The affidavit simply charged that the defendant said that de- ponent was a thief — that he was guilty of the crime of " arson," etc. The defendant took a rule to show cause of action and why he should not be discharged on common bail. The court, per Thayee, p. J., said : " What words were used by the defendant in making those charges ? Were they spoken in English or Ger- man, or in what language ? Were the words ' thief and ' arson ' used ? If so, in what connection and with what colloquium ? " It may well be that what the plaintiff imputes to the defen- dant is only the plaintiff's construction put upon the words used, and that if the very words were given they would not warrant the construction put upon them by the plaintiff. To say that one man said of another that he is a thief is only to sum up the result of the plaintiff's interpretation put upon the words actually used. The defendant is entitled to know what words he is charged with. To state the legal effect of the words used is not sufficient. Nor is it sufficient to say, as the plaintiff says in his affidavit, that the 42 PEACTICB IN PENNSYLVANIA. defendant said ' this deponent was a thief.' If the defendant used the words ' this deponent,' it is clear he could not have intended the plaintiff. If he did not, it should be stated what words he used to describe ' this deponent.' The plaintiff should have set forth the words used, or at least the substance of them. Nothing less than that will satisfy the requisites of an affidavit to hold to bail. Such an affidavit, as we have heretofore ruled in Kasper v. Newhamer (14 "W. N., 128), must expressly allege what words were spoken by the defendant. The present affidavit does not do that and is in that respect fatally defective." Rule absolute. An averment, in an affidavit to hold to bail, that deponent has been informed and believed, is insufficient. Barnett v. Stains, 20 W. N., 274 (1887). An affidavit to hold to bail in a capias for malicious prosecution, on a charge of receiving stolen goods with the knowledge that they were stolen, which fails to set forth that the plaintiff did not know the goods were stolen, is insufficient, and the defendant will be discharged on common bail. Aarons v. DwnseHh, 1 Dist. Rep., 701 (1891). Since the Act of June 3, 1887, unless the affidavit aver that slanderous words were spoken by a wife in the presence of her husband, or with his knowledge or consent, the husband, if arrested on a capias for such acts of his wife, will be discharged on com- mon bail. (yGonnNo. , Term, year. Sir: ' Enter a rule on the garnishee in the above case to plead in days, or judgment sec. reg. C. Plaintiff's Attorney. (Date.) To the Prothonotary of the Court of Common Pleas of County. Notice of this must be served as before. No statement against the garnishee is here required. The scire facias stands for a narr. If the garnishee does not plead, take judgment for want of a plea, as in section 26. The garnishee can plead nulla bona (no goods — ATTACHMENTS. 91 that he has nothing of defendant, and owes hita nothing). You can then order the qase on the trial-list. § 96. When before the jury the affirmative rests with you ; your client must prove that the garnishee is indebted to the defendant, or has in his hands some property of the defendant. The case in this aspect stands exactly as if the defendant in your attachment were plaintiff and were suing the garnishee. Each party has the same right to except, to move for a new trial, to appeal, etc., as if the suit stood originally in that shape. § 97. The following provisions as to execution explain them- selves : " After a verdict for the plaintiff on any scire faaiaa as aforesaid, it shall be lawful for him to have execSition of his judgment in the attachment to be levied of the goods or effects so found in the hands or possession of the gar- nishee, or of so much of them as shall be sufficient to satisfy his demand, together with legal costs of suit and charges as aforesaid." (Act of June 13, 1836, section 59, P. L., 583.) " The plaintiff may also, at the same time, have execution against the garnishee upon the judgment obtained against him on the sdre facias, as in the case of a judgment against him for his proper debt, to be executed if the garnishee shall neglect or refuse, upon the lawful demand of the proper offi- cers, to produce and deliver the goods and effects of the defendant as afore- said, or to pay the debt or duty attached if the same shall be due and paya- ble." {lb., section 60.) " But after judgment, before any execution shall be executed, the plaintiff shall give security by recognizance and sufficient sureties to be approved of by the court or by one of the judges thereof, in vacation, with condition that if the defendant in the attachment shall, within a year and a day next ensuing the date of such recognizance, by himself or attorney, come into court and disprove or avoid the debt recovered against him, or shall dis- charge the same with costs, in such case the plaintiff shall restore to the de- fendant the goods or effects or the value thereof attached and condemned as aforesaid, or so much thereof as shall be disproved or discharged, or else that they will do it for him." {lb., section 61.) In any such case of foreign attachment and final judgment entered, it shall be lawful for the plaintiff at his option, instead of entering the se- curity as required by the sixty-first section of said Act, to leave the property attached remain unsold for a year and a day after such judgment, and thereafter to proceed to make sale by execution, with the like effect as if such security had been entered." (Act of May 8, 1855, section 2, P. L., 532.) A counsel fee will be allowed in attachment proceedings, where the garnishee admits in his answer that he has in his possession a sum belonging to the defendant, equal to or less than the amount claimed in the attachment. Johnson v. Smith, 29 W. N., 477 (1891). If the garnishee put the defendant to unnecessary expense and delay, and denies possession of property really in his hands, he is 92 PRACTICE IN PENNSYLVANIA. not entitled to a counsel fee. Gdst v. Sartman, 29 W. N., 477 (1892). § 98. In Fitch v. Ro8s, 4 S. & R., 557 (1818), a rule was ob- tained to set aside the_^. fa. because the plaintiffs had not previously given the security required by law to restore the property attached or its value, etc. The statute then in force was the Act of 1705, the fourth section of which was the same in substance as our pres- ent Act of 1836, above quoted. "After judgment obtained the plaintiff shall, before sale and after execution awarded, find security." Under the custom of London, the practice had been to enter the security before taking out execution ; and so Mr. Sargeant, in his work on Attachments, had stated the Pennsylvania rule. But our Supreme Court held that the security could well be entered after the execution and before the sale. In the same case {Fitch v. Boss, 4 S. & R., 557) it was ruled that the death of the defendant after final judgment did not dis- solve the foreign attachment, and that the security could well be given to the representatives of the deceased. § 99. In that case the_^./a. was in the common form, and in general terms directed the sheriff to levy on the goods of the de- fendant. It was, however, levied only on the two houses attached. On a rule to set it aside, the point was pressed that the writ should have recited the attachment and ordered a levy on the property attached. This objection was overruled. Afi.fa., however, against the garnishee in an attachment execu- tion, which in the usual form commanded a levy upon his goods, etc., was set aside in Layman v. Beam, 6 Wh., 181 (1840), already cited. The garnishee had not appeared. Judgment was entered against him by default. The writ in the common form was set aside and a new fi. fa. ordered in the form already given. After twenty years, judgment on foreign attachment is presumed to be satisfied. Biddle v. Bank, 16 W. N., 397 (1885). § 100. We now reach the scire facias ad disprobandum debitum. This writ is allowed by the mercy of the law. The defendant, it is observed, has not been served with ])rocess. He is an absentee. His property has been simply attached. At the third term a judg- ment has been entered for want of an appearance. By the custom of London, there was no judgment, but after four defaults the gar- nishees were summoned, who pleaded nil debent, and the issue being found against them to ascertain the amount of money, there was an award of execution against the money in their hands. This ATTACHMENTS. 93 proves that it is a proceeding in rem and not in personam. Ac- cordingly it was held, in Phelps v. Holker, 1 Dall., 261 (1788), that no action would lie on a judgment in foreign attachment. Such, also, is the l^ew York ruling. Kilbum v. Woodworih, 5 Johns., 37. (See argument of Mr. Binney, 4 S. & R., 561.) After the delay to which the plaintiff has been already sub- jected, the law might well allow process to go out and the matter to be finally closed. But lest the defendant may not yet have heard of the proceeding and may be able to disprove the claim, the statute requires that the collection be delayed a year and a" day. Meanwhile, if the plaintiff reap the fruit of his fi. fa., he must give security to restore. Within the time named the defendant may issue the sd. fa. ad disprobandum debitum. This is done by filing aprcecipe for the writ in the form given for other process. The Supreme Court, in Fitch v. Ross {mpra), said that " this, like putting in bail, puts the plaintiff to the legal proof of the demand and lets the defendant into a full defense. * * * On the scire facias every opportunity is given of a hearing and of a full defense, as if the defendants had entered the special bail." The defendant then having issued his sci. fa., and having caused it to be served on the plaintiff, the case stands precisely as if the defendant had in the first instance put in bail ; that is, he appears, files his affidavit of defense, if thereto required by any rule of court or statute, files his plea, and the case proceeds to final judgment as if commenced by summons. If the conclusion be with the plaintiff, he proceeds against the property attached if unsold, or the security is discharged if the money has been received. On the other hand, if the defendant have final judgment, he would ask to dissolve the attachment or he would sue out the recognizance given by the plaintiff, according to the circumstances. § 101. A foreign attachment to meet a peculiar case was pro- vided by the Act of April 6, 1870. As the Act of 1869 applies to fraud, this statute of 1870 sought to provide a civil remedy in ac- tions for certain assaults and batteries. The law was passed to meet a special case. A man of some means had been much an- noyed bv rowdy boys on his pavement. After threatening, he en- deavored to frighten them by discharging a pistol. He excused the act by the plea of ignorance as to the weapon being loaded. A boy innocent of blame was injured by the ball. The defendant, after giving bail for his appearance at the criminal court, fled. The recognizance was forfeited. As the injured lad could serve no summons, this Act was passed. The defendant paid a large 94 PEACTICB IN PENNSYLVANIA. sum to the plaintiff, and the case ended. It is not probable that a second claim will be found to meet the peculiar requirements of this statute. It is in these words : In all cases of arrest for homicide, or for assault or battery, resulting in great bodily harm to the person assaulted, so that his or her life is thereby imper- iled, wherein the person arrested has been or shall be held to bail, and has made or shall make default, whereby his or her recognizance has been or shall be forfeited, and has fled or shall flee the jurisdiction of the court, it shall and may be lawful for the person so injured as aforesaid, his or her executors or administrators, to begin his, her, or their action for damages by filing in the proper court a certified copy of the record in such criminal proceeding, together with an affidavit that the defendant has left or is about to leave the jurisdiction of the court ; whereupon the said court shall award and issue an attachment against all and singular the goods and chattels, lands and tenements, rights and credits, of the defendant or any part thereof within the jurisdiction of the said court, which attachment shall be served and shall have the same efiiect, and the proceedings there- under against the defendant and against any garnishee or garnishees shall be the same, as in cases of foreign attachment. The provisions of this Act shall apply to the city and county of Philadel- phia. (Act of April 6, 1870, P. L., 960.) § 102. The remedy of foreign attachment was extended by the Act of May 23, 1887, to cases in equity. The statute is in these words : An Act To provide for the institution of proceedings in equity by process of foreign attachment Section 1. Be it enacted, etc., That 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 the payment of money, it shall be lawful for the plaintiff to cause a writ of foreign attachment to be issued against the real or personal estate of such defendant or defendants in the following form : County, ss. The Commonwealth of Pennsylvania. To the sherifi" of said county, greeting : We command 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 he 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 allegation of a bill in equity filed in the Court of Common Pleas of said county. Which writ shall be executed by the sheriff in the manner prescribed by law for the service of writs of foreign attachment. Sec. 2. In case the defendant or defendants, against whose property an attachment has been issued as aforesaid, shall not appear and answer the allegations of the bill at or before the first Monday of the third term next ensuing after the issuing of said attachment, then and in such case the plaintiff shall be at liberty to have a decree ^ro confesso entered against said ATTACHMENTS. 95 defendant or defendants, and thereafter to proceed upon the decree so en- tered pro eon/esso by scire facias against the garnishee or garnishees in the same manner as proceedings begun by foreign attachment in actions at law. Approved May 23, 1887. § 103. The seventeenth section of the Act of June 13, 1836 (P. L., 585), provides for issuing a foreign attachment in all cases where two or more are jointly but not severally liable to suit, if one or more are liable to attachment and others be not liable. The form of the writ is given in Brightly's Purdon, page 936, section 45. It is a summons as to him or those within the juris- diction, and a foreign attachment against the others. The plain- tiff proceeds under the summons against all it embraces, and so with the attachment. If judgment be entered against the first, execution issues ; if this be not satisfied, it shall be lawful for the plaintiff to levy upon the goods attached. The court has, how- ever, power to award execution, if they see cause, against the goods attached in the first instance, saving to all defendants their respective rights. If any defendant summoned obtain judgment upon a plea in bar of the whole action, and the plaintiffs do not, within a year and a day, sue out and prosecute a writ of error, the attachment may be dissolved. In WJiite and Schnebly's Case, 10 Watts, 217 (1840), a writ was issued, under the Act of 1836, of summons against White and of attachment against Schnebly (a non-resident). The defendants were partners. The writ was executed May 4, 1838. May 28, 1838, the firm made an assignment of the partnership property. Under agreement, there was a sale, the money l)rought into court, and the question of distribution submitted. The court be- low decided that the attachment took the fund first, and awarded the balance to the assignee. But the Supreme Court reversed, holding that the attachment did not bind partnership property, but the separate property of the non-resident debtor. In Fretz v. Johnson, 1 5 W. N., 208 (1884), a writ issued in like form against two partners. A rule was taken to quash, on the ground that under the Act the writ could only issue when the de- fendants are jointly and not severally liable. But the court dis- charged the rule. § 104. When a foreign attachment is issued in any county in this Commonwealth, where the property of a non-resident is situ- ated, after the execution of an assignment in another State, but prior to the recording thereof in the county where the property 96 PKACTICE IN PENNSYLVANIA. is found, the attachment has priority over the assignment. Sted V. Goodwin, 113 Pa. St., 288 (1886). A receiver was appointed in another State to take charge of prop- erty situate there ; a creditor citizen of that State came into Penn- sylvania and issued a foreign attachment. It was held that the title of the receiver prevented the attachment. Bagby v. R. R., 86 Pa. St., 291 (1878). A foreign attachment duly served and levied takes precedence of ordinary writs of execution issued a later hour the same day. Warner's Appeal, 13 "W. N., 505 (1883). The Act of June 10, 1881 (P. L., 106), authorizing an inter- pleader to try the title to property seized under a foreign attach- ment, is unconstitutional. Lumber Co. v. Reynolds, 4 Dist. Eep., 573 (1895). § 105. "With the forms supplied to meet the different stages of the case, and with general direction as to the same, it will thus be seen, on review of the foregoing chapter, that The plaintiff's attorney must Prepare his praecipe. See the writ properly indorsed. Give it to sheriff with full directions in writing. Give security to the sheriff. Prepare affidavit of cause of action. File statement under Act of 1887. Take judgment if no appearance entered. Assess damages. Issue sd. fa. against garnishee. File interrogatories. Enter rule on garnishee to answer. Enter judgment if no answers filed. File exceptions if answers are insufficient. Order these on list. Prepare paper-book. If answers sufficient, then plaintiff must Enter rule on garnishee to plead, or judgment. When plea obtained, order case on trial-list. If judgment obtained against garnishee, wait the year and day, or give security and proceed with fi. fa. If defendant appear to the attachment, and plaintiff is enti- tled to judgment for want of an affidavit of defense, he secures it, otherwise Plaintiff rules defendant to plead. Forces the case on to trial. Aifer judgment Plaintiff proceeds against the garnishee by scire facias and ATTACHMENTS. 97 the other steps above noted after the direction to sd. fa. the garnishee. If defendant issue his sci. fa. ad disprobandum debitum, the plaintiff must maintain his claim as if defendant had appeared to the attachment. This imperfect outline shadows the plaintiff's attack. § 106. The defendant may resort to the following steps of re- sistance. In proper cases he may Move to quash the writ, or Move to set aside the service, or Rule plaintiff to show cause of action and why the attach- ment should not be dissolved. Failing in these, Defendant may give bail, or deposit the money, and dissolve the attachment ; or, without dissolving the attachment. Defendant may enter an appearance. He must then file an affidavit of defense, if in danger of judgment, and, when ruled. Defendant must plead, and prepare for trial. If the defendant has not entered an appearance, he can still, within the year and a day after judgment, issue his s&i. fa. ad disprobandum debitum, etc. § 107. The object of this chapter is not to give a treatise upon the law of foreign attachments. That would require a literal copy of all the Acts of Assembly and a digest of all the decisions bearing upon this subject. A volume would be required for this purpose. The statutes and decisions are already in the Digests, carefully prepared and well arranged. § 108. Domestic Attachments. The general law of 1836 (which was an enlargement of the Justice's Act of ,1752) established a State bankrupt system, which, in its simplicity, might well be imitated by the National Legislature. The law provides in its first section thus : Writs of domestic attachments may be issued by the Courts of Common Pleas of the county in which any debtor, being an inhabitant of this com- monwealth, may reside, if such debtor shall have absconded from the place of his usual abode, within the same, or shall have remained absent from this commonwealth, or shall have confined himself in his own house, or concealed himself elsewhere, with design, in either case, to defraud his creditors, and the like proceedings may be had if any debtor, not having become an inhabitant of this commonwealth, shall confine or conceal him- self within the county with intent to avoid the service of process and to defraud his creditors. Act of June 13, 1836, section 1, P. L., 606. § 109. It will be seen that two classes are made subject to the law. VOL. I. — 7 98 PEACTICE IN PENNSYLVANIA. 1. Inhabitants of the commonwealth. 2. Those not inhabitants of the commonwealth. But the cases vary with each class. The inhabitant may bring himself within the law, 1. If he abscond from the place of his usual abode. 2. If he remain absent from the commonwealth, 3. If he confine himself in his own house, or 4. Conceal himself elsewhere. With the design in either case to defraud his creditors. The person not an inhabitant is only brought within the law, if he Confine himself within the county, or Conceal himself within the county With intent to avoid the service of process and to defraud his creditors. It will be observed that the Fraudulent Debtor's Act of 1869 (considered in the chapter on Assumpsit) does not refer to any of these personal acts. Herein seems to be the distinction. The Act of 1869 (amended by Act of 1887) applies to removal or assign- ment or concealment of property and to fraud in contracting the debt. The Domestic Attachment Law can only be invoked where the person absconds, conceals himself, etc. § 110. It does not often happen that a man absconds yet remains an inhabitant by leaving a residence. If he have a residence, ser- vice of a summons can generally be made there whether the defen- dant absconds or hides. For these reasons, and because no creditor gains any advantage over other creditors by issuing the writ, a domestic attachment is rarely used. If the defendant be not an inhabitant, and be not in the county, your remedy is by foreign attachment. If he be in the county, you have a better chance by serving a summons, and, if possible, arresting him under the Act of 1842. (See section 47.) But if only a summons could be served, I would prefer that and the chance of a judgment by de- fault followed by execution, to the remedy ol domestic attachment. § 111. Supposing, however, that this is the best relief present- ing itself, you proceed thus : Prepare your client's affidavit, that " A. B. is justly and truly indebted to him in the sum of dollars, upon the following cause of action " (here state that defendant signed the note, bond, due bill (give a copy), or that he bought of plaintiff goods — state always the dates and amounts — or borrowed money, etc., etc.). A debt not presently due and payable, if there be in other particulars sufficient ground for the domestic attachment, will ATTACHMENTS. 99 support the writ. McOuUmigh v. Grishobber, 4 W. & S., 201 (1842). Be particular to follow the very words of the statute in describing the defendant's acts. Thus, after stating the debt, cause of action, etc., add : And deponent further saith that the said A. B. is an inhabitant of this commonwealth, and resides in this county, and that the said A. B., to wit, on the day of in the year of our Lord, 188 , absconded from the place of his usual abode (to wit, his residence. No. Street, in said county) within said county, with design to defraud the creditors of the said A. B. If the defendant has done something else denounced- by the law, state it with the conjunction and, but never in affidavit or any pleading charge that a man was guilty of this or of that. In Domestic Attachment, the affidavit must " aver the the truth of the facts stated," and the words " is informed and believes " are insuffi'cient. Sharpless v. AnkermiUer, 19 W. N., 88 (1887). It must also aver " an intention on the part of the debtor to ab- scond," and not merely the " creditor's belief of such intention." Simons v. Hickman, 24 W. N., 92 (1889), This affidavit should be made by the plaintiff if he be at hand. The law allows it to be made by " some one in his behalf." It is best in such cases to state plaintiff's sickness or absence, and that the person acting is the wife or duly authorized agent of the plain- tiff. Indorse the paper " Plaintiff's affidavit." Write beneath : To the Prothonotary of the CJourt of Common Pleas of County. SiK : Issue writ of domestic attachment, returnable sec. leg. C. D., Plaintiff's Attorney, (Date.) As the writ is peculiar, I would present the affidavit to a judge of the court and get his initials beneath these words : " Writ allowed." § 112. The prothonotary issues the writ. In handing it to the sheriff, give him, in writing, full directions, the locality of all known real estate, and of all goods, horses, etc., the names and addresses of all persons having the custody of any goods or effects, or indebted to the defendant. The printed form of the writ does not give any summons for the garnishee. But the subsequent section requires it to be in the writ, and it should be inserted, " and that you summon as garnishees all persons in whose hands any of the defendant's money or other effects may happen to 100 PEACTICE IN PENNSYLVANIA. be, to appear before our said court at the day and place above men- tioned." The sheriff attaches all personal property, returns an inventory and appraisement. Real estate is attached by serving the tenant or person in possession, if any, by putting up a copy in some con- spicuous place on the realty, filing a description, and causing it to be entered on the docket of the prothonotary. The plaintift's at- torney should see to all these details, and that all persons in pos- session or indebted are served. The writ should be noted on the judgment index. Other creditors may intervene, perishable goods may be sold, testatum attachments may be sued out with the origi- nal or afterward, into any other county where defendant has prop- erty. The testatum writs are executed as the originals, with double returns, one to the court of the first county and the other to the court of the county where the testatum is executed. The court of the county into which the testatum is issued has power to make all interlocutory orders for sale, for compelling answers, de- livery of property to the trustees, etc. Pending the first attach- ment, no second writ can issue, except these testatums. Other creditors, as above noted, have their chance by making affidavit of debt and suggesting their names upon the record. § 113. On the return of the original attaoliment, the court ap- points three trustees, not being creditors, who must file their affi- davit to execute the trust according to the best of their skill and understanding, and give security as directed. Thereupon the officer who has taken possession of money or property under the writ must deliver it to the trustees upon demand and on certificate that they have been duly qualified and given security. The trustees give public notice as directed, requiring all debtors to pay to them and all creditors to present their claims. The estate of the defen- dant vests in the trustees subject to existing liens, and they can take all books, etc., sue in their own names for all estate, debts, etc. Bona fide purchasers for value of the realty, without notice and before attachment executed and entered on the docket, are pro- tected. Bona fide purchasers for value of the personalty without notice or knowledge of the attachment are also protected. Persons pay- ing the defendant or delivering his property bona fide, without no- tice or knowledge of the attachment, shall not be liable to suit. The wife and family may retain articles exempt from execution. § 114. Powers of trustees. Subject to these restrictions, the trustees have very full powers bestowed upon them. • They may summon residents of the county supposed to be in- ATTACHMENTS. 101 debted and others residing in the county, and examine them upon oath as to the estate of the defendant, secret grants, etc. They may commit all who refuse to attend or to be sworn or to make answer, the persons thus committed to be enlarged on giving bail to appear at the next court to answer under direction of the court, and to abide all orders made by the court. Persons having books, papers, effects, etc., may also be committed in like manner on refusal to deliver when legally required. The trustees may exhibit interrogatories to garnishees residing in other counties, and the courts of those counties may compel answer thereto. The trustees have the high power to issue warrants to cause to be broken open in the daytime houses, chambers, shops, stores, warehouses of the defendant or doors therein, and his trunks or chests, in which effects, books, or papers relating to his estate shall be or be reputed to be, and to seize the same. They can recover property conveyed to wife or children or to any person in trust for them, or conveyed to any person with intent to defraud creditors. They can redeem all property pledged. After the term succeeding that to which the writ was return- able, the trustees can sell the personalty, and after the third term they can sell the realty, always giving ten days' notice, as in case of sale under execution. The purchaser can recover in his own name all property, debts, etc., bought by him. A majority of the trustees is competent to exercise all the powers above named. Trustees not liable for a mere error of judgment or a mistake of law, if acting in good faith and under the advice of counsel. Brad- ley's Appeal, 89 Pa. St., 521 (1879) ; Paxson, J. Trustees in domestic attachment who deposit bona fide in a bank of good standing and repute, the funds in their hands, are not re- sponsible for a loss resulting from a failure of the bank. Common prudence and good faith are all that are required. Breneman v. Mylin, 2 Dist. Kep., 296 (1892). § 116. Perishable goods may be sold by order of the court or of any judge in vacation. Before the appointment of trustees any creditor can apply for the order, and the sale is by the sheriff. But the trustees may, with leave as aforesaid, make sale of perish- able property. In Oniel v. Chew, 1 Dall., 379 (1788), already cited under For- eign Attachment, the defendant's interest being attached in a shal- lop. Levy, after filing a positive affidavit of the debt, moved at the first term that the shallop might be sold as a perishable com- modity ; and the motion was accordingly granted. 102 PEACTICB IN PENNSYLVANIA. § 116. In Magee v. Beirtie, 39 Pa. St., 50 (1861), a similar order was made for the sale of cattle taken under a foreign at- tachment. It was also there ruled that : (1) Under the Pennsylvania statute, foreign attachment is not strictly a proceeding in rem; and, therefore, the final judgment in the attachment, though conclusive as to parties and privies, does not include all the world as to a stranger's ownership in the prop- erty. (2) Where the goods attached are ordered to be sold as perish- able or chargeable, the title of the purchaser at such sale is inde- feasible and unquestionable, whoever the former owner may have been, if the order and sale were under a proceeding in rem; but the sheriflf, as defendant in an action of trespass by the real owner, cannot justify the taking of the goods on the ground that by this peculiar rule of law the title of his vendee was validated. (3) There is no rule of law which compels the real owner of at- tached property, on notice of the suit, to intervene and defend pro interesse suo, on pain of forfeiting his rights of property or of action. § 117 "Perishable" does not only mean property like fruits or other articles which may be destroyed in a short time, but the term includes all effects which, by reason of the cost of retaining them or for any other cause may prove of no value before the term arrives at which other goods can be sold. In this sense liquors are not perishable. In Henisler v. Friedman, 5 Clark, 147 ; 11 Penna. Law Jour., 355 (1852), the court refused to order a sale of wines, etc. But in that case the application was not made until the arrival of the term at which the trustees could sell without any order. The petition was refused for this reason. § 118. The method of obtaining the order is to present a posi- tive affidavit of the debt, adding that the sheriff has in his posses- sion, or that the trustees have in their possession, the following (describe the property) ; that the same is perishable, and unless the same is sold it will, by the next term, be of no value (or of very little value, etc.). It is best to add the reason, as, in the case of cattle, the cost of keeping them ; in the case of a small vessel, the wharfage, watchman's fees, etc. The sheriff should take care that he do not sell the property of a stranger. § 119. After six months from the first public notice have expired the trustees advertise a second time, fixing a time and place to re- ceive proofs of claims, and they then file a report of their accounts and of the sum payable to each creditor. The prothonotary gives the same public notice of the report as ATTACHMENTS. 103 in cases of voluntary assignee's accounts ; and at the next term, if exceptions are not presented as required by rules of court, the re- port may be confirmed and distribution be made. If other moneys come into hand, reports may be made and distributions awarded every three months. In these awards, specialties have no prefer- ence; Jona^de creditors whose claims are not yet due receive a dividend ; all claims are subject to set-offs, and the balance, if any, after payment of all just demands, costs, and charges, goes to the defendant or his representatives. The trustees file the final distribution with the prothonotary of the court in which they were appointed. § 120. The court issuing the attachment may, before final de- cree, dissolve the writ on affidavit of defendant denying the alle- gations on which the attachment was founded. They first grant a rule to show cause upon the creditors suing or prosecuting the writ, and they may at the same time make an order staying all further proceedings by the trustees. If satisfied that defendant was not liable to the attachment, they dissolve the same absolutely or upon terms, and order costs to be paid by the creditors prosecuting the writ or by the defendant. But no siich order shall invalidate any lawful sale by the trustees or any payment to them. § 121. The old Act of 1752 conferred a jurisdiction somewhat similar upon justices of the peace where the debt did not exceed £5. This law is still in force, the jurisdiction having been in- creased to $100. With that alteration and an amendment, caused by Act of December 4, 1807, the Act of August 22, 1752, section 1 (1 Smith, 218), reads as follows : If any person shall absent him or herself out of this government, or ab- scond from hisi or her usual place of abode, not taking care to satisfy his or her just debts, it shall and may be lawful for any justice of the peace of the county where such person's estate may be found to grant a writ of attach- ment for any debt not exceeding $100, directed to any constable of the same county, to attach the goods and chattels or other effects of such per- son, to answer the creditor ; but, before granting any such attachment the person or persons requesting the same, or some other credible person or persons for him or them, shall, upon oath or affirmation, declare that the defendant in such attachment is indebted to the plaintiff therein named in a sum not exceeding $100, and that the defendant is and has absconded from the place of his usual abode (for the space of six days), with design to defraud his creditors, as is believed, and that the defendant has not left a clear fee simple estate in lands or tenements within this province sufficient to pay his debts, so far as the plaintiff or deponent knows or believes ; which oath or affirmation the justice of the peace that grants such writ is hereby empowered and required to administer ; and if any attachment be granted out otherwise, or contrary to the true intent and meaning hereof, the justice of the peace so granting the same shall, for every such offense, forfeit the sum of $100 for the use of him or her that will sue for the same. 104 PEACTICE IN PENNSYLVANIA. The Act of 1752 required, as will be seen, an absconding for six days. But the Act of December 4, 1807, conferring like jurisdic- tion on the Courts of Common Pleas, did not require an absconding for six days, or for any definite term. The fifteenth section of this Act (December 4, 1807) conferred upon justices like jurisdiction with the courts. For this reason the Supreme Court held, in Jewd V. Howe, 3 Watts, 149 (1834), that the six days' stipulation was repealed. § 122. After accepting the constable's return, the justice appoints three honest men to be trustees ; they are sworn, and take all goods attached. The justice advertises in public places and in one or more newspapers for all creditors to appear, and if there be a just debt due to any person from the defendant exceeding $100, the justice proceeds no further, but certifies all to the Prothonotary of the County Court of Common Pleas. The court grants one at- tachment for any creditor. The sheriff attaches lands, goods, etc., and the court proceeds. As to the justice, it is enacted that no second attachment shall bind pending the first. The justice may order that cattle, etc., necessary to be maintained at expense, or perishable goods may be sold by the trustees within ten days, of which six days' notice shall be given by advertisement in the most public place. If no debt exceeding $100 shall appear to be due, the goods attached are appraised, and, at expiration of three months, the debtor not appearing and redeeming them, the jus- tice orders the trustees to sell, giving at least ten days' notice by advertisement in the most public places. The trustees deduct all reasonable charges and pay creditors proving their debts within the three months pro rata. They then, within six days of distribution, render a true account to the justice. § 123. Dissolving the attachment. If application be made within twenty days after the return of the writ, the justice has like power with the Court of Common Pleas to dissolve the at- tachment. § 124. Attachment of vessels. The Act of June 13, 1836, sub- jects ships and vessels of all kinds built, repaired, or fitted within this Commonwealth, to a lien for all debts contracted by the mas- ters or owners thereof for work done or materials found or pro- vided in the building, repairing, fitting, furnishing, or equipping of the same in preference to any other debt due from the owners thereof (P. L., 1836, page 616, section 1, Brightly's Purdon, 145, section 1.). The doubts as to the validity of such legislation, and perhaps other causes, have tended to reduce the number of proceedings under this Act. ATTACHMENTS. 105 § 125. As to the general lien of Admiralty Courts, it would ap- pear from People's Ferry Co. v. Beers, 20 Howard (1857), page 393, " that liens on vessels encumber commerce and are discour- aged, so that where the owner is present, no lien is acquired by the material-man, nor is any where the vessel is supplied or repaired in the home port. The lieu attaches to foreign ships and vessels only in favor of the carpenter who repairs in a case of necessity, and in the absence of the owner." Cateon, J. (402). In that case a libel was filed by builders against the steam ferry-boat " Jef- ferson." The District Court of the United States for the Southern District of New York sustained the libel. The Circuit Court af- firmed, but the Supreme Court of the United States dismissed the libel for want of jurisdiction. § 126. In the case of Roach v. Chapman, 22 Howard, 129 (1859), the claimant sought to sustain the libel in the United States Court under the statute of Kentucky, which gave a lien to builders. The District Court of Louisiana sustained the claim. The Circuit Court dismissed the libel for want of jurisdiction, and the Supreme Court affirmed the decree, holding that a con- tract for building a ship or supplying engines, timber, etc., is clearly not a maritime contract ; and that local laws can never confer jurisdiction on the courts of the United States. § 127. In re The Moses Taylor, 4 Wallace, 411 (1886), suit was brought, under the California Acts of 1851 and 1860, against the vessel for not furnishing proper provisions to a passenger from New York to San Francisco. The plaintiff obtained judgment. The Supreme Court of the United States reversed, with direction to dismiss the action for want of jurisdiction. They held (opinion by Field, J.) that all State laws conferring admiralty jurisdiction in rem are void, the remedy being exclusively in the United States Court. The feature which marks the process as a suit in admir- alty was stated in that case to be this, " that the vessel or thing proceeded against iiself is seized and impleaded as the defendant and is judged and sentenced accordingly." (Page 427.) § 128. By section 9, Act of Congress, September 24, 1879, ex- clusive jurisdiction was given to the District Court of the United States in civil causes of admiralty and maritime jurisdiction. From this it would seem that a State law giving an attachment against a vessel for a cause within the admiralty jurisdiction would be void. In The Moses Taylor, supra, an attempt was made to save the California statute by the points : (1) That the constitutional grant of jurisdiction to the Federal courts was not exclusive; and (2) that the Judiciary Act of 1789 contained a clause saving to suitors 106 PBACTICB IN PENNSYLVANIA. a common-law remedy. Bat both these suggestions were over- ruled. § 129. The Hine v. Trevor, 4 Wallace, 555 (1866), and The Bel- fast, 7 Wallace, 624 (1868), reiterated the doctrine that State stat- utes attempting to give proceedings in rem as remedies for marine torts and contracts are void. The common law actions in per- sonam and the process by Attachment in Execution and hj fieri fadas are, of course, untouched by these decisions. § 130. Seemingly in conflict with the cases cited is the ruling by the Supreme Court of Pennsylvania in Scull v. Shakespear, 75 Pa. St., 297 (1874). There the lien against the schooner " Maggie Cain " for materials was sustained. Upon the constitutional point Agnbw, C. J., said : " It is contended that a lien such as this, in- curred in the building of a vessel, is not within the jurisdiction of a State court, but falls within the Federal jurisdiction, under the Constitution of the United States, and must be enforced in an Ad- miralty Court. We do not think so. A contract to build a vessel is a contract to be performed on land, falling within ordinary com- mon law, and belongs to the State jurisdiction. It differs not from a contract to build a wagon or a railroad car, made between citizens of the same State, and cannot be drawn into the Federal courts because the vessel is intended to become a subject of mari- time law. Whatever question may arise as to those liens, which the Act of 1836 seeks to enforce against a finislied vessel after she has entered her appropriate element, certainly there can be none as to liens upon a vessel for work and materials entering into her construction before she has passed within the dominion of mari- time law. Some dicta and District Court decisions to the contrary were overruled in People's Ferry Co. v. Beers, 20 Howard, 393 ; Roach V. Chapman, 22 lb., 129." In Baizley v. Brig Odorilla, 22 W. N., 300 (1888), it was held that the admiralty did not oust the State jurisdiction of a libel for materials, work, etc., repairing, etc., the brig, although the hull was brought from Wilmington to Philadelphia for the purpose of completing the vessel. § 131. In cases where the practitioner proceeds under the law cited he will observe the following suggestions : (1) The parties who can file a libd are carpenters, blacksmiths, mastmakers, boat-builders, blockmakers, ropemakers, sailmakers, riggers, joiners, carvers, plumbers, painters, ship-chandlers, cop- persmiths, brass-founders, coopers, venders of sail-cloth, lumber- merchants, steam-engine boiler-makers, venders of copper-sheath- ing, and all manufacturers of iron. ATTACHMENTS. 107 A vender of copper-sheathing has no lien for "rings and bolts." Merchant v. Odo-nlla, 5 W. N., 288 (1878). (2) As to other matters: The ship or vessel must be built, re- paired, or fitted within this Commonwealth. The debt must be contracted by the master or owner for work done or materials found or provided in the building, repairing, fitting, furnishing, or equipping the ship or vessel. The lien is preferred to any other debt from the owner. It continues during the time intervening between the contracting of the debt and proceeding on the next voyage. The contractor for building the boat has no lien. Walker V. Anshutz, 6W.& S., 519. Where an intermediate agent — not owner and not master — con- tracts for work, etc., neither he nor his subordinates have a lien. Harper v. New Brig, Gilpin, 536. (3) The libel is to be filed in the office of the Common Pleas of the county wherein the cause of action shall arise, or where the ship may be found. All claimants may join in the original libel, or become parties by petition. If there be more than one suit, the claims must be consolidated. In Odorilla v. Baizley, 47 Leg. Int., 83 (1889), it was decided that the recovery of a judgment by a sub-contractor against a con- tractor, in personam, for work and materials furnished toward the building of a vessel, does not prevent an attachment against the vessel, under the Act of 1836. § 132. A synopsis of the libel is given in the case cited from 75 Pa. St., 297. It should be somewhat in the following form : A. B., Libellant, The Schooner called the Eagle, her tackle, apparel, and furni- ture, whereof C. D. is owner and E. F. is master. In the Court of Common Pleas (No. 1) of Philadelphia County. I. A. B., of the city of Philadelphia, carpenter, files this his libel in a cause civil and of contract against the schooner called the Eagle, now within the county of Philadelphia, whereof C. D. is owner and E. F. is master. II. Libellant claims the sum of dollars, being a debt con- tracted by the said master (or owner) for work, to wit : carpenter work (or materials, describing them), done, found, and provided in the building (or repairing, fitting, furnishing or equipping, as the case may be) of the said schooner, the Eagle, in the county of Philadelphia and within this Common- wealth, 'on the following dates (setting out the dates). III. On said days the said A. B., the libellant, at the request of the said C. D., owner (or E. F., master), of the said schooner, the Eagle, did 108 PRACTICE IN PENNSYLVANIA. the said work (or furnished said materials) at (name the place) in the county and State aforesaid, for building (or repairing, etc.) the said schooner, the Eagle. rV. For this there'is still due to A. B., the libellant, the sum of dollars, according to a bill of particulars hereto annexed as part hereof. V. And libellant shows that the said schooner, Eagle, is now lying at (describe the place), in the county of Philadelphia, and that she has aot proceeded on a voyage since the said work (or materials) above mentioned was done (or were furnished). VI. Wherefore the said A. B., the libellant, prays for due process to en- force his rights, and that an attachment may issue against the said schooner, " The Eagle," her tackle, apparel, and furniture, and that the said C. D., owner, and E. F., master, of said schooner, be summoned to answer this libel, and that upon hearing the said schooner, " The Eagle," her tackle, apparel, and fiimiture, be condemned and sold to pay the amount so due to this libellant and costs. And libellant prays for such relief and redress as the court is competent to give in the premises. A. B., Libellant. G. H., Attorney pro Libellant. City and County of Philadelphia, is. A. B., the libellant above named, having been duly sworn according to law, doth depose and say that the facts set forth in the above libel are true and correct. A. B. Sworn to and subscribed before 1 me, 1887. J Interrogatories may be appended if desired. The bill of particu- lars must be attached, charging the vessel as Debtor to the Libel- lant, giving dates, work (or materials), and amounts. § 133. Present the libel to a judge and get him to fix the amount of bail, and to put his initials at the foot of the words : Allowed bail $ The bail fixed is generally twice the amount of the claim to cover interest and costs. But if the demand be very large, a small ex- cess will be sufficient. Write your praecipe thus : A. B., Libellant, The Schooner Eagle, her tackle, apparel, and furniture. C. D., owner, and E. F., master. Sir: Issue attachment, with clause of summons against C. D. and E. F. Bail $ , returnable see. leg. G. H., Attorney pro Libellant. To the Prothonotary of the Court 1887. of Common Pleas (No. 1), Phil- adelphia County. ATTACHMENTS. 109 § 134. The Act of 1836 directs that no attachment can be issued against any vessel actually held by process of a United States court, or sold by its order for any debt contracted previously to such sale. § 135. The writ should be given to the sheriff with instructions as to locality. He serves the persons named as in other cases. He takes the vessel, her tackle, etc., into his cnstody, and adver- tises notice thereof in one newspaper of the county once a week for six weeks, stating the name of the vessel, her port, her last commander, and that she will be sold for payment of debt con- tracted for (as case may be), unless owner, consignee, commander, or some one in their behalf, appear and pay, or otherwise obtain her discharge within threa months. The sheriff must also in the notice require all having claims to file them within three months or be debarred. § 136. If owner, master, or agent shall enter into bond to the Commonwealth, with sureties approved by a judge of the court issuing the writ conditioned to answer all demands then filed, and to satisfy such of them as shall be recovered, the vessel is dis- charged. The following is the form of the bond filed in ScuU v. Shakspear, supra : Know all men by these presents : That we, master and claimant of the schooner, Maggie Cain, principal, and all of the city of Philadelphia, sureties, are held and firmly bound unto the Commonwealth of Pennsylvania in the penal sum of $12,300 lawful money, to be paid to the said Commonwealth of Pennsylvania, to which payment, well and truly to be made, we and each of us do bind ourselves, our and each of our heirs, executors, and administrators, firmly by these presents. Sealed with our and each of our seals. Dated the tenth of February, A.D. one thousand eight hundred and seventy. The condition of this obligation is such, that whereas the ssfld schooner Maggie Cain has been attached and held under divers writs of attachment issued out of the District Court, for the City and County of Philadelphia, of December Term, 1869, No. 2095, at the suit of William A. Lever- ing, etc., upon libels and petitions severally filed by said parties in said court, under the provisions of the Act of Assembly of the said Common- wealth, approved the 13th day of June, A.D. one thousand eight hundred and thir^-six, entitled an " Act relating to the Attachment of Vessels," and its Supplements. Now know ye, that if the said schooner Maggie Cain and the masters and owners thereof shall answer all the demands aforesaid, which shall at this time be filed against the said schooner, and shall fully satisfy all such of said demands, and any of ^them as shall be proved and recovered against the said vessel, or the owners thereof, under and by virtue of the said fore- going attachment, then this obligation to be void, otherwise to be and re- main in full force and virtue. § 137. The Act of 1836 directs that further proceedings shall be according to the admiralty practice. The sheriff's return must set 110 PKACTICE IN PENNSYLVANIA. forth the time, place, and manner of service. (11 Additional Eules in Admiralty.) As the Rules in Admiralty are not generally printed in the Eule Books, such of them as apply to this subject are here inserted : Rule 10. In all cases where any goods or other things are arrested, if the same are perishable, or are liable to deterioration, decay, or injury, by being detained in custody pending the suit, the court may, upon the application of either party, in its discretion, order the same or so much thereof to be sold as shall be perishable or liable to depreciation, decay, or injury ; and the proceeds, or so much thereof as shall be a full security to satisfy in de- cree, to be brought into court to abide the event of the suit ; or the court may, upon the application of the claimant, order a delivery thereof to him, upon a due appraisement, to be had under its direction, either upon the claimant's depositing in court so much money as the court shall order, or upon his "giving a stipulation, with sureties, in such sum as the court shall direct, to abide by and pay the money awarded by the final decree ren- dered by the court, or the appellate court, if any appeal intervenes, as the one or the other course shall be ordered by the court. Kule 11. In like manner where any ship shall be arrested, the same may, upon the application of the claimant, be delivered to him, upon a due ap- praisement, to be had under the direction of the court, upon the claimant's depositing in court so 'much money as the court shall order, or upon his giving a stipulation, with sureties, as aforesaid ; and if the claimant shall decline any such application, then the court may, in its discretion, upon the application of either party, upon due cause shown, order a sale of such ship, and the proceeds thereof to be brought into court, or otherwise dis- posed of, as it may deem most for the benefit of all concerned. Eule 23. All libels in instance causes, civil or maritime, shall state the nature of the cause, as, for example, that it is a cause, civil and maritime, of contract or of tort or damage, or of salvage, or of possession, or other- wise, as the case may be ; and if the libel be in rem, that the property is within the district ; and, if in personam, the names and occupations and places of residence of the parties. The libel shall also propound and artic- ulate in distinct articles the various allegations of fact upon which the libellant relies in support of his suit, so that the defendant may be enabled to answer distinctly and separately the several matters contained in each article ; and it shall conclude with a prayer of due process to enforce his rights, in rem or in personam (as the case may require), and for such relief and redress as the court is competent to give in the premises. And the libellant may further require the defendant to answer on oath all interroga- tories propounded by him touching all and singular the allegations in the libel at the close or conclusion thereof. Eule 26. In suits in rem, the party claiming the property shall verify his claim on oath or solemn affirmation, stating that the claimant by whom or on whose behalf the claim is made is the true and bona fide owner and that no other person is the owner thereof. And where the claim is put in by an agent or consignee, he shall also make oath that he is duly authorized thereto by the owner ; or if the property be, at the time of the arrest, in the possession of the master of a ship, that he is the lawflil bailee thereof for the owner. And, upon putting in such claim, the claimant shall file a stipulation, with sureties, in such sum as the court shall direct, for the pay- ATTACHMENTS. Ill ment of all costs and expenses whicli shall be awarded against Mm by the final decree of the court, or, upon an appeal, by the appellate court. Rule 27. In all libels in causes of civil and maritime jurisdiction, whether in rem or in personam, the answer of the defendant to the allegations in the libel shall be on oath or solemn affirmation, and the answer shall be full and explicit and distinct to each separate article and separate allegation in the libel, in the same order as numbered in the libel, and shall also answer in like manner each interrogatory propounded at the close of the libel. Bule 28. The libellant may except to the sufficiency, or fulness, or dis- tinctness, or relevancy of the answer to the articles and interrogatories in the libel ; and if the court shall adjudge the same exceptions, or any of them, to be good and valid, the court shall order the defendant forthwith, within such time as the court shall direct, to answer the same, and may further order the defendant to pay such costs as the court shall adjudge reasonable. Rule 29. K the defendant shall omit or refuse to make due answer to the libel upon the return-day of the process, or other day assigned by the court, the court shall pronoimce him to be in contumacy and default ; and there- upon the libel shall be adjudged to be taken pro confesso against him, and the court shall proceed to hear the case ex parte, and adjudge therein as to law and justice shall appertain. But the court may, in its discretion, set aside the defeult and, upon the application of the defendant, admit him to make answer to the libel, at any time before the final hearing and decree, upon his payment of all the costs of the suit up to the time of granting leave therefor. Rule 30. In all cases where the defendant answers, but does not answer fully and explicitly and distinctly to all the matters in any article of the libel, and exception is taken thereto by the libellant, and the exception is allowed, the court may, by attachment, compel the defendant to make further answer thereto, or may direct the matter of the exception to be taken ^0 confesso against the defendant, to the full purport and efiiect of the article to which it purports to answer and as if no answer had been put in thereto. Rule 31. The defendant may object, by his answer, to answer any alle- gation or interrogatory contained in the libel, which will expose him to any prosecution or punishment for a crime, or for any penalty or any forfeiture of his property for any penal ofiense. Rule 32. The defendant shall have a right to require the personal answer of the libellant upon oath or solemn afiSrmation to any interrogatories which he may, at the close of his answer, propound to the libellant touch- ing any matters charged in the libel, or touching any matter of defense set up in the answer, subject to the like exception as to matters which shall expose the libellant to any prosecution, or punishment, or forfeiture, as is provided in the thirty-first rule. In default of due answer by the libellant to sucB interrogatories, the court may adjudge the libellant to be in de- feult, and dismiss the libel, or may compel his answer in the premises by attachment, or take the subject matter of the interrogatory ^o confesso in fevor of the defendant, as the court, in its discretion, shall deem most fit to promote public justice. Rule 33. Where either the libellant or the defendant is out of the country, or unable, from sickness or other casualty, to make an answer to any interrogatory on oath or solemn affirmation at the proper time, the court may, in its discretion, in furtherance of the due administration of jus- 112 PRACTICE IN PENNSYLVANIA. tice, dispense therewith, or may award a commission to take the answer of the defendant when and as soon as it may be practicable. Rule 34. If any third person shall intervene in any cause of admiralty and maritime jurisdiction in rem for his own interest, and he is entitled, ac- cording to the cause of admiralty proceedings, to be heard for his own in- terest therein, he shall propound the matter in suitable allegations, to which, if admitted by the court, the other party or parties in the suit may be required, by order of the court, to make due answer ; and such further proceedings shall be had and decree rendered by the court therein as to law and justice shall appertain. But every such intervenor shall be re- quired, upon filing his allegations, to give a stipulation, with sureties, to abide by the final decree rendered in the cause, and to pay all such costs and expenses and damages as shall be awarded by the court upon the final decree, whether it is rendered in the original or appellate court. Rule 39. If, in any admiralty suit, the libellant shall not appear and prosecute his suit, according to the course and orders of the court, he shall be deemed in default and contumacy ; and the court may, upon the applica- tion of the defendant, pronounce the suit to be deserted, and the same may be dismissed with costs. Rule 40. The court may, in its discretion, upon the motion of the defen- dant and the payment of costs, rescind the decree in any suit in which, on account of his contumacy and default, the matter of the libel shall have been decreed against him, and grant a rehearing thereof at any time within ten days after the decree has been entered, the defendant submitting to such further orders and terms in the premises as the court may direct. Rule 51. When the defendant, in his answer, alleges new facts, these shall be considered as denied by the libellant, and no replication, general or special, shall be allowed. But within such time after the answer is filed as shall be fixed by the District Court, either by general rule or by special order, the libellant may amend his libel so as to confess and avoid, or explain, or add to, the new matters set forth in the answer ; and within such time as may be fixed, in like manner, the defendant shall answer such amendments. § 138. From these rules it will be observed that sales may be ordered of the property attached as perishable. The defendant should appear and file a full answer. The plaintiff files no repli- cation. Under the Pennsylvania Act, questions of fact must be tried by a jury and the suit proceeds as to motions for a new trial, Bill of Exceptions, etc., as in other cases. The matters of decrees by default, of exceptions to answers for insufficiency, release of the vessel, and other points, are fully explained in the rules quoted. The Pennsylvania statute gives the form of the final process. (Act June 13, 1836, section 15.) If the proceeds of sale are not sufficient to pay all liens, distribution is made pro rata among all claims filed previously to the decree of sale. § 139. In ShaJcspear v. The Maggie Cain, 3 "W. N., 167 (1876) the vessel had been released from the attachment after the giving of the bond (above referred to), under section 11 of the Act. The ATTACHMENTS. 113 libellant obtained a verdict upon which the court entered judgment that he should recover of the said respondents and of Scull, who had intervened as part owner, and his sureties. After affirmance of his judgment, the plaintiff levied aji.fa. upon the personal prop- erty of Scull, including the vessel, which had returned to port. A rule was taken to set aside the judgment and execution, upon the ground that the bond filed was substituted for the vessel, and that plaintiff should have proceeded by suit on the bond, and not by^. fa. against the property of Scull. The court (Peirce, J.) decided that whilst an action on the bond could have been maintained, and would, perhaps, have been the better mode, yet the judgment and execution were regular. In the case of Cain'v. Shakspear, 3 W. N., 514 (1877), it was held that " the filing of the bond was an absolute release of the vessel." (Opinion by Biddle, J.) This judgment was affirmed by the Supreme Court. Shakspear v. Gain, 5 W. N., 392 (1878). This would seem to set that question at rest, and the principle is fully sustained by the authorities cited by Messrs. C. M. Husbands and Henry Flanders, 3 W. N., 515. § 140. The Act of April 20, 1858 (P. L., 363), introduces special provisions as to steamboats and vessels navigating the rivers Alle- gheny, Monongahela, and Ohio in this State. It declares that such vessels shall be subject to a lien : I. For wages to employls on board. II. For all debts contracted by the owner, agent, consignee, master, clerk of such, vessels for and on account of work done or materials furnished by boat-builders, engine-builders, boilermakers, lumbermen, boat, store, and provision fiimishers, carpenters, blacksmiths, mastmakers, blockmakers, ropemakers, sailmakers, chairmakers, fiimituremakers, and venders, riggers, joiners, carvers, plumbers, painters, upholsterers, ship-chandlers, copper- smiths, brass-founders, coopers, and venders of sail-cloth and canvas in the building, repairing, fitting, furnishing, or equipping such ships, steam or other boats or vessels of whatsoever kind, character, or description as here- inbefore specified and enumerated. III. For all bills, bonds, notes, bills of exchange, or all or any other ac- knowledgment or obligation of indebtedness for and on account of such ships, steam or other boats or vessels as hereinbefore specified and enumer- ated, signed and given, or purporting to be signed and given, in the name or for or on account of such ships, steam or other boats or vessels, and owned by any owner or owners, agent, consignee, master, clerk, or clerks of the same, to any of the classes above enumerated, whether the same be signed and given on account of work or labor done, or materials furnished in the building, repairing, fitting, furnishing, equipping, or insuring such ships, steam or other boats or vessels as hereinbefore specified and enumer- ated : Provided, That the lien of the same shall continue in favor and to the benefit of all and every party or parties whomsoever, into whose hands the same may have passed by transfer, assignment, or otherwise. VOL. I. — 8 114 PEACTICE IN PBIfNSYLVANIA. IV. For all sums due for wharfage or anchorage of any such ships, steam or other boats or vessels of whateoever kind, character, or description as hereinbefore specified and enumerated. V. For all demands or damages accruing from the non-performance or mal-performance of any contract of aflfreightment, or of any other contract entered into by the owner or owners, agent, consignee, clerk, or clerks of any such ships, steam or other boats or vessels as hereinbefore specified and enumerated, touching the transportation of person or property, or for all damages or for injuries done to the same, in apj way or manner by such ships, steam or other boats or vessels as hereinbefore specified and enumer- ated. § 141. The Act gives these claims priority in the order above enumerated ; the liens to have precedence of all other claims, pro- vided that no priority shall obtain between the parties specified in the second class other than as the same shall exist by operation of law. § 142. The Uen for wages is limited to three months' wages. Suit must be brought within sixty days after the wages shall have become due. The suits for claims other than the first class must be commenced within two years after the last item, or the vessel is discharged. The taking of a note or other writing in settlement does not invalidate the lien, provided the time for which the same be given be within the time allowed for the lien. The proceedings under this Act (of 1858) are the same as pre- scribed by the Act of June 13, 1836, already sketched. § 143. Attachment against convicts. The seventy-eighth section of the Act of June 13, 1836 (P. L., 568), provides for a writ of attachment against convicts. It is in these words : A writ of attachment, in the form aforesaid, may be issued against a per- son under sentence of imprisonment, upon conviction of a crime by a court of competent jurisdiction, and such attachment may be dissolved in the manner hereinbefore provided in the case of a foreign corporation, and not otherwise ; but if, in such case, the term of imprisonment of the defendant shall elapse, or if he shall be otherwise legally discharged therefrom before the money shall be paid, it shall be lawful for him to put in and perfect special bail to the plaintiff's action, and thereupon the security which may have been given by him in lieu of bail shall cease and become void, and any deposit which may have been made as aforesaid shall be restored to him. § 144. The " form aforesaid " referred to in this section is the form of foreign attachment already given under that head. It is, therefore, unnecessary to do more here than to refer to the practice under that writ as modified by this section of the law. CHAPTER V. THE COMMENCEMENT AND PROSECUTION OP ACTIONS FOR THE RECOVERY OF GROUND-RENTS. § 145. Special Proceedings. All that has been written as to assumpsits applies to actions on ground-rent deeds, but the peculi- arity of some of the proc§edings under this head would seem to re- quire notice. If covenantor solvent. Where the covenantor is alive and it is expected that an execution against his personalty will be sufficient, the proceedings already sketched will suffice. The same remark applies if the present owner have personal property and the claim be for rent accrued during his ownership. § 146. If covenantor dead. In most cases it happens that the original covenantor is dead, the present owner of the land may be unknown, or the object may be to pass a title. If for these or other reasons a sale of the premises liable to the rent is contem- plated, the proceedings in ordinary assumpsit would not apply. § 147. Action of covenant abolished only as to name. The Act of May 25, 1887 (P. L., 271), expressly declares " That so far as re- lates to procedure * * * all demands heretofore recoverable in debt, assumpsit, or covenant shall hereafter be sued for and re- covered in one form of action, to be called an action of assumpsit." The summons must not, therefore, be, as heretofore, in covenant, but in assumpsit. This does not repeal the various Acts regulating proceedings on ground-rent deeds : April 8, 1840 (P. L., 240), April 25, 1850 (P. L., 571), April 8, 1857 (P. L., 175), etc. The concluding section of the Act of 1887 declares " that as to the action herein recited, it applies to the procedure only, and the legal rights, of the party are not in any way to be affected thereby." Assuming then that the old remedies remain under a changed name, we may consider the practical method of collecting arrears of ground- rent. § 148. Ejectment will not lie, except "where a right of re-entry is expressly reserved by the parties ; and clauses to this effect are common." Sergeant, J., in Xenege v. Elliott, 9 "Watts, 262 (1840). In Keating v. Williams, 5 "Watts, 382 (1836), a right to re-enter was set up ; but it was under a clause which simply 116 PEACTICE IN PENNSYLVANIA. authorized the landlord to hold the property until the arrears were paid by rents he might receive. His claim to continue in posses- sion was disallowed because " the entry was not to revest the fee, he was only to hold until paid his arrears, and then he was to ten- der the possession and an account. He had tendered no account. There was no proof that two years' rent were in arrear when he en- tered :" opinion of Huston, J. (p. 385). From these citations we may conclude that ejectment, even in cases where the deed authorized re-entry, would not be a favorite remedy. I never knew it resorted to but once, and then the plain- tiff was defeated because he proved no demand upon the day the rent fell due. You will observe the terms of the deed. If there be no clause of re-entry, that ends this question. If you have the power desired, then you will probably decide not to enforce it. Should you, however, conclude to re-enter, observe the following directions : Prepare a formal demand in writing for payment of the exact rent. Let your client go to the premises on the day the rent is due with the deed and tw6 witnesses. He must demand payment. If not paid, he reads the clause of re-entry and declares that under it he takes possession. He must be careful to do all this before sunset. It has been recommended to repeat the demand and the reading three times, and if the lot be vacant, the ringing of a bell when the demand is made has been also suggested. After all this, a record of the transaction must be made and formally wit- nessed. Nothing is to be gained by this trouble, for a sheriff's sale has many advantages. § 149. Distress witl lie for ground-rent in arrears. " A ground- rent reserved upon a conveyance in fee is, in Pennsylvania, a rent service, and to all rent services the right of distress is incident of common right. The assignee of such right has the same right of distress, there being no reversion in the assignor capable of being retained by him so as to affect the right of distress by the assignee." Sergeant, J., Kenege v. Elliott, 9 Watts, 262 (1840). The same principle was affirmed in WaMace v. Harmstead, 44 Pa. St., 492 (1863). In this case Mrs. Wallace lost hope of recovering, as her claim was defeated by an alteration made in the original ground- rent deeds before her purchase of the ground-rents. It is to be regretted that the able argument in that case of E. Spencer Miller, Esq., was not reported. In the learned opinion of Mr. Justice Woodward, we find a treatise upon the subject of ground-rents and feudal and allodial tenures. The following form may be used for the warrant of distress : GROUND-RENTS. 117 Philadelphia, 18— Mr. (here state name of the debtor.) To (name of the owner of the ground-rent), Dr. (Date.) To six months' ground-rent due on the premises (short descrip- tion), $ (Date.) To six months' ground-rent due on the premises (short descrip- tion), $ . (Give date for each installment.) To , Constable. Whereas (name of the debtor) is now indebted to me in the above sum for ground-rent due on the premises situ- ate , you are hereby authorized and empowered to collect the above bill of ground-rent, by distraining the goods and chattels of the said (debtor), or of any person or persons lying and being upon said prem- ises, according to the Act of Assembly in such case made and provided ; and to proceed to sell the same according to law, for the best price that can be obtained for the same, returning the overplus, if any, to the said (debtor), after paying the said rent and all legal costs and charges for such distress. Witness my hand and seal this day of one thousand eight hundred and (Signature of ground-rent landlord.) [l. s.] Under this warrant the officer makes his distress by going to the premises and demanding the rent ; and, if not paid, he makes beneath his warrant the following entry : By virtue of the above warrant, I do levy on the following goods, being on the above-described premises, to wit : Together with all and singular the goods and chattels on the premises sufficient to pay the rent and costs. , Constable. City of Philadelphia, 18— The officer then fills up a blank like the following, and leaves it on the premises, if possible, with the debtor : verms . By virtue of a Landlord's war- rant to me directed and dated day of 18 , for the sum of dollars, I do hereby levy on the following goods, being on the premises therein described. Debt, $ Costs, $ To wit : . Together with all and singular the goods and chattels on the premises sufficient to pay the rent and costs. Constable. To Take notice that by authority and on behalf of your ground-rent land- lord, I have this day distrained the several goods and chattels specified in the above schedule, on the premises situate No. Street, in the City of Philadelphia, for the sum of dollars, ground-rent due to him as aforesaid, and that if you do not pay the said ground-rent or replevy the same goods and chattels according to law, within five days hereafter, I shall, after the expiration of said five days from the date hereof, cause the said goods and chattels to be appraised and sold ac- cording to the Act of Assembly in such cases made and provided. Given under my hand the day of 18 . Consta.ble of Ward of said city. Office hours. Office, 118 PRACTICE IN PENNSYLVANIA. § 150. Exemption. The Act of April 9, 1849 (P. L., 533), ex- empts from distress goods of the debtor to the value of three hun- dred dollars, wearing apparel of himself and family, and all Bibles and school-books in use. Besides these, are also exempted sewing- machines in use and not kept for hire or sale (Act March 4, 1870, P. L., 35), pianos, melodeons, and organs rented to the tenant, of which the landlord has received notice (Act May 18, 1876, P. L., 171), goods of a deceased tenant, Mield^s Admr. v. Miles, 1 Grant, 350 (1856), things in the custody of the law, Pierce v. Scott, 4 W. & S., 344 (1842), and things left with the debtor in the way of trade, such as the goods of a boarder at a boarding-house, Karnes V. McKinney, 74 Pa. St., 396 (1873). The goods of a stranger in the possession of the tenant not necessary for the latter's business are not exempt. Page v. Middleton, 118 Pa. St., 546 (1888) ; see also Chapter XLIV. Ground-rent deeds generally waive the exemption. But care should be taken to observe the exemption unless so waived. If not waived, the debtor has the right, under the second section of the Act cited, to request the officer to " summon three disinterested and competent persons, who shall be sworn or affirmed to appraise the property which the said debtor may elect to retain * * * and property thus chosen and appraised to the value of $300 shall be exempt." § 151. Proceedings upon distress. The old Act of March 21, 1772, section 1 (1 Smith, 870), regulates proceedings upon distress. It is in these words : " When any goods or chattels shall be distrained for any rent reserved and due, upon any demise, lease, or contract whatsoever, and the tenant or owner of the goods so distrained shall not, within five days next after such distress taken, and notice thereof, with the cause of such taking, left at the mansion house or other most notorious place on the premises charged with the rent distrained for, replevy the same with sufficient security to be given to the sheriff, according to law ; then and in such case, after such distress and notice as aforesaid, and expiration of the said five days, the person dis- training shall and may, with the sheriff, under-sheriff, or any constable in the city or county where such distress shall be taken (who are hereby re- quired to be aiding and assisting therein), cause the goods and chattels so distrained, to be appraised by two reputable freeholders, who shall have and receive for their trouble the sum of two shillings per diem each, and shall first take the following oath or affirmation : /, A. B., will well and truly, according to the best of my understanding, appraise the goods and chattels of G D , distrained on for rent by E. F.; which oath or affirmation such sheriff, under-sheriff, or constable are hereby empowered and required to administer ; and after such appraisement shall or may, after six days' public notice, lawfully sell the goods and chattels so distrained, for the best price that can be gotten for the same, for and toward satisfaction of GROTJND-EENTS. 119 the rent for which the said goods and chattels shall be distrained, and of the charges of such distress, appraisement, and sale, leaving the overplus, if any, in the hands of the said sheriff, under-sheriff, or constable, for the owner's use." This Act points out a very simple course. It will be noted that the aid of an officer is required in the appraisement. For this rea- son the distress may as well be by a constable, although the land- lord or his agent can seize the goods. If no replevin be issued, the distress proceeds through appraisement and advertisement to sale, which is, of course, the conclusion of this remedy. To render a distress complete, a seizure of the property distrained must be made, or the landlord must give notice of his claim for rent, and declare that certain goods, naming them, shall not be re- moved. Furbush v. Chappell, 105 Pa. St., 187 (1884). A party may abandon a distress for arrears of rent and bring covenant. Hmvell v. Bateson, 9 W. N., 463 (1881). He who sets up a claim to goods through sale on distress must prove affirmatively that all the statutory requirements of such sale have been complied with. Murphy v. Chase, 103 Pa. St., 260 (1883). While the Act of 1772 requires six days' public notice of sale of goods distrained, yet, if good reason be offered for a reasonable adjournment or postponement, the statutory provision is not trans- gressed. Holland v. Townsend, 48 Leg. Int., 6 (1890). Under the Act of 1772, notice of distress is valid if served the day the distress is made. Whitton v. MUligan, 32 W. N., 31 (1893). Under the Act of 1772, the appraisement and notice of sale may be made on the same day. Id. § 152. Replevin by tenant. The tenant may replevy the goods distrained. As this may be regarded as a defense, the proceedings in that direction might be reserved to the portion of this work which treats of Defenses. The tenant, however, being at the out- set a plaintiff, it may best preserve the continuity of the subject to introduce here the proceeding by replevin. The writ of replevin is frequently used to test the title to per- sonal property. It may also be invoked by a tenant against an unjust distress. The form of the praecipe is different when a tenant is the plaintiff. It may be worded thus : 120 PRACTICE IN PENNSYLVANIA. A. B. V. C. D. (landlord) and E. F. (constable). To the Prothonotary of the Court of Common Pleas of County. SiE : Issue replevin for the following : (here describe the gooods distrained on). Value of goods $ " Amount of rent claimed $ Eeturnable sec. leg. G. H., Plaintiff's Attorney. • (Date.) The form of the writ is worthy of notice. It reads : County of PhUadelpMa, ss. The Commonwealth of Peimsylvania, To the Sheriff of the County of Philadelphia, Greeting. If , plaintiff, make you secure of prosecuting claim with effect against , defendant, then We Commaud YoTj, that you cause the following-described goods and chattels, to wit : to be replevied and delivered to the said plaintiff and that you put the said defendant by sureties and safe pledges, so that be and appear before our judges, at Phila- delphia, at our Court of Common Pleas, No. , of the County of Philadel- phia, there to be held the first Monday of next, to answer the said plaintiff of a plea, wherefore the said defendant took the goods and chattels aforesaid, the property of the said plaintiff, and the same unjustly detain against sureties and safe pledges, etc. And have you then there this writ. Witness the Honorable , President Judge of our said Court, at Philadelphia, the day of , in the year of our Lord one thousand eight hundred and eighty- Prothonotary. § 153. RepleTin bond required. It will be noted that the writ commands the replevying of the goods if the plairdif make the sheriff "secure of prosecuting the claim toith ^ed." The propriety of this is obvious, for if a plaintiff could grasp goods under a re- plevin by simply purchasing a writ, men would soon be spoiled of their movable property. Hence the Act of March 21, 1772, section 11, requires a bond from the plaintiff, and " one responsible person as surety in double the value of the goods distrained," etc. As the sheriff was ultimately responsible for the sufficiency of this bond, his liability was invoked as the excuse for heavy fees. The law was in part altered, so far as Allegheny Couuty is concerned, by the Act of May 19, 1871 (P. L., 986), which provided that in Allegheny County the sureties QBOUND-KENTS. 121 may be justified before the prothonotary, and the sheriff thereby relieved from responsibility. The Act of April 10, 1873 (P. L., 776), contains a like provision for Philadelphia, except that the justification must be before a judge. Both these Acts direct that the justification shall be certified by the prothonotary to the sheriff, and the bond " shall become the property of the successful party in the suit without recourse to the sheriff who may have executed said process or received said bond as indemnity." Notwithstanding these Acts and the Interpleader Statute, the fees are constantly overcharged in the sheriff's office, and the members of the bar should unite to apply the remedy to a mischief which discourages honest litigation and emboldens extortion. Justification of surety. .The rules of court in Philadelphia direct that where a surety is required to be approved by a judge or the pro- thonotary, the party presenting such surety shall, forty-eight hours before the application, give notice in writing to the opposite party, stating the name of the proposed surety, his residence, occupation, and the property he owns. He shall present to the judge or pro- thonotary an affidavit signed and sworn to by the surety upon a blank to be furnished by the prothonotary in the following form : V. Court of Common Pleas No. Term, 18 . No. . Surety for . Amount $ being about to become surety in the above-entitled case, and being duly according to law, deposes and says. 1st. I reside at , and my occupation is . 2d. I am the owner of real estate in the County of Philadelphia, as follows : 3d. The value of the said real estate is , and the rent . It is assessed for the purpose of taxation at the value of , and is so assessed in my name. 4th. There are incumbrances against the said real estate, as follows : , and there is no other judgment binding the said land, or mortgage, ground-rent, or other incumbrance of any kind, except those above named. 5th. The title to the said real estate is in my own name, and the same is not subject to any trust. 6th. I obtained the said real estate in by from , and my deed therefor is recorded. 7th. There are judgments against me. 8th. I am not surety in any other case, or for any public officer. (Signature of surety.) Subscribed and before me, , 188 , , Prothonotary. Notice of application for approval of this surety was given to the by writing on the day of , 188 . , Attorney for The above-named deponent is approved as surety in the above case. , Judge. If the tenant should insert in the prceoipe a value below the real value of the goods, the landlord should at once notify the sheriff not to execute the writ and give the sheriff an affidavit of the facts ; if need be, the landlord should present an affidavit to the court and 122 PRACTICE IN PENNSYLVANIA. ask for an order that the plaintiff give bond as required by the statute " in double the value of the goods distrained." • § 154. Form of replevin bond — suit on bond. It may be well to note the conditions of a replevin bond. You may have to explain its provisions to the surety. It is generally in this form : Kifow ALL Men bt these Pkesents, That we (sureties) are held and firmly bound unto , Esq., Sheriff of the City and County of Philadelphia, in the just and full sum of dollars, lawful money of Pennsylvania, to be paid to the said , Esq., his certain attorney, executors, administrators, or assigns ; to which payment, well and truly to be made and done, we do bind ourselves and each of us, our heirs, execu- tors, and administrators, and every of them, jointly and severally, firmly by these presents. Sealed with our seals, dated this day of , in the year of our Lord one thousand eight hundred and eighty- The condition of this obligation is such that whereas the above-bounden (hereinafter called plaintiff) having obtained a certain writ of re-, plevin, issued out of the Court of Common Pleas, No. , for the City and County of Philadelphia, as of Term, 18 , No. , tested at Philadelphia the day of , against a certain (hereinafter called de- fendant), of the county aforesaid , commanding the said sheriff that he should replevy and cause to be delivered to the said, plaintiff Now, if the above-bounden plaintiff shall and will prosecute his suit against the said defendant with effect, and shall and will make return of the goods, if return of the same shall be adjudged, and shall and will also, from time to time and at all times hereafter, well and suf5- ciently keep and save harmless and indemnify the above-named sheriff and his officers, and his or their heirs, executors, and administrators, and every of them, of and from all manner of suits, action and actions, cost and charges whatsoever that shall and may accrue to him, or them, by reason of the replevy and delivery aforesaid, that then the above obligation to be void and of none effect, otherwise to be and remain in full force and virtue. Sealed and delivered in the presence of us : [l. s.] 1>. s.] [L. S.] Ll. S.] When the plaintiff in replevin is defeated, the defendant is en- titled to an assignment of this bond in order to sue it out. The Assignment is generally made in this form : For a valuable consideration I, , sheriff, etc., the obligee within named, do hereby assign, transfer, and set over the within bond or obligation, and all benefit and advantages to be derived therefrom, to , executors, administrators, and assigns. Witness my hand and seal this day of , A.D. 188 . Sealed and delivered in the presence of us : [l. g.] If the action be not prosecuted with effect, the plaintiff may sue out the replevin bond, and to support the action it is not essen- GROUND-RENTS. 123 tial that damages shall have been assessed or judgment de retomo habendo entered. Bank v. Hall, 107 Pa. St., 583 (1884). If an action be brought on a replevin bond, the statement should set forth the nature and extent of plaintiff's demand with clearness and certainty. It should show the character of the judgment, and the failure of the obligor to comply with its terms. MoQary v. Barr, 47 Leg. Int., 214 (1890). § 155. Claim property bond — ^form. A defendant in replevin may claim property in the chattels, and if he see fit to do so he is at liberty to give a claim property bond and keep possession of the goods. This bond is generally in the following form : Know all Men by these Presents, That we, (sureties), hereinafter called obligors, &re held and firmly bound unto , Esquire, Sheriff of the City and County of Philadelphia, in the just and full sum of dollars, lawM money of Pennsylvania, to be paid to the said , Esquire, his certain attorney, executors, adminis- trators, or assigns ; to which payment well and truly to be made and done, we do bind ourselves and each of us, our heirs, executors, and administra- tors, and every of them, jointly and severally, firmly by these presents. Sealed with our seals, dated this day of , in the year of our Lord one thousand eight hundred and . The condition of this obligation is such that whereas (hereinafter called plaintiff) having obtained a certain writ of replevin, issued out of the Court of Common Pleas, No. , for the City and County of Philadelphia, Term, 18 , No. , tested at Philadelphia the day of , against (hereinafter called defendant), of the county aforesaid, com- manding the said sheriff that he should replevy and cause to be delivered to said plaintiff , and whereas the said defendant has claimed property in the said goods and chattels, whereof delivery of the same cannot be made to the said plaintiff. Now, if the above bounden defendant shall and do well and truly deliver up the said goods and chattels to the said plaintiff, if the property thereof shall be adjudged in the said plaintiff, and shall and do well and truly abide by the judgment of the said court in all things relating to the premises, and if the said obligors shall also save and keep harmless and indemnify the said sheriff in the premises, then this obligation to be void and of none effect, otherwise to be and remain in full force and virtue. Sealed and delivered in the presence of us : [l. s.] [L. S.] [L. 8.] [L.8.1 When the defendant has final judgment against him, the plaintiff is entitled to have from the sheriff an assignment of this bond, which is made in the form above prescribed for assignment of the replevin bond to the defendant. § 156. Directions to sheriff— entering a replevin bond. Pre- suming that the tenant had obtained the writ and secured the jus- 124 PRACTICE IN PENNSYLVANIA. tification of the surety, the tenant takes from the prothonotary a certificate of the justification and delivers the papers to the sheriff, with directions where to find the goods and where to serve the de- fendants. Then the replevin bond is signed. Landlord not to give property bond. In cases of rent, the land- lord distraining should not give a property bond, for he does not claim to be the owner of the goods. The sheriff delivers the goods to the plaintiff in replevin, and the distress is at an end. How landlord proceeds after replemn. It then becomes the in- terest of the defendant (the landlord) to speed the suit. This he does by entering an appearance and by ruling the plaintiff to de- clare as follows : ^- I C. P. No. 1, of Philadelphia County. 3 J Term, 18 , No. . To the Prothonotary of said Court : 8iE : Enter a rule on the plaintiff in the above case to declare in fifteen days, or judgment sec. reg. C. D., Attorney pro Defendant. (Date.) This being filed, the plaiutiiFs attorney should be served with the following notice : A 1 „■ I Common Pleas, No. 1, Philadelphia County. b' I Term, 18 , No. . To , Esq., Attorney pro plaintiff. Sir : Please take notice of a rule this day entered on the plaintiff to de- clare in fifteen days, or judgment sec. reg. Very respectfiilly yours, CD., Attorney for Defendant. (Date.) Keep a copy of this and of all notices, and note the time and manner of service. Observe your rules of court as to the time for declaring, etc. If the plaintiff should not file his narr. at the expiration of the fifteen days or prescribed time, write to his attorney, reminding him of the default. § 167, Practice in replevin. Should you be unable to get the narr., you are at liberty, after the expiration of the time, to sign judgment, thus : A 1 • ( Common Pleas, No. 1, of Philadelphia County. B." j Term, 18 , No. GE0UND-EENT8. 125 (Here copy the notice, as served on the plaintiff's attorney, signa- ture and all.) At foot, write : haying been duly sworn according to law doth depose and say that on the day of , A.D. 18 , he served the original notice, whereof the above is a true and correct copy, on E. F., Esq., the plaintiff's attor- ney, personally (or by leaving the same with an adult in charge of his office). (Signature of the deponent.) Sworn to and subscribed before me. (Date.) (Signature of Prothonotary.) Indorse this paper. No. , Term , Year Name of parties. Affidavit of service on plaintiff's attorney of notice of rule to declare and order for judgment. Write beneath this, To the Prothonotary of the Court of Common Pleas. SiK : Enter judgment of non proa, against the plaintiff in the above case for want of a narr. sec. reg. CD., Defendant's Attorney. (Date.) Upon receipt of this affidavit and order the prothonotary, find- ing that no narr. has been filed, in obedience to the rule to declare, files ypur paper and enters judgment. You then get from the prothonotary a mem. of all the costs. You are entitled to the statutory attorney fee. Note this and all the costs, with your claim and interest, and send it to plaintiff's attorney, with request to pay, and stating that if not paid you will proceed. He will probably go into court, say he was sick, or fish- ing, or making campaign speeches, and get the non pros, taken off. If he fail, and you are not paid, you can sue out the replevin bond. If he succeed, the plaintiff must file at once his narr. The form of narr. is generally as follows : In the Court of Common Pleas of the County of , Term, 18 ,No. . County, ««. Whereas A. B. has been attached to answer C. D. of a plea, wherefore he took the goods and chattels of the said C. D. and unjustly detained the same against gages and pledges, until, etc., and thereupon the said by attorney, complains that the said heretofore, to wit, on the day of , in the year of our Lord one thousand eight hundred and , at the county aforesaid, took the goods and • 126 PEACTICE IN PENNSYLVANIA. chattels of tie said , to wit : of the vaSie of dollars, and unjustly detained the same against gages and pledges, until, etc. Wherefore, the said says that he has been injured, and has sustained damages to the value of dollars, and therefore he brings suit, etc. Pledges, etc. § 158. Avowry — form of avowry. As landlord, it is your in- terest to speed the case. Prepare, therefore, with dispatch your avowry. If your ground-rent landlord made the distress by the agency of a bailiff, you prepare an avowry and cognizance. The meaning and form of these papers are given in Chitty's Pleadings and other works. Substantially, the bailiff acknowledges that he took the goods described in the narr., as the bailiff, of the other defendant, upon a distress for rent due to the landlord, who files in his avowry an avowal that he distrained for rent due and in arrear. Where the claim is for ground-rent, the original deed should be set out by reference to its date and place of record ; trace the title to avowant ; charge the amount due, etc. This avowry you will perceive is a declaration, and generally should contain all the essen- tials of a narr. for rent. The following form, generally used in the ordinary cases between landlord and tenant, may, with the directions above given, assist you here : (Name of tenant) v. (name of your client) landlord, and (name of your constable) Bailiff. In the Court of Common Pleas, No. , for the County of Philadelphia, of Term, 18 , No. And the said (defendants) by A. B., their attorney, come and defend the wrong and injury, when, etc., and the said (name of landlord) in Ms own right well avows and the said (name of constable) as bailiff of the said (land- lord) well acknowledges the taking of the said goods and chattels in the declaration mentioned, in the dwelling-house in which they were contained, at the time of the taking as aforesaid, and that they had a right to, and did justly take the same, because they say that the said plaintiff for a long time, to wit, for the space of one year (or as the case may be) next before and ending on a certain day, to wit, the first day of January, A.D. 1886, and from thence until, and at the said time when, etc., held and enjoyed the said dwelling-house in which the said goods and chattels were contained with the appurtenances, as tenant thereof under the said defendant (land- lord) by virtue of a certain ground-rent deed dated , recorded at the proper office in Philadelphia, on in , wherein C. conveyed to D. the premises , reserving thereout a certain yearly ground-rent of $ , and the said D. for himself, his heirs, executors, administrators, and assigns, covenanted to pay to said C, his heirs and assigns, the said yearly ground-rent, and being so seised of said premises, subject to said ground-rent, D. on the day of , by deed recorded the day of in the said office conveyed said premises, subject to said GEOUND-EENTS. 127 ground-rent, to E., and being so seised of said premises subject to sa ground-rent, E. (here trace the title to the land subject to ground-rent doi to the plaintiff in replevin). And the said C, by whom the ground-rent was originally reserved as aforesaid by deed dated , recorded in said office on in conveyed said ground-rent to F. and his heirs and assigns, and said F., being so theowner of said ground- rent, by deed dated , recorded in said office on in conveyed said ground-rent to G., his heirs and assigns (here trace the title of the ground-rent to your client, the avowant). And because the sum of , the ground-rent aforesaid for the space of ending on the (here state the dates and amounts) and from thence until, and at the time when, etc., was due and in arrear irom the said plaintiff to the said (name of landlord) the said (landlord) well avows and the said (bailiff) well ac- knowledges the taking of the said goods and chattels in the said dwelling- house, in which they then were, and that they justly took the same as, for, and in the name'of a distress for the said ground-rent, so due and in arrear to the said defendant (landlord) as aforesaid, and which still remains due and unpaid, and this they, the said defendants, are ready to verify, where- fore they pray judgment, and a return of the said goods and chattels together with their costs and charges by them about their defense in this behalf expended according to law in such case made and provided, to be adjudged to them. A. B., Attorney for Defendants. § 159. Rule to plead — assessment of damages on default. When this is filed, the avowant becomes plaintiff and actor. He should at once enter a rule on the plaintiff to plead, following the form above given for the rule to declare and entering judgment as already directed in case of default to file a narr., changing simply " declare " to " plead," and "judgment of nonpros." to " judgment for want of a plea." (See § 26.) Notify the enemy to pay your rent, interest, and costs. Here again you can sue out the bond, or if you so prefer you can assess your damages. Damages are assessed upon judgments by default by the pro- thonotary if there be anything upon the record to justify his action, as if a plaintiff have filed a copy of a note or a bond or a book account. In these proceedings upon ground-rent I see no reason why the prothonotary could not assess the damages, taking the avowry as his guide. You write an order to him : A. V. B. (Court, Term. No. .) To the Prothonotary. SiK : Assess the avowant's damages in the above case. CD., Avowant's Attorney. (Date.) 128 PRACTICE IN PENNSYLVANIA. The Prothonotary assesses the avowant's damages as follows : Amount of rent due upon ground-rent deed dated, Recorded as set forth in avowry . . . $ Interest (The Prothonotary signs here.) Upon this you issue fi. fa., thus: A. ) V. y Court, Term, and No. B. J To the Prothonotary. Sir : Issue fi.fa. against the above-named plaintiff, ret. sec. leg. Real debt, $ (Here state the total of your claim and the interest included in your as- sessment, and, as your judgment carries interest, you add). Interest from (the date of the judgment). $ E. F., Avowant's Attorney. (Date.) Give the writ to the sheriff, observing directions (§ 24). § 160. If the plaintif plead to yowr avowry, he will probably plead no rent in arrear, and payment. He may add non est fac- tum. These ought not to require a special replication. But a continuance has been granted because of a want of such a replica- tion ■ and because, as it was technically urged, the case was not at issue. Replioation. You had better, therefore, reply, A. ■». B. (Court Term. No .) 1. As to th§ pleas of the plaintiff, whereof said plaintiff hath put himself upon the country, the avowant doth the like. 2. To the plea of payment avowant replies non solvit and issue. E. F., Avowant's Attorney. (Date.) Indorse this, A. V. B. (Court, Term. No. .) Replication. You will, perhaps, observe that the plaintiff has not put himself upon the country. That is true so far as the letter goes. But the law, which allows lazy pleaders to file short pleas, excuses the omissions of commencements and conclusions. It is presumed that he has added to each issue-plea the words, " And of this the plaintiff puts himself upon the country." Your replication that GR0UND-EENT8, 129 you do the like is called a similiter, and puts the case at issue. The plea of payment, if written out at length, would conclude, " and this the said plaintiff is ready to verify." Your replication to it means he did not pay and that you take issue. § 161. If a special plea be fled, search in Ohitty's Pleadings, the Digest, and other works, to see how far it is exact in form, and whether you can safely demur. Do not adopt this course unless very sure of your point. The courts give a pleader every oppor- tunity to amend his slips and blunders, and you simply lose time and labor. It is better to reply, taking issue, if possible, and fol- lowing strictly the direqtions as to replications, lest you run into the jaws of a demurrer. § 162. j^ a demurrer be fled, prepare your paper-book sur de- murrer for the court. Let it contain a brief of the pleadings down to the demurrer, a copy of the plea or replication demurred to, the reasons assigned in the demurrer, your points and citations. See generally §§ 28, 29. Aim at clearness and singleness of point. Be sure always to sign your argument — to indorse the paper-book with names of parties — Court, Term, No. . Avowant's Paper-book sur Demurrer by to , and indorse your name for avowant. § 163. If the case be put at issue as to facts, order it at once on the trial-list. Watch each list as it appears. Do not let it be de- layed by omission of the clerk, and when for trial notify your client promptly, and prepare thoroughly for the jury. General direc- tions for this branch of your work will be given under the appro- priate head. If the foregoing sketch has fulfilled its object, it has instructed how to collect arrears of ground-rent by distress. § 164. Collection of arrears of ground-rent by suit was formerly by action of covenant or debt. The Act of April 26, 1850, section 8 (P. L., 671), allows cove- nant, although the premises be held by deed-poll or otherwise. The Act of April 8, 1840 (section 1, P. L,, 249), makes two re- turns of nihil equivalent to a service. The Act of April 8, 1867, § 2 (P. L., 175), allows judgment to be entered in Philadelphia as in cases of suits upon mortgages in that county. The Act of May 25, 1887 (ante, section 61), abolishes all distinctions between actions ex contractu and declares that : " All demands heretofore recoverable in debt, assumpsit, or covenant shall hereafter be sued for and recovered in one form of action to be called ' an action of assumpsit.' " VOL. I.— 9 } 130 PRACTICE IN PENNSYLVANIA. You will note that in Philadelphia a copy of the ground-rent deed and assignments need not be filed if all are recorded and yon properly refer to them. Bearing in mind all the statutes you will find compiled, You sue out the grownd-rerd claimed, by a prcBcipe in this form : A. (your client the present owner of the ground-rent. If he be origi- V. nal covenantee, you stop with his name). B. (the original covenantor). That you may the better understand your client's rights, and the directions which are given further on, I introduce here a synop- sis of a ground-rent deed. It begins in the usual form of a con- .veyance of land, and after the habendum the following covenants are introduced : Yielding and paying therefor and thereout, unto the said heirs and assigns, the yearly rent or sum of , lawful money of the United States of America, in yearly payments on the day of in every year hereafter, forever, without any deduction, deMca- tion, or abatement for any taxes, charges, or assessments whatsoever, to be assessed, as well on the said hereby granted lot as on the said yearly rent hereby and thereout reserved ; the first payment thereof to be made on the day of one thousand eight hundred and And on default of paying the said yearly rent on the day and time and in manner aforesaid, it shall and may be lawful for the said heirs and assigns, to enter into and upon the said hereby granted premises, or any part thereof, and into the buildings thereon to be erected, and to distrain for the said yearly rent so in arrear and unpaid, without any exemption whatsoever, any law to the contrary thereof in any wise notwithstanding, and to proceed with and sell such distrained goods and effects according to the usual course of distresses for rent charges. But if sufficient distress cannot be found upon the said hereby granted premises to satisfy the said yearly rent in arrear, and the charges of levying the same, then and in such case it shall and may be lawfol^for the said heirs and assigns, into and upon the said hereby granted lot and aU improvements wholly to re-enter, and the same to have again, repossess, and enjoy, as in their first and former estate and title in the same, and as though this inden- ture had never been made. And the said heirs, executors, adminis- trators, and assigns, do covenant, promis'e, and agree, to and with the •said heirs and assigns, by these presents, that he the said heirs and assigns, shall and wUl well and truly pay, or cause to be paid, to the said heirs and assigns, the aforesaid yearly rent or sum of lawful money aforesaid on the day and time hereinbefore mentioned and appointed for payment thereof, without any deduction, de- falcation, or abatement for any taxes, charges, or assessments whatsoever ; it being the express agreement of the said parties that the said heirs and assigns, shall pay all taxes whatsoever that shall hereafter be laid, levied, or assessed, by virtue of any laws whatever, as well on the said hereby granted lots and buildings thereon to be erected, as on the said yearly rent now charged thereon. Also, that he the said heirs'or assigns, shall and will within from the date hereof. GEOUND-EBNTS. 131 erect and build on the said hereby granted lot to secure the said yearly rent hereby reserved. And further, the said do hereby for heirs, executors, administrators, and as- signs, expressly waive, relinquish, and dispense unto the said heirs, executors, administrators, and assigns, all and every provisions and provision in the Act of Assembly of the Commonwealth of Pennsylvania, passed on the ninth day of April, A.D. 1849, entitled "An Act to exempt property to the value of three hundred dollars from levy and sale on execu- tion and distress for rent," so far as the same may exempt the said hereby granted lot and any part thereof, and any buildings or improvements to be erected or placed thereon, from levy and sale, by virtue of any writ of execution that may be issued upon any judgment that may be obtained or entered in any action for the recovery of the rent hereby reserved, or hereby covenanted to be paid, and of any arrears thereof, and of the costs of such action and execution ; alsj) any other Act of Assembly now or hereafter to be passed, authorizing any stay of execution upon any judgment imtil an appraisement of the property shall be made, or upon any other condition whatsoever ; so that it shall be lawful for the said heirs, execu- tors, administrators, or assigns, to proceed, by execution, to levy upon and sell the said hereby granted lot of ground, and every part thereof, with the buildings and improvements as aforesaid, in the same manner and to the same extent and to the same eflfect, to all intents and purposes, as if no such Act of Assembly had been passed : provided always, nevertheless, that if the said heirs or assigns, shall and do at any time pay or cause to be paid to the said heirs or assigns, the sum of lawful money as aforesaid, and the arrearages of the said yearly rent to the time of such payment, then the same shall forever thereafter cease and be extinguished, and the covenant for payment thereof shall be- come void ; and then he the said heirs or assigns, shall and will, at the proper costs and charges in the law of the said grantee heirs or assigns, seal and execute a sufficient release and discharge of the said yearly rent hereby reserved, to the said heirs and assigns, forever, anything hereinbefore contained to the contrary thereof notwith- standing. And the said heirs, executors, and administrators, do covenant, promise, and agree, to and with the said heirs and assigns, by these presents, that he the said heirs and assigns, paying the said yearly rent, or extinguishing the same, and ta^s, and per- forming the covenants and agreements aforesaid, shall and may at all times hereafter forever, freely, peaceably, and quietly have, hold, and enjoy, all and singular the premises hereby granted, with the appurtenances, and receive and take the rents and profits thereof, without any molestation, in- terruption, or eviction of heirs, or of any other person or persons whomsoever, lawfully claiming or to claim, by, from, or under them, or any of them, or by or with their, or any of their act, means, con- sent, or procurement. In witness whereof, the said parties to these pres- ents have hereunto interchangeably set their hands and seals the day and year first above written. Sealed and delivered in the presence of us : [Seal.] [Seal.] In most cases the original parties to the ground-rent deed have long since died, and the ground-rent has come to your client by purchase through many intermediate hands. 132 PRACTICE IN PENNSYLVANIA. § 165. If plavrdiff holds the groundr^enb at second or third hind, you entitle your praecipe thus : A. (the present holder), Assignee of B. (the party who sold to your client). Assignee of C. (the party who sold to B.), (and so through all the conveyances down to original covenantee). V. D. (the original covenantor). § 166. If one of the links of title be through a mil, you describe that holder as " devisee of," etc. To make this perfectly clear — if you sue out the original ground-rent — ^your client being the party who conveyed the land subject to the ground-rent, the praecipe is simply in his name as plaintiff against the original covenantor. You understand that covenantor in this connection means the man who took up the land on ground-rent, and who by the original deed covenanted to pay the rent. Covenantee means the seller of the land, to whom the rent is payable. If there be other names in the chain, each must be stated. § 167. If one of the links of yowr title be by allotment in parti- tion, and not by conveyance, the form of the praecipe must be varied to suit that fact. Supposing all of these complications to exist, the following may serve as your guide, adding or omitting as the case may require : A. (your client, present holder of the ground-rerd). Assignee of B. {the grantor of your client), who was assignee of C. (the grantor of B.), who was devisee under the last will and testa- ment of D. (the owner of the ground-rent preceding C), the said D. being the person to whom the ground-rent now sued out was set apart and allotted by decree of the Orphans' Court of Philadel- phia County in certain proceedings therein for "the partition of tl^e estate of E. to the term of October, A.D. 1885, No. 506, which said E. was the assignee of F. (original covenantee). V. G. (original covenantor). To the Prothonotary of the Court of Common Pleas of Philadelphia County. SiE : Issue summons in an action of assumpsit, returnable sec. leg., for re- covery of the arrears of ground-rent due by G. on the ground-rent deed be- tween F. and the said G., dated September 1, 1880, recorded September 1, 1880, in the proper office at Philadelphia in Deed Book , No. , page , wherein the said F. conveyed to the said G. the premises (description), reserving thereout the yearly ground-rent of $ , payable half-yearly on the days of and to him, the said F., his heirs and assigns, and the said G., in said ground-rent deed, duly covenanted to pay the said ground-rent as therein will more fully GEOUND-EENTS. 133 appear. And the said F., to whom said ground-rent was thus payable, duly- conveyed and assigned said ground-rent to E., Ms heirs and assigns, by deed dated , duly recorded in the aforesaid office on in Deed Book , No. , page . And the said E., being seized, inter alia, of said ground-rent, died on or about the day of , and afterward, under certain proceedings had in the Orphans' Court of Philadelphia County to Term , No. , the said ground-rent and all the right, title, and interest therein of said E. was duly and legally set apart and allotted to D. on the day of , and the said D. being duly and legally seized of said ground-rent, afterward, to wit, on the day of , died seized thereof, having first duly made and published his last will and testa- ment, dated the day of , which was duly admitted to pro- bate by the Kegister of Wills of Philadelphia County on the day of , and on said last-mentioned day said wiU was duly recorded in the office of said Kegister in Will Book , No. , page , and by said wUl the said D. duly devised said ground-rent and all his estate therein to C, and the said C, by deed dated , and recorded in the proper office at Philadelphia on the day of , in Deed Book , No. , page , duly conveyed and as- signed said ground-rent to B., and the said B., by deed dated , and recorded , in the proper office at Philadelphia in Deed Book , No. , page , duly assigned and conveyed said ground-rent to the plaintiflF A., who claims herein to recover arrears of said ground-rent as per the following STATEMENT. Six months' ground-rent under the ground-rent deed between F. and G., dated and recorded as above stated, due, $ Six months' ground-rent under the same, due, $ (Stating all the arrears.) With interest on each arrear (this interest you do not calculate until you get judgment by default or verdict). K. L., Plaintiff's Attorney. (Date.) (Add affidavit when required.) The statement should refer to the book and page of record and assignments of the ground-rent. Rudderon v. Hodges, 5 W. N., 567 (1878). It need not contain an abstract of the title. Cox v. Williams, 89 Leg. Int., 108 (1882). § 168. Where defendant dead. Frequently these writs are sued out against a person who died many years before. With this your client has nothing to do. He generally has no knowledge of the original covenantor, and only knows as to him from rumor. To hunt him up or follow his assignments would give you great trouble and perhaps endanger your title to be made by this proceeding. Herein you do the living owner no injustice, for, as will be pres- 134 PEACTICB IN PENNSYLVANIA. ently seen, he must have full notice and has the broadest oppor- tunity of defense. Indorse this prcedpe : No. , Term, Year, A. V. Q. J JPrcBcipe for summons for recovery of ground-rent and plaintiff's statement (and affidavit). K. L., Plaintiff's Attorney. (Date.) § 169. Return to writ. If the defendant be still the owner of the land, subject to the ground-rent, the summons can be served in the usual manner. But if there be any trouble about finding him, or any doubt as to the ownership, give the writ to the sheriff, with instruction to return it nihil habd. This means that the defendant has nothing — that is, has no residence where he can be served. The sheriff having so returned the writ, you file another prcedpe : A. V. To the Prothonotary of tlie Court of Common Pleas of Philadelphia County. SiK : Issue alias summons in assumpsit, returnable sec. leg., said alias being founded on the original writ to Term, , No. K. L., Plaintiff's Attorney. (Date.) You should observe that these writs contain all the recitals of your prcedpe. The Act of April 8, 1840, section 1 (P. L., 249), should be studied. It directs that " In all actions of covenant hereafter brought in any court of record, upon any covenant for the payment of rent on any ground-rent deed, if the sheriff or other officer, to whom any writ of summons is directed, shall make return of the same with ' nihil ' indorsed thereon, it shall and may be lawful for the plaintiff or plaintiffs to sue out an alias writ of summons, returnable in like manner as other writs of summons ; and thereupon, if the said sheriff or other officer shall make return of said alias writ with ' nihil ' in- dorsed thereon, the said return of two ' nihils ' shall be in all respects equiv- alent to actual service of the same, as is now the practice in cases of scire facias on judgments and mortgages : Provided, however, That it shall be the duty of the said sheriff, or other officer, to give notice of the said alias writ by serving a copy thereof on the tenant in possession of the premises, if any, or, if there be' no such tenant, by posting a copy of the same on some 6E0UND-EENTS. 135 conspicuous part of the premises, at least ten days previous to the return- day thereof, and also by publication in one or more newspapers, in such manner and for such time as the court, by rule or otherwise, shall direct : And provided, also. That the plaintiflF or plaintiffs shall have filed within two weeks after the return-day of the first writ of summons in the office of the prothonotary of the said court a copy of the deed on which the suit is brought." This last proviso does not apply to Philadelphia. The Act of April 8, 1857, § 2 (P. L., 175), relating to Philadelphia, provides: In all actions hereafter brought for the recovery of ground-rents in the city and county of Philadelphia, judgment may be entered as in cases of suits upon mortgages in said city and county : Provided, That the plaintiff shall file a statement in said court, referring to the book and page of the recorder's office where the ground-rent deed upon which suit is brought is recorded, and if said 'ground-rent has been assigned, said plaintiff shall also file a statement, referring in like manner to where said assignment or as- signments are recorded, which said recording shall be recited in the praecipe and summons, together with the names of the parties to said deed or deeds, then said plaintiff shall be entitled to judgment without filing copies or a declaration, as in cases of action upon mortgages. If the defendant is deceased, the proper return is mortuus est, not nihil habet. Burr v. Dougherty, 8 W. K, 175 (1880). Judgment in covenant sur ground-rent deed taken on two returns of " nihil " where covenantor dead. Bunting's Estate, 16 W. N., 335 (1885), § 170. Widow and heirs not necessary parties. It will be ob- served that the word " covenant " has been used in the previous section. The action is now assumpsit. This does not affect the operation of the Act of April 8, 1840, for by the Act of 1887 assumpsit is simply substituted for covenant. The vital provisions of the Act of 1840 remain. The proviso requiring the officer to serve the tenant in possession of the premises, if any, and, if there be no tenant, by posting and by publication, secures the rights of the owner of the land. In Rushton v. lAppinoott, 21 W. N., 97 (1888), the Supreme Court decided that the widow and heirs need not be made defendants. Let the sheriff give notice to all you be- lieve have any interest, and state the fact in his return. Omit ex- ecutors and administrators, for generally personal representatives have no interest in the land. See that the return is in conformity with the Act of April 8, 1840, and the rules of your court. The case of Hospital v. White, 2 T. & H. Pr., 32, is cited as re- quiring a declaration. But the statement you have filed with your praecipe is the declaration and all that is necessary. § 171. If no appearance entered and the defendant has been served, you may take judgment for want of an appearance four 136 PRACTICE IN PENNSYLVANIA. days after the return-day if he has been served ten days before return-day ; or if served less than ten days, then the defendant has fourteen full days after return-day to enter an appearance. In case of two returns of " nihil" the defendant has fourteen days afber the return-day of the alias writ to enter an appearance, and in default thereof you may take judgment on the fifteenth day. Under the ruling in Miner v. Graham, 24 Pa. St., 491 (1855), you are not entitled to take judgment for want of an affidavit of defense under two returns of " nihil." Move the prothonotary to enter judgment where so permitted by the rules of court. (See section 18.) Where no rule permits you to move the prothonotary, you should move the court for judgment in the following form : ^- ]No. , Term, 18 . ■d' 1 Common Pleas, No. 1, of Philadelphia County. And now, (date) On motion of C. D., pro plaintiff, the court enters judgment against the defendant in the above case for want of an appearance sec. leg. The prothonotary to assess the plaintiff's damages. Indorse the court, term, and number of the case, the title of the suit, and judgment for want of appearance. You take the docket before the court ; the judgment is allowed. You file the paper with the prothonotary, and give him the follow- ing order and assessment : A. I V. V No. , Term, 18 . B. J Common Pleas, No. 1, of Philadelphia County. Sie: Assess the plaintiff's damages in the above case »ec. reg. ] C. D., To Prothonotary C. P. \ Plaintiff's Attorney. J (Date.) The prothonotary assesses the plaintiff's damages in the][above case as follows : (here insert your items and interest to date of assessment). The plaintiff's damages are assessed at the sum of $ . (Signature of Prothonotary.) (Date.) This paper you indorse : A. ) V. ^C. P. Term, 18 . No. . B. ] Order for and assessment of plaintiff's damages at $ . The above /on?is apply to all judgments for want of an appear- ance, and to all assessments, whether the claim be on note, account, ground-rent, or other assumpsit or covenant. GRODND-KENT8. 137 The assessment of damages is followed by ajn-ceeipe for afi.fa. See the form of this and directions, sections 23, 24, 25. If appearance be entered and no affidavit of defense be filed, you enter judgment at the proper time for want of an affidavit of de- fense. (See sections 23, 24.) If an insufficient affidavit be filed, proceed as indicated in sections 27, 28, 29. If you cannot obtain judgment by default, as above, enter rule on defendant to plead in the form given at section 88. Serve notice of it. If no plea filed, write for it. If necessary, take judgment, section 26. If defendant plead, you reply, see section 160. When ease at issue, prepare for trial thoroughly, notify client when case is on list, etc. When judgment obtained, issue fi. fa., as already indicated, sec- tion 159. § 172. Proceedings under fi. fa. In proceedings for recovery of ground-rent, you generally do not expect to levy upon personal property. If you desire to sell the land, give to the sheriff, with the writ, a copy of the description of the premises taken from the ground-rent deed. If the road has been changed to a street, or the ward or township altered in name, you describe the property according to the then existing facts. At the end of the descrip- tion you write a recital, thus : Being the same premises wMch A., by deed dated and recorded in the proper office at Philadelphia, in Deed Book , No. , page , conveyed to B., reserving thereout the yearly ground-rent of $ payable to the said A., his heirs, and assigns, forever ; for arrears of which the said premises are now levied upon. You should also, if the premises be improved, add the following : Note. — On the above-described property there is erected (state the im- provements) a three-story brick dwelling, with back buildings, etc., as the case may be. The sheriff should notify the parties and proceed as directed by Act of June 16, 1836, section 43, and the other statutes in such case made and provided. The proceedings by inquisition, condemnation, liberari facias, etc., are described in the chapter on " Execution.'" It is suffi- cient here to note that you should watch the sheriff's jury and see that the property is condemned. § 173. Fpon the return of the fi. fa. issue a venditioni exponas — a writ under which the sheriff makes sale of property thereto- 138 PRACTICE IN PENNSYLVANIA. fore levied upon, sometimes though rarely personal property, gen- erally, as here, real estate. This writ you obtain from the pro- thonotary by giving him the following prceeipe : Term, 1888. No. A. V. To the Prothonotary of the Court of Common Pleas, No. 1, of Philadelphia County. Sir : Issue ven. ex. in the above case, returnable sec. leg. Keal debt, $ Int. from CD., Plaintiff's Attorney. (Date.) The words ven. ex. you will recognize as the abbreviations of venditioni exponas. The real debt, as already explained, is the amount at which your damages were assessed. After the words "int. from" you write the date of your judgment. The words sec. leg. are the abbreviations of secundum legem (according to law). The venditioni is to be handed to the sheriff within sufficient time to enable him to advertise, as required by law and the court rules. Notify your client of the time and place of sale and get his in- structions. See that the advertisements note the improvements, or the sale may be set aside. Your client should attend the sale or authorize some one to do so, and to bid, if necessary, enough to cover the debt — interest, costs, taxes, probable costs of an audit, etc. — so that your execution will certainly be paid in full. § 174. Ordering fund into court. If, by any possibility, a claim can come in ahead of you, this must be considered. Your client may desire to continue the ground-rent in force as unextin- guished. If so, the purchase should be in the name of a third party ; but it is to be hoped that the property will bring sufficient to pay your arrears, etc. The right of any judgment creditor to order the fund into court is generally recognized. If an auditor be appointed, this entails delay and expense. Should such a step be attempted to your detriment, you should file your client's peti- tion, supported by affidavit setting forth that he is the ground-rent landlord, has recovered judgment, that the property has been sold, that the fund is in court, that an audit will delay payment to your client, subject the fund to diminution for fees of the auditor, etc., GEOUND-RENTS. 139 wherefore your client prays for leave to take out of court the amount due, etc. In Philadelphia, -where there is no interference, the sheriff, upon production of the deed, etc., generally pays claims of this character. § 175. Sheriff's sales. You must watch for sheriff's sales of the property of your client's debtors. The newspapers containing sheriff's advertisements should be scanned. If the client be a business man, he should be warned to watch also. Sometimes a debtor cooks up a sale to trip his creditor. Sometimes it is the result of necessity. In either event, your clients should watch their debtors and their movements as far as possible. You cannot be expected to play the rdle of detective, but you can carefully note the sheriff's sales. § 176. Discharge of the lien of arrears. Upon this point and the other matters suggested in the foregoing sections, a portion of the opinion of the Supreme Court, per Tbunkey, J., in Foulke v. Millard, 108 Pa. St., 235 (1885), may be of profit. "Arrears of ground-rent, a lien on the land charged, upon a judicial sale of the land, are to be paid out of the proceeds. The owner of the ground-rent cannot elect to refuse the money and continue the lien. When the sheriff makes the sale, he is bound to appropriate the fund in discharge of the liens in the order of priority, or pay the money into court. Mather v. McMichael, 13 Pa. St., 301. " A private sale of the land will not divest liens, and the owner of the ground-rent in some circumstances may prosecute proceed- ings for collection without actual notice to the subsequent grantee. The latter purchases with knowledge of the charge, and often must protect himself, Cfiarrdey v. Hansbury, lb., 16. A sheriff's sale divests the lien of the rent ; no lien is divested by a private sale. " On April 22, 1880, Clayton sued Neville for the arrears and the summons was returned 'nihil habet.' In September following an alias summons was issued, which was executed by posting and advertising, and on November 22, 1880, judgment was entered for want of an appearance. After the beginning of the suit and be- fore the entry of judgment, the land was sold by the sheriff, who paid the proceeds into court. The lien of the arrears was divested by that sale. If a sheriff's sale of land, subject to the lien of a judgment, be madejpending a scire facias for its revival, the lien of the judgment is discharged, and it is of no consequence to the pur- chaser whether judgment be subsequently entered against the de- fendant reviving the judgment for its full amount. So, when the land was sold by the sheriff to Millard, the lien for the arrears ot 140 PEACTICE IN PENNSYLVANIA. ground-rent, the foundation of the action in covenant already ex- isted, and thereafter it could not affect the purchaser. It is not a question of actual payment of the debt on which the second sheriff's sale was founded, but whether its lien was divested by the first. The title of the first purchaser is not vitiated by the decree of the court misappropriating the fund. Had the owner of the ground- rent appeared and made known his right, there would have been no such decree. " The purchaser at the second sale was as much bound to take notice of the first, and of the then existing liens, as would be a purchaser at a second sheriff's sale upon a judgment that was a lien when the first was consummated. No rent that accrued after the sale to Millard was included in the action of covenant which was begun before. The Act of April 8, 1840, providing for the posting and advertising of the alias summons, has no application. Millard was not a terre-tenant till after the beginning of that suit, and there was no occasion for him to appear and make defense." § 177. Extinguishment of ground-rents. This is generally done by a deed of extinguishment, and as a general topic has no place in a book on practice. But judicial proceedings are sometimes necessary to secure an extinguishment, and these proceedings may be best considered at this point. Whether a ground-rent can be extinguished or whether it be irredeemable is a question to be determined by the covenants in the deed reserving the ground-rent, and by the law. See Springer V. Phillips, 71 Pa. St., 60 (1872) ; Quigley v. Trust Co., 3 Dist, Eep., -lib (1894) ; Pcdairet v. Snyder, 106 Pa. St., 227 (1884). By the Act of June 24, 1885 (P. L., 161), no ground-rent can hereafter be created which postpones the time of extinguishment longer than twenty-one years or a life or lives in being ; and at any time after the time fixed by the deed, which cannot exceed this limit, the ground-rent may be extinguished by payment of the principal and arrearages of rent. If there be no principal sum fixed, it is determined by capitalizing the rent reserved, at the legal rate of interest in force at the time of the reservation of the ground-rent. Act Constitutional declaring 21 years a bar. The Act of April 27, 1855, section 7 (P. L., 369), provided : " That in all cases where no payment, claim, or demand shall have been made on account of or for any ground-rent, annuity, or other charge upon real estate for twenty-one years, or no declaration or acknowledg- ment of the existence thereof, shall have been made within that period by the owner of the premises subject to such ground-rent. GEOXTND-RBNTS. 141 annuity, or charge, a release or extinguishment thereof shall be presumed, and such ground-rent, annuity, or charge shall there- after be irrecoverable." This was declared constitutional in Biddle v. Hooven, 120 Pa. St., 221 (1888). § 178. Judicial proceedings are necessary when the title of an extingnishable gronnd-rent has become vested in minors, trustees, or other persons not competent or not authorized to extinguish the rent. The old Act of February 5, 1821 (7 Sm., 355), provides for proceeding by petition to the Supreme Court or to the Court of Common Pleas. But the Constitution of 1874 took away from the Supreme Court all such original jurisdiction (Article V., sec- tion 3), and since the establishment of the present Orphans' Court the case of minors and testamentary trustees would generally arise in the Orphans' Court. The " Price Act" of April 18, 1853 (P. L., 503), besides many other provisions, contains all the elements of the Act of 1821, and was passed with reference to present jurisdiction. It is thus better to follow the directions of this Act in petitioning for the extinguish- ment of ground-rents. § 179. Judicial proceedings may also be necessary when the ground-rent sought to be extinguished is snbject to the lien of judgments or other claims. This contingency is provided for only in the city and county of Philadelphia (Act of September 6, 1860, P. L., 840), and the city of Reading (Act of March 22, 1865, P. L., 571). These Acts, which are substantially the same, provide that the person desiring to pay off the ground-rent may apply by petition to the Court of Common Pleas, stating the facts, and praying to be allowed to pay the money required for the ex- tinguishment of the ground-rent into court. The court then makes the order, and, upon the sum being paid into court, orders the per- son in whom is the title of the ground-rent to extinguish the same, reciting in the deed of extinguishment the court proceedings. Such extinguishment conveys a clear title to the ground-rent, free from any lien or incumbrance of the said judgment or judgments, or other incumbrances, or any of them. The fund in court is dis- tributed through an auditor, the same as if it were the proceeds from a sheriff's sale of real estate. CHAPTER VI. HOW TO SUE OtTT A MORTGAGE. § 180. Foreclosure proceedings. In New Jersey and other States the proceedings to foreclose a mortgage by bill in equity are cum- bersome and tedious. Records must be searched and care taken to make all persons parties who have an interest. § 181. Practice under Pennsylvania statute. It must be con- fessed that the old Pennsylvania statute has many advantages over the bill of foreclosure. The Act of 1705, section 6 (1 Sm., 59), provides amongst other things that " it shall be lawful at any time after the expiration of twelve months next ensuing the last day when the mortgage-money ought to be paid, or other conditions performed, to sue forth a writ or writs of scire facias." This writ must recite the substance of the mortgage you are about to collect. It is well, therefore, for this purpose, as well for the general preparation of papers, to understand the precise words of all important documents. A mortgage is commonly given as security for a bond. The bond is usually accompanied by a warrant of attorney to confess judgment. These instruments, if drawn according to the last requirements, should be in the following form : BOND. Know all Men by these Presents, That (hereinafter called the obligor ) held and firmly bound unto (herein- after called the obligee ), in the sum of lawful money of the United States of America, to be paid to the said obligee cer- tain attorney, executors, administrators, or assigns : to which payment well and truly to be made, do bind and oblige heirs, executors, and administrators, firmly by these presents. Sealed with seal dated the day of , in the year of our Lord one thou- sand eight hundred and . The condition of this obligation is such, that if the above-bounden obligor heirs, executors, or admin- istrators, or any of them, shall and do well and truly pay, or cause to be paid, unto the above-named obligee certain attorney, executors, ad- ministrators, or assigns, the just sum of lawful money as afore- said, together with interest payable at the rate of per cent, per annum. And shall produce to the said obligee or executors, administrators, or assigns, on or before the HOW TO SUB OUT A MORTGAGE. 143 day of of each and every year, receipts for all taxes of the current year assessed upon the mortgaged premises ; then the above obliga- tion to be void, or else to be and remain in full force and virtue ; provided, however, and it is hereby expressly agreed, that if at any time default shall be made in payment of interest as aforesaid for the space of days after any payment thereof shall fall due, or in production to the obligee or executors, administrators, or assigns, on or before the day of of each and every year, of receipts for taxes of the current year upon the premises mortgaged, then and in such case the whole principal debt aforesaid shall, at the option of the said obligee executors, administrators, or assigns, become due and payable immediately, and payment of said principal debt, and all interest thereon, may be enforced and recovered at once, anything herein contained to the contrary notwithstanding. And provided farther, however, and it is hereby expressly agreed, that if at any time hereafter, by reason of any default in payment, either of said principal sum, at maturity, or of said interest, or in production of said receipts for taxes, within the time specified, a writ of fieri facias is properly issued upon the judgment obtained upon this obligation, or by virtue of the warrant of at- torney hereto attached, or a writ of scire facias is properly issued upon the accompanying indenture of mortgage, an attorney's commission for collec- tion, viz.: per cent., shall be payable, and shall be recovered in addition to all principal, interest, besides costs of suit. Sealed and delivered in the presence of us : [Seal.] WARBABTT ACCOMPANYING BOND. To , Esq., Attorney of the Court of Common Pleas, at , in the County of , in the State of , or to any other attorney of the said court, or any other court there or elsewhere. Whereas, in and by a certain obligation, bearing even date herewith, do stand bound unto in the sum of lawful money of the United States of America, conditioned for the payment of the just sum of lawfiil money as aforesaid, together with interest payable at the rate of per cent, per annum, and for the production to the obligee or executors, administrators, or assigns, on or before the day of of each and every year, of receipts for all taxes of the current year assessed upon the premises described in the mortgage accompanying said obliga- tion : Provided, however, and it is thereby expressly agreed, that if at any time default shall be made in payment of interest as afore- said, for the space of days after any payment thereof shall fall due, or in production of the obligee or executors, administrators, or assigns, on or before the day of of each and every year, of receipts for taxes of the current year assessed upon the premises described in the mortgage accompanying said obligation, then and in such case the whole principal debt aforesaid, shall, at the option of the said obligee executors, administrators, or assigns, become due and payable immediately, and payment of said principal debt, and all interest thereon, may be enforced and recovered at once, anything therein contained to the contrary notwithstanding. And provided further, however, and it is thereby expressly agreed, that if at any time thereafter, by reason of any default in payment,, either of said principal sum 144 PEACTICE IN PENNSYLVANIA. at maturity, or of said interest, or in production of said receipts for taxes within the time specified, a writ oi fieri faaias is properly issued upon the judgment obtained under such obligation, or by virtue of this warrant, or a writ of aoire faeiae is properly issued upon the accompanying indenture of mortgage, an attorney's commission for collection, viz.: per cent., shall be payable, and shall be recovered in addition to all principal and inter- est, besides costs of suit. These are to desire and authorize you, or any of you, to appear for heirs, executors, or administrators, in the said court or elsewhere, in an action of assumpsit there or elsewhere brought or to be brought against heirs, executors, or administrators, at the suit of the said obligee executors, administrators, or assigns, on the said obligation, as of any term or time past, present, or any other subse- quent term or time there or elsewhere to be held, and confess judgment thereupon, against heirs, executors, or administrators, for the sum of lawfal money of the United States of America, debt, besides cost of suit, and an attorney's commission of per cent, in case pay- ment has to be enforced by process of law as aforesaid, by non sum infor- matvs, nihil dieU, or otherwise, as to you shall seem meet : And for your, or any of your so doing, this shall be your sufficient warrant. And do hereby, for heirs, executors, and administrators, remise, release, and forever quit claim unto the said obligee certain attor- ney, executors, administrators, and assigns, all and all manner of error and errors, misprisions, misentries, defects, and imperfections whatever, in the entering of the said judgment, or any process or proceedings thereon or thereto, or anywise touching or concerning the same. In witness whereof, have hereunto set hand and seal this day of , in the year of our Lord one thousand eight hundred and Sealed and delivered in the presence of us : [Seal.] MOETGAGE. This Indentube, Made the day of , in the year of our Lord one thousand eight hundred and , between of the first part and of the other part. Whereas, the said in and by obligation or writing obligatory under hand and seal duly executed, bearing even date herewith, stand bound unto the said in the sum of lawftil money of the United States of America, conditioned for the payment of the just sum of lawful money as aforesaid together with interest payable at the rate of per cent, per annum, without any fraud or flirther delay ; and together with the delivery to the obligee or assigns, on or before the day of of each and every year, of receipts for all taxes of the current year assessed upon the mortgaged premises. Provided, however, and it is thereby expressly agreed, that if at any time defeult shall be made in the payment of inter- est as aforesaid, for the space of days after any payment thereof shall fell due, or in delivery to the obligee or assigns, on or before the day of , of each and every year, of receipts for taxes of the current year upon the premises mortgaged, then and in such case the whole principal debt aforesaid shall, at the option of the said obligee, executors, administrators, or assigns, become due and paya- ble immediately; and payment of said principal debt, and all interest thereon, may be enforced and recovered at once, anything therein contained HOW TO SUE OUT A MORTGAGE. 145 to the contrary notwithstanding. And provided further, however, and it is thereby expressly agreed, that if at any time thereafter, by reason of any default in payment, either of said principal sum at maturi^, or of said in- terest, or in delivery of said receipts for taxes, within the time specified, a writ of fieri fa&as is properly issued upon the judgment obtained upon said obligation, or by virtue of said warrant of attorney, or a writ of sdre facias is properly issued upon this indenture of mortgage, an attorney's commis- sion for collection, viz.: per cent, shall be payable, and shall be recovered in addition to all principal, interest, and taxes tiien due, besides cost of suit, as in and by the said recited obligation and the condition thereof, relation being thereunto had may more fiilly and at large appear. Now this inden- ture witnesseth, that the said as well for and in consideration of the aforesaid debt or principal sum of and for the better securing the payment of the same, with interest as aforesaid, unto the said executors, administrators, and assigns, in discharge of the said recited obligation, as for and in consideration of the further sum of one dollar unto in hand well and truly paid by the said at and before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, granted, bargained, sold, aliened, enfeoffed, released, and confirmed, and by these presents grant, bargain, sell, alien, enfeoff, release, and confirm unto the said heirs and assigns (here follows description of the premises). Together with all and'singular ways, waters, water-courses, rights, liberties, privileges, improvements, hereditaments, and appurte- nances whatsoever thereunto belonging, or in any wise appertaining, and the reversions and remainders, rents, issues, and profits thereof, To have and to hold the said hereditaments and premises hereby granted, or mentioned or intended so to be, with the appurtenances, unto the said heirs and assigns, to the only proper use and be- hoof of the said heirs and assigns forever. Provided always, nevertheless, that if the said , heirs, executors, administra- tors, or assigns, do and shall well and truly pay, or cause to be paid, unto the said , executors, administrators, or assigns, the afore- said debt or principal sum of , , on the day and time hereinbefore mentioned and appointed for payment of the same, together with interest as aforesaid, and shall, on or before the day of , of each and every year, deliver to the obligee or assigns, receipts for all taxes of the current year assessed upon the mort- gaged premises, without any fraud or further delay, that then, and from thenceforth, as well this present indenture, and the estate hereby granted, as the said recited obligation shall cease, determine, and become void, any- thing hereinbefore contained to the contrary thereof, in anywise notwith- standing. And provided, also, that it shall and may be lawfiil for the said , executors, administrators, or assigns, when and as soon •as the principal debt or sum hereby secured shall become due and payable as aforesaid, or in case default shall be made for the space of days in the payment of interest on the said principal sum, after any payment thereof shall fall due, or in case there shall be de- fault in delivery to the obligee or assigns, on or before the day of each and every year, of such receipts for such taxes of the current year assessed upon the mortgaged premises, to sue out forth- with a writ or writs of sdre facias upon this indenture of mortgage, and to VOL. I.— 10 146 PRACTICE IN PENNSYLVANIA. proceed thereon to judgment and execution for the recovery of the whole of said principal debt and all interest, together with an attorney's commission for collection, viz.: per cent, besides costs of suit, without further stay, any law, usage, or custom to the contrary notwithstanding. In witness whereof, the said parties to these presents have hereunto interchangeably set their hands and seals. Dated the day and year first above written. [Seal.] Sealed and delivered in the presence of us : On the day of , Anno Domini 18 , before me, , personally appeared the above-named , and in due form of law acknowledged the above indenture of mortgage to be act and deed, and desired the same might be recorded as such. Witness my hand and seal the day and year aforesaid. [Seal.] The 18th section of Act of June 1, 1889 (P. L., 427), declares it to be unlawful to require the borrower " to pay the tax imposed thereon (the loan) by the 1st section " of said Act. § 182. To colled by the warrant of attorney. You can enter judgment, if you see fit, upon the warrant. This you do by taking to the prothonotary the bond and warrant. He tears off and files the warrant, handing you back the bond indorsed with the tei;m and number, and with a memorandum that judgment has been entered. You need for this no motion, no order. Under the Philadelphia rules, if the warrant be over ten years old and less than twenty, you must present an affidavit to a judge, setting forth the due execution of the warrant ; that the money is unpaid and the debtor living. With this you move for leave to enter judgment. If the warrant be over twenty years old, you should prepare a like affidavit on it, obtain a rule to show cause why judgment should not be entered, and serve notice on the debtor, if within the State. The warrant authorizes you to confess judgment " by Turn sum infm-matus, nihil didt, or otherwise." This means that if you prefer to retain the warrant of attorney and to take the trouble of preparing a paper to file in lieu of it, you can do so. Many years ago this was the practice. But in this busy age the short cut is preferred. That you may have the form at hand in case it should be desired, the following is given : NARR. OR STATEMENT. In the Court of Common Pleas, No. 1, for the County of Philadelphia. OfMarch Term, 1888. No. County of Philadelphia, ss. A. B., of the city of Philadelphia, complains of C. D., also of said city, that the said C. D. owes him the sum of $500, being the condition-money named in a certain bond, duly signed and sealed by said C. D., on the first day of January, A.D. 1887, wherein the saidC. D. bound himself, his heirs, HOW TO SUE OUT A MORTGAGE. 147 executors, and administrators, in the sum of $1000, to be paid to A. B., upon the condition that if said C. D. paid A. B. the sum of $500, with law- ful interest in one year from said date, then the said bond to be void, other- wise to remain in flill force, as by the following copy of said bond will more fiiUy appear. (Here copy the bond.) And A. B. avers that C. D. owes him upon said bond the sums set forth in the following STATEMENT. To wit: Condition of said bond $500 00 Interest on ditto, due July 1, 1887 15 00 Interest on ditto, " January 1, 1888 . . . . 15 00 $530 00 E. F., Plaintiff's Attorney. (Date.) And the said C. D. comes and says I am not informed of any defense to the above-stated demand, and acknowledge that I owe the same in manner and form as above declared. 0. D., by E. F., Ms Attorney. The nihil dicit seems to be more appropriate. If adopted, .write at foot of statement, thus : And the said C. D. comes and to the said statement and demand of A. B. saith nothing in bar or to the contrary thereof, and admits that he owes the sums above demanded ip manner and form as above declared. CD., by E. F., his Attorney. A cognovit actionem was formerly used in some cases. It is like the foregoing in substance, differing only in that it sets forth : The said C. D. comes and acknowledges the action above stated against him, and that he owes the sums above demanded. E. F., Attorney for C. D. These papers should be indorsed: No. Term. Year. A. B. 1 V. [ C. P. CD. j Narr. and statement sur bond. Defendant's nihil didt (or cognovit). Judgment for plaintiff, $ § 183. Mceoution. Bearing in mind the suggestion that it is better to enter the judgment by filing the warrant of attorney, you are now ready to issue execution. This you do by giving to the prothonotary a prcedpe in the words set out, section 23. jy you levy on personal property, you follow the directions as to defendant's address, fee to sheriff, notice to client, the watchman, etc., section 24. 148 PEACTICB IN PENNSYLVANIA. Leoy on the real estate. The chances are that you will levy on the mortgaged premises. If so, copy the description of the prop- erty from the morlgage. Give the description to the sheriff with defendant's address, if known, and write on the_^./a., Real Estate. The sheriff serves defendant with notice of the levy, and of the meeting of the jury. They condemn the property. The sheriff so returns, and you then issue a venditioni eayponas by giving the prothonotary the following : PKiECIPE FOR VEN. EX. A. B. ) V. \ 0. p. CD. j (Term. Year. No.) Sir: Issue ven. ex. returnable sec. leg. Eeal debt, $ (Amount of judgment.) Interest from (Date of judgment). You do not calculate tie interest. It is left in blank as above until sale.) To^Prothonotary C. P. E. F., Plaintiff's Attorney. (Date.) § 184. Sale of Real Estate. Directions before the Sale, at the Sale, etc. The venditioni commands the sheriff to sell the real estate. "When you give it to the sheriff see that the improve- ments are correctly stated, and that there are no errors in descrip- tion. If a house, etc., on the lot is not mentioned in the mort- gage, add to the venditioni a description on separate paper, thus : Note, on the above-described premises there is erected (a three- story brick dwelling, etc., as the case may be). See that the adver- tisements are correct, and that your client receives notice. He should attend and bid (or authorize some one to do so for him) a sum sufficient to pay his debt, interest, costs, the taxes, and prior claims, if any. To this intent examine the searches, etc., which should accompany the mortgage. If no searches exist, make careful search to see if any ground-rent, mortgage, judg- ment, municipal or mechanic claims, or tax claims be ahead of your claim, and regulate your movements accordingly. If a prior mortgage exist which is the first lien, and as to which there is no defense, you will take the property, if you buy, subject to that mortgage. If there be a judgment ahead of your mortgage, it will have a claim upon the purchase-money in advance of your mortgage. HOW TO SUE OUT A MORTGAGE. 149 If you purchase at the sheriff's sale, and represent the first lien, you pay only the costs, and the sheriff, upon exhibition of your searches, etc., will take your receipt and make a special return. (See Act of April 20, 1840, sections 1, 2, 3, P. L., 411.) If a stranger pv/rehase, the sheriff will generally, upon showing your right, pay you and take your receipt. If difficulty arise, you must get the sheriff to pay the money into court, and have an auditor appointed. Before him you appear and maintain your claim. If the sheriff will not pay the fund into court, and will not return the writ, go into court after the return-day and get the following rule : A. B. ) (Court, Term, 18 , No. .) ah. ) And now 18 . On motion of E. P., plaintiff's attorney, the court grants a rule on the sheriff to return the writ in the above case. When the writ is returned stating the possession of a fund, you are entitled, as of course, to the following order upon making mo- tion for it : A. B. ) (Court, Term, 18 , No. .) CD. j And now 18 . On motion of E. F., plaintiff's attorney, the court grants a rule on the sheriff to pay the money into court. § 185. Proceedings on Rules on Sheriff to Return Writs and to Fay into Court. Attachment against Sheriff. Obedience to these rules is enforced : 1. Upon serving copies of same personally, if possible ; otherwise, upon a clerk in charge of the office. Have an affidavit of service made and filed. 2. By obtaining a rule for an attachment. A. B. ) (Court, Term, 18 . No. .) V. CD. And now 18 . On motion of E. F., plaintiff's attorney, the court grants a rule on the sheriff to show cause why an attachment should not issue against him for non-compliance with the rule of (date) ordering said sheriff to This requires personal service on the sheriff. Have an affidavit of personal service ready on return of the rule. It need hardly be stated that in all cases you should keep copies of notices served, and note the time and manner of ser- 150 PRACTICE IN PENNSYLVANIA. vice. Affidavits of service ought to contain another copy of the notice, and beneath it an affidavit of the time and manner of service. Be careful to keep copies of all papers filed. § 185 a. Form of Auditor's Report : In the Court of Common Pleas, No , for the County of Term, 18 . A. B. ] V. \ No. CD. J To the Honorable the Judges of the said Court : The undersigned auditor appointed to (insert the purposes of the appoint- ment, following the words of the certificate, for example, to make a proper distribution of the fund arising from the sale of real estate in the above case of the above named-defendant), as appears by the certificate hereto attached, marked " A," respectfully reports : That having first been duly sworn to perform his duties with fidelity the auditor fixed (date) and his office as the time and place for meeting, and caused notice thereof to be advertised according to the rule of court (and the statute, if so required), and in addition thereto gave written notice of said meeting to the counsel of record of the respective parties. A copy of said advertisement and of said written notice is hereto attached marked " B." At the time and place fixed for said meeting the auditor was attended by (names of parties and counsel, stating for whom the latter appeared). (If any subsequent meetings were held, the report should so state, giving the dates thereof and those present.) The fund in this case arose as follows : (here give a brief history). The following claims were presented to the auditor : (Here should follow a short statement of all the claims. Those which are not contested may be briefly disposed of. For example : A claim presented on behalf of E. F. for (rent, or as the case may be), amA}unUng to was not disputed, and is accordingly allowed. Contested claims should be separately considered and reported upon. The contestant's evidence and the claimant's testimony should be briefly recited and the auditor's conclu- sions set forth, in favor of or against the claim.) Upon the testimony sujjmitted to the auditor he reports the following FINDINGS OF FACT. (These should be clearly and positively set forth.) IJpon the facts as above found the auditor reports the following CONCLUSIONS OF LAW. (These should be supported by any authorities pertinent to the auditor's rulings.) (Where the fund is insufficient to pay all the claims the auditor need not report specifically as to those not entitled to participate, but may say : It is unnecessary to discuss the following claims, as none of them, if fully estab- lished, would be entitled to participate in the distribution of the fund on account of its insufficiency. They are all subsequent to those above men- tioned and are none of them preferred claims, if such be the fact.) HOW TO SUB OUT A MOETGAGB. 151 The fund is therefore distributed as follows : (Amount paid into court) $ Deduct : Prothonotary's costs (separate), cost of audit, adver- tising searches (separate), auditor's fee, and such costs, if any, as are to be paid before any distribution to creditors, enumer- ating them separately Balance for distribution $ Which is awarded as follows : To judgt $ costs (And so with each claimant participating. Should there be in- sufficient to pay in full the last claimant entitled, the balance is awarded to him on account) $ $ (Where demands for feigned issues are presented they should be reported. As to Feigned Issues, see that title.) (Where the rule of court requires notice to be sent before the filing of the report the fact should be stated. A copy of the notice with acknowledg- ment of its receipt should be attached. If exceptions are received, this should also be noted, and the exceptions should be reported as overruled or sustained, etc.) All of which is respectfiilly submitted. , Auditor. § 186. Sci. Fa. sur JtEortgage. Another remedy, and that most generally adopted for the collection of a mortgage, is the writ of scire faeias under the Act of 1705, already cited. You will, of course, study this and the other statutes pertinent to this subject. The Act of April 22, 1863, section 1, authorizes the assignee to sue in his own name or in the name of the mortgagee to the use of such assignee. The former has been the practice for years. A mortgage of real estate in two or more counties may be fore- closed in either county, and it is not necessary the real estate should be adjoining tracts. Bldg. Assn. v. Russell, 36 W. N., 260 (1895). § 187. Praecipe for Sci. Fa, and Averment of Default. If your client be the original mortgagee, you head the prcedpe thus : A. B. V. G. H. But if your client be an assignee, the form changes : A. B., assignee of C. D., 152 PKACTICE IN PENNSYLVANIA. and if there be two assignments : A. B., assignee of C. D., who was assignee of E. F. (and so on through the list back to the mortgagee), V. G. H. (This is the mortgagor.) Supposing then that your client is .second assignee, ikeproBcipe will be : A. B., assignee of C. D., who was assignee of E. F., V. G. H. To the Prothonotary of the Court of Common Pleas of Philadelphia County. 8lE : Issue gdre facias returnable sec. kg. Sur mortgage by ^to^' ' Dated (January 1, 18 .) ■p -p \ Recorded (January 2, 18 .) in the office for recording deeds, etc., for the County of Philadelphia in Mortgage Book , page , mortgaging the premises therein described, to secure the payment of a certain bond by G. H. to E. F., dated (January 1, 18 ) in the penalty of ($2000). Conditioned for the payment of ($1000) in one year from date, with lawful interest, payable half-yearly. Which said mortgage, and the moneys thereby secured, were by the said E. F. duly assigned to C. D. by assignment dated . Recorded in said office in book, No. , page , on the day of 18 . And said mortgage, and the moneys thereby secured, were by assignment duly executed by the said C. D. on the day of , recorded on the day of in the said office in book , No. , page , duly assigned to the plaintifi" A. B. (The Averment of Default is given at § 188.) Sometimes the mortgage contains a stipulation foi- the payment of installments, and that if they or the interest or taxes be not paid, the prinoipai shall fall due, although it has not matured. In such oases add to the above praecipe the following averment of default : And the plaintff avers that the said G. H. made default in payment of the (installment of $ due , and said default has continued for more than here follow the words of the mortgage ; or said G. H. made default in payment of the interest or the taxes stipulated to be paid on the day of and has continued such default for the space of days and upward after such semi-annual payment fell due, averring as many defaults as have occurred, following the words of the mortgage, adding), whereby the whole principal debt aforesaid has become due and payable immediately, with iijterest, with an attorney's commission for collection, to wit, five per cent., which is also hereby claimed (these last words to be omitted if the mortgage do not contain a clause allowing a commission), as per the following HOW TO SUE OUT A MOETGAGE. 153 STATEMENT. Condition-money of said mortgage, $ Interest from (date, but no amount). Commission, $ I. K., Plaintiflf's Attorney. (Date.) (Add afBdavit when required.) If the prcecipe for a sd. fa. refer to the record of the mortgage, it is sufficient though it omit an averment that the debt is due. Bhoads v. Reed, 8 Pa. St., 438 (1879). It would be wise for the practitioner to avoid all such omissions. § 188. Frequently the mortgage is due by its original terms without reference to penal clauses as to interest, taxes, etc. When that is the case, your averment of default, as above, can readily be changed to meet the precise fiicts, thus : And the plaintiff avers that although the time for the payment of said condition-moneys hath long since elapsed, yet the said G. H. hath not paid the said principal or any part thereof, but that there are due to plaintiff thereon the sums named in the following STATEMENT. Condition-money of said mortgage due $ Interest on same from (fill in date, but do not here calculate the interest ; that is done when you get judgment). Commissions at per cent. I. K., Plaintiff's Attorney. (Date.) (Add affidavit when required.) This paper you indorse : A. B. ) V. y C. p. No. . Term, 18 . No. . G.H. j JPrcempe for sei. fa. sur mortgage and averment of default, I.K., Plaintiff's Attorney. (Date.) § 189, Form of Sci. Fa, sur Mortgage. If the prothonotary be busy, he may expect you to fill the ad, fa. Every lawyer should know how to fill, even to write out writs, if he have no printed blank. It is said that the great Murat always groomed his mare. The following is believed to be a good form for a ad. fa. sur mort- gage, containing the penal clauses as to taxes, commission, etc. No instruction is required to enable you to fill in the blanks. The 154 PKACTICE IN PENNSYLVANIA. printed words preceding and following each space are sufficient guides : County of PMladelphia, ss. The Conunonwealtli of Pennsylvania to the Sheriff of the County of Philadelphia, greeting : Whereas, in and hy a certain indenture of mortgage, made the day of , in the year of our Lord one thousand eight hundred and > , between hereinafter called the mortgagor of the one part, and hereinafter called the mortgagee of the other part (recorded in the office for recording deeds, etc., for the County of Philadelphia, iu Mortgage-book , No , page , etc., on the day of , A.D. 18 ), reciting, in substance and effect, that whereas the mortgagor aforesaid, in and by a certain obliga- tion or writing obligatory, under hand and seal duly executed, bearing even date therewith, stands bound unto the mortgagee aforesaid in the sum of lawful money of the United States of America, conditioned for the payment of the just sum of lawful money as aforesaid, together with the interest thereon, payable , at the rate of per cent, per annum, and for the production to the said obligee and mortgagee or executors, administrators, or assigns, on or before the day of of each and every year, of receipts for all taxes of the current year assessed upon the mortgaged premises : Provided, however, and it is thereby expressly agreed, that if, at any time, default shall be made in payment of interest, as aforesaid, for the space of days after any payment thereof shall fall due, or in such production, to the obligee and mortgagee or executors, administra- tors, or assigns, on or before the day of of each and every year, of such receipts for such taxes of the current year upon the premises described and mortgaged, then, and in such case, the whole principal debt aforesaid shall, at the option of the said obligee and mortgagee executors, administrators, or assigns, become due and payable immediately ; and payment of said principal and all interest thereon may be enforced and recovered at once, anything contained to the contrary thereof notwithstand- ing : And provided further, however, and it is thereby expressly agreed, that if at any time thereafter, by reason of any default in payment, either of said principal sum at maturity, or of said interest, or in production of said receipts for taxes, within the time specified, a writ of fieri facias is properly issued upon the judgment obtained upon said obligation, or by virtue of said warrant of attorney, or a writ of geire facias is properly issued upon the said indenture of mortgage, an attorney's commission for collec- tion, viz. : per cent, shall be payable, and shall be recovered, in ad- dition to all principal, interest then due, besides costs of suit as in and by the said recited obligation and the condition thereof, relation being there- unto had, may more fully and at large appear. And the said as well for and in consideration of the aforesaid debt or principal sum of and for the better securing the payment of the same, with interest, as aforesaid, unto the mortgagee aforesaid executors, adminis- trators, and assigns, in discharge of the said recited obligation, as for and in consideration of the further sum of one dollar, unto in hand well and truly paid by the mortgagee aforesaid, at and before the sealing and delivery thereof (the receipt whereof is thereby acknowledged), granted, bar- gained, sold, aliened, enfeoffed, released, and confirmed, unto the said HOW TO SUE OUT A MOETGAGE. 155 mortgagee aforesaid, heirs and assigns (description) together with the appurtenances. To have and to hold the same unto the mortgagee aforesaid heirs and assigns, to and their only proper use and behoof forever. And, in and by the said indenture, it was provided, also, that it shall and may be lawful for the mortgagee aforesaid executors, administrators, or assigns, when and as soon as the prin- cipal debt or sum thereby secured shall become due and payable as afore- said, or in case default shall be made for the space of days, in the payment of interest on the said principal sum, after any payment thereof shall fall due, or in case there shall be default in the production to the said obligee and mortgagee or executors, administrators, or assigns, on or before the day of of each and every year, of such receipts for such taxes of the current year assessed upon the above- described mortgaged premises, to sue out forthwith a writ or writs of seire facias upon the said indenture of mortgage, and to proceed thereon to judg- ment and execution, for the recovery of the whole of said principal debt, and all interest due thereon, together with an attorney's commission for collection, viz.: per cent., besides costs of suit, without further stay, any law, usage, or custom, to the contrary notwithstajading. And whereas, we have been given to understand that default has been made in the pay- ment of said interest for more than days after the same became due and payable, and the delivery of receipts for taxes on the above-described premises, at the time above described, whereby the whole principal debt aforesaid has become due and payable, according to the terms and condi- tions in the said obligation and indenture contained ; and the said mortgagee aforesaid praying that a fit remedy in this behalf may be pro- vided, we command you that by good and lawful men of your bailiwick you make known to the said mortgagor aforesaid that be and appear before our Judges, at Philadelphia, at our Court of Common Pleas, No. for the County of Philadelphia, there to be held the first Monday of next, to show if anything know or ha to say, why the said mortgaged premises, with the appurtenances, ought not to be taken in exe- cution and sold, to satisfy the debt and interest aforesaid, if to it shall seem expedient. And have you then there the names of those by whom you shall so make it known to and this writ. Witness the Honorable , President of our said Court, at Philadelphia, the day of , in the year of our Lord one thousand eight hun- dred and eighty , Prothonotary. § 190. Form of Sci. Fa. sur Buildings Association Mortgage. If you have a building association mortgage to collect, the prcedpe, etc., will be as above given, but the sol. fa. should be in the fol- lowing form : County of Philadelphia, ««. The Commonwealth of Pennsylvania to the Sherifi" of the County of Philadelphia, greeting : Whereas, in and by a cer- tain indenture of mortgage, made the day of in the year of our Lord one thousand eight hundred and , between , hereinafter called the mortgagor of the one part, and , here- inafter called the mortgagee of the other part (recorded in the office for recording deeds, etc., for the County of Philadelphia, in Mortgage-book 156 PRACTICE IN PENNSYLVANIA. No. , page , etc., on the day of , A.D. 18 ), reciting, in substance and effect, that whereas the said mort- gagor in and by a certain obligation or writing obligatory under hand and seal duly executed, bearing even date therewith, stands bound unto the mortgagee aforesaid in the sum of lawful money of the United States of America, conditioned for the payment of the just sum of lawfiil money a^ aforesaid, at any time within year from the date thereof, together with lawful interest thereon, and together with all the fines imposed by the constitution and by-laws of the association mortgagee aforesaid, and a monthly premium of payable monthly, on the of each and every month thereafter ; and should also well and truly pay, or cause to be paid, for the same, in like money, unto the mortgagee aforesaid, its successors and assigns, the sum of on the said of each and every month thereafter, as and for the monthly contribution on shares of the capital stock of the association mortgagee aforesaid, then owned by the said mortgagor with- out any fraud or further delay, and should also deliver to the mortgagee aforesaid, its successors and assigns, on or before the day of of each and every year, receipts for all taxes of the current year assessed upon the premises hereinafter described and mortgaged : provided, how- ever, and it was thereby expressly agreed, that if, at any time, default should be made in the payment of the said principal money when due, or of the said interest, or of the said fines, or of the said monthly premium, or of the monthly contribution on said shares of stock, for the space of after any payment thereof shall fall due, or in such delivery to the mort- gagee aforesaid, its successors or assigns, on or before the day of of each and every year, of such receipts for such taxes of the current year upon the premises hereinafter described and mortgaged, or if the said mortgagor should not well and truly pay, or cause to be paid, the taxes on the said premises when the same should become due and payable, then and in such case the whole principal debt aforesaid should, at the option of the mortgagee aforesaid, its successors and assigns, imme- diately thereupon become due, payable, and recoverable ; and payment of said principal sum and all interest, and all fines thereon, and monthly pre- miums due, as well as any contribution on said shares of stock, then due, may be enforced and recovered at once, anything hereinbefore contained to the contrary thereof notwithstanding. And it was therein further agreed, that if the said moneys, or any part thereof, has to be col- lected by proceedings at law, then an attorney's collection fee of per cent, should be added to the amount so collected, as a part of the costs of such proceedings. And the said mortgagor for heirs, executors, administrators, and assigns, thereby expressly waived and relinquished unto the mortgagee aforesaid, its successors and assigns, all benefit that might accrue to them by virtue of any and every law made or to be made exempting the premises hereinafter described, or any other premises what- ever, from levy and sale under execution, or any part of the proceeds arising from the sale thereof, from the payment of the moneys thereby secured, or any part thereof, and the cost of such action or execution ; as in and by the said above-recited obligation and the condition therof, relation being thereunto had, may more fully and at large appear. And the said mortgagor as aforesaid, as well for and in consideration of the aforesaid debt or sum of and for the better securing the payment HOW TO SUE OUT A MOETGAGE. 157 of the same, with interest, together with all fines, and together with the monthly premium of , and together with the monthly contribu- tion of on the said shares of stock then owned by the said mortgagor unto the mortgagee aforesaid, its successors and assigns, in dis- charge of the said recited obligation, as for and in consideration of the further sum of one dollar, unto in hand well and truly paid by the mortgagee aforesaid, at the time of the execution thereof, the receipt whereof is thereby acknowledged, did grant, bargain, sell, release, and con- firm unto the mortgagee as aforesaid, its successors and assigns (description) together with the appurtenances. To have and to hold the same unto the mortgagee aforesaid, its successors and assigns, to and for its and their only proper use and behoof forever. And it was, in and by the said indenture, provided, that in case of default in the payment of the principal, interest, or fines, and the monthly premium as aforesaid, or any part thereof, or in default Notary Public. FOEM OF PINAL DECEEE. (Caption.) And now (date) the Sheriff of Philadelphia County having returned that he was unable to find the said P. Q. or his legal representatives, or the holder or holders of the within-mentioned mortgage in his bailiwick, and that in obedience to the said order of court to the said sheriff directed a notice of the facts set forth in the foregoing petition was advertised once a week for four successive weeks after the presentation of the said petition in the Philadelphia Inquirer, a daily newspaper published in the city and county of Philadelphia, and once a week for four successive weeks in the Legal Intelligencer, as appeared by a schedule of said advertisements and affidavits of their publication annexed to the return of the said sheriff, And no person appearing to answer the said petition as aforesaid and the court being satisfied of the truth of the allegations of the said petition, it is, on motion of , pro petitioner, ordered and decreed that the prayer of said petition be granted and that satisfaction shall, be entered by the Eecorder of Deeds of Philadelphia County on the record of the mortgage given by E. F. to P. Q., dated and recorded in the office of the Eecorder of Deeds in and for the County of Philadelphia in Mortgage-book , No. , page , for $ , upon all that certain (here set forth description) on payment of the costs due relative to the entry of said satisfaction of said mortgage or any proceed- ings thereon, and upon presentation of a certified copy of the petition and decree in said case to be filed by said Eecorder of record. "Which said sat- isfaction so entered and filing of said record shall forever thereafter defeat, release, and discharge said mortgage and shall likewise bar all actions brought or to be brought thereon as fully and effectually to all intents and purposes as if the satisfaction had been entered by the legal holder or holders of the said mortgage. Take a certified copy of the record to the Recorder of Deeds and he will mark the mortgage satisfied, upon payment of his fees. § 196. When there is any dispute as to the amount due. The Act of April 3, 1851 (P. L., 871), provided, in this contingency, for an action by the mortgagor, and gave the owner of the prem- ises, when not a mortgagor, no remedy. Assurance Co. v. Powers, 12 Phila., 377 (1877). The Act of May 25, 1887 (P. L., 6), provides for both mort- gagor and terre-tenant or owner, but requires that the mortgage must have been due at least one year. Under Act of April 3, 1851 (P. L., 871), the mortgagor applies by petition to the Court of Common Pleas of the county in which the land lies, setting forth the facts, and pays into court the amount HOW TO SUE OUT A MOBTQAGE. 167 claimed by the mortgagee, stating, if any, the objections to the mort- gagee's claim. Upon the payment into court, a decree is made that satisfaction be entered upon said mortgage. The fund in court is distributed on equitable principles, after hearing. By Act of May 25, 1887 (P. L., 270), the mortgage must have been due for one year or more. Then either the mortgagor or the owner of the land petitions the Common Pleas of the county in which the land lies, setting forth the premises. The sheriff serves a notice on the proper parties, requiring them to issue a scire facias returnable to the next term, together with a statement, duly veri- fied, of the amount claimed to be due. After the scire facias is- sues, the suit proceeds regularly, except that there can be no dis- continuance or non-suit Vithout the consent of all parties and the court. If the holder of the mortgage refuses or neglects to issue the scire facias for sixty days after the service of notice on him, the petitioner can pay the amount admitted by him to be due into court, and upon proof of service of the notice by the sheriff on the legal holder of the mortgage, a decree is made that satisfaction be entered upon the record of the mortgage by the recorder, on pay- ment of costs of satisfaction. Such satisfaction is as effectual as if entered by the legal holder. § 197. When the legal holder is a non-resident or has removed, leaving no duly authorized attorney to act for Mm. If the resi- dence of the legal holder be known, this contingency can be met by correspondence, and a power of attorney executed by him. But if his residence abroad be unknown, the Act of June 20, 1883 (P. L., 138), provides a remedy. The owner of the mort- gaged premises applies by petition to the Common Pleas of the county in which the land lies, setting forth the premises, the name of the legal holder, his whereabouts, if known ; if not known, then stating the facts; that the principal is overdue by expiration of time limited, and not by reason of default in interest. The court makes such order as it thinks best for giving notice of the petition and the time of the hearing to all persons interested. At the hearing so fixed, due proof being made of the truth of the pe- tition, the amount of principal and interest is paid into court, with ally other money owing on the mortgage, and a decree is made that the recorder enter satisfaction upon the margin of the record of the mortgage. The petitioner, at his cost, then furnishes the re- corder with a certificate, under the hand of the clerk, and the seal of the court, containing a copy of the order of the court and an acknowledgment of the payment into court. The recorder then enters satisfaction. 168 PRACTICE IN PENNSYLVANIA. FOKM OF PETITION FOR DECREE OF SATISFACTION ON PAYMENT INTO COURT. In the Court of Common Pleas, No. , of Philadelphia County. No. , Term, 1894. To the Honorable the Judges of the said Court. The petition of A. B. respectfully represents : 1. That she is the owner of premises No. , in the City of Phila- delphia, and on the day of , 1890, executed and delivered a certain bond and mortgage thereon for $ , payable in years to C. D., with interest thereon at per cent., and recorded in the office of the Recorder of Deeds in and for the County of Philadelphia in Deed-book , No. , page , etc. 2. That the principal of the mortgage debt is overdue by expiration of the time therein limited, viz.: (date), and not by reason of default in the payment of interest. That your petitioner is now ready to pay off the principal of said m.ortgage. 3. That the said mortgagee, the present holder of the mortgage, is domi- ciled in the City of Paris, in the Eepublic of France, and has left no known duly authorized attorney in fact to enter satisfaction on the record of such mortgage on the full payment of the principal and interest, and all proper legal charges. 4. That (date) she wrote to C. D. addressed to , Paris, France, the present address of said mortgagee, advising him that the time limited in the mortgage had expired and requesting him to appoint some person to act as his attorney in fact to receive said principal, interest, and legal charges, and enter satisfaction upon the record, and tendering him the full amount to date. Although more than months have elapsed, your petitioner has received no reply to said letter. A copy of said letter is hereto attached, marked " Exhibit A." 5. That she is securing a new loan on said real estate, and it is necessary to discharge the said mortgage incumbrance, and your petitioner is greatly inconvenienced and compelled to pay additional interest because of the in- difference and neglect of C. D., all of which as well as of this application the said C. D. has been duly advised. A copy of said letter is hereto at- tached, marked " Exhibit B." 6. Your petitioner is ready and anxious to pay into court the said princi- pal, interest, and costs, as follows : Principal . . . " $ Interest from to ... Costs Wherefore she prays your Honorable Court to make an order as to giving notice of said petition and decree and of the time of the hearing thereof to the said C. D., the only party in interest, and to show cause why upon pay- ment being made into court of the full amount of the principal, interest, and all other moneys found to be due and owing on said mortgage, amounting to $ , and upon the production to the Recorder of Deeds of the County of Philadelphia of the proper certificate thereof from the Prothonotary of the Courts of Common Pleas of Philadelphia County, the said Recorder shall not enter full satisfaction upon the margin of the record of such mort- gage- (Signature of A. B.) (Affidavit of truth of facts.) (" Exhibit A " attached.) (" Exhibit B " attached.) HOW TO gtTE OUT A MORTGAGE. 169 DEGBEE. And now (date) upon consideration of the foregoing petition and on motion of , pro petitioner, it is ordered and decreed that the said C. D. appear on the day of , 1894, 10 a.m., in person or by attorney, and show cause why the prayer of this petition should not be granted and satisfaction of said mortage be entered of record. And it is further ordered that a copy of this petition and decree be sent by mail to C. D., addressed to , Paris, France, and that an ab- stract of said petition with the decree be advertised once a week for four weeks in the Public Ledger, a newspaper published in the City of Philadel- phia, and alsp for the same time in the , a newspaper published in the City of Paris, Eepublic of France. At the time set forth in the decree, if no answer be filed, present proof of publication, affidavit of service by mail, and the fol- lowing : FOEM OF FINAL DECREE. (Caption.) And now (date) due proof of service of the copy of the petition and order of (date) by mail on the said C. D. as well as the due proof of the publica- tion thereof having been filed and no answer or objection thereto having been presented, it is on motion of , pro petitioner, ordered and decreed that upon payment being made into court of the full amount of the principal, interest, and all other moneys found to be due and owing on said mortgage, amounting to $ , and upon the production to the Recorder of Deeds of the County of Philadelphia of the proper certificate thereof fi-om the Prothonotary of the Courts of Common Pleas of Philadelphia County, the said Recorder of Deeds shall enter fiill satisfaction upon the margin of the record of such mortgage, which shall forever thereafter discharge, defeat, and release the same, and shall likewise bar all actions brought or to be brought thereupon as flilly as if such payment had been made to the lawful owner or owners of such mortgage debt, and as if such owner or owners had en- tered satisfaction of record. § 198. When, after beings paid, the legal holder fails to satisfy the mortgage. The old Act of March 31, 1 823 (8 Sm. Laws, 131), provided for this contingency, when the failure was due to death or to removal from the State, and two years had elapsed. It was extended by Act of April 28, 1868 (P. L., 1151), to satisfaction by defunct corporations in Philadelphia and Montgomery Coun- ties. The recent Act of June 11, 1879 (P. L., 141), is, as to pro- cedure, precisely similar to the old Act of 1823 ; it applies when the legal holder has failed, from any cause whatever, to enter sat- isfaction, and it extends throughout the State the provisions of the Act of April 28, 1868, as to defunct corporations. It also reduces the time which must elapse, to six months. The older Acts, there- fore, will not be considered. 170 PRACTICE IN PENNSYLVANIA. The Act of June 11, 1879 (P. L., 141), provides that where payment has been made of all the money or amount due, and the legal holder has failed from any cause whatever to enter satisfac- tion, and shall so continue for six months, the mortgagor or the owner of the premises may petition the Court of Common Pleas of the county in which the land lies, setting forth the facts. The court then directs the sheriff to serve a notice stating the matters set forth in the petition on the legal representatives, if to be found in the county. If the parties cannot be found in the county, to give public notice by publication in one or more newspapers pub- lished within or nearest to the county, once a week for four weeks successively prior to the then next return-day after the petition has been presented, requiring the said parties to appear at the next term and answer the petition. At the next term, or any subsequent term, proof of full pay- ment is to be made, and the court decrees that satisfaction shall be entered on the record of the mortgage. If, on proof of payment, either party shall desire any disputed fact to be tried by a jury, an issue is formed and tried accordingly, and if the jury shall find that the full amount has been paid, then satisfaction shall be entered on the record as aforesaid. If the legal holder has been a corporation whose existence has terminated, or is doubtful, the notice is to be served on either the president or the treasurer last in office, if he is to be found in the county 5 otherwise, by publication as in other cases. § 199. When the mortgage is lost, and payment or satisfaction is refused until the mortgage is produced. This contingency is pro- vided for only in the counties of Philadelphia, Montgomery, and Lycoming, by Act of April 10, 1849 (P. L., 621), which provides that in such case the mortgagor, mortgagee, or legal holder of mortgage, owner of mortgaged premises, or other person interested, may apply by bill or petition to the Common Pleas of the county in which the land lies, setting forth the facts of the case, with the complaint or grievance. After due notice, given in such manner and for such time as the court may direct, to all persons interested, requiring them to appear in court on a fixed day and answer such bill or petition, the court, at the time fixed, or any subsequent time, sitting as a court of equity, has power to examine into the facts of the case and the complaint or grievance, and to grant such relief and make such order and decree therein as the necessities of the case may in justice and equity require, as fully as if the remedy were in the Act particularly prescribed and set forth. i CHAPTEE VII. PROCEEDINGS UPON MECHANICS' CLAIMS, § 200. As to filing liens. The Act of June 16, 1836, and other statutes supplementary to the law of March 17, 1806, fastened upon the counties therein named a remedy of very questionable utility. The principle thus recognized has, however, been popular with the masses, and has, from *time to time, been extended to various arti- sans, to contractors, to iron works, to mines and bridges, and to leaseholds in certain cases. Of all these, mention will be made under their appropriate heads. It is not the object of this work to give a treatise upon this subject. The practitioner will, in this and all other cases, examine care- fully the statutes and decisions in the Digests. In this particular matter he should also consult the learned and valuable book of Ovid F. Johnson, Esq., on Mechanics' Lien Law in Pennsylvania. § 201. As to preparing claim. The claim, the county, the work, the time, being all in your favor, if the lien has not been filed, your first duty is to prepare the claim. To do this you need the names of all members of firms who are to be mentioned as claimants or defendants, an accurate description of the property, the items of the work or materials, etc. You may be assisted in preparing the paper by the following FOEM OF MECHANIC'S CLAIM. In the Court of Common Pleas, No. , for the County of Philadelphia, E. F. ^ V. I Tenn, 18 . A. B., owner or reputed owner, [ No. and C. D., contractor. J E. F., of , files this his claim for the payment of the sum of dollars cents, against all certain story building or lot or piece of ground and curtilage appurtenant thereto, situate on the (here insert a particular description of the lot after the following guide : Situate on the east side of Sixth Street, commencing at the distance of 100 feet north of Chestnut Street, in the city of Philadel- phia ; thence extending on the east side of said Sixth Street in a north- wardly direction 25 feet, thence eastwardly at right angles with said Sixth Street 100 feet, thence southwardly 25 feet, thence westwardly 100 feet to the place of beginning. Containing in front on Sixth Street 25 feet, and in depth 100 feet. If there be an alley, describe it [adding as the fact maybe] whereof said lot has the right of way, water, etc.). The said sum of 172 PKACTICE IN PENNSYLVANIA. dollars cents being a debt contracted for at the request of the said by the said continuously within six months last past, for and toward the erection and construction of, and on the credit of the said building at the times and in the quantities in the annexed bill of particulars mentioned, to wit : from the day of , A. D. 18 , to the day of , A. D. 18 , which bill said claimant prays may be taken and considered as part of this lien against said building of which the said then was and now is the owner or reputed owner , and contractor for the erection of said build- ing with whom the said contract was made ; and the said claim to have a lien on said building and the curtilage, appurtenant thereto, for the amount of said claim, from the commencement of the build- ing according to the Act of Assembly in such case made and provided. (Signature of Claimant.) Annex the account, heading it : BILL OP PARTICULARS REFERRED TO IN THE FOREGOING CLAIM. This bill should charge the owner, contractor, and houses some- what thus : A. B., owner, and C. D., contractor, for three-story brick dwelling-house, situate on the east side of Sixth Street, 100 feet north of Chestnut Street, Philadelphia (as the case may be), to E. F. (claimant), Dr. (Here must be inserted the dates at which the work was done or the materials furnished, setting forth the kind of work or materials, etc.) A subcontractor cannot iile a mechanic's claim for a lump sum with no items as to the articles furnished, nor can a contractor file such claim unless by the owner's agreement. OcMweU v. Carter, 153 Pa. St., 310 (1893). A lien against " all that lot, with the buildings, thereon erected, situate," etc., but no other reference made to buildings upon which work was alleged to be done, is an insufficient description. Dorian V. Market Co., 19 W. N., 87 (1886). The buildings must be particularly described as to materials, height, location, etc. A description of the land is not sufficient. Shxyrt v. Ames, 121 Pa. St., 530 (1888). A claim containing a statement of the description of the pecuK- arities of a building and the locality, which points it out with rea- sonable certainty, is a sufficient compliance with the Act. Sled Qo. V. Befining Co., 48 Leg. Int., 25 (1890). In Harbaoh v. Kurth, 25 W. N., 301 (1890), it was decided that if any interested party is dissatisfied with the description of premises in a mechanic's lien, he may apply to the court, under the Act of June 16, 1836, and have the curtilage fixed. Failing to do this, he cannot, after a sale upon the lien, dispute the amount of the curtilage. When a mechanic's claim is filed against the estate of a married PROCEEDINGS UPON MECHANICS' CLAIMS. 173 woman, it is necessary to aver that the materials were furnished the "contractor with her knowledge and consent and at her request and the request of her husband, for the improvement of her sepa- rate estate, within six months last past, for and about the erection and construction and upon the credit of the building hereinafter described." That " she was the owner of the building, and that the materials so furnished were actually applied to the improvement of her separate estate, and were necessary for the use and enjoyment thereof." KeUy v. McGehee, 26 W. N., 493 (1890). A similar ruling was made in Wolfe v. Oxnard, 152 Pa. St., 623 (1893). But one month subsequent to this decision the Supreme Court de- cided, in MiUigan v. Phipps, 31 W. N., 561 (1893), that under the Married "Woman's Act of 1887 a mechanic's lien against the estate of a married woman need not aver coverture or that the work for which it was filed was necessary for the preservation and enjoyment of her estate. (See § 240.) Where a mechanic's claim is filed " for work done and material furnished for and about the erection and construction of a build- ing," it is not necessary to aver that notice has been given. Stokes v. Beakyne, 2 Dist. Eep., 143 (1892). § 202. Apportioned claims. If your client has done work or has furnished materials for two or more adjoining buildings erected by the same owner, he can file an APPOBTIONED CLAIM. In the Court of Common Pleas, No. , for the City and County of Phila- delphia. E. F. 1 V. > Term, 18 . A. B., owner, and C. D., contractor, j No. E. F. claims to have a lien for the payment of the sum of dollars and cents against all those adjoining story dwelling-houses or buildings, and the lots of ground and cur- tilage appurtenant to the same, situate on the side of Street, between Street and Street, in the Ward of the city of Philadelphia, commencing at the distance of feet from Street, thence extending feet in a direction. Said entire lot being feet front and feet deep. The said debt or sum of dollars and cents is the price or value of by the said claimant for and about the erection and construction of said adjoining buildings within six months last past, to wit, between the day of and the day of , 1888, of which said buildings the said was and is the owner or reputed owner , and the contractor and builder at whose instance and request the said all of said houses adjoining each other as aforesaid, having been erected by the same owner. Arfd the said as a part of this claim ha annexed a bill of particulars, showing the amotmt or sum claimed, the kind and amount of 174 PRACTICE IN PENNSYLVANIA. and the time when the same • . And the said claim- ant apportion the said sum of among the said buildings, as follows :' Against No. 1. The sum of dollars and cente on all that certain story house feet inches in front, and feet inches in depth, erected on a lot or piece of ground and curtilage, situate on the side of ' Street ; commencing at the distance of feet inches from Street, in the city of Philadelphia, said lot containing in front on said Street, feet inches, and extending of that width in length or depth feet inches. And against No. 2. The sum of dollars and cents on all that certain story house feet inches in front, and feet inches in depth erected on a lot or piece of ground and curtilage, situate on the side of Street ; commencing at the distance of feet inches from Street, in the city of Philadelphia, said lot containing in front on said Street feet inches, and extending of that width in length or depth feet inches. (And so on as to the other properties.) You attach a bill of particulars as in the preceding form. Indorse your claim or apportioned daim : No. , Term, 18 , O. P. M. L. D. (name of claimant) V. (name of owner) owner or reputed owner, and (name of contractor), con- tractor. Mechanics' Lien Claim fori L. M., Attorney for Claimant. Pate.) The claimant should sign both the claim and the bill of par- ticulars. § 203. Indexing the claim. It is to be recommended that after the claim has been filed, you see that the clerk has properly in- dexed it. The Act of May 16, 1895 (P. L., 84), requires that scl.fa. sar mechanics' claims shall be entered on the judgment index in the same manner as sd.fa. sur judgments, otherwise such sd.fa. shall not continue the lien for a longer period than five years from the date of its filing as against any purchaser, mortgagee, or other lien creditor. § 204. Suing out claims. Clients sometimes prefer that the claim, when filed, be suffered to rest. Care should be taken that this indulgence do not extend beyond five years. PROCEEDINGS UPON MECHANICS' CLAIMS. 175 FORM OF PRECIPE FOE SCI. FA. A. B. 1 V. I Term. Year. C. D., owner or reputed owner, and j No. E. F., contractor. J To the Prothonotary of the Court of Common Pleas, No. 1, of Philadelphia County. SiE : Issue scire facias sur mechanic's claim, returnable sec. kg, G. H., Plaintiff's Attorney. (Date.) The form of the ad. fa. is given in the 15th section of the Act of June 16, 1836 (P. L., 699), and the 16th section of the Act re- quires that " no such sd. fa. shall in any case be issued within fif- teen days previous to the return-day of the next term." Some counties (like Philadelphia) have monthly return-days. These take the place of the term days, and the writ must in such places bear fifteen days between its teste and its return. The Act of May 16, 1895 (P. L., 84), provides that no sd.fa. shall con- tinue the lien against a terre-tenant whose deed has been recorded, unless the terre-tenant be so named in the writ or signs an agree- ment in writing. Compare the writ with your claim, see that all is accurate, and give it to the sheriff' with a written mem. of the residences of de- fendants. Service of the writ. This is directed by the 17th section of the Act to be the same as in the case of a summons, but in addition a copy is left with a resident of the building, if occupied ; if not, a copy is to be affixed upon the door or other front part of the building. Posting is insufficient if the house be occupied. A return of " served and posted " as to the owner and of " nihU habd" as to the contractor is sufficient, under the Act of 1836. Donahoo v. Scott, 12 Pa. St., 45 (1849), and a return of " ser- vice " upon the contractor, and " nihil habet and posting " as to the owner, held sufficient ; Shoemaker v. Buganne, 5 W. N,, 403 (1877) ; but if there be any person residing in the building, a ser- vice by " posting " is insufficient ; a copy must be served upon the occupant. Bradley v. Totten, 7 W. N., 16 (1879). After service, you proceed as in the cases already noted. If there be no appearance and the time has expired, you take judgment for want of the appearance (section 171). So, too, as to judgment for want of affidavit of defense (section 2796) ; or for want of sufficient affidavit of defense (section 27). 176 PRACTICE IN PENNSYLVANIA. The defendant having barred your way thus far, your next step is the rule to plead, with notice of the rule served on your oppo- nent, and judgment for want of the plea, if driven to it (section 26). After plea, you file a replication, if necessary, and when the cause is at issue you notify your client and order the case on the trial- list. § 205. After trial and final judgment in your favor, you issue execution by giving to the prothonotary the following PB-aECIPE FOE LEVAKI FACIAS. ^- ^- I C. P. Term, 18 . C.V } No. . To the Prothonotary of the Court of Common Pleas, No. 1, of the City and County of Philadelphia. Sib : Issue levari facias in the above case, returnable sec. kg. Eeal debt, $ Interest from (date of your judgment). L. M., pro Plaintiff. (Dat«.) The Levari Facias is in the following form : County, ss. The Commonwealth of Pennsylvania to the Sheriff of said coimty, greeting : We command you, that without any other writ from us, of the following described building and lot of ground of A. B., to wit (describing the same according to the record), in your bailiwick, you cause to be levied, as well a certain debt of , which C. D. lately in our Court of Common Pleas for the county aforesaid, by the consideration of the said court, recovered of the said A. B., to be levied of the said build- ing and lot of ground, as also the interest thereon from the day of , A. D. ; and also the sum of for the costs which accrued thereon, according to the form and effect of an Act of Assembly of the Com- monwealth of Pennsylvania in such case made and provided ; and have you these moneys before our Judges at at our County Court of Com- mon Pleas, there to be held on the day of next, to render unto the said C. D. for his debt, interest, and costs aforesaid, and have you then there this writ, etc. Witness, etc. (Seal of the Court.) Prothonotary. It is singular that the Act of Assembly which gives this form (June 16, 1836, section 21) refers " to a further sum which E. F. recovered against A. B. ; " and although recovered by E. F., the whole (aa well C. D.'s judgment as E. F.'s recovery) is, by this form, to be " rendered unto C. D." I have endeavored to correct this by leaving E. F. out of C. D.'s writ. Pursue the directions stated, sections 184, 185. § 206. Counties in which Claims may be Filed. The Act of PROCBEDINGtS UPON MECHANICS' CLAIMS. 177 June 16, 1836, by its own provision, applies ''to all counties to which the Act entitled 'An Act securing to mechanics and others payment for theii* labors and materials, in erecting any house or other building within the City and County of Philadelphia,' passed the 17th day of March, 1806, and the several supplements thereto, now extends." The Act of 1806 applied only to Philadelphia County at its passage, but prior to the Act of 1836 it had been extended to the following counties : Allegheny (Act April 13, 1835, P. L., 213), Armstrong (March 30, 1831, P. L., 239), Beaver (April 13, 1835, P. L., 213 ; March 24, 1818, 7 8m. L., 119), Bedford (March 30, 1831, P. L., 239), Berks (April 11, 1825, P. L., 162), Bucks (March 7, 1821, P. L., 82), Butler (May 7, 1832, P. L., 539), Cambria (March 30, 1831, P. L., 239X Centre (April 10, 1826, P. L., 345), Chester (May 7, 1832, P. L., 539), Clearfield (April 10, 1826, P. L., 345), Columbia (March 24, 1818, 7 Sm. Laws, 119), Crawford (April 10, 1826, P. L., 345), Cumberland (March 24, 1818, 7 Sm. Laws, 119), Dauphin (March 22, 1817, 6 Sm. Laws, 445), Delaware (March 7, 1821, P. L., 82), Erie (April 11, 1825, P. L., 162), Franklin (March 22, 1817, 6 Sm. Laws, 445), Huntingdon (April 13, 1835, P. L., 213), Indiana (April 10, 1826, P. L., 345), Juniata (April 11, 1835, P. L., 190), Lancaster (March 22, 1817, 6 Sm. Laws, 446), Lebanon (March 22, 1817, 6 Sm. Laws, 445), Luzerne (March 7, 1821, P. L., 82), Lycoming (April 10, 1826, P. L., 345), Mercer (April 13, 1835, P. L., 213), Mifflin (March 7, 1821, P. L., 82), Montgomery (March 22, 1817, 6 Sm. Laws, 445), Northumberland (March 24, 1818, 7 Sm. Laws, 119), Perry (May 7, 1832, P.'L., 539), Schuylkill (April 11, 1825, P. L., 162), Somerset (April 11, 1826, P. L., 162), Susquehanna (April 1, 1836, P. L., 695), Tioga (March 30, 1831, P. L., 239), Union (April 16, 1827, P. L., 446), Venango (April 11, 1825, P. L., 162), Warren (April 11, 1835, P. L., 190), Washington (April 13, 1836, P. L., 213), and York (March 22, 1817, 6 Sm. Laws, 445). And the Act of 1836 therefore applied to these counties. It was extended to Lehigh County by its own section 28 (P. L., 1836, page 696), and it was subsequently extended to the following counties : Adams (Act April 13, 1846, section 1, P. L., 327), Bradford (Act February 19, 1842, section 1, P. L., 22), Carbon (Act April 26, 1850, section 9, P. L., 612), Clarion (Act April 6, 1841, section 22, P. L., 163), Clinton (Act March 19, 1841, section 14, P. L., 99), Elk (Act April 9, 1849, section 1, P. L., 495), Fayette (Act April 16, 1840, section 8, P. L., 412), Greene (Act March 25, 1842, section 30, P. L., 197), Jefferson (Act April 5, 1843, P. L., 171), McKean (Act April 6, 1841, section 22, P. L., 163), Monroe (Act February 19, 1842, P. L., 22), Northampton (Act March 19, 1844, P. L., 140), Pike (Act March 11, 1846, P. L., 113), Potter (Act April 5, 1843, P. L., 171), Westmoreland (Act April 9, 1849, P. L., 495), Wayne (Act April 16, 1840, section 8, P. L., 412). In Parson v. Winslow, 1 Grant, 160 (1854), it was decided, per Woodward, J., that when a new county is created out of parts of older counties, all of which have the lien law, that law extends by VOL. I. — 12 178 PEACTICE IN PENNSYLVANIA. implication to the new county without special enactment, and the Act of 1836 therefore extends to the counties of Blair (parts of Huntingdon and Bedford, 1846), Cameron (parts of Clinton, Elk, McKean, and Potter, 1860), Forest (part of Jefferson, 1848, and Ve- nango, 1866), Fulton (part of Bedford, 1850), Lackawanna (part of Luzerne, 1878), Lawrence (part of Beaver and Mercer, 1850), Montour (part of Colum- bia, 1850), Snyder (part of Union, 1855), Sullivan (part of Lycoming, 1847), Wyoming (part of Luzerne, 1842). The Act of 1836 thus extends throughout the State. § 207. Claims for Repairs, Alterations, Additions — Leaseholds. The Act of May 1, 1861 (P. L., 550), which gives a lien for re- pairs, alterations, or additions, when the debt is not of less amount than twenty dollars, applied only to Chester, Delaware, and Berks Clounties. By the Act of May 18, 1887 (P. L., 118), this law was extended to all the counties of the Commonwealth. The Act of June 17, 1887 (P. L., 409), which gives a lien on leaseholds, and on the engine or engines, engine-house, derrick, tank, building, machinery, wood or iron improvements, oil-wells, and fixtures, for or about the construction of which on such lease- hold labor is performed or furnished, is a general law, and applies throughout the commonwealth. It also repeals all general laws or parts of general laws inconsistent therewith. § 208. Resume of the Statutes. It will thus be seen that the "following Acts and their supplements extend throughout the State : 1. Act of June 16, 1836, giving a lien for the payment of all debts contracted for work done or material furnished for or about the ereotion or construotion of any house or other building. 2. Act of May 1, 1861, giving a lien for the payment of all debts contracted for work done and material furnished for or about the repair, alteration of, or addition to any house or other building. 8. Act of June 17, 1887, giving a lien for the price or value of work and labor performed or furnished for or about the construction of any engine-house, derrick, tank, buildings, machinery, wood or iron improvement, construction, or erection upon any leasehold, •either by written or verbal lease, etc. It may here be noted that the Act of June 28, 1879 (P. L., 182), providing for the filing of mechanics' liens in certain cases against leaseholders for labor in boring, drilling, or mining, and contain- ing a proviso that it shall not apply to counties having more than 20,000 inhabitants, is unconstitutional. Davis v. Clark, 106 Pa. St., 377 (1884). § 209. The second section of Act of April 9, 1849 (P. L., 495), which extended the lieu law to every fixture in and about iron PROCEEDINGS UPON MECHANICS' CLAIMS. 179 works and mines, and to every bridge and building where work is done or material furnished in the construction of such fixture for any corporate body or its contractor, extends to the counties of Allegheny (Act March 1, 1870, P. L., 282), Bradford (Act May 10, 1871, P. L., 675), Columbia and Elk (Act April 9, 1849, P. L., 495), and to Northumberland County (Act May 26, 1871, P. L., 1190). § 210. The Act of February 17, 1858 (P. L., 29), giving a lien on improvements, engines, etc., erected by tenants, extended to Al- legheny (Act March 21, 1865, P. L., 433), Bradford (Act May 10, 1871, P. L., 668), Carbon (Act April 4, 1868, P. L., 680), Lu- zerne and Schuylkill (Act February 17, 1858, P. L., 29), Sulli- van (Act May 10, 1871, P. L., 668), and Westmoreland (Act March 21, 1865, P. L., 433), and for claims for actual labor by mechanics and laboring men, to Crawford, Erie, Forest, Venango, and Washington Counties (Act June 5, 1874, P. L., 300). § 211. The Act of February 27, 1868 (P. L., 212), which ex- tends the lien law to improvements, etc., connected with oil re- fineries, extends by its own provisions to Allegheny, and as to claims for actual labor done by mechanics and laboring men to Armstrong, Venango, and Warren (Act June 5, 1874, P. L., 300). § 212. The Act of April 8, 1868 (P. L., 752), giving a lien on certain property and leaseholds by written lease, extends by its own provision to Venango County, and as to claims for actual labor, to Armstrong, Butler, Clarion, Crawford, and Warren Coun- ties (Act June 5, 1874, P. L., 300). § 213. Against what the claim may be filed. For work done or materials furnished for or about the erection or construction of any building, or for or about the repair, alteration of, or addition to any building, a claim may be filed against the building, the ground 'covered by the building, and so much other ground immediately adjacent thereto and belonging in like manner to the owner of such building, as may be necessary for the ordinary and useful purposes of such building. (Act June 16, 1836, P. L., 696 ; Act May 18, 1887, P. L., 118.) In Church v. Stettler, 26 Pa. St., 246 (1856), Lewis, C. J., said : " No amount of labor or materials furnished for the erection of a building would create a lien if no building should be erected." If the building, after erection, should be destroyed by accident, before the ground on which it stood passed to the purchaser, the lien would be gone. Wigton's Appeal, 28 Pa. St., 161 (1857). When the building ceases to exist, the lien is gone. Id. See Steel Co. V. Mnfg. Co., 158 Pa. St., 238 (1893). Digging cellars and foundations is a part of the construction of 180 PEACTICE IN PENNSYLVANIA. a building, and therefore properly included in a mechanic's lien. McOristal v. Cochran, 147 Pa. St., 225 (1892). Whether a claim may be filed for the cost pf tearing down an old building prepar- atory to erecting a new one against which the claim is filed has not been decided. Id. Public buildings belonging to a township or a county — such as a public school-house, Patterson v. Reform School, 92 Pa. St., 229 (1879) — are not subject to a claim, because they cannot be taken in execution (Act April 15, 1834, section 5, P. L., 538) ; Wilson v. Huntingdon, 7 W. & S., 197 (1844). For the same reason, a claim cannot be filed against a building of a public corporation necessary to the enjoyment of its franchises. Foster v. Fowler, 60 Pa. St., 27 (1868). A church is subject to a claim. Presbyterian Ghurch v. AUison, 10 Pa. St., 413 (1849). Lumber furnished for the plant of an oil refinery may be the subject of a lien. Short v. Miller, 21 W. IST., 482 ; 120 Pa. St., 470 (1888). Under the Act of February 17, 1858, a claim can be filed against a market house and hall erected by a lessee on his leasehold. Mar- ket House V. Kearns, 103 Pa. St., 403 (1884). A claim may be filed against real estate of a private corporation transacting a general storage and elevator business. Storage Co. v. Foundry Co., 105 Pa. St., 248 (1888). § 214. How much ground immediately adjacent is subject to a claim may be determined in either of two ways : (a) The owner may define in writing, and cause to be entered in a book, to be kept by the prothonotary, the boundaries, and this is obligatory on all persons (Act June 16, 1836, section 4, P. L., 696), or (b) in default of such designation, the court, on petition by the owner or anyone having a lien by mortgage, judgment, or otherwise, or entitled to a mechanic's lien, shall appoint commissioners to desig- nate the boundaries. Their report, when approved by the court, is conclusive on all persons. The court may stay a pending execu- tion until such designation is made. (Act June 16, 1836, sections 5-8, P. L., 696.) § 215. If the ground be sold on execution, before the extent of the lien is ascertained, distribution is made according to the report of an auditor appointed to inquire into and report the facts ; but if any of the parties apply therefor, an issue may be directed to determine disputed facts. (Act June 16, 1836, section 9. P. L., 696.) The claim binds no other or greater estate in the ground than that of the person or persons in possession at the time of com- CLAIMS. 181 mencing the building, and at whose instance the same is erected. (Act April 28, 1840, section 24, P. L., 474.) § 216. Leaseholds — Notice required. Under Act of June 17, 1887 (P. L., 409), " all persons performing labor or furnishing labor for or about the construction of any engine, house, derrick, tank, buildings, machinery, wood or iron improvement, construc- tion or erection upon any leasehold, either by written or verbal lease, etc., may file a claim against such engine or engines, engine- house, derrick, tank, building, machinery, wood or iron improve- ment, oil-wells, and fixtures," and the interest of the lessee or ten- ant in such lease or lot. The owners, contractors, lessee, or tenant cannot remove such property as named in the claim until the claim is paid, or while it is pending and undetermined; provided the claimant issue his scire facias within three months. ; Should re- moval be attempted, the court may, upon petition, issue an order to the sheriff to seize and hold the property until the claim shall be determined. (Act June 17, 1887, section 5, P. L., 409.) Under this Act, notice of the intention to file a lien must pre- cede the work. Strawiek v. Munhall, 27 W. N., 195 (1891). § 217. Special Act as to Iron "Works, Mines, Bridges, etc. In Allegheny, Bradford, Columbia, Elk, and Northumberland Coun- ties, the Act of April 9, 1849, section 2 (P. L., 495) (see section 209), extended the Act of 1836 so that a claim may be filed in those counties to include "every fixture in and about iron works and mines, and to every bridge and building where work is done or material furnished in the construction of such fixture, in and about mines or iron works, bridges, or building for any corporate body, or for a contractor in the employment of a corporate body." § 218. Special Act as to Leaseholds. In Allegheny, Bradford, Carbon, Luzerne, Schuylkill, Sullivan, and "Westmoreland Coun- ties, by Act February 17, 1858 (P. L., 29) (see section 210), the claim, under the Act of 1836, may be filed against the interest of a lessee or tenant ; and the improvements, engines, pumps, ma- chinery, screens, and fixtures erected, repaired, or put up by mechanics, machinists, and material-men. The same property is subject to lien, in like manner, for actual labor by mechanics and laboring men in Crawford, Erie, Forest, Venango, and Washing- ton Counties. (Act June 5, 1874, P. L., 300.) § 219. Special Act as to Refineries. In Allegheny County, by Act February 27, 1868 (P. L., 212), the claim may include as property against which it is filed all improvements, engines, pumps, tanks, machinery, and fixtures in or about or in any way connected with or appurtenant to oil or other refineries, and to all tanks for 182 PRACTICE IN PENNSYLVANIA. the storage of petroleum, coal, or carbon oil, or the products thereof, whether said tanks be connected with a refinery or otherwise, and on all pumps, machinery, aud fixtures connected therewith, whether put up by owners or tenants. If by tenants, then only to the tenant's interest in the land, tanks, etc. The claim to be for doing work or furnishing materials or articles by mechanics, ma- chinists, material-men, and contractors. The same provisions apply only to claims for actual labor done by mechanics and laboring men in Armstrong, Venango, and Warren Counties. (Act June 4, 1874, P. L., 300.) § 220. Special Act as to Leaseholds in Venango Gonnty. By Act April 8, 1868 (P. L., 752), claims may be filed against en- gines, derricks, tanks, machinery, or wood or iron improvement on land held by written lease and against the leasehold for furnishing material or doing work. The provisions of this Act are similar to, but not the same as, the Act of June 17, 1887 (P. L., 409). As to claims for actual labor done by mechanics and laboring men, this Act of April 8, 1868 (P. L., 752), extends to Arm- strong, Butler, Clarion, Crawford, and Warren Counties. (Act June 5, 1874, P. L., 300.) § 221. These local Acts contain many provisions pecnliar to themselves which cannot be noticed in a general work. They must be consulted in order to learn their details. § 222. By whom the claim may be filed. By the archUeot who prepares plans and specifications, and who directs and oversees the execution of the work in accordance with the plans ; Bank v. Grier, 35 Pa. St., 423 (1860) ; but if he simply prepares plans and specifications, and does nothing more, he has no lien ; Price v. Kirk, 90 Pa. St., 47 (1879). § 223. By a principal contractor. One who contracts with the owner, either for the whole building or for any leading division, such as brickwork or woodwork ; the question whether the contract be for a leading division is one for the jury, under proper instruc- tions. Schenck v. Vber, 81 Pa. St., 31 (1876). Act April 16, 1845, section 5 (P. L., 538). One who merely furnishes lumber is not a "contractor." Broim v. Steele, 110 Pa. St., 588 (1885). A contractor does not lose his right to a mechanic's lien because by his contract he is to be paid in kind. Pierce v. Marple, 30 W. N., 31 (1892). A contract which provides that the owner should receive the building free of all liens does not prevent the principal contractor from filing a lien for the contract price if unpaid. Schmid v. Im- PROCEEDINGS UPON MECHANICS' CLAIMS. 183 provemerU Co., 34 W. N,, 461 (1894); Howarth v. Church, 34 W. N., 470 (1894). § 224. Sub-contractors, material-men, and workmen. All who do work and who furnish materials may file claims, if the work has been done or the materials furnished on the credit of the build- ing and by reason of a contract with either the owner or principal contractor. Harland v. Rand, 27 Pa. St., 511 (1856); 8chenck V. Uber, 81 Id., 31 (1876) ; Sted Co. v. Mnfg. Co., 83 W. N., 244 (1893). The work must have been done or the materials fur- nished on the credit of the building ; Barclay v. Wainwright, 86 Pa. St., 191 (1878) ; and the contract must have been with the owner or principal contractor. A contract with a sub-contractor cannot confer a lien. Duff v. Hoffman, 63 -Pa. St., 191 (1869); 8mith V. Stokes, 10 W. N., 6 (1881). The Act of June 17, 1887 (P. L., 413), to the contrary, was decided unconstitutional. Iron Works V. Oil Co., 122 Pa. St., 627 ; 22 W. K, 435 (1888) ; Gearing v. Hapgood, Id., 437 (1888). A sub-contractor who files a lien must comply strictly with the Act of June 16, 1836. Brown V. Myers, 29 "W. N., 393 (1891). A watchman has no lien. Mcr- Grath V. Schreiher, 22 W. N., 312 (1888). In Schroeder v. Galland, 26 W. N., 33 (1890), and Benedict v. Hood, Id., 37 (1890), it was held that where a clause in the con- tract between the owner and the builder sets forth that the building shall be finished and delivered to the owner " free of all liens and incumbrances," such stipulation is obligatory on all sub-contractors and the latter have no right to lien. Schroeder v. Galland and Benedict v. Hood were followed by a number of other cases, among which may be mentioned Tebay v. Kirkpatriok, 29 W. N., 184 (1892); Lloyd v. Krause, Id., 429 (1892) ; Cook v. Murphy, 30 Id., 835 (1892) ; Murphy v. Mlis, 1 Dist. Rep., 397 (1892); Willey v. Topping, 146 Pa. St., 427 (1892); M'Elroy v. Braden, 152 Id., 78 (1892); Smith v. Levick, 153 Id., 522; 32 W. N., 79 (1893); M'Collwm v.Biale, 35 W. K, 389 (1884). In these cases, the ruling in Schroeder v. Galland and Benedict v. Hood was substantially re-aflSrmed ; but it was stated that in order to bar the sub-contractor, the clause against liens must be clearly expressed, and that no implication would be sufficient to defeat the sub-contractor's right to file a lien. In order to meet the decisions in Schroeder v. Galland and Ben- edict V. Hood, the Act of June 8, 1891 (P. L., 225), was passed. It rendered any such contract between the owner and the builder of no effect unless the sub-contractor consented thereto in writing. 184 PRACTICE IN PENNSYLVANIA. In Waters v. Wolf, 34 W. N., 409, and MoMasters v. Normal School, Id., 456 (1894), the Act of June 8, 1891 (supra), was declared to be unconstitutional. § 225. Building contracts containing stipulations against sub- contractors' liens must be recorded and indexed. The Act of June 26, 1895, § 1 (P. L., 369), provides : That no contract for the erection of the whole or any part of any build- ing hereafter made, and no stipulation separately made as part of any such contract, whereby it is sought to deprive or hinder a contractor, sub-con- tractor, material-man, or other person from filing or maintaining a lien, commonly called a mechanic's lien, for work done or material furnished to such building or to any part thereof, shall operate to defeat the right of any sub-contractor, material-man, or other person to file and maintain such a lien, unless such contract(or) or the stipulation shall specifically covenant against such lien by sub-contractor, or other person, and unless said stipu- lation shall be put in writing and signed by the parties thereto prior to the time authority is given to the principal contractor to proceed with said work, and unless said contract or said stipulation shall be filed with the prothonotary of the county where the land lies for record within ten days after its execution. Sec. 2. The prothonotary shall record such contract or stipulation in the docket provided for mechanics' liens, shall index the same, making the ^contractor the plaintiff and the owner the defendant, and shall receive for his service the same fee as for filing and recording a mechanic's lien. § 226. For what demands claims may be filed. For work done or materials furnished for or about the erection or construction of any house or other buildings (Act June 16, 1836, P. L., 696), such as hauling the materials, Hill v. Newman, 38 Pa. St., 151 (1861), and work done with derricks in hoisting the materials used in construction, Tizzard v. Hughes, 3 Phila., 261 (1858) ; work done or materials furnished which go to make up the building, brick, stone, mortar, bricklaying, mason work, door, sash, lumber, hardware, plastering, carpenter work, paint, painting, roofing, and, by eifpress enactment, paperhanging (Act March 24, 1849, P. L., 675), James v. Keller, 2 Dist. Eep., 165 (1892); plumbing, gas-fitting, and furnishing (Act April 14, 1855, P. L., 238). But this does not include gas-fixtures, Jarechi v. Society, 79 Pa. St., 403 (1875) ; the erection of grates and furnaces (Act April 14, 1855, P. L., 238) ; also work and material for every steam-engine, coal-breaker, or parts thereof, pump gear, hoisting gearing, fix- tures or machinery in and about mills of any kind, iron or coal works, coal mines, and iron mines. (Act April 21, 1856, P. L., 496.) If laying the pavement and brickwork on the building are done under an entire contract, the claim may include the paving, Yearsley v. Flanigen, 22 Pa. St., 489 (1854), but there can be no PKOCEEDINGS UPON MECHANICS' CLAIMS. 185 lien for work and materials furnished to pave the footway. Web- ster V. Waheling, 2 W. N., Ill (1875); Paving Co. v. Donegan, 4 Dist. Rep., 243 ; 36 W. N., 261 (1895) ; Edelkamm v. Corrdy, 1 Dist. Rep., 505 (1892)j contra, Paving Co. v. Wdr, 3 Dist. Rep., 32 (1893). In Philadelphia, a lien is given for curbstone for the pavement (Act June 16, 1836, section 20), and for measurement and valuation by any legalized measurer. (Act August 1, 1868, P. L., 1169.) In Dimmick v. Cool Co., 19 W. N., 239 (1887), steam-heating apparatus, laundry apparatus, steam pump and pipes, and a large stock or soup kettle furnished to a hotel, as a part of its original construction, were held to be subjects of a claim. Paxson, J., clearly stated the legal principle as follows : " This was a large hotel, capable of accommodating two hundred gujests. For such a building permanent apparatus for heating, washing, and cooking are as essential as are engines and boilers in a mill. It is true you can eat, wash, and cook without them. So you can grind flour and saw lumber by hand, but the world has out- grown such a mode of doing business, and it is proper that both legislation and judicial decision should keep abreast of the times. A building with only walls and a roof is neither a hotel nor a fac- tory. It is a building, nothing more. When a man constructs a building for a hotel, everything of a permanent character, which will pass as a part of the freehold, and which is reasonably neces- sary to equip it for the purpose for which it is erected, is a part of such building, and therefore comes within the Act of 1836." A mechanic's lien for a gasoline machine permanently attached to the freehold was sustained in Globe Gaslight Co. v. Gill, 1 Dist. Rep., 538 (1892). A mechanic's claim for machinery may be sustained against a ' whole manufacturing plant, although the machinery is used in but one building, and the lien is not lost by the destruction of that particular building. Sted Co. v. Mnfg. Co., 158 Pa. St., 238 (1893). Any structure of a substantial and permanent character, indepen- dent of the rest of a manufacturing plant of which it is a part, is subject to a mechanic's lien. Wheeler v. Pierce, 167 Pa. St., 416 (1895). § 227. Work and materials furnished on credit of bnilding need not be actually used. Work or materials on which a qlaim is based must have been furnished for the building and on its credit, Barclay v. Wain- wright, 86 Pa. St., 191 (1878), but it is not necessary that they 186 PRACTICE IK PENNSYLVANIA. should have been actually used. Odd Fellows v. Mdsser, 24 Pa. St., 507 (1855). § 228. Apportioned Claims. If the labor has been done or the materials furnished for several adjoining buildings belonging to the same owner, there may be filed with the claim an apportionment of the amount among the several buildings, and then each building is subject to its apportioned share. (Act March 30, 1831, P. L., 243; Act April 25, 1850, P. L., 576.) If this be not done in the case of such joint claim, the claim is postponed to other lien- creditors. (Act June 16, 1836, P. L., 699.) See Beitzd v. Stair, 2 Dist. Rep., 337 (1893). If a joint lien filed for alterations to several adjoining buildings, under the Act of May 1, 1861 (P. L., 550), be not apportioned, it will be postponed to all other lien-creditors. Burding's Appeal, 6 W. K, 12 (1878). A lien against buildings situated on the same side of the street, but separated by a vacant lot, may be- apportioned. lAvezey v. Garvin, 16 W. N., 439 (1885). An apportioned lien may be filed against separate buildings be- longing to the same owner, separated by a carriage-way. Livezey V. Hacker, 20 W. N., 14 (1886). If two blocks of houses built under the same contract are divided by merely a private way, the right of which belongs to both blocks, there is not such a severance as will prevent an apportionment of the claim among the several houses. Athinson v. Shoemaker, 30 W. N., 567 (1892). A claim which is in efiFect a joint claim against several blocks of houses, separated by public streets, apportioned first against the blocks and then against the houses composing the blocks, is in- valid. Lueas v. Hunter, 1 Dist. Rep., Ii65 (1892). An apportioned claim cannot be filed against blocks of houses on opposite sides of a street. French v. Kaign, 3 W. N. , 495 (1877). Where two buildings adjoining are separated by a solid brick partition-wall with no internal communication, they form two build- ings, and a mechanic's claim against a double brick dwelling, and not apportioned, cannot be sustained. Boat v. Frear, 167 Pa. St., 614 (1895). In Wilson v. Forder, 30 Pa. St., 129 (1858), there was a con- tract for plastering several houses for a gross sum. No work was done on any except one within six months from the time of filing an apportioned claim. Held, that the work on the one did not keep alive the lien as to the others. The work claimed to CLAIMS. 187 Jicep the lien alive was patching, and was performed long after the contract was suljstantially completed. The Mechanics' Lien Law recognizes the filing of one lien against several houses and the apportionment of the amount among them. lAebdt V. King, 21 P. L. J., 144 (1872) ; Sohultz v. Asay, 2 Pennypacker, 416 (1882) ; MiM v. AUen, 3 W. N., 374 (1877). Where a clear title right exists to file one apportioned lien against certain houses, or separate apportioned liens against each, two ap- portioned liens may be filed if the same contract and bill of par- ticulars be filed in each. Brick Co. v. Morton, 2 Dist. Rep., 559 (1893). As to form of an apportioned claim, see § 202. § 229. Eepairs — Alterations — Additions — Notice required. A claim may be filed for work done or materials furnished for or about the repair, alteration of, or addition to any house or other building, provided the debt is not less than twenty dollars. (Act May 18, 1887, P. L., 118.) The Act of May 1, 1861 (P. L., 550), was an extension of the Act of 1836 to repairs, alterations, and additions; and the Act of May 1, 1861, was, by the Act of May 18, 1887, extended throughout the State. The Act of 1887 was declared constitutional in Smyers v. Beam, 158 Pa. St., 57 (1893). The claim for repairs, alterations, or additions, under the Act of May 18, 1887, is therefore a part of the Act of 1836, and is governed by the principles already noted (sections 226 to 228). There are, however, some statutory regulations : (a) The claim must be for not less than twenty dollars. (6) At the time of fur- nishing the materials, or performing the work, notice must be given to the owner or the reputed owner of the property, or his or her agent, of the intention to file a lien under the provisions of the Act. If the claim do not aver that notice was given to the owner, as required by the Act, it will be stricken ofi". Morrison v. Henderson, 22 W. 'S., 8 (1888) ; affirmed in 126 Pa. St., 216 (1889) ; Slrawiek v. MunhaU, 27 W. N., 195 (1890); Kramerlv. Crump, 28 W. N., 16 (1891) ; Moss v. Qreenberg, 3 Dist. Eep., 247 (1894). The requirement of notice extends to all the counties of the State. Best v. Bavmgardner, 122 Pa. St., 17 (1888), Green, J. (c) No claim can be filed for alterations, repairs, or additions made by a tenant or lessee without the written consent of the owner or reputed owner or his or her duly authorized agent. A mechanic's claim cannot Ije filed as for work done to a new building, when it appears that such work was merely the addition 188 PEACTICB IN PENNSYLVANIA. to and alteration of an old building. De Wald v. Woog, 158 Pa. S., 497 (1893). Where the owner of a building so remodelled it that but a small part of the old building was left standing, the new structure was declared an alteration within the meaning of the Act of May 18, 1887 (P. L., 118), requiring notice to the owner of materials fur- nished or work performed. Smyers v. Beam, 158 Pa. St., 67 (1893). § 230. The Act of August 1, 1868 (P. L., 1168), which applies only to Philadelphia, differs in three particulars from the general law of May 18, 1887 : (a) The amount must be not less than fifty dollars ; (6) the written consent of the owner or a copy must be filed with the claim or statement ; (c) if the property shall have been conveyed to a purchaser before the claim is filed, it is released from the claim. Otherwise, this Act is substantially the same as the general Act of 1887. In Thomas v. Binkk, 24 W. N., 119 (1889), it was hdd that a mechanic's claim filed in Philadelphia against an addition to an old building was subject to the provisions of the Act of August 1, 1868, and created no lien unless filed before the property was con- veyed to a third party. § 231. In claims against Leaseholds, notice req[iiired. A claim may be filed for " performing labor or furnishing labor for or about the construction of any engine-house, derrick, tank, buildings, ma- chinery, wood or iron improvement, construction, or erection upon any leasehold, either by written or verbal lease, or for boring, drill- ing, or mining of any lease or lot as aforesaid, for the develop- ment or improvement of the same, whether such labor is or may be done by day, month, or year, or by contract, for the tenant or tenants, lessee or lessees, of such lot, or lease, or parcel of land, or for their use or benefit," " for the price and value of such work and labor," provided " that when the materials were furnished or labor performed by others than the original contractor or contrac- tors, they shall notify the owner or owners, or reputed owners, of the leasehold property, of his or their intention to file a mechanic's lien, and unless such notice be given no such lien shall be filed nor be of any validity." (Act of June 17, 1887, P. L., 409.) A lien filed under the Act of June 17, 1887, § 1 (P. L., 409), relating to the lien of mechanics, laborers, and others upon lease- hold estates, must be preceded by the notice required by the Act. Strcmick v. MumhaU, 139 Pa. St., 163 (1891). § 232. Work done and materials furnished included in one claim. In the counties of Philadelphia and Chester, work performed and PROCEEDINGS TTPON MECHANICS' CLAIMS. 189 materials furnished may be included in the same claim filed. (Act March 24, 1849, section 2, P. L., 675.) § 233.. Time for filing. For work done or materials furnished, for or about the erection or construction, or for or about the repair, alteration of, or addition to any building, the claim must be filed before the expiration of six months after the work shall have been finished or the materials furnished. (Act June 16, 1886, section 14, P. L., 696.) Six months is also the limit under the Philadelphia Repair Act of August 1, 1868 (P. L., 1168). One who covenants not to file a lien within six months waives his right. Schdd v. Rapp, 22 W. N., 438 (1888). A mechanic's claim under Act of August 1, 1868 (P. L., 1168), filed within six months after completion of work, but after death of debtor, is not entitled to priority over the general debts of de- cedent. Hoff's Appeal, 102 Pa. St., 218 (1883). Work done to compensate defective performance of a contract for work and material in the construction of a building will not preserve the lien, but work substituted for that called for in the contract may do so. Hanson v. Assn,., 26 W. N., 84 (1890). § 234. Claims on leaseholds and personal property, under Act of June 17, 1887 (P. L., 409), must be filed within thirty days from the time the last work or labor was done. § 235. The time begins to run from midnight of the day on which the work has been finished or the material furnished. Thus, materials were furnished December 15th ; the six months began to run at midnight and expired at midnight of June 15th following. A claim filed June 16th was, therefore, too late. HaU V. Dougherty, 8 W. K, 265 (1880). § 236. The limitation begins to run as to each item of the claim from the time of such item. This is the general principle, but the exceptions to it are of more frequent occurrence than the rule itself. § 237. The exceptions are : (1) if any of the items of a claim for work done or materials furnished coTdinuoualy, toward the erec- tion of any new building, is bona fide within six, months before the filing of the claim, the claim is valid as to all the items. (Act April 14, 1855, section 2, P. L., 238.) This Act " gives a unity " to items of materials furnished and work done from time to time as if under a contract for the whole. Hof^s Appeal, 116 Pa. St., 360 (1887). A mechanic's claim may be filed within six months from the completion of the work, although some of it may have been done 190 PEACTICB IN PENNSYLVANIA. more than six months before the lien filed. Bartldt v. Kingan, 19 Pa. St., 343 (1852) ; Yearsley v. Flanigm, 22 Pa. St., 489 (1854) ; Hazzard's Appeal, 83 Pa. St., Ill (1876) ; Briek Co. v. Norton, 2 Dist. Rep., 559 (1893). The doing or furnishing must be continuous, and, therefore, where a building was completed, and shortly afterward an addi- tion not originally contemplated was added, and further work was done on the addition, the two sets of items were not continuous, and the limitation began to run as to the work on the first build- ing from the last item of that work, and not from the last item of the work on the addition. Diller v. Burger, 68 Pa. St., 432 (1871). (2) If the items for one building be done or furnished under one entire contract, the limitation begins to run from the date of the last item, in pursuance of the contract. . Parrish's Appeal, 83 Pa. St., Ill (1876). But if the items under such a contract are performed on different buildings, the time begins to run, as to each building, from the com- pletion of the work upon that building. Wilson v. Forder, 30 Pa. St., 129 (1858) ; Shannon v. Broadherd, 34 W. N., 466 (1894). § 288. If, while work under the contract is being performed, extra work be commenced at the owner's request, and the extra work be finished subsequent to the completion of the contract, the limitation on a claim for both contract and extra work begins to run from the finishing of the extra work. Rush v. Able, 90 Pa. St., 163 (1879) ; Harrison v. Asm., 26 W. N., 84 (1890). § 289. For what defects claims have been struck off. A claim can be struck off only for defects apparent on its face. Miller v. Bedford, 86 Pa. St., 454 (1878). It has been struck off because filed in a court not having juris- diction, Onrry v. Spunk, 23 Pa. St., 58 (1854); or because it omitted the owner's name, Barclay's Appeal, 11 W. N., 359 (1882) ; Steinman v. Miller, 12 W". N., 244 (1882) ; or the con- tractor's name, McCoy's Appeal, 37 Pa. St., 125 (I860) ; or be- cause it did not state the nature and character of the work done or the kind of material furnished. Gray v. Dick, 97 Pa. St., 142 (1881). A claim which names the owner as the " estate of Mary Eeece, deceased," is valid. Eeece v. Haymaker, 164 Pa. St., 575 (1894). But a contractor by a special contract with the owner need not thus specify. Id. (Act April 16, 1845, P. L., 538.) It has been stricken off because it omitted to state the amount claimed for each distinct item. Noll v. Swinford, 2 Pa. St., 187 (1847) ; or because it did not state that work was done or mate- rials furnished within six months, or because neither upon its face PEOCEEDINGS UPON MECHANICS/ CLAIMS. 191 nor by reference to an accompanying paper did it give date or dates to verify the general allegation, Baptist Church v. Trovi, 28 Pa. St., 153 (1857); or because it described the work as done " for and about the erection and construction of the said building and appurtenance," appurtenance being too indefinite and uncertain. Barclay's Appeal, 13 Pa. St., 494 (1850). A lien which describes as a separate building a department or section of an abattoir plant is defective. In re Packing Co.,^ 4 Dist. Eep., 57 (1894). In Iron Worhs v. Oil Co., 25 "W. N., 68 (1889), the claim was regarded as sufficient in enumerating the several structures, describ- ing their use, dimensions, capacity, and the materials of which each was consti acted, and avSiiing that, taken togethei, the whole con- stituted an " oil refinery " upon the premises which were describe!d in the lien. A lien for materials for a gross unitemized sum may be filed where it is confined to an amount made certain by the contract — not other- wise. SmUh v. Gilmore, 34 W. N., 128 (1894). A sub-contractor's claim will be stricken off, on motion, where there is a lumping charge and the lien does not specify the items of claim for work or materials. McFarland v. Schultz, 37 W. N., 28; 168 Pa. St., 634(1895). A claim has been stricken off where a description of the land was not sufficient, Short v. Ames, 22 W. N., 354 (1888) ; or be- cause it was filed against three blocks of buildings belonging to one owner, but separated by streets. Goepp v. Gartiser, 35 Pa. St., 130 (1860). If the buildings are all upon one lot facing parallel streets, with their yards adjoining in the centre of the lot, Taylor v. Montgomery, 20 Pa. St., 443 (1853), or if the buildings are sepa- rated by private way only. Kline's Appeal, 93 Pa. St., 422 (1880). In a claim for repairs made by a tenant, the copy of lease filed with the claim contained a covenant by the tenant to repair ; the claim was struck off. Boteler v. Espew, 99 Pa. St., 313 (1882). A claim is not defective because it is filed against one lot which in fact contains four distinct lots. City v. Cadwallader, 22 W. N., 8 (1887). A lien filed for materials furnished to a contractor for a tempor- ary erection forming no part of a structure is not good. Oppen- heimer v. Morrell, 118 Pa. St., 189 (1888). An apportioned claim against houses in different blocks will not be sustained. ShuUz v. Asay, 11 W. N., 195 (1882). A claim filed as against a new structure, although against an old as well as a new building, the contract attached showing the work 192 PKACTICB IN PENNSYLVANIA. to be altering and repairing, will be struck off. Morrison v. Hen- derson, 24 W. 'S., 38 (1889). It is the right of the owner alone, in a soi. fa. sur mechanic's lien, to object to an insufficient description ; the contractors may allege that the materials were never furnished for the buildings, or that the charge was excessive, or that the materials had been paid for, but they cannot object to the description of the premises. Weaiheread V. Garrett, 27 W. N., 451 (1891). If the claim contains one good item, it cannot be stricken off. McGristal v. Coohran, 147 Pa. St., 225 (1892). § 240. Claims against property of a married woman have been struck off for not showing on their face that she had an estate in the land, and that the work was done or materials furnished for the improvement of her separate estate, and were so applied. Shan- non V. SehuUz, 87 Pa. St., 481 (1878), by her authority and with her consent, Steinman v. Henderson, 94 Pa. St., 313 (1880), and that it was necessary. Kuhns v. Turney, 87 Pa. St., 497 (1878). The Married Persons' Property Acts (June 3, 1887, P. L., 332, and June 8, 1893, P. L., 344) seem to have affected these decisions. The joinder of the husband is no longer necessary. (See § 201.) These decisions, although some of them prior to- the amendment Acts, are of value, as no material amendment can be allowed after the limitation for filing the claim has expired. In Schryook v. Buckman, 22 W. N., 289; 121 Pa. St., 248 (1888), it was held that a claim against a woman described as mar- ried was fatally defective unless averments were introduced as above required. But if the coverture do not appear, a regular judgment and leoari will pass a good title to the purchaser at sheriff's sale. (See § 201.) A contract made by a husband for the improvement of his wife's separate estate, if made with her knowledge and consent, is suffi- cient to sustain a mechanic's claim filed by a sub-contractor who has furnished materials necessary for the improvement. Bodey v. Thaekara, 28 W. N., 470 (1891) ; Sevan v. Thaehara, Id., 473 ; 48 Leg. Int., 439 (1891). A mechanic's claim averring that materials were furnished to a married woman " at her request " is sufficient. DucJc v. O'Bourke, 19 "W. N., 497 (1887). When the Supreme Court has decided that the claimant is entitled to judgment upon the affidavit of defense filed, the Common Pleas cannot strike off the claim. Iron Works v. Oil Co., 25 W. N., 63 (1889). § 241. Amendments of claims are allowed by Act April 9, 1862, PEOCEEDINGS UPON MECHANICS' CLAIMS. 193 § 2 (P. L., 402), by striking out the names of pfersons who are by mistake included as claimants, owners or reputed owners, contrac- tors, architects, or builders. The Act of June 11, 1879, § 2 (P. L., 122), provides that the court having jurisdiction in case of any mechanic's claim or lien " is hereby authorized and required, in any stage of the proceed- ings, to permit amendments conducive to justice and a fair trial upon the merits, including the changing, adding, and striking out the names of claimants and by adding the names of owners and contractors, respectively, whenever it shall appear to such court that the names of the proper parties have been omitted, or that a mistake has been made in the names of such parties, or too many or not enough have been joined in such case : JProvided, That no amendment so allowed shall have effect or prejudice the rights of bona fide purchasers for a valuable consideration without notice, or the rights of other lien creditors, when such purchase has been made, or such other lien would otherwise be prior if such amend- ment were not made or had not been allowed." The claim may be amended by adding the name of the contractor. Cofa v. Bldg. Assn., 3 Dist. Eep., 566 (1893). This Act does not limit amendments to the points specified. Under it the right of amendment extends to the form and manner of setting forth the items of the claim, Snyder v. Baer, 3 Penny., 530 (1883), but no amendment of a material part can be made after the limitation for filing the claim has run. Knox v. Hilty, 20 W. N., 524 (1888) ; MeFarland v. Sohulte, 37 W. N., 28 (1895). § 242. Duration of the lien. " The lien of every such debt, for which a claim shall have been filed as aforesaid, shall expire at the end of five years from the day on which such claim shall have been filed, unless the same shall have been revived by scire facias in the manner provided by law in case of judgments." (Act June 16, 1836, section 24, P. L, 696.) It is sufficient if the scire facias be issued within five years and duly prosecuted afterward, Sweeney v. MoGilligan, 20 Pa. St., 319 (1853) ; said due prosecution being the securing of a judgment on the sdre facias within five years after it issues ; and if a judgment be not secured within that time, the lien is lost. Hunter v. Lan- ning, 76 Pa. St., 25 (1874) ; Phila. v. Scott, 93 Pa. St., 26 (1880), A sd.fa. " to revive the lien " of a mechanic's claim cannot issue. You must issue a sd.fa. "to show cause why the claim should not be levied." Judgment upon the sd. fa. may be revived, but there is no writ to revive the lien of the claim. GoUvns v. Schoek, 14 W. N., 485 (1884). VOL. I. — 13 194 PRACTICE IN PENNSYLVANIA. A proceeding on a mechanic's claim is not within the meaning of the Act of February 24, 1834, § 34 (P. L., 80), which requires bringing in the personal representatives of a decedent in order to charge the real estate. Beece v. Haymaker, 164 Pa. St., 576 (1894). § 243. Compelling claimant to proceed. The Act of June 16, 1836, section 23 (P. L., 696), provides that, if no scire facias shall have issued on the claim, it shall be lawful for the owner of the building, or any person interested therein, to apply by petition to the court, setting forth the facts, whereupon the court may grant a rule upon the claimant and other parties interested to appear at a time to be iixed, and, on the return of the rule, may proceed in like manner as if a scire facias had been issued by such claimant, and had been duly served and returned. Under this provision the court, on the return of the rule, fixes time within which the claim- ant shall file his statement and the defendant plead. In Barton v. Morris, 2 Miles, 109 (1837), the order of the District Court was that if the plaintiff failed to comply with the directions, judgment of nonpros, should be entered and the claim struck off. When the defendant has set on foot this proceeding the plaintiff cannot suffer a non-suit or go out of court without paying the costs he has put upon the owner. Seabrook v. 8warthmore Oolite, 65 Pa. St., 74(1870). (See §2800.) § 244. The Act of August 1, 1868 (P. L., 1169), which applies only to Philadelphia, provides that the owner may move for a rule on the claimant to sue out a writ of scire facias to the next monthly return-day, and if the claimant shall not issue the writ in obedi- ence to the rule, the court, on motion, shall strike the lien from the record. When a rule on claimant to issue sei. fa. is made absolute, the writ should be issued to the next return-day to which it could legally issue or the claim will be stricken off. Suier v. Wilbra- ham, 22 W. N., 10 (1887). (See § 2801.) § 245. Satisfaction. The Act of March 17, 1806 (4 Sm. L., 300), applied only to Philadelphiaj and authorized a recovery in damages " not exceeding one-half of the debt," upon failure by the claimant, when debt had been satisfied, to enter satisfaction of record within six days after request so to do, and payment of the costs of action, and tender of the ofGce-costs for entering satisfac- tion. The Act of April 9, 1849 (P. L., 495), section 2, extends the provisions of the Act of June 16, 1836, and provides that in liens filed for work done and materials furnished about iron works and mines, and to every bridge and building for any corporate body, PROCEEDINGS UPON MECHANICS' CLAIMS. 195 the process to obtain satisfaction of any judgment upon such lien " in any case where by existing laws no lien is given for labor or materials done or furnished to a corporate body," shall be by writ of sequestration. This section embraced only Columbia and Elk Counties, but was extended by Act of March 1, 1870 (P. L., 282), to Allegheny County, and by Act of May 10, 1871 (P. L., 675), to Bradford County. As to how far the Act of April 7, 1870 (P. L., 58), curtails the provision under this Act as to seques- tration, see B. R. Go's Appeal, 70 Pa. St., 355 (1872) ; Bayard's Appeal, 72 Pa. St., 463 (1872). § 245 a. Satisfaction to be entered on req^nest — penalty. In every case in which, the amount of any claims as aforesaid shall be paid, or otherwise satisfied, it shall be the duty of the claimant, or his legal representative, at the request of the owner of the building, or of any other person interested therein, and on payment of the costs, to enter satisfaction on the record of such claim, in the office of the prothonotary of the court in which such claim shall have been entered, which shall forever there- after discharge and release the same. Act of June 16, 1836, ? 25 (P. L., 699). If any person who shall have received satisfaction as aforesaid shall neglect or refuse to enter satisfaction of such claim as aforesaid within sixty days after request and payment of the costs of the suit as aforesaid, he shall forfeit and pay to the party aggrieved any sum not exceeding one-half of the amount of such claim, to be recovered as debts of like amount are re- coverable. Ibid., § 26. Provided, That nothing in this Act contained shall be construed to impair or otherwise affect the right of any person to whom any debt may be due for work done, or materials furnished, to maintain any personal ac- tion against the owner of the building, or any other person liable therefor, to recover the amount of such debt. Ibid., I 27. § 245 b. Order to satisfy the claim — to mark to use — to satisfy judgment. (Caption.) Sik: Enter satisfaction of claim in the above case. Signature of Plaintiff. (Date.) To Prothonotary C. P. The claim may be satisfied on the docket without entering a formal order to satisfy. If the claim has been reduced to a judg- ment, the form to satisfy the judgment is given at § 3024. Where a number of sei.fas. have been sued out on an apportioned claim, an order to satisfy the judgment on each ad. fa. should be filed. The judgment may be assigned, and carries with it all the sub- stantial rights of the assignor as fully as if held by him. Hage- man's Appeal, 88 Pa. St., 21 (1878). If the claim or judgment is marked " to use," the entry may be made on the docket or a formal order filed. CHAPTEE VIII. HOW TO STJB OUT AND PROSECUTE SOI. PAS. TO REVIVE JUDG- MENT — SCI. PA. SUR RECOGNIZANCES — ACTIONS UPON BONDS IN ERROR — OFFICIAL BONDS, ETC. § 246. Judgments should be revived every five years, in order to continue their lien, § 247. When revival not necessary. The Act of May 19, 1887 (P. L., 132), provides that " Execution may issue upon any judg- ment of record in any of the courts of this Commonwealth, not- withstanding such judgment may have lost its lien upon real estate, without a previous writ of scire f ados to revive the same : Pro- vided, however, That such execution shall be confined or restricted to the personal property only of the debtor, and that such execution shall not issue after the lapse of twenty years from the maturity of the judgment : And, provided further, That at the same time execution is issued, a scire facias shall be issued to revive the judg- ment upon which said execution is issued ; and, in case the defen- dant or defendants in said writs file an affidavit alleging a just and legal defense against the revival of said judgment, it shall be law- ful for the court, or a judge thereof in vacation, to stay the writ of fieri facias, by an order preserving the lien thereof, and to order the scire facias on the head of the list for trial at the next term for the trial of civil cases." In Pierce v. Wvmder, 25 W. N., 466 (1890), it was decided that under this Act a.fi.fa. could issue more than five years after judg- ment, without renewal, against personal property, but that a levy on real^estate and inquisition under it are irregular. This ruling was at the instance of a stranger to the record. The defendant did not object to the levy. The application to set it aside was made by a railroad company claiming to have purchased the land after the lien of the judgment had expired, and two days be- fore the levy. It has been generally supposed that a claim of title to real estate cannot be settled in this manner. § 248. To preserve a lien on real estate. You must issue a soi. fa. within the term of five years. (Act April 4, 1798, section 2, 2 Sm., 3:il.) Failing herein, you lose your lien upon the realty both as to other judgments and purchasers. HOW TO SUE OUT AND PEOSBCUTE SCI. FAS. 197 § 249. If lien lost. The old cases present some curious features. In RUand v. Eohert, 23 Pa. St., 215 (1854), there were several serious gaps. Suit was brought in the Circuit Court, U. S., against James Wilson. Judgment was recovered April 14, 1800. Nearly thirteen years were allowed to elapse. Aji.fa. was issued January 16, 1813, against the administrators of the defendant. Nothing further was done for eighteen years more. Then, in 1831, a sci. fa. was issued to revive, and singularly enough, on this dead judg- ment, " by writing filed judgment by consent was entered to be levied de terris et de bonis quando acdderint." Executions were issued, but no levy made on land until September 21, 1837. The lien of the last judgment was then gone. The land was sold to Ecisert. Ejectment was' brought under this title against Eiland and others who did not claim under Wilson, but who set up : (1) an improvement title ; (2) that the judgment against Wilson's ad- ministrator created no lien on the land as against heirs and others, and that Eckert, the purchaser, acquired no title. The court below decided against the defendants. The Supreme Court affirmed the judgment. The opinion as to the constructive possession under the improvement title is of interest to those who have watched the line of decisions of which this was an outpost. But it has no place here. The point as to the non-joinder of the heirs in the sd. fa. was ruled against defendants because they were not the heirs of Wilson and did not claim under them. The levy was held to create a lien because the lien of the judgment was gone at the time of the levy. The opinion of the court on this branch of the case was well expressed by Woodward, J. : " The result of legislation and judicial decisions in Pennsylvania touching the liens of judgments and executions on real estate seems to be that where the judgment is a lien there can be no independent lien acquired by execution process thereon ; but where land is seized in execution by virtue of a judgment, which is no lien, the execution becomes a lien on it. This is the ground on which Packer's Appeal, 6 Pa. St., 277, and Jamison's Appeal, lb,, 280, are reconciled in Davis v. Ehrman, 20 Pa. St., 258. In Todd V. MoOullooh, 3 Pa. Rep., 445, it is said to have been established substantially, if not in terms, in Bet^s Appeal, 1 Pa. E.ep., 271, that the lien of a judgment is preserved by an execu- tion only as regards the land levied, a dictum which is not accu- rate, for since the Act of 1827 the lien of a judgment, according to all the cases, is not continued by an execution levied, but, as is afterward said in the same case, the lien by which lands are bound for more than five years without a scire facias, seems to be 198 PRACTICE IN PBUnsrSYLVANIA. that which the common law attributes to an execution, rather than the lien of a judgment." It will be observed that the lien of a judgment in Riland v. Eekert, just cited, was gone when the land was levied upon. If the lien of the judgment be in force, the execution will not create a lien which will bar judgments entered after the five years from the date of the first judgment. In Stephen's Appeal, 38 Pa. St., 15 (1860), Thompson, J., thus clearly states and answers the question : " As was said in Jamison's Appeal, 6 Pa. St., 280, ' A judgment and an execution thereon have not, under our Acts of Assembly, distinct and independent liens upon the same land.' " The question recurs, then : Did the seizure and the extent con- tinue the lien aft«r that of the judgment was gone, it having been made while the judgment was a lien between the parties to it ? I think the doctrine of the last-mentioned case and the Act of 1827 will go far to settle this point." See also Stauffer v. 'ihs Commissioners, 1 Watts, 300 (1832), and Packer's Appeal, 6 Pa. St., 277 (1847). It will thus be seen that if the judgment were more than five years old, the former practice was to issue afi.fa. and sei.fa. to- gether, to give a description of the real estate of the defendant to the sherifi'and order him to levy thereon, to see that the prothono- tary put the fi. fa. on the judgment index, and to file with him a description of the land levied on. This is distinctly ruled in Riland V. Ecka-t, 23 Pa. St., 215 (1 854). Woodward, J., said : " Though the lien of the judgment * * had expired before the pluries/?. fa. issued, yet a lien was acquired by virtue of the levy made in pursuance of that writ." See also the other cases cited. This seems to be changed by the Act of May 19, 1887 (P. L., 132), and the decision in Miller v. MUer, 147 Pa. St., 545 (1892). In this case judgment was obtained by A. against B. on May 12, 1885. On July 2, 1890, afi.fa. and sd.fa. were issued on said judgment. On July 30, 1890, C. obtained judgment against B. The defendant took a rule to set aside the levy and proceedings wnierfi.fa, so far as they related to real estate. The rule was made absolute and the fund was awarded to C. The Supreme Court affirmed. The only means, therefore, of obtaining execu- tion against the realty, after the five years, is by issuing sd. fa. and obtaining judgment. In the meantime, any other judgment entered will take precedence, and any bona fide purchaser of the land will take a good title. It should be noticed that the Act of June 16, 1836, section 1 HOW TO SUE OUT AND PROSECUTE SCI. FAS. 199 (P. L., 761), provides that execution on a judgment within a year and a day from the first day of the term at which it was rendered may be issued, and the second section provides that after the expi- ration of that period execution shall not be issued unless the de- fendant shall first be warned by writ of sci. fa. Then the Act of April 16, 1845, section 4 (P. L., 538), was passed, and provided that execution on a judgment may be issued at any time if the judgment has been revived in five years. The Act of May 19, 1887 (P. L., 132), authorizes the issuing of execution upon a judg- ment of record afler the expiration of the five years without a previous writ of sei. fa. to revive ; provided (a) that such execution be restrained to the personal property of the debtor ; (6) that it be issued within twenty years from the maturity of the judgment ; (c) that a sd. fa. to revive be issued simultaneously with it. § 250. If the lien of the judgment be in force. If the lien of the judgment be in force when the land is levied upon, but expires before the sale, the execution will not create a lien which will pre- cede judgments entered after the five years from the date of the first judgment. Davis v. Ehrman, 20 Pa. St., 256 (1853) ; Stephen's Appeal,38 Pa.St.,15(1860);JamMon'«^ppea?,6 Pa. St., 280(1847). After-acquired lands. Though a judgment is not a lien upon lands of the defendant subsequently acquired, levy may be made upon such lands in the possession of the defendant. As to several judgments entered before the land was acquired, the first levy takes the fund, without regard to the question of priority of the judgments. Packer's Appeal, 6 Pa. St., 277 (1847) ; Lea v. Hopkins, 7 Pa. St., 492 (1848). In Philadelphia County, by the Act of April 20, 1853, section 9 (P. L., 611), after a levy on after-acquired realty, the plaintiff may have the execution certified by the officer making the levy to the prothonotary : whereupon it is to be docketed in the judgment- index, and thenceforth binds the land levied on for five years. Un- less the levy be so certified and indexed, there is no lien. The mere docketing and indexing the fi. fa. and not indexing the levy on the judgment-index will not suffice. Appeals of Ross & EUshree, 15 W.N., 217(1884). § 251. Form of praecipe for sci. fa. to revive : In the Court of Common Pleas, No. 1, of Philadelphia County, ^- f of Term, 1894, No. . 8ie: ' Issue scire facias to revive the judgment in the above case, returnable sec, kg. To the Prothonotary of said Court. C, Plaintiff's Attorney. (Date.) 200 PEACTICE IN PENNSYLVANIA. Where the plaintiff assigns his judgment, it may nevertheless be revived in his name. Hayeks Appeal, 35 W. N., 158 (1894). § 252. Avoid amicable revivals j terre-tenants. If defendant has aliened land since your judgment, an amicable revival to which the purchaser was not a party would be of no effect. Baum v. Ouster, 22 W. N., 245 (1888). It is best to add on prcedpe beneath de- fendant's name the words, " with notice to terre-tenants." Search in recorder's office for conveyances by the defendant. If any deed from him be recorded for the land originally bound by your judg- ment, then name the grantee as terre-tenant in your prcedpe and scire fadas. This is required by Act of June 1, 1887 (P. L., 289), which provides that " no proceeding shall be available to continue the lien of said judgment against a terre-tenant whose deed for the land bound by said judgment has been recorded, ex- cept by agreement in writing, signed by said terre-tenant and entered on the proper lien docket, or the terre-tenant, or terre- tenants, be named as such in the original scire facias." The Act of April 16, 1849 (P. L., 664), relating to the revival of judgments, was intended to continue the lien against lands of the debtor by revival against him alone, unless the purchaser or terre- tenant put his deed on record, or was in actual possession, in which case the five years commenced to run in his favor from the date of record of the deed or the time he took possession personally or by his tenant. Wetmwe v. Wetmore, 33 W. N., 11 (1893). Reoival by married woman. If on an amicable scire facias a married woman since 1887 revives a judgment given by her prior to 1887, she cannot afterward claim that the original judgment was void. Lyons v. Burns, 47 Leg. Int., 222 (1890). Both parties to sign agreement. An agreement for an amicable sd. fa. must be signed by both plaintiff and defendant. Miller v. MiUtT, 27 W. N., 23 (1890). § 253. Lien as to decedents. You must bear in mind that if the defendant die after judgment, your lien on his real estate continues " to bind such estate during the time of five years from his death," * * * " and such judgments shall, during such term, rank according to their priority at the time of such death ; and after the expiration of such term such judgment shall not continue a lien on the real estate of such decedent, as against a bona fide pur- chaser, mortgagee, or other judgment creditor of such decedent, unless revived by sdre fadas or otherwise, according to the laws regulating the revival of judgments." Act of February 24, 1834, section 25 (P. L., 77). (Br. Purd., 593, section 118.) § 254. Revival against representatives of decedents. Whenever HOW TO SUE OUT AND PROSECUTE SCI. PAS. 201 you have choice, do not allow the time to' run closely to the ex- piration of your lien. Proceed a year or two years before the limitation has run. Revival by representatives of decedents. The Act of June 27, 1883, section 1 (P. L., 163), authorizes " foreign executors or ad- ministrators to issue or cause to be issued, in the name of such foreign executor or administrator, scire facias within this Com- monwealth on all judgments, the lien of which is about expiring and in favor of the testator so represented : Provided, That before any further proceedings are had, letters of administration must be granted within this Commonwealth as now provided by law." § 255. To revive against executors or administrators, write in your praecipe, instead of the name of the original defendant, the name of his executor or administrator, thus : C, executor of the last will and testament of B. (or administrator of B,, as the case is), and follow with this variation the form just given. § 256. As to joining widow and heirs of decedent. The 34th section of the Act of February 24, 1884, directs : " In all actions against the executors or administrators of a decedent who shall have left real estate, where the plaintiff intends to charge such real estate with the payment of his debt, the widow and heirs or devisees, and the guardians of such as are minors, shall be made parties thereto ; and in case such widow and heirs or devisees or their guar- dians reside out of the county, it shall be competent for the court to direct notice of the writ issued therein to be served by publica- tion or otherwise, as such court may determine by rule of court, and if notice of such writ shall not be served on such widow and heirs or devisees, or their guardians, the judgment obtained in such action shall not be levied or paid out of the real estate of such widow, heirs, or devisees, as shall not have been served with notice of such writ." Under this statute the question arose in McMillan v. Bed, 4 W. & S., 237 (1842), whether it was necessary to join the widow and heirs as parties in the sd. fa. to revive the judgment. The court below decided it was necessary to do so. The Supreme Court re- versed. Huston, J., dissented. A previous intimation to this effect had been given one year after the Act of 1834 was passed, in Warder v. Tainter, 4 Watts, 284. 202 PRACTICE IN PENNSYLVANIA. Chambers v. Carson, 2 Wh., 365 (1837) ; Tayhr v. Y Court. Term. No. CD. ] To the Protlionotary of the Court of Common Pleas, No. , Philadelphia County. Sib : Issue scire facias sur recognizance of the above-named C. D., whereof the following is a copy (here copy the recognizance in suit). After the copy you may add : of which said recognizance the plaintiff avers the following breach. (You then follow the the condition of the recognizance, inserting the word not, as that the said did not on the pay, etc.,) wherefore, there is due to the plaintiff as per following STATEMENT. Amount (recite the fact). Int. from (insert date, but do not calculate amount). E. F., Plaintiff's Attorney. (Date.) HOW TO 8TJB OtJT AND PROSBCUTE SCI. PAS. 207 Indorse this : A. B. CD. Court. Term. No. Pracipe for sci.fa. or Prmcipe for summons. Copy of recognizance Copy of bond sued upon and statement. sued upon and statement. E. R, Plaintiff's Attorney. (Date.) A copy of the whole record need not be filed in suing out a re- cognizance for stay of execution. Jones v. Raiguel, 97 Pa. St., 437 (1881). In JSeck V. Courtney, 13 "W. N., 302 (1883), sci.fa. sur recog- nizance was held a su£Gcient declaration. Where judgment is entered on a warrant of attorney, no sd. fa. is necessary to ascertain damages. The execution is under the con- trol of the court. Cochlin v. Com., 11 W. N., 460 (1882). A justice of the peace alone can issue a sd. fa. upon a recogni- zance of appellant in case of his neglect. Shivery v. Grauer, 2 Dist. Eep., 388 (1893). § 263. If Commonwealth be the recognizee, as in the case of the sherift's recognizance, instead of your client's name write : The Commonwealth of Pennsylvania at the suggestion and to the use of (your client's name) V. (name all the recognizors). Follow above form. § 264. The form of recognizance for sheriflfs and coroners is pre- scribed by Act April 15, 1834, sections 64, 67 (P. L., 549). § 265. Sheriffs bonds — official bonds. The same Act, April 15, 1834, gives, in section 65 (P. L., 549), the form of the sherift's bond. § 266. Actions on official bonds. The Act of June 14, 1836, section 6 (P. L., 639), directs that : Every bond and obligation which shall be given to the Commonwealth by any public ofllcer, or by any person appointed under authority of law to execute any public trust ; also, every bond which shall be given by any ex- ecutor, adiaainistrator, guardian, committee, assignee, receiver, or trustee, with intent, in every of the said cases, to secure the faithful execution of the respective offices, employment, or trust, and for the use of all such persons, and bodies,politic and corporate, as may be affected by the official acts or neglect of such officer or person, may be sued and prosecuted in the manner following, to wit : I. The writ shall in such case be issued in the name of the Common- 208 PRACTICE IN PENNSYLVANIA. wealth, and the names of the persons by whom the same shall be sued out shall be suggested as plaintiffs therein, and such persons shall be liable for the costs of the suit, in like manner as plaLntiflfe in other cases. II. If two or more persons having several interests shall join in suing such writ, it shall be lawful for them to declare separately thereon, and set forth in their declarations, respectively, the breaches of the condition of such bond or obligation, which shall have been made to their particular injury, or they may join in declaration thereon, and afterward, in their replications or otherwise, according to the course of practice in like cases, set forth upon the record the breaches of the condition aforesaid. in. It shall be lawful for any other person to whom a cause of action shall have accrued on such bond or obligation at any time before judgment, upon a suggestion filed with leave of the court, to be made a parly plaintiff in such writ, and thereupon he may declare and set forth the breaches of con- dition of such bond or obligation to his particular injury as aforesaid. rV. The obligors in any such bond or obligation may plead performance of the condition thereof, so far as it respects the person by whom such writ was issued, or any of them, and if such fact be confessed or found, such persons shall be debarred of their action upon that writ. V. If several persons shall join as aforesaid in any such writ, and if issues be taken by them separately from each other against the defendants, it shall be lawful for them to have a separate trial thereof, or, at their elec- tion, such issues may be tried at the same time, and if they be issues in feet, by one and the same jury. VI. The parties to any issue taken as aforesaid shall be liable for the costs of the trial thereof, in like manner as if they only were parties in the proceeding. VII. If judgment, upon all issues taken as aforesaid, be rendered for the defendants, such judgments, and the pleadings and proceedings upon which they shall be founded, shall not estop, debar, or otherwise affect the action which any other person or body politic or corporate, may at any time have upon such bond, nor shall such judgment debar any action which the said plaintiffs may have therein, for any subsequent breach or cause. VIII. If final judgment be rendered against the defendants upon any issue taken as aforesaid, such judgment shall be as follows, to wit : (1) For the Commonwealth, in the amount of such obligation or bond. (2) For the plaintiff in such issue, in the amount of damages assessed, and for the costs accrued between such plaiutiff and the defendants. IX. The judgment of the Commonwealth as aforesaid shall remain for the satisfaction of all persons entitled to the benefit of the bond or obliga- tion upon which it was rendered, and for all and singular the like uses and purposes ; but the said judgment shall not be a lien upon the real estate of the defendants, unless the Commonwealth shall have commenced the ac- tion, nor shall execution thereof be had except in the manner hereinafter provided. X. The judgment for the plaintiff in such issue as aforesaid shall be a lien upon the real estate of the defendants, to the amount thereof, and such plaintiff may have execution thereof, on (or) a writ oi scire facias, or other action thereon, in like manner as may be had in a case of judgments in other personal actions. XI. In all cases where the condition of any such bond shall be broken, afl«r a judgment rendered for the Commonwealth as aforesaid, it shall be HOW TO SUE OUT AND PROSECUTE SCI. FAS. 209 lawful for the party aggrieved to proceed by writ of «CTre facias upon, such judgment suggesting his interest therein, to assess and [recover the damages which he shall have sustained, in the manner hereinbefore provided in the case of the breach of the condition of a bond tiaken to secure the perform- ance of a covenant, after a judgment had upon such bond. XII. Every judgment rendered for the plaintiff in any such writ of sdre fadas shall be of like effect to all intents and purposes, as judgments ob- tained by plaintiffs in other personal actions. XIII. It shall be lawful for the sureties in any bond as aforesaid to pay into court, at any time after suit brought thereon as aforesaid, the whole amount of the penalty of the bond, with all costs of suit up to that time, and thereupon they shall be discharged from all further liability by reason thereof ; but nothing herein contained shall debar any person of his action or his right of execution against the officer, trustee, or other person for whom such security was given, for any damages which shall not be paid out of such bond. From this it vpill appear that the remedy on the bond differs from the suit on the recognizance. § 267. If no suit has been brought on the bond, you will be the first plaintiff. The prcedpe in that case will be : The Commonwealth of Pennsylvania, at the suggestion and to the use of (your client), V. (Names of all the obligors.) To the Prothonotary of the Court of Common Pleas, No. 1, of Philadelphia County. Sib : Issue summons in assumpsit ret. sec. leg. upon the BOND, whereof the following is a copy : (Here copy bond at length, signatures of obligors, witnesses, justification, recording — everything.) The plaintiff claims to recover upon the said bond the sum of $ (state full amount of your client's damage), with interest from and costs upon the fol- lowing STATEMENT. (Here state your case. The following may serve simply as a guide:) The plaintiff on the day of brought suit in the Court of Common Pleas, No. 2, of Philadelphia County, to term. No. , against David Jones to recover the amount of a certain note due by said Jones to plaintiff, and the plaintiff afterward recovered a judgment against said Jones for the sum of dollars, which judgment is still in full force and unpaid. The plaintiff afterward, to wit : issued out of said court ajierifaeia^ against said David Jones for the afore- said sum of $ with interest from and costs. Said fi. fa. was delivered to , being then and there sheriff of said county (and one of the obligors in the bond now sued upon) for execution accord- ing to law. The said writ commanded the said sheriff that of the goods and chattels, lands and tenements of said David Jones, said sheriff should cause to be levied the said sum of $ and interest and costs. And V0I-. I. — 14 210 PRACTICE IN PENNSYLVANIA. said David Jones then and there had goods and chattels, subject to said ex- ecution and on which the said^./o. could then and there have been levied, sufficient to satisfy the said writ, and on which the plaintiff requested said sheriff to levy. But the said sheriff, his duty neglecting, was guilty of the following breach of said bond, in this that he did not, although thereto by the said plaintiff frequently requested, levy upon said goods and chattels, or any part thereof, or on any goods or chattels or lands or tenements of said David Jones, but falsely returned said writ nulla bona. Whereby the plaintiff lost the said sum of $ and interest from and costs now demanded of said obligors on said bond. A. B., Plaintiff's Attorney. (Date.) (Affidavit when required.) Indorse this paper with names of parties, court, term, and No. : Prmdpefor mmmons. Statement — Copy of bond sued on. Suggestion of breach — Amount of claim, etc. § 268. If suit has been brought by another party on the official bond, and no judgment has been entered, you proceed by a sugges- tion somewhat in the following form : The Comm. of Penna. 1 to the use of A. B. 1 C. D., E.\, G. H. J To the Honorable the Judges of the Court of Common Pleas, No. 2, of Philadelphia County. The suggestion and petition of I. K., humbly showeth 1. That a suit has been brought in this Honorable Court to Term, 1886, No. , by the Comm. of Penna. to the use of A. B. upon the official bond of C. D., High Sheriff of said county. 2. That no judgment has yet been entered in said suit. 3. That your petitioner has a just cause of action upon said bond as follows : (Here set out the complaint of the petitioner.) Wherefore he prays this Honorable Court that he may be made a party plaintiff, and be allowed to declare by statement, setting forth the breaches of the condition of such bond to his particular injury as aforesaid. (Signature of Petitioner) {or of his counsel). (name of petitioner) having been duly sworn, according to law, doth depose and say that the facts set forth in the foregoing petition are true. Sworn to and subscribed before me, (Signature of Petitioner.) HOW TO SUE OTJT AND PROSECUTE SCI. FAS. 211 Indorse this : Comm. of Pa. to use") ^" ■ j-No. , Term, Year, C. D., E. P., G. H. j PETITION OF I. K. And now, , on motion of L. M., attorney for I. K., the court grant a rule to show cause why I. K. should not be made a party plaintifif in the above case. Eule returnable Serve a copy of this petition and notice of the rule on the at- torneys of the plaintiffs and defendants. Have a copy of the peti- tion for each judge, and on the return-day have the rule made absolute. Give an order to the prothonotary in this form : Comm. of Pa. "1 to the use of A. B. 1 ^^^_ Term, 1886. No. . C. D. et al. J To the Prothonotary of the Court of Common Pleas, No. 2, of Philadel- phia County. SiE : Enter my appearance for I. K., who has been made a party plain- tiff in the above case by order of court. L. M., Attorney for I. K. (Date.) § 269. Then prepare your statement. The following form may guide you : Comm. of Pa. \ to the use of A. B. 1 Common Pleas, No. 2, of Philadelphia County, V. \ Term, 1887. No. . C. D. et al. J I. K., who has been made a party plaintiff in the above case, by leave of the court, flies this, his STATEMENT. You must here detail your complaint. The form imder the word state- ment in. the jorcEcipe already given (section 267) will be a guide. Facts vary in every case. You must set forth clearly the circumstances leading up to the breach; showing how your client stood with reference to the sheriff; what writ he delivered to the sheriff; what the sheriff's duty was ; then aver the breach ; that is, how the sheriff defaulted in his duty ; that he did not levy ; that he did not serve the summons (if that was the neglected writ), and exactly how the damage arose. Then you state your client's loss in dollars. Let a copy of the bond accompany the statement. This . paper you indorse (always writing term. No. , year, , and names of parties) : Statement of I. K. Copy of bond sued on. Suggestion of breach. Amount of claim, etc. (Affidavit when required.) 212 PEACTICB IN PENNSYLVANIA. § 270. What to do with summons. If you have been the original plaintiff, serve summons, with copy of your statement, etc. See sections 17, 18. If rule of court requires plaintiff's affidavit to the statement, be sure to attach the affidavit. If there be no appearance, or no affidavit of defense, or an in- sufficient affidavit, proceed as suggested, sections 26, 27, 28, etc. § 271. If you have filed suggestion as a new plaintiff, accompany it with your client's affidavit (if so required' by rule of court) and serve it and wait for affidavit of defense. If affidavit of defease be sufidemt, enter rule to plead (section 26), and so on to judgment by default or to trial. § 272. It only remains to notice the case of a party whose cause of action accrues after judgment on the bond. Such a person, as pro- vided by paragraph XI. of the Act quoted, may " proceed by writ of scire facias upon such judgment, suggesting his interest therein," etc. You file a suggestion in the form above indicated, but do not take a rule to become a party plaintiff. In your suggestion be care- ful to state your full cause of action. Give copy of the bond and show that, as to you, the condition of the bond was broken after judgment rendered for the Commonwealth. Let your client swear to the suggestion. You then order a sci. fa. as per form of praecipe heretofore given. Serve with sci. fa. a copy of your suggestion, and proceed as in other cases already delineated, § 273. In all proceedings observe : (1) That your papers con- form to the statute, the facts, and the rules of court. (2) That process and copies are regularly served. (3) That you secure judgment by default when clearly thereto entitled : (a) For want of appearance. (b) For want of affidavit of defense. (c) For want of sufficient affidavit of defense. (d) For want of a plea. (4) Failing herein, put your case at issue and press for trial. § 274. Verdict a lien. The Act of March 23, 1877 (P. L., 34), provides that a verdict by a jury in the Common Pleas for any spe- cific sum of money shall be a lien upon the real estate, within the proper county, of the party against whom the verdict may be ren- dered. Such verdict is entered on the lien docket as judgments are entered. A motion for a new trial or in arrest of judgment, if overruled, HOW TO SUB OUT AND PROSECUTE SCI. FAS. 213 does not affect the lien of the verdict, which dates from the time of its rendition. § 275. Time within which sci. fa. must issue. The Act of March 26, 1827 (9 Sm. Laws, 303), provides that a judgment shall be a lien for the term of five years from the day of entry or revival thereof. The five years is exduswe of the day on which the judg- ment is entered. Green's Appeal, 6 "W. & S., 327 (1843), and the sd. fa. may issue on the last day of the five years. Silverthom V. Tovmsend, 37 Pa. St., 263 (1860). If the last day be Sunday, the sei. fa. can issue on Monday. In Latins Appeal, 46 Leg. Int., 335, the judgment was entered April 17, 1876. It was decided that the sd.fa. which issued Monday, April 18, 1881, preserved the lien. In case of a judgment which has been revived, the five years begin to run not from the return of the sd. fa., but from the judgment of revival. Cathcart v. Poiierfield, 5 Watts, 163 (1836). The Act of 1827 also provides that the sd. fa. may be sued out, whether the money be due and payable on the judgment or not, and that no order or rule of court, or any other process or proceeding thereof, shall obviate the necessity of revival in order to continue the lien. § 276. Diligence in prosecuting sci, fa. The diligence required in prosecuting the sd.fa. is that the plaintiff shall within five years from the time of issuing the writ get a judgment of revival on the sdrefadas. In re Fulton's Estate, 51 Pa. St., 204 (1865). Terre-tenants. If the land on which the judgment is a lien be- long to some one other than the defendant, such terre-tenant is not precluded by the judgment on the sdrefadas unless he has been made a party to the proceeding. But it is not necessary that a judgment be entered against the terre-tenant ; service on him of the sdrefadas is enough. Day v. Willy, 3 Brewster, 43 (1868). If the terre-tenant be not thus served, he can afterward make any de- fense which would have been available before, Mevey's Appeal, 4 Pa. St., 80 (1846) • but if he be served, he is precluded by the judgment on the sd. fa. Blythe v. MoClmiooh, 7 S. & E.., 341 (1821). The provisions of the Act of April 16, 1849 (P. L., 664), re- lating to revival of judgments, were intended to continue the lien of a judgment against the lands of a debtor, by revival against him alone, unless the vendee or terre-tenant put his deed on record or was in actual possession, in which case the five years ran in his favor from the date of recording the deed or taking possession. Wetmore v. Wetmore, 155 Pa. St., 507 (1893). § 277. Time of serving terre-tenant. It is sufficient to serve the 214 PKACTICE IN PENNSYLVANIA. terre-tenant at any time within five years from the day of issuing the sdre faeias. Porter v. Bitchoock, 98 Pa. St., 625 (1881). This service may be either of the sei. fa. or of an alias thereon, but it is sufficient if the service be made within five years from the day of issuing the sdre facias.. Kirby v. Gash, 93 Pa. St., 505 (1880). § 278. Scire facias on judgments transferred to another county. When a judgment is transferred to another county, the five years begin to run from the time of entry in the new county, and not from the date of the original judgment. Knaus^s Appeal, 49 Pa, St., 419 (1865). The Act of May 4, 1852 (P. L., 584), provides that when a new county is erected out of parts of older counties, and judgments originally entered in the older county shall be or shall have been transferred into the new, and such transferred judgments shall be revived by scire facias within five years from the last rendition of judgment in the old county, the lien shall be continued irrespec- tive of the judgment in the old county. § 279. Scire facias against soldiers. The Act of April 11, 1862 (P. L., 484), provided that the plaintiff might issue his sdre fada^ against a defendant who is a soldier, but that judgment of revival should not be rendered while the defendant is in actual service, the issuing of the writ being sufficient to continue the lien. This Act ^provides for notice to the defendant on his discharge, if he return to the county ; and if he do not return to and acquire a residence in the county, for the issuing of an alias. Upon the re- turn of nihil, the court may render judgment. CHAPTER IX. COMMENCEMENT AND PEOSECUTION OP ACTIONS FOE ANNUITIES, ON APPRENTICE-DEEDS, BY AND AGAINST ATTORNEYS, FOR AVERAGE, ON AWARDS, BY BAILEES, ON BILLS OF EXCHANGE, ON CALLS, BY AND AGAINST CARRIERS, ON CHARTER-PARTIES, ON CONTRACTS OF SALE, BY FARRIERS, ON FOREIGN J0DO MBNTS, FOR FORBEARANCE, FREIGHT, GOOD-WILL, INDEMNI- TIES, LEGACIES, LoInS, ON PROMISE OF MARRIAGE, FOR NECESSARIES, FOR PARTY-WALLS, PLEDGES, RENT, REWARDS, § 280. These various causes of action are grouped into one chap- ter, because little need be added as to them in addition to that which has been already noted in the preceding chapters. All of them fall under the head of assumpsit, section 61. Praecipes. The prcBcipe will follow the form and directions already given. Sections 10, 11, 12, 13, 14, etc. Statements must be filed. Sections 17, 18. Affidavits of Defense, Mules for Judgment, Putting at Issue, are all explained in Chapters II. and III. CHAPTER X. HOW TO COMMENCE AND PROSECUTE ACTIONS ON POLICIES OF INSURANCE. § 281. Study the policy. When a claim against an insurance company to recover the amount of a loss is placed in the hands of an attorney for collection, his first duty is to read the policy care- fully. The suggestion may excite a smile, but cases have occurred in which suit has been brought, and trial had, yet the counsel on both sides had neglected to study the policy. E«ad it then all through, line by line, word by word. Eead it a second time, ask- ing yourself, What does this paper require me to do? You will always find that it demands some notice of loss. Generally it binds you to prompt or immediate notice. It exacts particulars, sometimes proofs, sometimes certificates of magistrates, or, in cases of death, affidavits of physicians and others. Take up all these fine-drawn and wearying requisitions, answer each in its very words and to its broadest scope. Let your work be full and prompt. You always lose by sparing labor. The following can be of service only as a very rough guide. Each company has its own forms, and the policies from different offices may vary in their requisitions. § 282. Get from the company its forms and a blank policy. The companies have printed notices and proofs of loss, etc., and will on application supply blanks. You will prefer their papers be- cause they issue them, and they cannot complain of defects. As already suggested, be careful to make all the answers, certifi- cates, etc., very full. If they desire more light, furnish all in your power. The Act of April 16, 1891 (P. L., 22), provided for a standard form of Fire Policy. The Act was declared unconstitutional in O^NM v. Insurance Go., 166 Pa. St., 72 (1895). § 283. Particulars of loss by fire. Fire policies, insuring mer- chandise, furniture, etc., often require particulars of the loss. Your client will perhaps say, and with justice, that it is hard to require details ; that it is impossible to furnish them. But leave the company no excuse. If your client's books have not been destroyed, they should assist him ; if his receipts are at ACTIONS ON POLICIES OF INSURANCE. 217 hand, or his checks, he can work from them. If all are gone, he can remember the names of those who sold the goods to him and can, with their permission, get their clerks or his own assist- ants to make out the necessary lists. Do everything to secure the desired information, and if, after all, the amounts obtained do not equal the loss, state in the affidavit that he has not been able to collect all the items, but is certain that his loss is at least the sum claimed. § 284. General Re^nisites of all Xotices : The date and number of the policy. The amount insured. The subject insured. (The life of A., or such a house, or stock, or furniture, or vessel, etc.) The date of the loss. The amount of the claim. Where the policy so requires, send with the above a copy of the policy, certificates, affidavits, etc., in exact accordance with the con- ditions. Keep a copy of all papers served. Let the copy be compared with the original documents, and let the person who serves be able to swear to the service and to the copy. It being understood that the claims and notices differ according to the requirements of the policies and circumstances of each case, the following Form of Claim on a lAfe Policy may serve simply as a guide. It is to be made by the person claiming the assurance. Notice is hereby given to the A. B. Company of the United States that C. D., of Philadelphia, County of Philadelphia, State of Pennsylvania, has died ; that said C. D. was the same person whose life was assured by said company by their policy No. , dated , for the sum of dollars ; that all premiums had been duly paid upon said policy ; that the undersigned had a good and valid interest to the amount assured in* the life of said deceafied ; and, in proof of claim under said policy, answers as follows : 1. Name of deceased, C. D. 2. Residence, 500 North Front Street, Philadelphia. 3. Occupation at date of dssurance, minister of the gospeL 4. Occupation since assurance was effected, same. 5. Place and date of birth, Philadelphia, January 1, 1820. 6. Whence is the date of birth derived ? From femily record, certificate of birth, or otherwise ? From his own statement. 7. Place and date of death, Trenton, New Jersey, September 1, 1888. 8. How long had you known deceased ? For years. 9. State all facts regarding cause and circumstances of death. Health failing for about two months prior to death. Serious symptoms from July, 1888, to time of decease. 10. State the precise duration of the last illness of the deceased. As above. 218 PEACTICB IN PENNSYLVANIA. 11. Were his habits of life correct, sober, and temperate ? Had they always been so ? If not, to what extent did he use spirituous liquors ? Habits always good ; used no spirituous liquors. 12. Refer to the policy and state if to your knowledge and belief the de- ceased complied with the terms contained therein. He did. 13. In what capacity, or by what title do you claim the assurance ? As executor of the last will of C. D., deceased, and legatee of the policy. 14. Had the deceased any other insurance on his life ? If so, state in what companies and for what amounts, and the dates of the polices respect- ively. C. D., to my knowledge, was not insured in any other companies. Dated at Philadelphia this day of , 1888. (Claimant's signature and residence.) State of PENiirsYLVANiA, 1 CrrsT AND County of Philadelphia, J ' On the day of , 1888, personally appeared before me, the above-named (claimant's name), to me known, and made oath that the fore- going statements by him made are true and full to the best of his knowledge and belief. G. H., [seal.] Notary Public. § 285. Frequently instructions are printed to this effect : Each of the within certificates must be sworn to, and the certificate of the County Clerk must, in all cases, be obtained, that the person administering the oath was duly authorized for that purpose. When a policy is payable to the legal representatives of the insured, the statement must be made by his or her executor or administrator. When a policy is payable to a named beneficiary of full age, the state- ment must be made by such beneficiary. When a policy is payable to a minor, the statement must be made by his or her guardian. When a policy has been assigned, the original assignment, or a prop- erly authenticated copy thereof, must be presented with proofs of death. When a policy, payable by its terms to one beneficiary if surviving, has, by the death of such beneficiary, become payable to another, proof of the death of such first beneficiary must be furnished by afiidavit of respectable peilons well acquainted with such deceased beneficiary. When a policy is payable to the children in general of a person, or to any other class of persons, whose names are not separately mentioned in the policy, proof must be furnished of how many children there are, or of how many the class consists, and the names and ages of the persons. When the statement is made by an administrator, executor, or guardian, certified copies of appointment and authority must be furnished. § 286. Generally the certificate of an attending physician is re- quired, thus : 1. Name of deceased, C. D. 2. Occupation, minister of the gospel. 3. Residence, 500 North Front Street, Philadelphia. 4. How long had you been acquainted with the deceased ? Ten years. 5. Were you his medical uttendant or adviser before his last illness ? If ACTIONS ON POLICIES OF INStTRANCE. 219 SO, for what disease, and when ? I was his medical attendant in the sum- mer of 1888, for disease of the heart. 6. Was the deceased afflicted with any 'chronic disease ? If so, what disease, and for what period ? With disease of the heart for three months. 7. Date of first visit, July 1, 1888. 8. Date of last visit, September 1, 1888. 9. Date of death, September 1, 1888. 10. State the disease of which the deceased died, and any important medi- cal facts connected therewith. Was it complicated by any other disease ? If so, by what disease, and for how long ? Fatty degeneration of heart with dilatation. 11. Was the deceased strictly temperate ? Was death caused proximately or remotely by the use of intoxicating drinks or opium ? Strictly temper- ate. No. 12. Was there any special cause, proximate or remote, for the death, in the habits, occupation, residence, family history, personal constitution, or previous diseases of the deceased ? Not to my knowledge. 13. State the age or apparent age of the deceased. Sixty-eight years. 14. Did you see the body of the deceased and was it, of your own knowledge, that of the same person described in the policy of insurance on which the claim is based ? Yes. 15. Had the deceased any other medical attendants during last illness ? No other. Dated at , this day of , 1888. (Signature and address of physician.) State of New York, 1 City and County of New Yokk, J On this day of , 1888, before me, came the above-named (name of physician), known to me as a physician in regular standing, and made oath that the answers by him to the foregoing questions are true and full, to the best of his knowledge and belief. J. K., [seal.] Notary Public. State of New York, \ City and County of New Yoek, j I, , clerk of the Court of Common Pleas of said county, said court being a court of record, do hereby 'certify that (name [of notary), whose name is subscribed to the jurat of the annexed affidavit and thereon written, was at the time of taking such affidavit a notary public of said State, dwell- ing in said county, commissioned and sworn and duly authorized to take the same ; and, flirther, that I am well acquainted with the handwriting of such notary public and verily believe the signature to said jurat is genuine. In Testimony Whereof, I have hereunto set my hand and affixed the seal of said county and said court this day of , 1888. J. L., [seal.] Clerk. §287. statement of the undbbtakee. 1. Name of deceased, C. D. 2. Eesidence, 500 North Front Street, Philadelphia, Pa. 3. Did you see and inter the body of said deceased, and do you know that 220 PRACTICE IN PENNSYLVANIA. it was the body of the person described in the accompanying statement of the claimant in this case beyond a doubt ? I did ; I do. 4. Date of birth. This blank to be filled, if possible, from the family record. Bom, Philadelphia, January 1, 1820. 5. Place and date of interment, Woodlands Cemetery, Philadelphia; September 4y 1888. Dated at Philadelphia this day of , 1888. (Signature and address of undertaker.) State of Pennsylvania, \ City and County of Philadelphia, J On this day of , 1888, personally appeared before me, the above- named (name of undertaker),, to me known, and made oath that the fore- going statements by him made are true and full to the best of his knowl' edge and beliet G.H., [seal.] Notary Public State of Pennsylvaota, \ . City and County of Philadelphia, J I (name of prothonotary), prothonotary of the Courts of Common Pleas of said county, which are courts of record, having a common seal, being the officer authorized by the laws of the State of Pennsylvania to make the fol- lowing certificate : Do certify that (name of notary) before whom the annexed oath or affirma- tion was made, was at the time of so doing a notary public for the Common- wealth of Pennsylvania, residing in the county of Philadelphia, duly com- missioned and qualified to administer oaths and affirmations and to take acknowledgments and proofe of deeds or conveyances for land and tenements in the State of Pennsylvania, and to all whose acts, as such, full faith and credit are and ought to be given, as well in courts of judicature as else- where ; and that I am well acquainted with the handwriting of the said notary public and verily believe his signature thereto is genuine, and that said oath or affirmation purports to be taken in all respects as required by the laws of the State of Pennsylvania. In Testimony Whereof, I have hereunto set my hand and affixed the seal of said court this day of , in the year of our Lord one thousand eight hundred and eighty-eight. M.N^ [SEAL.J Prothonotary. §288. statement of a feiend. 1. Name of deceased, C. D. 2. How long had you known deceased ? About ten years. 3. Place and date of death, Trenton, New Jersey, September 1, 1888. . 4. Age of deceased at death, sixty-eight years. 5. Have you seen the body of the person deceased, and is it to your knowledge the same person described in the policy on which the claim is based ? I have seen the body of deceased and it is the same person de- scribed in policy. 6. State all the facts within your knowledge relating to the cause of death. Disease of the heart. ACTIONS ON POLICIES OP INSTIEANCB. 221 7. Was the deceased in the habit of using spirituous liquors ? If so, to what extent, and did it affect his health ? Strictly temperate. Dated at Philadelphia, this day of , 1888. (Signature and address of friend.) State op Pennsylvania, \ City and County op Philadelphia, J **• On this day of , 1888, personally appeared before me, the above-named (name of friend), to me known, and made oath that the foregoing statements by him made are true and full to the best of his knowledge and belief. G. H., [seal.] Notary Public. (Prothonotary's certificate for this notary as before.) § 289. LETTER FROM COUNSEL, ENCLOSING THE PKOOPS. Philadelphia, , 188 . To the A. B. Company of the United States. Gentlemen : Enclosed please find the proofs, etc., of the death of C. D., insured in your company by policy dated , No. Will you kindly notify me at your earliest convenience : Whether the inclosed proofs, etc., are in proper form and are all that you require in that behalf. Very respectfully yours, (Signature of counsel.) § 290. In fire policies, notice of loss may be served at general office or on agent in ten days, and the proofs within twenty days. The Act 27 June, 1883, section 1 (P. L,, 165), Br. Purd., 1051, section 93, provides : " Where any property shall be destroyed by fire in this Commonwealth, where the same is covered by policies of insurance, either held by the assured or an assignee of the same as collateral security, the conditions of insurance, as to the notice of loss and the furnishing of preliminary proofs, shall be deemed to have been complied with if the assured or the assignee, or either of them, shall furnish the company, at its general office, or to the agent of the company who countersigned the policy or policies of insurance, the notice of loss, within ten days from the date of the fire, and the preliminary proofs within twenty days from the said date : Provided, That in case the agent who countersigned the policy or policies of insurance shall have been removed or succeeded by some other agent of the company, after such policy was written, and prior to the date of the fire, then the notice and the prelim- inary proofs aforesaid may be served on any other agent of the company authorized to effect contracts of insurance and counter- sign policies of any such insurance companies." If notice is promptly given of loss in fire insurance, the com- 222 PRACTICE IN PENNSYLVANIA. pany cannot protect itself on the ground of insufficient proof, unless they have pointed out the defect in the proofs submitted and called for more specific proofs. Jna. Co. v. Ckmek, 109 Pa. St., 158 (1885) ; Ins. Co. v. Block, Id., 535 (1885) ; Thierolf v. Ins. Co., 110 Pa. St., 37 (1885). If a policy of insurance require " immediate " notice shall be given the company, the word immediate must be construed to mean within a reasonable time under all the facts and circumstances of the case. Assn. v. 8mith, 24 W. N., 33 (1889), Paxson, C. J. And the same construction is placed upon " as soon as possible " where detailed proof of loss must be submitted. Ins. Co. v. Hazen, 17 W. N., 249 (1885). If a policy provide that with proofs of loss, information as to plans, specifications, etc., shall be given, and the company endeavor to adjust the loss by appointing appraisers, such preliminary proofs are waived. Snmoden v. Ins. Co., 22 W. N., 554 (1888). Or where, upon receiving notice of loss, the company denies all lia- bility, preliminary proofs are waived. Ins. Co. v. Erb, 17 W. K, 273 (1886). If a policy of insurance does not provide that there shall be a forfeiture if notice of loss is not given within a prescribed time, the court will not so enforce, ins. Co. v. Evans, 102 Pa. St., 281 (1883). § 291. Policies need no seal. "Policies of insurance made or en- tered into by the company may be made either with or without the seal thereof, and they shall be subscribed by the president or such other officer as may be designated by the directors for that pur- pose, and attested by the secretary ; and when so subscribed and attested shall be obligatory on the company." Act May 1, 1876, section 17 (P. L., 58) ; Br. Purd., 1046, section 63. § 292. Policies mnst copy the application, by-laws, etc. The Act of May 11, 1881, section 1 (P. L., 20) ; Br. Purd., 1046, sec- tion 62, provides that " all life and fire insurance policies upon the lives or property of persons within this Commonwealth, whether issued by companies organized under the laws of this State or^by foreign companies doing business therein, which contain any refer- ence to the application of the insured, or the constitution, by-laws, or other rules of the company, either as forming part of the policy or contract between the parties thereto, or having any bearing on said contract, shall contain, or have attached to said policies, cor- rect copies of the application, as signed by the applicant, and the by-laws referred to ; and, unless so attached and accompanying the policy, no such application, constitution, or by-laws shall be re- ACTIONS ON POLICIES OP INSURANCE. 223 ceived in evidence, in any controversy between the parties to, or interested in, the said policy ; nor shall such application or by-laws be considered a part of the policy or contract between suchjpar- ties," This Act is applicable only where the company offers the policy in evidence. Title Co. v. Ins. Co., 47 Leg. Int., 188 (1890). The Act has been construed according to its terms in Ins. Co. v. Dunham, 117 Pa. St., 460 (1888) ; Ins. Co. v. Hallock, 22 W. N., 151 (1888) ; and declared constitutional in Ins. Co. v. Musser, 120 Pa. St., 384 (1888). Having waited the time required by the policy, and no satisfac- tory arrangement having been reached, you bring suit. Many poli- cies prescribe a Statute of Limitations for the insurer. Do not delay beyond the time nstmed. But for the Act of March 14, 1873, the suit would always be in the name of the promisee or covenantee. That Act (P. L., 1873, page 46), Br. Purd., 1048, section 73, directs that the assignee of policy may sue in his own name. It provides that " it shall be lawful for the assignee or assignees of the whole or any part of any policy of life, fire, or marine in- surance, his executors or administrators, to bring suit, in the name of the assignee or assignees, for his, her, or their interest in any policy of insurance, against the company issuing the same, upon the happening of the contingency provided against." The form of action is assumpsit. Prcedpe for summons, same as section 10, and follow general directions, section 16, etc. § 293. Suit may he brought in county where property insured is located, and writ may be directed to sheriff of any other county and served by Mm. The Act 24th April, 1857, section 1 (P. L., 318), enacts that, " in addition to the remedies now provided by law, it shall be lawful for any person or persons, body politic or corporate, who may have a cause of action against any in- surance company incorporated by the legislature of this Com- monwealth or against any insurance company that may have an agency established in this Commonwealth, to bring suit in any county where the property insured may be located, and to direct any process to the sheriff of either of the counties in this Commonwealth ; and it shall be the duty of said sheriff to execute all process directed to him under the provisions of this Act, upon the president or other chief officer of the company against whom the same issued, as he shall be directed, or upon the agent of any company not incorporated by the legislature of this Common- wealth ; and the manner of service and return shall be in the same manner as like process is now by law required to be made, and the 224 PEACTICE IN PENNSYLVANIA. same shall be returned to the court issuing the same, and all pro- ceedings upon any suit not under this Act shall be the same as in other cases." See § 10. By Act of April 8, 1868 (P. L., 70), this Act is extended to life and accident insurance companies. Shrom v. Ins. Co., 11 W. N., 530 (1882) ; Spongier v. Aid Society, 12 Id., 312 (1882). This was extended by the Act April 4, 1873, section 13 (P. L., 20), so that the service might in the case of foreign insurance companies be made upon an agent appointed by the company for that pur- pose, or on a party designated by the insurance commissioner, or on the insurance commissioner. The Act of June 20, 1883 (P. L., 134), amends the Act of 1873, as follows : All writa, rules, orders, notices, or decrees aforesaid, shall be directed to the sheriff, constable, or other officer authorized by law to serve similar writs, of the county wherein the same shall be issued, who is hereby author- ized to serve the same on any and every person or persons, body politic or corporate, named in said process with said company, either as plaintiff, de- fendant or otherwise, or who may be impleaded in said action, suit, or pro- ceeding with said company found in said county, and either before or after the service on the person or persons, body politic or corporate, found in said county aforesaid, as may be directed by the plaintiff or person issuing said process or his attorney, and in the absence of such direction as shall be most convenient, the officer to whom said process may be directed, shaU, by writing indorsed on or attached to said process, deputize the sheriff, con- stable, or other officer of the county where the State agent designated by any company as provided by law to receive service of process for said com- pany may reside, to serve the same on him ; and in default of an agent appointed by the company as aforesaid, then the officer so charged with the service of said process, shall, in like manner, deputize the sheriff, constable, or other officer aforesaid of the county where the agent, if any there be, named by the insurance commissioner may reside, to serve the same on him ; and in default of such agent named by the insurance commissioner as aforesaid, then in lite manner to deputize the sheriff, constable, or other officer as aforesaid of the county where office of the insurance commis- sioner may be located to serve the same upon him, and each and every service so made shall have the same force and effect to all intents and pur- pose as personal service on said company in the coimty where said process issued. Under the Act of April 8, 1868, it was held that suit could be brought against a life insurance company in the county where the insured had his residence. Quinn v. Fidelity Association, 100 Pa. St., 382 (1882). A valid service cannot be made upon an agent empowered only to effect insurance, or upon a travelling agent. Farke v. Ins. Co., 44 Pa. St., 422 (1868). Service on foreign insurance companies must be upon the agent ACTIONS ON POLICIES OP INSTJEANCE. 225 appointed for that purpose, at his office. A travelling agent is not such an agent. lAblong v. Ins. Qo., 82 Pa. St., 413 (1876). As to time of suing. A policy of insurance provided that suit should not be sustainable unless brought within twelve months after the date of the fire j an action was brought within sixty days of furnishing proofs of loss, but dismissed as premature according to the terms of the policy. A second action instituted after the time provided for in the policy was decided to be too late. How- ard Ins. Co. V. Hoeldng, 47 Leg. Int., 109 (1889). § 294. Act of 1849. Service on officer, etc., of foreign corpora- tion. The Act of March 21, 1849, section 3 (P. L., 216), Br. Purd., 938, section 7, provides that in any suit or action against any foreign corporation, " process may be served upon any officer, agent, or engineer of such corporation, either personally or by copy, or by leaving a certified copy at the office, depot, or usual place of business of said corporation, and such service shall be good and valid in law to all intents and purposes." Act of April 8, 1851, section 6 (P. L., 354), Br. Purd., 428, section 127, directs that " in any case when any insurance com- pany or other corporation shall have an agency or transact any business in any county of this Commonwealth, it shall and may be lawful to institute and commence an action against such insur- ance company or other corporation in such county, and the original writ may be served upon the president, cashier, agent, chief, or any other clerk, or upon any directors or agents of such company or corporation within such county, and such service shall be good and valid in law, to all intents and purposes." In Bmwood Iron Works v. Hutchinson, 101 Pa. St., 359 (1882), the sheriff's return was " Served July 27, 1881, by delivering a true and attested copy of the within writ to Alonzo Loring, secre- tary of the Benwood Iron Works, and by making known to him the contents thereof." The court, quoting this return, said it was sufficient. They referred to Patton v. Ins. Co., 1 Phila., 396 (1852), where the return was " Served a true and attested copy of the within writ personally on Alfred Edwards, an agent of the within- named defendants, and made known to him the contents thereof," which was also held valid. The Supreme Court said " that ruling has been accepted ever since." The same ruling was made in Kennard v. R. R, Co., 1 Phila., 41 (1850), and in Coxe v. R. R. Co., 11 "W. N., 386 (1882). In the latter case the service was made by leaving a copy with an adult member of the president's family. VOL. I. — 15 226 PBACTICE IN PENNSYLVANIA. But in Hmi v. Asm., 17 W. N., 423 (1886), the sheriffs return was " Served June 2, 1885, by giving a true and attested copy of within summons to S. S. Fowler, agent for the within-named Eco- nomical Mutual Benefit Association, within this county, and making known to him the contents thereof" Inasmuch as it was not alleged the defendant was a foreign corporation doing business in the county, it was held insufficient. § 295. If service be made improperly on officer of a foreign cor- poration. Should service be made upon an officer of a foreign cor- poration, when he was casually present, or when said corporation was for other reasons not suable in the courts of this State upon the contract or matter on which the action is founded, a plea to the jurisdiction is the proper remedy, and not a rule to set aside the service. Benwood Iron Works v. Sutohinson, 101 Pa. St., 359 (1882) ; Nationai Bank v. Shipbuilding Co., 2 Cent. Rep., 56 (1886) ; Branson v. Machine Co., 40 Leg. Int., 5 (1882) ; Tde- phrnie Co. v. Telephone Co., 46 Id., 200 (1889), Service of a summons on a soliciting agent of an insurance com- pany is insufficient. Connors v. Ins. Co., 1 Dist. Hep., 720 (1892). § 296. The Narr. or Statement. Set out a copy of the policy, aver your client's performance in detail and generally that he did all things required of him, charge the defendant's breach, following in all cases as nearly as may be the language of the instrument. §297. FOKM OP STATEMENT ON A FIKE INSUEANCE POLICY. In the Court of Common Pleas, No. , of Philadelphia County, of March Term, 1889, No. 200. County of Philadelphia, ««. The plaintiff, A. B., claims of the defendant (name of company) the sum of dollars, according to a certain policy of insurance, in writing, executed and delivered to the plaintiff hy defendant on at Said policy was delivered in consideration of the sum of dollars paidby the plaintiff to the defendant on at , the receipt whereof was in said policy acknowledged. A copy of said policy is hereto attached and made part hereof. The plaintiff avers that he has performed all things on his part to be per- formed, but the defendant has broken its covenants on its part to be per- formed in this : That on at the premises in said policy of insurance mentioned were destroyed by fire, which did not happen by (here insert any causes, as insurrection, usurped power, etc., provided for by the policy, nor was the building used for the purpose of carrying on any trade denominated haz- ardous), and that on at the plaintiff gave notice to the defen- dant of the fire and loss, and on at did deliver to the defendant a particular account of plaintiff's loss and damage, and also of the value of the premises insured, and when and how the fire originated to the best of plaintiff's knowledge (if policy so required, add : and annexed to said ACTIONS ON POLICIES OF INSURANCE. 227 notice was a certificate under the hand and seal of a notary public, stating that he was acquainted with the character and circumstances of the insured, and that, without fraud, he had sustained a loss or damage upon the prem- ises insured, to the sum of dollars), yet the defendant has not paid to the plaintiff the said 'sum of money by it insured, nor repaid nor reim- bursed him for the loss sustained by the said fire, or any part thereof, although so requested, contrary to the form and effect of the policy of in- surance. E. F., PlaintiiT 's Attorney. (Date.) (Plaintiff's affidavit when required.) §298. rOEM OF STATEMENT ON SEA POLICY OF INSURANCE. (LOSS OF GOODS.) In the Court of Common Pleas, No. 4, of Philadelphia County, of March Term, 1889, No. 200. County of Philadelphia, ss. The plaintiff, A. B., claims of the defendants (name of the company) the sum of dollars for a loss upon the plaintiff's goods and mer- chandise insured by the defendants in consideration of the sum of dollars paid by plaintiff on at to defendants, said insurance having been effected by the defendant's policy of insurance, which, in con- sideration of the aforesaid payment, the defendants on the day of 1889, executed in due form and delivered to the plaintiff. The following is a true copy of said policy (here copy the policy and all the conditions, articles, etc.). And the plaintiff saith that on the day of 1889, goods of the plaintiff of the value of five thousand dollars were loaded in (Philadelphia), in and on board the said vessel in said policy mentioned, to be carried therein on the said voyage, and that the plaintiff was then and from thence, until and at the time of the loss, the owner of the said goods so shipped to the value of all the moneys by him caused to be insured thereon, and that the said vessel with his said goods on board set sail from on her said voyage to , and whilst proceeding on the voyage, and before her arrival at the place last mentioned (here state the particulars of the loss ; the proximate and not the remote cause should be regarded and the loss be stated as it can be proved). (It must appear to be within the terms of the policy. If the policy covered capture by enemies it may be in this form :) the said vessel with the plaintiff's goods Jon board was on the high seas, with force and arms and in a hostile manner, captured, seized, and taken by certain enemies of the United States. {If by storm) the said vessel was, by the perils and dangers of the sea, by tempest and violence of the winds and waves, broken, damaged, and destroyed, and the plaintiff's goods on board of the said ship then and there became and were wholly lost to the plaintiff. (If lost by shipvjreck) the said vessel by the perils of the sea was wrecked and totally lost, whereby the plaintiff's goods on board thereof were ^bolly destroyed and lost. (The above may be varied according to the circumstances, as, if the ship became leaky and it was necessary for her to proceed to the nearest port and whilst endeavoring to reach it she was^ lost^by storm ; or if she were 228 PRACTICE IN PENNSYLVANIA. lost by striking rocks, foundering, stranding, lost by eating of worms, by collision, fire, in all these and other cases state the fact as it may be, always charging that thereby the plaintiff's goods then and there became and were wholly lost and never did arrive at (the port of destination), of all which the defendants, on of 1889, at the county aforesaid, had due no- tice, and were requested to pay him, the said plaintiff, five thousand dollars so by plaintiff insured, and which defendants ought to have paid according to the form of the policy.) (If the policy required a notice in writing or certificates, aver in the words of the article a fiill compliance and always add a general averment thus :) and plaintiff avers that from the time of the issuing of the policy he has fully performed all the stipulations and conditions thereof as required by said policy to be performed by him ; but that defendants have broken the same in this, that (here charge a breach in the language of the conditions binding the defendants, e. g., that the defendants did not, thirty days after the receipt by them of notice of said loss, nor at any time thereafter, pay any part thereof to the plaintiff), and that there is therefore justly due by defendants to plaintiff the sums named in the following Statement. Amount of plaintiff's loss under the above policy . . . $5,000 00 Interest from to ... E. F., Plaintiff's Attorney. (Plaintiff's aflSdavit when required.) (Date.) §299. FORM OP STATEMEIST UPON A LIFE INSURANCE POLICY. In the Court of Common Pleas, No. , of Philadelphia County, of March Term, 1889, No. 200. County of Philadelphia, as. The plaintiff, A. B., claims of the defendant (name of company) the sum of dollars upon a certain policy of insurance, dated , with interest thereon from , justly due and payable to the plaintiff by the defendant, of which claim the following is a Statement. A policy of insurance, dated , was executed and delivered by the defendant to the plaintiff on at in consideration of the sum of dollars paid on that day by plaintiff to defendant. The following is a copy of said policy (here insert copy of policy with all conditions, etc.). The plaintiff avers that he has always, from the time of the making of the policy of insurance, performed all things on his part to be fulfilled, according to the tenor and effect of that instrument ; that E. F., the party insured for the benefit of A. B., died on at whilst the said policy was in force ; and that he, the said plaintiff, furnished the said de- fendant with good and sufflcent proofe of the death of said E. F. ; and that the said E. F., in his lifetime, in all things performed the conditions and covenants stipulated in said instrument ; yet the defendant has not per- formed its covenants in this, that although so requested it did not, months after such proof had been furnished (follow the condition of the ACTIONS ON POLICIES OF INSTJEANCE. 22& policy) of the death of E. F., or at any time, pay to the plaintiff the sum of dollars, or any part thereof, but has failed so to do. G. H., Plaintiff's Attorney. (Plaintiff's affidavit when required.) (Date.) § 300. Policies for benefit of dependent relatives to be exempt from creditors' claims. "All policies of life insurance, or annuities upoa the life of any person, which may hereafter mature and which have been or shall be taken out for the benefit of, or bona fide as- signed to the wife or children of any relative dependent upon such person, shall be vested in such wife or children or other relative full (free) and clear from all claims of the creditors of such per- son." Act April 15, 1868, section 1 (P. L., 103) ; Br. Purd., 1048, section 71. § 301. If poliey upon property lost, company may be compelled to furnish a copy. The Act 4 March, 1850, section 1 (P. L. 126), Br. Purd., 1048, section 74, provides : " Whenever any policy of insurance upon any property, real or personal, granted by any body corporate or politic, shall have been lost or destroyed, such body corporate or politic shall, on proof of the loss or destruction of the same, in the manner hereinafter provided, furnish to the person or persons whose policy has been so lost or destroyed a copy of the same, together with the transfers which have been approved and recorded on the books of such body corporate, if any, which may have been made by the original or any subsequent grantee of such policy, to the person or persons having the same at the time of the loss or destruction thereof; the copy so made to be as effec- tual for the security and indemnification of the person or persons holding the same as the original, and subject, like it, to the transfer to any person purchasing the property insured. " Sec. 2. On the application of any person or persons to the Court of Common Pleas of the county in which the property has been insured, setting forth the loss or destruction of the policy of insurance, on oath or affirmation, together with a description of the property, the amount for which it was insured, the person or per- sons to whom granted, if practicable, together with the mesne trans- fers thereof, the court shall grant a rule on the body corporate or politic which granted such policy of insurance, commanding such body corporate or politic to appear before said court on a day cer- tain, not less than twenty days from the service of said rule, to show cause why a copy of such policy of insurance should not be supplied, in pursuance of the provisions of the first section of this Act ; and on the default of such body corporate or politic to ap- 230 PRACTICE Ilf PENNSYLVANIA. pear and show cause why such copy as aforesaid should not be supplied, the court shall issue a mandate to such body corporate or politic to furnish such copy iu ten days after the service of the same; and on the neglect or refusal of such body corporate or politic to furnish a copy as aforesaid, the court, on due proof of the service of such mandate, and the neglect or refusal of such body corporate or politic to furnish such copy, shall direct a judg- ment to be entered by the prothonotary ia favor of the person or persons making the application, against the said body corporate or politic, for the sum for which the said policy of insurance was granted, which said judgment shall stand for the security of the plaintiif or plaintiffs, for such time as the policy of insurance itself would have done, and for the like purposes ; and the costs of the proceedings shall be paid by the defendant ; and the officers ren- dering services shall receive the like fees as are now allowed by law for similar service." If no appearance entered, see section 23. If appearance entered, but no affidavit of defense filed, see sec- tion 23. If insufficient affidavit filed, see section 27. If affidavit of defense be sufficient, enter rule to plead. Section 26. If no plea filed, see section 26. When plea filed, reply. § 302. The pleas in this, as in all actions of assumpsit, may be non-assumpsit, payment, set-off, and the Statute of Limitations. Act of May 25, 1887, section 7 (P. L., 272). Ins. Go. v. Bdnoehl, 4 Pa. C. C, Rep., 161 (1887). To the first you could reply thus : As to the plea wherein the defendant has put itself on the country the plaintiff doth the like. This is called a similiter, and it is often expressed by the one word, " similiter," in the replication. To the plea of payment you could reply : And the plaintiff for replication to the plea saith that the said defendant did not pay the sum in this suit claimed, as in said plea alleged ; and of this the said plaintiff puts himself on the country. The plaintiff replies briefly, thus : Nbn solvit (he did not pay). To the plea of set-off you reply : No set-off. ACTIOKS ON POLICIES OP INSXTRANCE, 231 If the plea be the bar of the Statute of Limitations, your repli- cation, where no new matter is to be alleged, will be a traverse or contradiction of the plea. Thus, if the policy were not under seal and contained no special limitation, the Statute of Limitations would be pleaded, as follows : Non assumpsit infra sex annos (did not promise within six years), or actio non aecrevit infra sex annos (the action did not accrue within six years), or both. To this you would reply, thus : Assumpsit infra sex annos, or actio aecrevit infra sex annos, replying in both forms where both have been pleaded. See also sections 160, 161, 162. No further special direction in regard to actions on policies of insurance, in a work on practice, is required. After the case is at issue, it is proceeded in as are other actions of assumpsit. See Chapter II. CHAPTEE XI. ACCOT7NT EENDEE. § 303. Account render is an action brought to compel the state- ment and settlement of an account by one who holds or has re- ceived money or goods as the agent for another. It may be argued by some that the old action of account render is within the letter and spirit of the Act of 1887. If so, the pro- ceeding would be by summons in assumpsit. The theory upon which the writ in account issued was undoubtedly the implied promise of the defendant to pay whatever sum should be found due. And one of the counts in the printed form used in assumpsit was to that effect. But, on the other hand, the Act of May 25, 1887, does not in terms refer to account render. It says, section 61, of this book : " That so far as relates to procedure the distinctions heretofore existing between actions ex contractu be abolished, and that all demands heretofore recoverable in debt, asmmpsit, or covenant shall hereafter be sued for and recovered in one form of action to be called an ' action of asmmpsii.' " The third section of the Act prescribes the filing of a " concise statement of the plaintiff's demand." This would be difficult in most cases of account render, and in some instances it would be impossible. It is not for a writer upon practice to decide questions untouched by the courts. Referring to them the settlement of the point, should it ever be presented, it is now proposed to aid the attorney in the pursuit of claims against those who are bound to render an account. It should be borne in mind " that the proceedings in this action being difficult, dilatory, and expensive, it is now seldom used, espe- cially as the party has in general a more beneficial remedy by a special action of assumpsit, or an action for money had and re- ceived, or, where the matter is of an intricate nature, by resorting to a court of equity." Roberts's Digest (17), citing Bui. N. P., 127 ; 1 Tidd's Pr., 1, and Bac. Abr., tit. Account F., pages 20, 21, where it is said " the action of account is now little used or understood." Judge Roberts, commenting on this, says : " As no court of ACCOUNT EENDEE. 233 chancery exists in Pennsylvania, it is conceived that the action of account would afford in a variety of instances a remedy more con- venient and effectual to the parties than those which are substituted for it." He quotes, in support of this view, " the opinion of one of the most profound lawyers and able judges that ever dignified the bench." § 304. This comment was written at a time when our courts were without equity powers, and the entire aspect of the case is changed by the Act of October 13, 1840, section 19 (P. L., 1841, 7 ; Br. Purd., 57, section 5). It directs that " The Supreme Court, the several district Courts, and courts of Pommon Cleas within this Commonwealth shall have all the powers and jurisdiction of courts of chancery in settling partnership ac- counts, and such other accounts and claims as by the common law and usages of this Commonwealth have heretofore been settled by the action of account render ; and it shall be in the power of the party desirous to commence such action, to proceed either by bill in chancery or at common law, but no bill in chancery shall be enter- tained 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." Though the action of account render is not obsolete {McLean v. Wade, 58 Pa. St., 146, 1865), it is difficult to understand why it should ever be preferred to the bill in equity, but cases may arise in which the common-law action is desired. The remedy in equity, under the above Act of Assembly, is co-extensive in its scope with the right to maintain account render at common law." Adam£ Appeal, 113 Pa. St., 449 (1886) ; Baugher v. Conn, 1 Pa. C. C. Rep., 184 (1886) ; affirmed in Baugher's Appeal, 8 Cent. Rep., 166. In seeming contradiction of these cases, it is held in Gloninger V. Hazard, 42 Pa. St., 389 (1862), and in Appeal of Pittsburgh B. R. Co., 99 Pa. St., 77 (1881), citing many other cases, that equity will not, take jurisdiction " where the accounts are all on one side and no discovery is sought or required." But it may be observed of this line of cases, that they arise independently of partnership transactions, and that they relate to the proposed substitution of bill in equity for the action of assumpsit or covenant, not for ac- count render proper ; damages being sought for breach of contract, rather than an accounting for money received. § 305. The English Statutes reported by Judge Roberts to be in force in Pennsylvania are : 234 PEACTICE IN PENNSYLVANIA. 52 Hen. III., ch. 23, A.D. 1267, which provided that bailiffs who withdraw and have no lands may be attached ; 13 Edw. I., ch. 11, A.D. 1285, which also provided for an ar- rest ; and 13 Edw. I., ch. 23, A.D. 1285, which gave the writ of account to executors. It is decided in Griffiih v. Willing, 3 Binney, 317 (1811), that section 27 of the statute of 4 Anne, ch. 16, A.D. 1705, extending account render to tenants in common, has also been adopted in Pennsylvania. § 306. Jurisdiction. Original jurisdiction in account render is wholly in the Court of Common Pleas. Justices of the peace have no jurisdiction in this action. Wright v. Guy, 10 S. & E., 227 (1823). § 307. Against whom the action lies. " The writ of account {de eomputo) lies against one as guardian, bailiff, or receiver, to com- pel the defendant to exhibit and settle his accounts. It commands him to render a just account to the plaintiff, or to show to the court good cause to the contrary." (Roberts's Dig., 9.) The writ can be issued against a partner, against a tenant in common, by a client against his attorney, by ward against guardian, by cestui que trust against trustee, by one joint tenant against the other, Norris v. Gould, 17 Phila., 318 (1884) ; by a landlord against a tenant who is under contract to pay a proportion of the profit for rent, by principal against factor, and generally wherever one person has received money as the agent of another. JBredin v. Kingland, 4 Watts, 420 (1835). § 308. By whom the writ may be issned. " By the ancient com- mon law this remedy was confined to the parties themselves, be- cause they alone were presumed to be privy to the matters of ac- count between them ; and therefore the writ could not be sued out by executors. To this rule, however, there were some exceptions ; for this remedy might be had by the executors of a merchant per Ugem meroatoriam ; so of the successors of a prior, for the body corporate never dieth ; and the king may maintain an action of account against the executors of any accountant." And by 13 Edward I., ch. 23 (1285), executors shall have a writ of account as the testator might have had if he had lived. (Roberts' Dig., 9.) § 309. Writs for account may be maintained in certain cases by heir of deceased against bailiff of deceased without administering. In McLean v. Wade, 53 Pa. St., 146 (1866), Daniel McLean had undertaken, at request of his dying son, to act as agent (or bailiff) ACCOUNT RENDER. 235 in regard to the estate of his infant granddaughter. He so acted for many years, and on his death the granddaughter sued his ex- ecutors in account render. They objected, inter alia, that McLean had acted as executor de son tort ; that the Orphans' Court alone had jurisdiction, and that plaintiff could not sue without adminis- tering. But the Supreme Court, overruling all the objections, said, as to the last point : " If there be no debts and no distribu- tion needed, and only a solitary heir, administration would seem to be useless." It will be noted that the suit was brought " by the heir, some twenty-six years after the death of her father." It may be maintained by a patentee who has granted another a license to manufacture the patented article for a certain royalty. Adams' Appeal, 113 Pa. St., 49"(1886). Upon the death of a partner, if there be an amount due his representatives and credited on the firm books, account render and not assumpsit will lie. Ferguson v. Wright, 7 Phila., 92 (1868). If the account had been so far liquidated in any other than a partnership transaction, assumpsit and not account render would undoubtedly have been proper. Brubaker v. Robinson, 3 P. & W., 295 (1831). In cases where there are no complicated accounts to adjust and but a single transaction took place, assumpsit will lie between part- ners. Mmiument Co. v. Johnson, 29 W. N., 117 (1891). § 310. Against whom it does not lie. " It lieth not against one as a servant, apprentice, comptroller, surveyor, chamberlain, or the like, unless he be charged as bailiff or receiver." (Roberts' Dig., 11.) " A guardian or bailiff cannot be charged as a receiver ; for a receiver shall not be allowed his expenses, but guardians and bail- iffs are entitled to an allowance for their trouble and expenses ; yet where they become such of their own wrong, or depart from the authority given to them, they are not entitled to allowance, nor for losses, in consequence of negligence or gross ignorance." (Rob- erts's Dig., 13.) § 311. It does not lie for mesne profits in ejectment against the executors of the defendant, a trespasser, who died pending the action of ejectment. Harker v. Whitaker, 5 Watts, 474 (1836). It will not lie against a widow who continues to occupy her husband's land after his death, she not having received rent there- for and her interest in his estate not having been set aside to her, KeUy V. KeUy, 13 Phila., 179 (1879). Neither account render nor bill in equity for an account will lie against an alleged co-tenant by one out of possession, unless the 236 PRACTICE IN PENNSYLVANIA. question of title has been first tried at law. Frisbee's Appeal, 88 Pa. St., 144 (1878). There must be express or implied privity of contract between the parties to maintain account render, and it will not lie by the administrator of a widow to recover her dower from her hus- band's grantee. OonMin v. Bush, 8 Pa. St., 614 (1848). Nor will it lie by one partner against the other to recover a share of losses which have been paid by the plaintiff. McFadden v. Sallada, 6 Pa. St., 283 (1847) ; Thouron v. Paul, 6 Wh., 615 (1841). Money of the firm must have come into the hands of the part- ner defendant. Demmy v. Dougherty, 1 Pears., 236 (1863). Ordinarily one partner cannot maintain the action jointly against his copartners. For him to do so there must be a joint liability to account. Portsmouth v. Donaldson, 32 Pa. St., 202 (1858) ; Whelen V. Watmough, 15 8. & R., 153 (1826). Account render cannot be maintained when there has been but a single transaction between the parties not involving complicated or mutual accounts. Galbreath v. Moore, 2 Watts, 86 (1883) ; Wright v. Oumpsty, 41 Pa. St., 102 (1861) ; Knerr v. Hoffman, 65 Pa. St., 126 (1870). § 312. Limitation. The statutory limitation in account render is six years from the time when the right of action accrues, except upon accounts " such as concern the trade of merchandise between merchant and merchant, their factors or servants " (Act of March 27, 1713, section 1 ; 1 Sm., 76), when the six years begin to run from the date of the last item in the mutual accounts. § 313. The Pennsylvania Statutes are : March 30, 1821, section 1 (7 Sm., 429), which extended the arbitration law to account render. April 4, 1831, section 1 (P. L., 492), giving the jury power to settle the accounts. February 24, 1834, section 50 (P. L., 83), authorizing account render against executors for legacies. October 13, 1840, section 18 (P. L., 1841, 7), empowering the courts to appoint auditors, or to impanel a jury to settle the ac- counts, to require answers to interrogatories, and to compel produc- tion of books, etc. These last powers come very near to the chancery jurisdiction. § 314. Procedure. Account render is begun by summons, though in a proper case a writ of foreign attachment may be employed. Stroek v. Little, 45 Pa. St., 416 (1863). To commence the adion, file the following Praecipe in account render : ACCOUNT RENDER. 237 A. V. B. To the Prothonotary of the Court of Common Pleas of County. SiE : Issue summons in account render, returnable sec leg. C, Plaintiff's Attorney. (Date.) § 315. The Summons. See sections 11, 12, 13, 14. After secur- ing the summons, you follow the general directions as to other cases, section 16. If a writ of account render is quashed in one court of common pleas for defect in form, this does not bar a new writ issuing from another court. Clark V. Ballmi, 1 Dist. Eep., 430 (1892). § 316. Filing of Declaration. Have your narr. ready and file it on the return-day. § 317. Form of Declaration. Pursuing as nearly as possible the general directions of the Act of May 25, 1887 (section 61, this book), let your narr. be concise, yet full. The plaintiff, in his declaration, must take care to charge the de- fendant properly, as bailiff, receiver, or guardian, according to the fact. 2 Bull, 277. § 318. As to Bailiffs and Beceivers. A bailiff hath the charge of lands, goods, or chattels, to make the best benefit thereof for the owner. s A receiver is one who has received money, and is to account for it. A bailiff is answerable for the profits he might have made ; a receiver for the precise sum or goods only. § 319. Allowance to Bailiff, Receiver, and Guardian. A bailiff, as well as a guardian, is to be allowed his disbursements and rea- sonable charges ; and a bailiff, receiver, or guardian shall be allowed whatever is lost by inevitable accident. A receiver is allowed nothing for his expenses but what was agreed between the parties. § 320. As to Narr. against Bailiff and Receiver. In declaring against one as bailiff, it is unnecessary to state from whom he re- ceived the money. But in declaring against one as a receiver, it is necessary to state by whose hands he received. Co. Litt., 172 a ; 3 Keb., 425. However, the omission is only matter of form, and is aided by the judgment to account. 2 Lev., 126. And it is not necessary to be particular with regard to the precise time or the exact amount of the money. Ibid. A bailiff cannot properly be charged as receiver ; nor a receiver as bailiff, since their accountability and the allowances to be made them are different. 1 Rol., 119. In uncertain cases, however, 238 PRACTICE IN PENNSYLVANIA. it is the safer practice to charge the defendant both as bailiff and receiver. §321. FORM OF STATEMENT IN ACCOUNT RENDEK BY AN ADMINISTRATOR AGAINST BAILIFF OP HIS INTESTATE. In the Court of Common Pleas, No. 4, of Philadelphia County. Of March Term, 1889. No. . City and County of Philadelphia, ss. The defendant, D., was summoned to answer A., the administrator of the estate of S., deceased, of a plea that he render an account to said plaintiff,, and thereupon the plaintiff iiles this his statement and declaration of claim ; for that the said D., at etc., from etc., to etc., and during the lifetime of said S. was the bailiff and receiver of the said S., during which time the said D. received, of the moneys of the said S., at , from , to , aforesaid, all the several sums of money mentioned in the schedule annexed, amounting to dollars, to merchandise with and make profits thereof, and to render a reasonable account thereof to the said S. on demand ; yet the said D., though often requested, never rendered such reasonable account to the said S. in his lifetime, nor since his decease- to the plaintiff, though requested, but still neglects so to do. Wherefore the said plaintiff claims of said defendant dollars damages. B., Plaintiff's Attorney.. (Date.) • (Affidavit of plaintiff where required by rule of court.) (Attach the schedule of amounts charged against defendant.) §322. FORM OF STATEMENT, EXECUTOR OF PARTNER AGAINST ONE OF SURVIVING PARTNERS AS BAILIFF. In the Court of Common Pleas, No. 4, of Philadelphia County. Of March Term, 1889. No. . City and County of Philadelphia, ss. The defendant, D., was summoned to answer A-., executor of the last will of S., deceased, of a plea that he render an account to said plaintiff, and thereupon the plaintiff files this his statement and declaration of claim ; for that whereas the said D. was bailiff to the said S., however and from what- ever cause and contract arising, for the common use and benefit of the said S., the said D., and one W. P., from , to , at , of ' certain merchandise of the said S., to wit, of the third part of thirty-eight tuns of wine (etc.), of the value of dollars, which merchandise the said S., the said D., and W. P., in the life of said S., had occupied for their common use and benefit ; and the same, during the time aforesaid, were in- trusted to the hands of the said D., by the assent of the said S. and W. P., to merchandise for their common profit ; and the said D. thereof to render his reasonable account to the said 8. when thereto requested ; yet (etc., as before). B., Plaintiff's Attorney.. (Date.) (Affidavit where required by rule of court.) ACCOUNT EENDEE. 239 § 323. In a count similar to this, judgment was attempted to be arrested because the plaintiff had declared against D. as a general bailiff, whereas it appeared that he was a special one, for it is between merchants and tenants in common, and because the plaintiff had declared for a third part when he ought to have declared for the whole, and because W. P. ought to have been joined. But the objections were overruled ; for the plaintiff might sue, though his companion would not ; and it may be he committed only his third part to the defendant. HackweU et ux. v. Eastman, 2 Cro., 410. So, in MaHin v. Crompe, 1 Ld. Eay., 340 (MSS.), it was held, that a surviving partner might properly sue the factor of the partnership in account render without joining the represen- tative of his deceased parfaer. §324. POKM OF STATEMENT IN ACCOUNT EENDEK BY ONE TENANT IN COMMON AGAINST ANOTHER AS HIS BAILIFF. (Follow preceding form as to court, term, number, venue, etc., down to the words " for that whereas.") For that whereas the said D., on, etc., and from thence continually until, etc., was bailiff of the plaintiff for a certain farm, situate, lying, and being, etc., and, during all that time, receiving the issues thereof and whereof the said plaintiff and the said D. were seized undividedly, as tenants in com- mon, viz., the said plaintiff of one undivided moiety thereof, and the said D. of the other moiety, to the common profit of the said plaintiff and the said D., and to render a reasonable account thereof to the plaintiff when thereto requested; yet, though requested, etc. Wherefore (conclude as in pre- ceding form). -D Plaintiff's Attorney. (Affidavit when required.) (Date.) §325. FORM OF STATEMENT AGAINST A BAILIFF FOB NOT EENDEEING AN ACCOUNT OF GOODS NOT DELIVERED TO MERCHANDISE WITH. (Follow first form in account render as to court, term, number, venue, etc., down to words " for that whereas.") For that whereas the said D. at had been bailiff to the plaintiff from the day of to the , day of , and during all that time had the care and management of divers goods and chattels of the plaintiff, to wit, one-half of the brig " Snow," with all her tackle, apparel, frLrniture, and appurtenances, of the value of dollars ; also one-half of the sloop called , with all her tackle, etc., of the value of dollars, and alsO' of one-half of the cargo of the said sloop consisting of divers goods and merchandises, to wit, of the value of dollars, to merchandise and make profit thereof for the plaintiff; and thereof to render to the plaintiff the said D.'s reasonable account on demand ; yet the said D., though requested, has not rendered his reasonable account thereof, but neglects so to do. Wherefore (conclude as in prior form.) t> J5., Plaintiff's Attorney. (Affidavit when required.) (Date.) 240 PRACTICE IS PENNSYLVANIA. §326. ANOTHER rOEM OF STATEMENT AGAINST A BAILIFF. (Follow the first form of statements in account render as to court, term, number, venue, etc., down to words) : For that the said D., at on , was bailiflf to the plaintiff of twenty pairs of men's shoes, , all of the value of dollars, to carry them to the West Indies, the dangers of the sea excepted, and there to mer- chandise with them to the plaintiff's best profit, and thereof to render the plaintiff his reasonable account, -on demand, saving to the said D. one-half of the profits thereof; and the said D. afterward carried the said goods safe to , in the West Indies ; yet he hath not rendered his reasonable account thereof, though requested, but unjustly neglects so to do. Where- fore (conclude as in first form). -d Plaintiff's Attorney. (Affidavit of plaintiff when required.) (Date.) § 327. FORM OF STATEMENT BY CONSIGNOR OF GOODS. (Follow the first form of statement in account render down to) : For that the said D. at , from to , was the plaintiff's bailiff, and, in that time, had the care and management of the plaintiff's five hogsheads of molasses, containing of the value of dollars, to transport to Philadelphia (the dangers of the seas only excepted), and there to sell the same for the plaintiff's best advantage, and to lay out the proceeds in the following manner, viz., and to render to the plain- tiff a reasonable account thereof, when thereto required ; and the plaintiff avers that the said D. transported the goods aforesaid safely to said Phila- delphia, and there sold the same ; yet, though requested, he hath not ren- dered his reasonable account thereof, but unjustly neglects so to do. Wherefore (conclude as in first form). -d Plaintiff's Attorney. (Affidavit of plaintiff when required.) (Date.) §328. FORM OF STATEMENT AGAINST A BAILIFF OF LANDS WHO COLLECTED FOR COMMON BENEFIT OF HIMSELF AND OTHERS. (Follow first form down to the words) : For that the said D. and A. in his lifetime, to wit, on and firom thenceforth imtil at were bailiflfe of the said S. in his lifetime, of the several messuages, buildings, parts of buildings, lots and tracts of land, and parcels of real estate, mentioned in the schedule hereto annexed, with the appurtenances, of them the said S., D., and G., now deceased ; and for all that time had the care and management thereof, and received the issues and profits thereof, for the common benefit and profit of the said S., D., and C. during his Ufe, and after his decease, for the common benefit and profit of the said S. and D., and the executors of the testament of the said C, to render a reasonable account thereof to the said S. when they should be thereto required ; yet, (etc., as before.) B., Plaintiff's Attorney. (Affidavit when required. Attach the Schedule.) (Date.) ACCOUNT RENDER. 241 Although this form is given in a work of authority, it would be simpler and safer in this and kindred cases of difficulty to pro- ceed by Bill in Equity. § 329. After filing Narr. If no appearance be entered, you can take judgment for want of an appearance. Section 23. If appearance be entered, you enter rule to plead. Section 26. If no plea be filed, you take judgment. Section 26. If plea be filed admitting liability to Accovmt, or if Judgment is to be entered for want of appearance or plea, you move the court for judgment quod computet (that he account), if there be one de- fendant ; quod computent (that they account), if more than one de- fendant. If the plea admit liability to account, this motion should be placed on the list and will be called up in court. § 330. Judgment quod computet. The following may be used as a form for entering this judgment : A 1 ( Common Pleas of County. g r Term, 188 . No. And now on motion of C, plaintiff's attorney, the court enter judgment against defendant quod computet (or against defendants quod computent) and refer the case to Esq. (or to & Esqs.), to state an account sec. kg. Judgment quod compviet is purely interlocutory ; its effect is to compel the rendering of an account, which account is then ad- justed by subsequent process. For this purpose the Act of Octo- ber 13, 1840 (Br. Purd., 56, section 4), already quoted, gives the court the power " to either appoint auditors and proceed according to the practices and usages of the common law, or direct a jury to be impanelled to settle the accounts." The Act of June 24, 1895 (P. L., 243), allows an appeal from the interlocutory decree requir- ing the defendant to account in an equity case of account. In most cases it would be very difficult to settle accounts before a jury ; and the questions are, therefore, referred to auditors. As one competent person is generally preferred to two or three, one auditor is usually appointed. In McLean v. Wade, 53 Pa. St., 146 (1866), the plaintiff entered no formal judgment quod computent. But the defendants being liable to such a judgment under the pleadings, the court below al- lowed the jury to liquidate the amount due. This was assigned for error, but the Supreme Court decided that a " formal judgment of quod camputd was not indispensable." VOL. I. — 16 242 PEACTICE IN PENNSYLVANIA. It will be observed that the defendants' liability to account was admitted by the pleadings. § 331. After plea filed denying liability to account. You must, as in other cases, demur to the plea or take issue upon it. Do not demur for an objection which may be avoided by an amendment. Section 161. You take issue by filing a replication. If the plea conclude " to the country," the replication is a similiter. Section 160. If the case be put at issue on the facts, see section 163. If an issue of law be raised by demurrer, proceed as directed in sec- tion 162. §332. The Auditors. After the interlocutory judgment to ac- count, auditors are appointed, whose sole business is to adjust the accounts between the parties. For this purpose the parties them- selves are admitted as witnesses to their accounts. " It has been decided elsewhere that the report of the auditors, if not objected to by the parties, will be considered as conclusive of the balance struck ; but their report may be objected to, either on account of any mistake of the law or any improper admission or rejection of evidence, or because they have taken into consideration matters not submitted to them." (2 Day's Rep., 116.) But this statement, that the report of the auditors may be ob- jected to " on account of any mistake," etc., does not correctly express the law of Pennsylvania. Nor is the law altogether cor- rectly stated in the following footnote to Brightly's Purdon (57, r). " The auditors are mere clerks to take and state the accounts be- tween the parties. They have no power to decide any matter of dispute, either in point of fact or law. If the matters offered by either party be disputed by the other, he may either demur or take issue before the auditors. If there be more points of dispute than one, there may be a demurer or an issue on each, which are to be certified by the auditors to the court, and then the matter of law will be decided by the court and the issues of fact by a jury, after which the account will be finally settled by the auditors, according to the result of the trials." The author of this treatise was of counsel in the cases cited in the footnote, and he has no recollection that the law was laid down by the District Court of Philadelphia as above stated. Be this as it may, the rule as to § 333. Powers of auditors and as to demanding issues, etc., were very clearly announced by Strong, J., in Little v. Stanton, 32 Pa. St., 299 (1858), in these words : " A report of auditors in an ac- tion of account render is totally unlike in effect to a report of au- ditors in an Orphans' Court. It is not subject to revision by the ACCOUNT EENDEK. 243 court upon its merits. The report is final both in fact and in law. True, while the account is pending before the auditors, either party may demand that an issue of fact or of law arising in the case may be sent to the court for decision, and the decision will be binding upon the auditors ; but if either the fact or the law be submitted to the decision of the auditors in the first' instance, their adjudica- tion is the end of the controversy. It is not subject to the revision of the court. The court can interfere only where auditors have been guilty of misconduct. This is the law in England, whence we obtained the action of account render, and, with the exception of one or two of our very early cases, it has always been the law in Pennsylvania. Beforp the year 1807, exceptions to the merits either in fact or in law, of an auditor's report in account render, had been allowed in a very few cases, but this court then deter- mined " that thereafter such an innovation upon the rules of the action would not be tolerated. Snyder v. Caster, 4 Yeates, 358 ; Gratz V. Phillips, 3 Binn., 475, and Moore v. Hunter, reported in a note to the same case. In Orousillat v. McCall, 5 Binn., 433, the rule is unqualifiedly asserted, and it has ever since been the recognized law of the State. The exceptions which were filed to the auditor's report in this case were therefore a nullity, and should have been disregarded by the court." * * * "It is sufficient to say that the court had no power to reform the au- ditor's report, no issue of fact or law having been certified to them." The same ruling was repeated in Stewart v. Bowen, 49 Pa. St., 245 (1865) ; Agnew, J. " The auditor made his report, which was excepted to for certain alleged errors, there being no charge of misconduct. But upon an allegation of an error in calculation, the report was recommitted by the court for correction. It came before the auditor, when the defendant insisting upon a rehearing upon certain matters, the plaintiff protested and withdrew. The auditor, although of opinion that he had no power to hear and decide any matter anew, concluded to hear the case and report the facts to the court. He did so, and with his report set up several issues of fact, which the defendant tendered in the rehearing. Upon the return of the report into court the court refused to consider the second report, and gave judgment for the plaintiffs upon the origi- nal report. It seems the auditor found no material error of calcu- lation, and so stated in his second report. The defendant now com- plains, alleging that the court ought to have heard him again, and erred in rejecting his prayer for issues of fact." " The parties having chosen the action of account render and 244 PRACTICE IN PENNSYLVANIA. a reference to an auditor, according to the rules of law in that mode of proceeding, must abide by the remedy thus adopted. It is settled that the adjudication of the auditor in this form of pro- ceeding is the end of controversy, and is not subject to the revision of the court ; that the court can interfere only when the auditor has been guilty of misconduct : Little v. Stanton, 32 Pa. St., 300^ Doubtless for an error of calculation merely, the court might re- commit the report to the auditor for correction, but not for a re- hearing. The plaintiff did not acquiesce, but insisted upon his right to the original report. When the report, therefore, was re- turned, we see no error in discarding the second report, founded upon the rehearing, and in disregarding a demand for issues not asked for in time. The court was right in entering judgment upon the report as originally made, especially as the auditor found no mere clerical error of computation to correct. We cannot go into the report and make detailed calculations to find out the correctness of this opinion." § 334. Proceedings before auditors. The auditors are sworn as in other cases. The party required to account should produce his statement. The judgment quod computet has settled his liability to account, the question now is as to the amount due to him or by him. He may present an account which shows that the plaintiff is in his debt. Should he fail to exhibit any statement, he may be re- quired, under the Act of October 13, 1840, section 18 (P. L., 7, Br. Purd., 56), already quoted, to answer interrogatories, to produce books, etc. He may also, under Act of May 23, 1887, section 7 (P. L., 160), be called as for cross-examination. The plaintiff is at liberty to produce a statement charging the defendant according to the plaintiff's view. If no demand be made for a certificate to the court as to questions of law or of fact, the case proceeds before the auditors up to the filing of their report, when " it is final both in fact and in law." 8 Casey, 299 {supra). But if either party so desire, " while the account is before the au- ditor," an issue or issues in law or of fact may be certified to the court. § 335. FORM OF DEMAND FOR AN ISSUE OF LAW. • (in the Court of Common Pleas, No. 4, of Philadelphia County. b" J March Term, 1889, No. 6. DEMAND OF DEPENDANT THAT AN ISSUE OF LAW MAY BE SENT TO THE COURT FOR DECISION. To C. D., Esq., the auditor in the above case. The demand of the defendant B. for an issue of law respectfully showeth : ACCOUNT EENDEK. 245 That on the day of , 1889, this defendant pre- sented to the auditor his account. That he has claimed an allowance for his just and lawful commissions, amounting to dollars. That the plaintiff has objected to the allowance of said commissions, and has claimed that because (here state the facts relied upon by plaintiff) the de- fendant has lost and forfeited all claim to commissions, which facts are not disputed ; but defendant denies that upon said facts he has forfeited his commissions. Wherefore, the facts being undisputed, the following ques- tion of law has arisen, viz. : Whether upon the facts above stated the defendant has or has not as matter of law forfeited his right to charge his commissions. The plaintiff contending that, as matter of law upon said facts, the com- missions have been forfeited. And the defendant denying this, and contending that, as matter of law upon said facts, the commissions have not been forfeited. And the defendant demainds that this issue of law be sent to the court for decision. Signature of defendant. Signature of his counsel. (Date.) Affidavit of defendant that the matters set forth in above demand are true. Here it will be observed that the defendant admits the facts. No issue of law could arise upon disputed facts. The facts must be admitted or settled before a question of law can arise upon those facts. A case may present, at the same time, a question of law upon certain facts admitted and separate issue as to matters disputed. Thus one or more questions of law and of fact may exist at the same time. Separate issues may be demanded as to each. But in all demands for issues of law there must be no contention as to facts in those particular issues. Where the facts are disputed and you are not content to leave the question to the decision of the auditor, you must demand an issue. §336. FORM OF DEMAND FOE AN ISSUE OF FACT. A. ] V. > Court, Term, No., etc., as above. B. ] To C. D., Esq., the auditor in the above case. The demand of the plaintiff A. for an issue of fact respectfully showeth : That in the settlement of the account produced by the defendant before the auditor in the above case, the defendant has claimed that he paid to plaintiff the sum of dollars on , and in support of said alle- gation, the defendant has produced a writing purporting to be a receipt from plaintiff to defendant for said sum on said date, and the plaintiff has denied that the defendant paid plaintiff said sum as above claimed by de- fendant, and plaintiff has further denied that said writing is plaintiff's re- ceipt, and plaintiff has charged that said writing is a forgery. And there- 246 ' PEACTICE IN PENNSYLVANIA. upon a question of fact has arisen, to wit, whether said payment was made and whether said writing is genuine. And the plaintiff fiirther shows that the question thus arising is important and is material to the just determi- nation of the case and to the settlement of said account, and he avers that said payment was not made and that said so-called receipt is a forgery. Wherefore the plaintiff demands that the following issue of fact be certified by the auditor to the court, to wit, did the defendant pay to the plaintiff on the sum of dollars, and is said so-called receipt genuine ? And the plaintiff demands that said issue be tried by a jury. Signature of plaintiff. Signature of his counsel. Plaintiff's affidavit that the facts above set forth are true ; that the ques- tion whether, etc., is important and material ; that the defendant asserts that the plaintiff denies this assertion ; that the truth is, said payment was not made as alleged by defendant ; and that said so-called receipt is a forgery. It need hardly be stated that the matters exhibited in the fore- going forms are only imagined, in order to present the proper out- lines, and that every demand must present the facts exactly as they have appeared, stating with clearness the precise questions to be referred to the court. § 337. When issues are properly demanded, the auditor must report them to the court, 'they are ordered upon the argument list by either counsel. He who orders should notify his adversary. If there is to be a contest, both sides should prepare paper-books, giving the court the history of the case, points, authorities, etc. § 338. Upon demand for issue of fact, the court will send any material question to a jury. The counsel generally agree upon the framing of the issue ; but if they cannot do so, the court directs them. The party taking the affirmative should be made plaintiff, c. g., the defendant who alleged he had made the payment, and that the receipt was genuine, would be plaintiff. § 339. Narr. and plea in feigned issue. The old form set forth a conversation in which defendant promised plaintiff to pay him $100 if certain things were so ; that is, in the case above suggested the defendant in the account render becomes plaintiff in the feigned issue, and sues the plaintiff in the account render for $100 prom- ised to be paid if the payment claimed before the auditor had been made and if the receipt were genuine. The narr. then, of course, averred that the payment had been made and that the receipt was genuine, wherefore the defendant (in the feigned issue) owed plain- tiff (in the feigned issue) the $100 so wagered. The defendant would admit that he made a bet, but deny the matters averred by ACCOUNT RENDEE. 247 plaintiff. Thus the cumbersome feigned issue was framed. A simpler method would be the following : A. ] V. )■ Court, Term, and number. B. j A feigned issue is hereby stated by the above-named parties under the order of court made upon the following question : Did B. on pay A. dollars and is the receipt held by B. for said sum genuine ? B. affirms that he did so pay and that the receipt is genuine. A. denies this. The affirmative of the issue is with B. And the issue ia to be tried with same effect as if a Narr. in feigned issue had been filed setting forth a disr course, wager, etc., and a plea thereto had been filed admitting the wager, but denying plaintiff's averments, all in the usual form. Signatures of parties. Signatures of counsel. § 340. After issues decided. The parties return to the auditor, who states the account in the light of the results. He should in- clude all matters in account between the parties down to the time of filing his report. Tutton v. Addams, 45 Pa. St., 67 (1863). It is not enough for him to state simply the balance he finds due ; he must itemize his report and give the calculations by which he arrives at his decision. Finney v. Harheson, 4 Yeates, 514 (1808). After the auditor states his report, it is filed with the prothono- tary of the Common Pleas, and has the eifect of a verdict. Judg- ment may be entered and execution issued upon it as in other cases. For form of prcedpe for fi. fa. and proceedings relative thereto, see sections 23, 24, 25. The statutes concerning stay of execution (Act of June 16, 1836, section 3, P. L., 762 ; Br. Purd. Dig., 829, section 9, d seq.) apply to judgments in actions of account render. § 341. Error. After final judgment the cause may be removed to the Supreme Court by an appeal. Upon this subject see Br. Purd. Dig., page 787, title Errors and Appeals, and Act of May 9, 1889 (P. L., 158). Follow the statutes carefully. As judgment quod computet is not final but interlocutory, the appeal will not issue upon it forthwith, but must await the final judgment on the auditor's finding. JSeiiler v. Zeigler, 1 P. & W., 135 (1829), re- ferred to and approved in GesselPs Appeal, 84 Pa. St., 288 (1877), on page 240. The Act of June 24, 1895 (P. L., 243), allows an appeal from the interlocutory decree in equity, fixing the liability of the defendant to account. On the other hand, judgment for de- fendant upon a plea in bar in account render is final, and plaintiff may have his appeal at once. CHAPTEE XII. COMMENCEMENT AND PKOSECUTION OF MUNICIPAL LIENS. § 342. Various kinds of municipal claims. The claims to be here considered are of various kinds — for taxes, benefits assessed, for opening streets, pitching and paving streets and alleys, digging down, filling up, curbing, paving, repairing footways, for intro- ducing water, for culverts, for laying iron pipes, for sewers, and for removing nuisances. § 343. All enforced in the same general way. All are, however, enforced in the same general way. A claim is filed and a sd. fa. issued. The writ is prosecuted as any other sd. fa. subject to the provisions specially applicable. Assumpsit cannot be sustained to recover a municipal assessment for paving. Phila. v. Merldee, 159 Pa. St., 515 (1894) ; Phila. v. Bradfield, Id., 517 (1894). § 344. Ho charge is a lien unless so declared. In City v. Dickson, 47 Leg. Int., 83 (1889), it was held that the second sec- tion of the Act of May 17, 1887, intended to validate certain municipal assessments, was unconstitutional. §345. General abstract of legislation. Lien in Philadelphia for taxes, rates, and levies. The Act of February 3, 1824, section 1 (8 Sm., 189 ; P. L., 18), makes all taxes, rates, and levies upon real estate in Philadelphia, together with all additions to, and charges on the said taxes, etc., a lien on the real estate, having priority over and to be satisfied before any recognizance, mortgage, judgment, debt, obligation, or responsibility to which the real estate may become liable after the passing of the Act. This is altered by Act of January 23, 1849. See sections 364, 365. § 346. OoUedors to give receipts, etc. The seventh section re- quired persons collecting registered taxes, etc., to receipt for the same and to certify the payment to the county commissioners within thirty days, under penalty of five dollars. § 347. Water-rents not a lien. The eighth section applied the lien to all taxes, etc., levied by authority of the city of Philadel- phia, or of any corporation in the county of Philadelphia, except that rents for Schuylkill water should not be within the Act. § 348. lAens in Philadelphia for streets, culverts, etc. The Act PROSECUTION OP MUNICIPAL LIENS. 249 of April 23, 1829 (P. L., 301), gave the right to file lieus for paving or curbing any street, court, or alley, for laying footways or cartways, and for relaying pavements, curbs, or footways, which liens shall have priority over any recognizance, mortgage judg- ment debt, or obligation : Provided, That no owner shall be re- quired to curb or pave except in front of his property, and to no greater extent than one-half of the width. The Act of April 16, 1840, section 9 (P. L., 412), empowered the authorities in Philadelphia County to file in Common Pleas office all claims " for pitching and paving streets and alleys, for digging down, filling up, and for curbing, paving, and repairing any footway within the same, and also for building culverts and laying down iron pipes ^" and all amounts for taxes, rates, and levies assessed by any incorporated district or township. § 349. Whai the claim was to set forth. The tenth section of the last-cited Act required that claims should set forth " the name of the owner or reputed owner, and as nearly as may be an accurate description of the real estate against which the same is filed, and where the said estate is situate." The lien was to remain until the claim was paid, and could be sued out as a mechanic's claim by scire facias, but no land of a minor was to be sold until after two years from his attaining his majority. § 350. What to be proved on trial in Philadelphia. The plain- tiff was only bound to show that the work was done or the mate- rials furnished and the value. The defendant could only contest these matters or prove payment or release. Act of April 19, 1843, section 1 (P. L., 342). § 351. lAen limited to six months, unless claim filed, and then to five years, unless revived. The Act of April 16, 1845, section 2 (P. L., 488), declared that none of these claims for work or for materials by the board of health or any municipal corporation " shall be a lien for more than six months, unless the claim for the same shall be filed in the office of the prothonotary of the proper court, nor shall the same continue a lien longer than five years from the time of filing, unless revived by scire facias in the manner provided in the case of mechanic's claims." Where a sheriff's sale is made after work done for municipal im- provements, but before claim filed, the lien is discharged. Oity v. Oox, 29 W. K, 519 (1892). § 352. The Treasurer of Philadelphia County was empowered to collect taxes registered in the office of the county commissioners, to employ counsel at five per cent., etc. Act April 16, 1845, sec- tion 3 (P. L., 496). This was restrained to collection of State, 250 PRACTICE IN PENNSYLVANIA. county, road, and poor taxes by section 7, Act March 11, 1846 (P. L., 115). The fourth section of the Act of April 16, 1845, authorized suits by the treasurer in the name of the county of Philadelphia before any alderman or justice or court, and upon producing certifi- cate, judgment to be entered unless defendant proved payment. § 353. Two returns of Nihil in tax claims. The fifth section made two returns of nihil equivalent to a service, as in cases of suits upon mortgages. But the tenant (if any) was to be served. If no tenant, a copy of the alias writ was to be posted on some conspicuous part of the premises ten days before the return-day ; and publication was to be made (reciting the amount of the tax and the description of the real estate, as set forth in the registry) in one or more newspapers of the city of Philadelphia. § 354. Hegistered Taxes cease to be liens five years from January first of the year succeeding thai in which they became due, unless suit brought and duly proceeded in to Judgment. Act March 11, 1846, section 1 (P. L., 114). The second section of this Act declared that if claim for taxes exceeded $100 it could be filed in prothono- tary's office, and a sci. fa. issued, or action of debt to recover a general judgment be proceeded in — ^the claim was to be prima fade evidence — and judgment might be entered for want of affi- davit of defense. If property had been conveyed, and deed re- corded after assessment of the tax, the present owner was to be served ; and if there were several owners of distinct portions of the premises, the tax was to be apportioned. If any owner be omitted, he may be made a party, and, on proof of service, judg- ment may be entered by default : Provided, That such apportion- ment should not affect the personal liability of the owner at the time of the assessment for the whole tax, costs, etc. In Philadelphia, registered taxes cease to be a lien, unless a sd. fa. is issued within five years from the first of January next after they become due. Phila. v. ITiester, 142 Pa. St., 39 (1891) ; City V. AUert, 29 W. K, 113 (1891); Phila. v. Kates, 150 Pa. St., 30 (1892) ; CrUy v. Byers, 27 W. N., 71 (1890). § 355. Taxes cease to be liens unless recorded in prothonotary's office within two years of assessment, and revived within five years thereafter. By Act of May 4, 1889 (P. L., 79), it is provided that " No county, city, borough, township, or school tax, levied or as- sessed, shall remain a lien on real estate for a longer period than two years from the time of such levy or assessment unless the same be entered of record in the prothonotary's office of the proper county in which such real estate is situate ; and no lien PEOSECDTION OP MUNICIPAL LIENS. 251 SO entered therefor, or for any municipal improvement claim, shall remain a lien thereon for a longer period than five years from the date of such entry unless the same be revived and continued by writ of scij-e faoias within said period, and duly prosecuted to judg- ment, as in the case of judgment liens." § 356. Service of soi. fa. in Philadelphia for taxes, municipal charges, assessments, and expenses of removing nuisances was directed to be by sheriff posting true and attested copy on con- spicuous part of premises described, and by publishing brief notice in a daily newspaper in said couaty twice a week for two weeks before return-day. This service being made, the plaintiffs " may proceed to recover judgments as in suits on mechanics' liens." Act March 11, 1846, section 3 (P. L., 115). See sections 383, 395, 427, 428, 429, 430, 450, and 490 of this book. § 367. AU claims in Philadelphia evidence without proof, and the defendant deprived of many defenses. The fourth section of the Act last cited (P. L., 115), provides : " Such claims may, in suits thereon, be read as evidence of the facts therein seb forth ; and no plea alleging non-joinder or mis-joinder of parties ; no plea aver- ring want of notice to remove nuisances ; no plea touching the rates or proportions of contribution among parties jointly inter- ested ; nor any plea touching the question of ownership shall be allowed in any such action." § 858. Sheriff's Hand-bills to note at foot name of plaintiff and character of claim, or sale may be set aside. Ibid., section 5. § 359. Lien not divested by judicial sale for so much as the pro- ceeds shall be insufficient to discharge and pay. Ibid., section 6 (P. L., 115). So regarding lien for taxes. Act April 19, 1883, section 6 (P. L., 11). § 360. Apportionment of Taxes. The eighth section of the Act of March 11, 1846, authorized the commissioners of Philadelphia County to apportion taxes jointly assessed on separate properties. § 361. The costs of prothonotary and sheriff to be collected from the defendants, and not from the county. Act March 13, 1847, section 1 (P. L., 340). §362. Advertisemeni and Redemption. In cases of municipal claims in Philadelphia notice must be given once a week in two daily papers for three months before suit brought. One year after sale allowed for redemption on payment of all costs, charges, and twenty per cent, on amount for which property sold. Act January 23, 1849, section 3 (P. L., 686). But the requirement as to advertisement was re- pealed, and in lieu thereof the city solicitor was required to cause 252 PKACTICE IN PENNSYLVANIA. diligent search to be made for the owner or reputed owner of all property named iu claims of every kind filed by the city, and to serve him with notice to pay in ten days. Act of March 23, 1866, section 1 (P. L., 303). § 363. The right of redemption was extended to claims for removing nuisances. Act April 26, 1855, section 1 (P. L., 303). And to two years, with right to compel conveyance by petition and attach- ment. Act May 13, 1856, section 11 (P. L., 569). § 364. Lien of Philadelphia mortgages not to be defeated unless the claim duly registered in the proper office prior to the recording of the mortgage. Act of January 23, 1849, section 4 (P. L., 686). § 365. Philadelphia Ground-rents protected. No such ground- rent to be divested by the sale of the land for non-payment of tax charge or assessment on said real estate ; but ground-rent shall be assessed as a distinct estate, and payment of tax or assessment en- forced as in other cases. Ibid., section 5 (P. L., 686). § 366. Universities, Colleges, Academies, and School-houses were made liable for pitching, paving, and laying pipes for Schuylkill water. Act March 11, 1850, section 4 (P. L., 165). But this was twisted and the privileges of the universities, etc., re-estab- lished by Act of April 15, 1850, section 11 (P. L., 469). § 367. When cartway ordered to be paved vnth cubical blocks. Where the cartway of a street shall be ordered to be paved with cubical blocks, every owner of the -lot of ground opposite such pavement shall cause the foot pavement to be supported with cut granite curbstones, and in case of neglect or refusal, shall be liable for proceedings as are now authorized in the case of owners neglect- ing or refusing to curb a footway. Ord. Feb. 12, 1852, section 1. § 368. Receiver of Taxes in Philadelphia. By Act of February 2, 1854, section 11 (P. L., 29), the receiver of taxes in Philadel- phia is to collect all taxes, etc., and certify all taxes and claims : " Provided, that if any person against whom such taxes shall have been assessed shall make affidavit that he did not own the premises for which such taxes were assessed at the time they accrued and became a lien thereon, the said taxes shall be collected of the true owner thereof, or by proceedings to sell the premises by execution." {Ibid., page 30.) Where taxes remain unpaid for one year after they have become delinquent, the receiver of taxes shall procure an accurate descrip- • tion of the real estate on which they are assessed, at the cost of the owner, such cost not to exceed one dollar, and shall file liens, keep the same revived, and proceed to collect them from time to time. Act April 19, 1883, section 6 (P. L., 11). PROSECUTION OF MUNICIPAL LIENS. 253 § 369. Tax Sales vest in purchaser good title sulyect to right of redemption. Sales made in suits instituted by the receiver of taxes or under his directions shall vest in the purchaser a good title sub- ject to the right of redemption, which is limited to two years from the date of acknowledgment of the sheriff's deed upon payment to the purchaser of the amount of his bid with ten per cent, thereon, together with costs, etc. Ibid., section 5. § 370. Lien for Water-pipes. The ordinance of January 29, 1855, section 3 (41), provides that whenever pipes for the convey- ance of water shall have been laid in any «quare of street or high- way, the chief engineer of the water- works shall, within five days thereafter, inform the surveyor of the district, who shall, within ten days thereafter, assess the expense against the owners of ground front- ing on said street, in proportion to their respective fronts thereon, and make out duplicate bills therefor, which he shall deliver to the chief engineer of the water- works, who shall take steps to col- lect the same as therein directed. If the bills be not paid in four months, he shall deliver them, together with a description of the property, to the city solicitor, who shall forthwith file claims for and proceed to collect the same as is practised and allowed by law. § 371. Paving. Ordinance of May 3, 1855, section 2 (141), pro- vides that whenever the cartways of a public street or portion thereof shall have been paved by authority of councils, the ex- penses thereof, excluding the expenses of paving at the intersec- tion of public streets, shall be assessed against the several owners of ground fronting the said street, each to the centre thereof and in proportion to their fronts thereon ; if the said assessments shall not be paid after the proceedings therein directed, the city solicitor shall file claims for and proceed to collect the same. § 372. General notice to tax-payers is directed to be given by the receiver of taxes on the first Mondays of October, November, and December, three times, in three newspapers, to pay the taxes then due ; that if they are not paid by the first day of the following January, interest will be charged thereafter, and that the names of the delinquents will then be published. When so published, they shall be alphabetically arranged for the several wards. Act May 13, 1856, section 8 (P. L., 569). But this requirement to publish the names of delinquents is to apply to personalty only when its assessed valuation exceeds $100. Act May 13, 1857, section 2 (P. L., 489). By Act 23 May, 1874, section 5 (P. L., 232), the receiver of taxes in Philadelphia is directed to publish a detailed statement of delinquent tax-payers, giving their names, the amount of tax, and 254 PEACTICE IN PENNSYLVANIA. the property upon which it is due, in five daily and two Sunday newspapers, " and in such one newspaper as is now authorized by law to publish advertisements of legal notices, within one week succeeding the fifteenth day of January of each year * * * The same number of times as is now required by law." And the city solicitor shall direct the publication of all municipal liens in the same manner. § 373. Assessors to make return. The assessors are to return dimensions of each lot with assessments to the city commissioners, and if their return is uncertain, the surveyor of the district shall furnish accurate measurement and precise description. Act May 16, 1857, section 2 (P. L., 549). § 374. Duties of receivers, solicitors, prothonotaries, do. The receiver of taxes is to register unpaid taxes annually, and to send to the city solicitor a list of those registered and unpaid in January, every two years succeeding the year for which they were levied, with bills therefor. The city solicitor is to collect them by sale of the real estate on which they are a lien. The controller shall audit the receiver's accounts. Clerk of the Orphans' Court and prothono- tary of Common Pleas shall certify to the receiver all real estate sold and confirmed in their courts. Act April 21, 1858, Section 2(P. L., 385). . The receiver may sue in the name of the city of Philadelphia. Act April 12, 1859, section 1 (P. L., 543). § 375. Amendments may be allowed before or at the trial, on no- tice, under rule of court. If made on trial, continuance may be granted to defendant. Act April 21, 1859, section 9 (P. L., 387). § 376. Further regulations as to tax sales. All taxes on the same property filed in the same court are to be collected in one suit. Sale to be stayed unless enough bid to pay all in arrear to State and city, or unless city purchased, which they are authorized to do, subject to redemption and the right to redeem to continue until six months' previous notice published as in case of suits for regis- tered taxes ; after period for redemption expired, city to advertise as required in Orphans' Court sales, and sell. Act April 9, 1861, section 5 (P. L., 269). When property is sold by the sheriff for taxes, if the proceeds be not sufficient to pay taxes and costs, the' receiver may either stay the sale or buy the property in behalf of the city and take title thereto. Act April 19, 1883, section 4 (P. L., 11). The Act of May 22, 1895 (P. L., Ill), provides that the lien of all taxes against real estate shall be divested by judicial sale, pro- vided the amount of the purchase-money shall equal the amount PROSECUTION OP MUKICIPAL LIENS. 255 of the taxes. The officer having taxes for collection against any land advertised to be sold, or the county commissioners, if the taxes have not been certified for collection, shall give notice to the officers or persons selling such land of the amount of taxes due, and the officer selling such land shall pay said taxes out of the proceeds arising from the sale first after payment of the costs of sale. § 377. Penalties and abatements in tax cases were fixed by Act of April 17, 1861, section 1 (P. L., 354). § 378. In municipal claims the owner may compd plaint'^ to proceed. Whenever a claim shall be filed in the name of the city of Philadelphia, any person entitled to defend may notify in writ- ing the attorney of record* or use plaintiff, or if no such counsel or person, then the city solicitor, requiring him to issue sci.fa. to next monthly return-day, which shall be at least fifteen days from no- tice. If no writ issued on motion and due proof of notice, the court shall strike claim from record ; Act February 21, 1862, section 1 (P. L., 44) ; or the amount, with sufficient to cover interest and costs, may be paid into court to abide result. Thereupon the claim ceases to be a lien, and shall be stricken from judgment index. Ibid., section 2 (P. L., 44). § 379. Locality Index to be kept by prothonotaries in Philadel- phia for all claims, municipal and private, frontages and distances to be noted, twenty-five cents allowed for each claim indexed, and forty cents for search. Acts March 31, 1864, section 1 (P. L., 171) ; February 16, 1866, section 1 (P. L., 50). § 380. Assessed benefits a lien. The Act of April 1, 1864 (P. L., 207), section 3, provides that " when the court has confirmed the award of the jury as aforesaid, the solicitor of the city of Phila- delphia shall notify the property-owners benefited of the amount assessed against the property of each, and have delivered to them bills for the sums so assessed," and the claim filed by him, after non-payment within thirty days after the delivery of the bill, " shall be a lien against the premises assessed, aud shall be collected in the same manner as municipal claims are now by law collected." § 381. As to laying water-pipe before paving. 'No district sur- veyor shall prepare for paving the cartway of a street until a cer- tificate of the chief engineer of the water department that water- pipe has been laid or is not required to be laid, is filed in the sur- vey department. Ord. May 23, 1864, section 1 (122). § 382. Sewer charges a lien. Sewers or drains may be constructed and the' charge recovered as liens for laying water-pipes are now recovered, and with same allowance for corner lots. When owners 256 PKACTICE IN PENNSYLVANIA. do not pay, the tenants may pay and hand the receipt to owner as so much cash paid for rent. Act March 27, 1865, section 1 (P, L., 791). § 383. Proceedings required on Sci. Fa. Writs of sd. fa. are to be served by the sheriff by advertising and posting as required before 1866. But before judgment by default the court is to be satisfied by affidavit as to the following matters in reference to the owner or reputed owner : 1. If he has any known residence in the city, that he has been served at least ten days before issuing writ with notice of claim, personally or by serving an adult member of his family at his resi- dence. 2. If he has a residence out of the city, then the affidavit must show that notice prepaid was mailed to the owner at his address at least fifteen days before suit brought. 3. If the address cannot be ascertained, the premises liened must be visited by the deponent, and if occupied by an adult, notice must be served on him and inquiry made for owner ; if premises unoc- cupied or inquiry fruitless, notice must be affixed to post, tree, fence, or structure. Inquiry must also be made of occupant of nearest dwelling and nearest ward assessor ; if inquiries fruitless, notice must be served upon assessor, who must forthwith report it to board of revisi(5n, who shall file it alphabetically according to the wards. If a name of owner be found, he shall be served, his name shall be added to record, and he shall be made a defendant in any suit brought. This Act to apply to all claims to use or otherwise ; all municipal claims to be filed by city solicitor. Five per cent, to be allowed him in lieu of all costs, commissions, etc. Act March 23, 1866, section 2 (P. L., 303). In the absence of any legal proceedings, the city solicitor can- not collect the five per cent, allowed by the Act of 1866 unless steps are taken to find the owner and to demand payment. Phila. V. MiMigan, 147 Pa. St., 338 (1892). Under the Acts of 1830 and 1866, ten days' notice of the claim must be served on the registered owner. (My v. Fitton, 27 W. 'N., 340 (1890). Where the defendant agrees to the issuing of an amicable sd. fa. swr municipal claim, he thereby waives the benefit of the Act of March 23, 1866, requiring notice. (My v. Schofidd, 166 Pa. St., 389 (1895). § 384. Application for sewers to he made to surveyors. All ap- plications for the construction of sewers or drains not eiceeding three feet in diameter must be made to the board of surveyors. PKOSECUTION OF MUNICIPAL LIENS. 257 with a list of the property-owners fronting on the sewers and the dimensions of each front, and when approved by the board and sanctioned by the committee of surveys and regulations, notice shall be given to the chief commissioner of highways, who shall advertise for the construction of the same, and allot the work to the lowest and best bidder giving the requisite security. Ord. May 12, 1866, section 3 (143). § 385. AssessmeTd biUs to be taken by contractor as cash, and he may file lien. The contractor shall accept as cash and collect the assessment bills indorsed by the commissioner of highways. He may use the name of the city of Philadelphia and employ all legal remedies, whether of lien or otherwise, to which the city may be competent. Id., section 4' (143). § 386. No sewer shall be constructed when assessment bills insuffi- cient. City solicitor may file claims for sewers or drains ; but no sewer shall be constructed under this ordinance where the assessment bills are insufficient to pay the cost thereof, until an appropriation to meet the deficiency be made by councils. Id., section 5 (144). § 387. Costs of connection with sew&r in Philadelphia, a Lien on Premises connected. Whenever any lot or premises shall be connected with a sewer, in pursuance of an Act of Assembly or ordinance of the city of Philadelphia, the cost thereof shall be a lien upon the lot or premises, and the lien shall be filed and collected in the same manner as are liens for the said sewer charges or assessments. Act of April 10, 1867, section 1 (P. L., 1111). § 388. Change of street paving. Upon a petition of a majority of property-owners of a block to have the character of the street paving changed, councils may direct it to be done, and the cost shall be a lien upon all the property fronting on said block. Act April 18, 1867, section 1 (P. L., 1303). § 389. Macadamizing streets in the rural wards. So much of Acts of Assembly as authorize owners to have streets paved is ex- tended to macadamizing or turnpiking such streets in the rural wards, to be paid for and liens to be filed as in cases of paving streets in said city. This Act shall not apply to any road on which tolls are authorized to be collected. Act March 13, 1868, section 1 (P. L., 316). § 390. Claims against one lot really belonging in parcels to differ- ent, mimers may be appoiiioned on affidavit or other proper evi- dence, so that no more than due proportion shall be charged against the several lots. Upon payment of any part so apportioned, court may direct satisfaction pro tanto. The remainder of the lien to be unaffected. Act March 22, 1869, section 1 (P. L., 477). VOL. I. — 17 258 PRACTICE IN PENNSYLVANIA. § 391. Notice of city charge for paving. Notice must be given to property-owners of the amount the city will charge for neglect in paving. Ord. May 7, 1869, section 1 (191). § 392. No street to be paved till sewer constructed. When appli- cation is made for paving, it must be ascertained whether such street require drainage by sewer, and, if so, such street shall not be paved until the necessary sewer shall have been constructed. Ees. June 14, 1873 (306). § 393. Award of paving contracts in Philadelphia. In Philadelphia, it is enacted by ordinance that, upon applica- tion by a majority of property-owners and after ordinance passed for the paving of any street, " it shall be the duty of the chief commissioner to award the contract for the same to a practical paver or pavers regularly engaged in such business, and known to be such : Provided, That security for the same shall be the same as now regulated by Act of Assembly : Provided, That any contractor failing to perform his work in accordance with the terms of his contract shall be deemed a defaulter, and no bid shall thereafter be received from or contract awarded to such defaulting con- tractor." Ord. Dec. 23, 1874, section 10 (431). § 394. In Philadelphia, the authority to pave has generally been conferred by ordinance, whereof the following is a form : "Resolved by the Select and Common Councils of the city of PhUaddphia, That the Department of Highways be and is hereby authorized and directed to enter into a contract with a competent paver or pavers, who shall be selected by a majority of the owners of property fronting on from to in the Ward, for the paving thereof with rubble pavement ; cost of intersections not to exceed fourteen thousand six hundred and seventy dollars. The conditions of which contract shall be that the contractor or contractors shall collect the cost of said paving from the owners of property front- ing on said street, and shall enter into an obligation to the city to keep said street in good repair for three years after the paving is finished." § 395. Non-residents. Whenever it shall appear by affidavit filed of record that, after diligent search and inquiry, the regis- tered owner of real estate in Philadelphia against whom municipal claim has been filed is a non-resident or cannot be found, the sheriff may post a true and attested copy of soi. fa. on a conspicuous part of the premises and shall advertise a brief notice in a daily news- paper in said county twice a week for two weeks before the return- PROSECUTION OF MUNICIPAL LIENS. 259 day (sheriff's costs not to exceed three dollars), the posting and publication to be equivalent to personal service on registered owner ; and plaintiff may proceed to judgment for want of appear- ance or affidavit of defense. The facts set forth in the affidavit as to non-residence to be conclusive. But notice of intended issuance of soi. fa. shall be given to all registered or reputed owners as re- quired by Act of March 23, 1866. Act June 10, 1881, section 1 (P. L., 91). The Act of April 22, 1891 (P. L., 25), provides : That whenever it shall be made to appear, by affidavit filed of record, that after diligent search and inquiry the registered owner of any real estate against which any municipal claim for taxes has been or may be hereafter filed as a Uen by, or in the name of any city or borough in this Commonwealth, are non-residents of such city or borough, or cannot be found therein, it shall and may be lawful for the sheriff to whom any writ oi scire facias for the collection of any such claim is directed, to proceed to " make known " the same by posting a true and attested copy of said writ on a conspicuous part of the premises therein described, and by publishing a brief notice in a newspaper within said coimty for two weeks before the return-day (the sheriff's costs for such service not to exceed three dollars in each case), and such posting and publication shall be equivalent in all respects to a personal service of said writ on such registered owner or owners, which posting and publication being made, the plaintiff may pro- ceed to recover judgment in default of an affidavit of defense, and the facts set forth in the said affidavit thereby required to be filed shall be con- clusive for the purposes of the case as to the non-residence of the defendant or registered owner : Provided, That notice of the intended issuance of such writ of scire fadas shall be given to all registered or reputed owners of such real estate, in accordance with the Act of Assembly approved March 23, A.D. one thousand eight hundred and sixty-six. The city or borough solicitor shall appoint one or more persons to serve the notices herein provided for. § 396. As on mechanic^ claims, so sd. fa. and lev, fas. may issue on municipal claims. Act of April 23, 1889 (P. L., 48), provides : " That when a lien for work done or materials furnished by or under the authority of the board of health, or any municipal cor- poration, shall be authorized to be filed under any general or special Act, and no process is provided for the collection of the debt, charge, or assessment upon which such lien has been or may here- after be filed, writs of scire facias and levari facias may be issued thereon, as in the case of mechanics' liens, and the same costs shall be taxed." § 397. Powers conferred upon the city of Philadelphia. By various Acts of Assembly special authority was given. § 398. As to Nuisances. The board of health or a committee, having first obtained a warrant founded upon the complaint of two 260 PRACTICE IN PENNSYLVANIA. householders, directed to the sherift' of the county of Philadelphia, or his deputy, were authorized to enter and search between sunrise and sunset all houses, stores, cellars, and other enclosures where they may have just cause to suspect any nuisance to exist. Act of January 29, 1818, section 27 (P. L., 58). § 399. Paving footways. Councils may require unpaved streets, alleys, etc., to be curbed and paved by owners of the ground front- ing thereon at their own cost, if one-half of owners apply to coun- cils, but not more than three squares shall be included in one appli- cation. Act April 10, 1826, section 1 (P. L., 336). , If the owner neglect, after twenty days' notice, commissioners may pave, curb, repair, etc., and recover by civil suit, or by dis- tress, with twenty per cent, added, the tenant being authorized to pay and defalk from the rent ; and until the same be paid it shall be a lien on the ground. But the owner shall not be required to pave and curb footway of a greater breadth than four feet in front of a lot whereon a dwelling-house is not erected. Ibid., section 2 (P. L., 336). § 400. Paving and Curbing. The Act of April 23, 1829, sec- tion 1 (P. L., 301), authorized councils to pave and curb any pri- vate streets, courts, and alleys, both as to footways and cartways, at the expense of the owners of the ground fronting or bordering thereon ; but private streets, courts, or alleys not intended for the passage of carts need not be curbed, and private alleys which shall be enclosed and intended for the sole use of the owner or occupier are not required to be paved. A municipal claim for curbing along a footway may be filed against a charitable institution. City v. Pa. Hospital, 28 W. N., 434 (1891). § 401. Grading and curbing. The Act of April 16, 1838, sec- tion 3 (P. L., 626), authorized the councils to grade, pave, repair, curb, and recurb footways or sidewalks, and collect the expenses by suit in the same manner that debts of like amount are by law recoverable. Where a curb is set by the city without notice to the property- owner, the owner must pay therefor as much as the work would have cost if he had done it, and a municipal lien may be filed for that amount. Phila. v. Meighan, 159 Pa. St., 495 (1894). § 402. Water-pipe. The Act of February 2, 1854, section 40 (P. Ih, 43), authorized councils to charge owners of the ground in front of which the work is done for paving streets — except at intersections — also to charge them for water-pipe, and authorized the filing of liens in the name of the city therefor. PROSECUTION OF MTTNICIPAL LIENS. 261 § 403. Sewers and draim. The Act of March 27, 1865, sec- tion 1 (P. L., 791), gave councils the power to construct sewers and drains in the streets. As to liens, see section 382, § 404. Property exempt from taxation. By various Acts of As- sembly the following property was exempted from taxation : Churches, meeting-houses, or other regular places of stated reli- gious worship, with the grounds annexed thereto [burial grounds belonging to religious congregations], universities, colleges, acade- mies, and school-houses belonging to any county, borough, or school district, or incorporated, "endowed, erected, or established by the laws of this State, with the ground annexed thereto, court- houses, and jails. The exemption of the ground attached to the foregoing properties shall extend to ten acres of such ground. Lunatic asylums, almshouses, poor-houses [parsonages with five acres of lands attached thereto]," houses of refuge, penitentiaries, and asylums, schools, and hospitals supported by State appropria- tions, charitable institutions supported by voluntary contributions, with the lands attached thereto [the lands and premises of ceme- tery companies held in trust solely to improve such lands and prem- ises, and whose revenues are devoted to that object, and not to the benefit or profit of the corporators], burial grounds not used or held for private, or corporate, profit, hospitals, universities, col- leges, seminaries, academies, associations, and institutions of learn- ing, benevolence, or charity, with the ground thereto annexed and necessary to the occupancy and enjoyment of the same, founded, endowed, and maintained by public or private charity. Property in course of erection which, when complete, will be exempt. Acts April 16, 1838, section 29 (P. L., 525) ; July 2, 1839, section 3 (P. L., 576) ; April 8, 1873 (P. L., 64) ; May 14, 1874 (P. L., 158) ; June 4, 1879 (P. L., 90). A church property which is rented out and produces income is subject to taxation. Phila. v. Barber, 160 Pa. St., 123 (1894). Followed in Library Co. v. aty, 161 Id., 155 (1894). A charity which excludes from its benefits any person because he has not a particular relation to some society, church, or other organization, is not a " purely public charity," Phila. V. Masonic Home, 160 Id., 572 (1894). The Act of April 26, 1893 (P. L., 25), provides that real estate which has ceased to be exempt from taxation shall be subject to a tax for the propor- tionate part of the year during which its exemption ceased. By Act of May 14, 1874 (supra), it is provided that all prop- erty, real and personal, other than that which is in actual use and occupation for the purposes therein enumerated, and from which 262 PRACTICE IN PENNSYLVANIA. an income or revenue is derived, shall be subject to taxation, except where exempted by law for State purposes. Article IX. of the Constitution of Pennsylvania, of 1874, pro- vides as follows : " Section 1. All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws ; but the General Assembly may, by general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit, and institutions of purely public charity. " Sec. 2. All laws exempting pi-operty from taxation, other than the property above enumerated, shall be void." § 405. Injustice of the legislation as to collection of claims. The student of the laws sketched in the foregoing abstract will not fail to observe the monstrous injustice of many of these statutes. All recognized principles of law and all constitutional require- ments as to due process were in some of them quietly and offen- sively ignored. Where the owner is absent, and the proceeding is in rem, there would seem to be reason in allowing the creditor to serve the prop- erty and to advertise. But though the owner were ever so well known, the Act of 1846 allowed a plaintiff to proceed who simply posted and adver- tised the writ. He need not have search made for the defendant. He need not serve even a tenant. He could have a writ posted one minute, torn down the next, advertise the sd. fa., and ruin the owner. This and similar acts of class legislation were secured by the men who have been a curse to every city in this Commonwealth where the unfortunate system of Philadelphia prevails. They are the street jobbers, the highway contractors, who secure contracts, fulfill them only in part, file their liens, and divide fortunes with officials whose power they perpetuate. A remedy for a portion of this mischief was sought by the draughtsmen of the Act of March 23, 1866. It was submitted, before being sent to Harrisburg, to Hon. Eli K. Price and others. Since its passage, the wrongs practised under the old system have been in part remedied. § 406. Councils of cities of second class may grade, curb, pave, etc. By Act of May 16, 1889 (P. L., 228), it is provided, as to cities of the second class, that councils may grade, pave, macadamize, and curb streets, and assess the expenses on properties benefited. PROSECUTION OP MUNICIPAL LIENS. 263 provided that no street should be graded, paved, or macadamized except on petition of one-third of property-owners. . The petition must be accompanied by affidavit of a credible per- son that signatures are genuine ; that the persons are owners of one- third of property fronting thereon. After councils pass the ordinance, the fact that the petition was signed by one-third shall not be questioned. Section 17 directs that the board of viewers shall, where the damages exceed the benefits, add the excess to the expense of the construction (grading, etc.), and the amount shall be assessed upon property benefited. The cost of bridges, culverts, etc., is to be regarded as part of the expense for grading, etc. Section 20. Sewers may be constructed and costs assessed as in cases of grading, etc. Section 23. After final approval by councils or the court, in case of appeal of the report of the board of viewers, the plan and re- port shall be handed to city treasurer, who is directed to give no- tice to each owner of his assessment, and that a claim will be filed if not paid within thirty days. If not so paid, the city attorney shall file a lien. Provisions are also made for board sidewalks, paving sidewalks, repairing sidewalks, resetting curbstones, filing lien if owners neg- lect, and issuing writs of s September Term, 188 . CD. ] No. . The plaintiff, A. B., claims of the defendant, C. D., the sum of , which sum is justly due and payable to the plaintiff by the defendant upon the cause of action whereof the following is a statement : That the said A. B. is a good, true, honest, and virtuous inhabitant of this Commonwealth, and as such from the time of his nativity hitherto hath demeaned and behaved himself, and from all and all manner of larceny and all such enormous crimes has for the space of his past life until the time of speaking and uttering the false, scandalous, malicious, and defamatory words hereafter mentioned to have been spoken, remained free and unsus- pected. And the said A. B. was esteemed and reputed a person of good name, fame, credit, and reputation ; by reason whereof he had gained the love, good will, and esteem of all his neighbors and divers other good people of this Commonwealth. (If the plaintiff has been injured in his trade or calling, add.) And whereas also the said A. B. for a long time past, and before the speaking and uttering the false, scandalous, and de- famatory words hereafter mentioned to have been spoken, followed and carried on the lawful art, trade, and business of a (here state the trade, etc.), and by means thereof gained and acquired many large sums of money. Nevertheless, the said C. D. contriving the said A. B. not only to deprive of his good name, fame, and credit aforesaid, and to bring him into scandal and disrepute among his neighbors, but also to subject the said A. B. to prosecution and punishment for larceny, on the day of one thousand eight hundred and at the county aforesaid, to the said A. B. and in his presence and the presence and hearing of others did speak and publish the following false, scandalous, malicious, and defama- tory words, to wit : " You " (the said plaintiff meaning) " stole my money ;" thereby meaning and intending to charge the said A. B. with the crime of larceny. (If the slander has been repeated to other persons, you can charge thus — ^and the said C. D. fiirther, on the day of in the year last aforesaid, at the county aforesaid, in the presence and hearing of other persons, did speak and publish of and con- cerning the said A. B. other false, scandalous, malicious, and defamatory words, to wit : " He " (the plaintiff meaning) " is a thief;" thereby mean- ing and intending the said A. B., plaintiff, to charge with the crime of lar- ceny. (And so in as many different forms as the defendant has repeated the slander the plaintiff is at liberty to charge it.) And the said A. B. in fact saith that he is nowise guilty of the said several larcenies by the said false, scandalous, and defamatory words so injuriously laid to his charge ; by reason whereof the said A. B. has not only been greatly hurt and injured in his good name, fame, and reputation aforesaid, and been brought into disgrace and disrepute among his neighbors and divers other persons, who ever since the speaking and uttering the said several false, scandalous, and TOETS. 321 defamatory words so vehemently, suspected Mm of having been guilty of larceny, and as also being a person meriting punishment, that they have refused to have any communion or conversation with him, but he the said A. B. has been subjected and made liable to prosecution and punishment for the said crime of larceny. (If your client has been injured in his trade or calling, you add— and the said A. B. further in fact saith, that divers persons who used to have dealing and business with him, the said A. B., in his said lawful art, trade, and business, and by means of whom the said A. B. had gained large sums of money, have ever since the speaking and utter- ing the said several false, scandalous, and defamatory words, refused to have dealings or business with the said A. B.) Whereupon the said A. B. has sustained and claims damages to the value of five thousand dollars, and therefore brings suit. • E. F., Attorney pro plaintiff. (Date.) (Affidavit.) § 533. Special damages, such as loss of customers, expulsion from a church or lodge, etc., should be specially set out, with as much particularity as the case permits. For this no form can guide in all cases. Whatever the actual damage may have been, it is always susceptible of precise statement. § 634. Inducememt and form of inducement. Sometimes a state- ment of particular matter is necessary. Wherever you expect to prove it you should aver it, and if your client know of it, there is no excuse for its omission. This, when put in the statement, should appear before the averment as to the words spoken. The following may explain this suggestion and supply a. form: And whereas the said A. B. before the committing of the grievances here- inafter mentioned had bought of one G. H. a large quantity of lumber, to wit (mention quantity), for a certain price, to be paid by the said A. B. to the said G. H., at a certain time not elapsed at the time of the committing of the grievances hereinafter charged, then, after charging the slander as above stated, in the conclusion of the statement after the averment of general damage you can insert the following : §535. AVEEMENT OF SPECIAL DAMAGE. And thereby also, afterward and before the time appointed for the pay- ment of the price of said lumber so purchased by plaintiff of G. H., when the said plaintiff requested the said G. H. to deliver said lumber to said plaintiff, the said G. H. wholly refused to deliver the same or any part thereof unless the plaintiff would before such delivery pay the price thereof, and in order to procure the delivery of said lumber the plaintiff was forced to pay and did pay G. H. the sum of dollars at the city aforesaid on (date). The said refusal of G. H. being by reason of the aforesaid (slander or libel). VOL. I. — 21 322 PRACTICE IN PENNSYLVANIA, ■ § 536. AVERMENT OF SPECIAL DAMAGE IN LOSS OF A CUSTOMER. And thereby also one E. F., who, before and at the time of the commit- ting of the said grievances, had been used and accustomed to deal with and who otherwise would have continued to deal with the said plaintiff in the way of his aforesaid trade and business, hath from thence hitherto wholly neglected and refused so to do. See Beriac v. Wellhoff, 27 W. N., 96 (1890)w §537. ANOTHER AVERMENT OF SPECIAL DAMAGE IN LOSS OF CUSTOM, THE PLAIN- TIFF KEEPING A BATHING-HOUSE. By reason' and by means of the committing the said grievances, and on no other account whatsoever, I. K. and family, L. M., N. O., P. Q., and divers other persons who would otherwise have frequented and bathed in and from the said rooms, with the appurtenances, of the said plaintiff, and paid him certain reward in that behalf, have, on the occasion of the com- mitting of the said grievances by the said defendant, wholly declined and neglected so to do ; and the said plaintifi' hath thereby lost and been de- prived of divers great gains and profits which might and would have other- wise arisen and accrued to him from the said persons so bathing in the said rooms, with the appurtenances, as aforesaid, and the said plaintiff hath been and is by reason of the committing of the said several grievances, otherwise greatly injured and damnified, to wit, at the city aforesaid, to the damage of the said plaintiff of five thousand dollars. §538. FORM OF STATEMENT FOR SLANDER OF TITLE OF REAL ESTATE. A. B. ] C. p., No. . V. y September Term, 188 . CD. j No. . The plaintiff, A. B., claims of the defendant, C. D., the sum of , which sum is justly due and payable to the plaintiff by the defendant upon the cause of action, whereof the following is a statement : The said plaintiff, before and at the time of the committing of the griev- ances by the said defendant hereinafter mentioned, was seized as in fee and in the reversion of and in certain land with the appurtenances, situate, lying, and being on in the county of im- mediately expectant upon the death of one E. F., who was then seized of the same premises in her demesne as of freehold, for the term of her natu- ral life. The said plaintiff before and at the time of the committing the grievances hereinafter mentioned, was desirous of selling his said estate and interest by public auction, and for that purpose the said plaintiff, before and at the time of the committing of the said grievances, to wit, on at caused his said estate and interest to be, and the same then and there were put up and exposed to sale by public auction by one G. H., as the auctioneer and agent of the said plaintiff, in order that the same might be then and there sold for the said plaintiff. Yet the said defendant, well knowing the prem- ises, but contriving and falsely and fraudulently intending to injure the said plaintiff and to cause it' to be suspected and believed that the said plaintiff had no title, estate, or interest of, in, or to the said land with the TOETS. 323 appurtenances, and to hinder and prevent the said plaintiff from selling or disposing of his said estate or interest in the same, and to cause and procure the said plaintiff to sustain and be put to divers great expenses at- tending the said exposure to sale, and to vex, harass, oppress, impoverish, and wholly ruin the said plaintiff, heretofore, to wit, on aforesaid, at aforesaid, wrongfully and injuriously, falsely and maliciously caused and procured a certain person, to wit, one "W. M., to attend and be present at and upon such exposure to sale of the said plaintiff's estate and interest as aforesaid, and then and there, upon such exposure to sale, and before the said estate and interest had been sold and disposed of, falsely and maliciously caused and procured the said W. M. to assert and repre- sent, and the said W. M. did then and there accordingly, falsely, mali- ciously, and wickedly say in the presence and hearing of divers persons then and there present at and upon such exposure to sale as aforesaid, of and concerning the said plaintiff, and of and concerning the said G. H., so being such auctioneer as aforesaid, and of and concerning the said land with the appurtenances, and the said plaintiff 's estate and the interest therein, that (here set out the words with the appropriate innuendoes). By means of the committing of said several grievances by the said defendant as afore- said, divers of the said persons who were so present at and upon the said exposure to sale as aforesaid, and who were then and there about to be and become purchasers of the said estate and interest of the said plaintiff, and who might and would otherwise have bid for and purchased the same, es- pecially I. K., who was then and there about to bid for and who would otherwise have purchased the same, were then and there deterred and pre- vented from bidding for and becoming purchasers of the said estate and in- terest of the said plaintiff, and then and there, and from thence, have wholly declined to purchase the same, and thereby the said plaintiff was then and there hindered and prevented from selling and disposing of his said estate and interest, and hath thereby not only lost and been deprived of all the advantages and emoluments which he might and wcaild have de- rived and acquired from the sale thereof, but has been forced and obliged to pay, lay out, and expend divers large sums of money, amounting in the whole to a large sum of money, to wit, the sum of in and about the said exposure to sale, and expenses incidental thereto, to wit, at the coimty aforesaid : In addition to said sum of $ the plaintiff claims for loss on sale of said property Amount of claim $ ' E.g., Plaintiff's Attorney. (Date.) (Affidavit.) § 539. FOEM OF STATEMENT — SLANDEE AS TO PLAINTIFF'S SHIP. A. B. 1 C. P., No. . V. }■ September Term, 188 . CD. J No. . The plaintiff, A. B., claims of the defendant, 0. D., the sum of , which sum is justly due and payable to the plaintiff by the defendant upon the cause of action, whereof the following is a statement : 324 PRACTICE IN PENNSYLVANIA. Before and at the time of the said defeiidant committing the grievances hereinafter mentioned, at the city of Philadelphia, the said plaintiff was possessed as of his own property, of a certain ship or vessel called and which said ship or vessel one E. F., before and at the time of the committing the grievances hereinafter mentioned, was about to hire and would (had not such grievances been committed) have hired of the said plaintiff to go and proceed on a certain voyage for certain freight and re- ward to be therefor paid to the said plaintiff, nevertheless the said defen- dant, well knowing the premises, but contriving and wrongfully and mali- ciously intending to injure the said plaintiff, and to induce the said E. F. not to hire the said ship or vessel as aforesaid, and thereby to deprive the said plaintiff of all the profits, emoluments, rewards, and advantages he would have derived and acquired from the said ship or vessel being so hired as aforesaid, heretofore, to wit, on at the city aforesaid, in a certain discourse which the said defendant then and there had with the said E. F., of and concerning the said ship or vessel, in the presence and hearing of the said E. F., falsely and maliciously spoke and published, of and concerning the said ship or vessel, the false, scandalous, and mali- cious words following, that is to say (here insert the words, as " When I saw her her keel was hove up eighteen inches in a straight line "), thereby then and there meaning that (here insert the proper innuendo and denial of the words — the following form serves only to illustrate this direction) the keel and floors of said ship were broken at the time when he, the said de- fendant, had seen the same, whereas in truth and in fact, at no time when he, the said defendant, saw the said ship or vessel, nor when he spoke and published the said slander as aforesaid, her keel was in any place hove up eighteen inches in a straight line, nor was the said ship or vessel in any manner imperfect as the said defendant so asserted and alleged as aforesaid. By means of the speaking and publishing of which said several false, scanda- lous, and malicious words as aforesaid by the said defendant, the said E. F., giving credit to and believing that the said representations and asser- tions were true, afterward, to wit, at the city afore- said, the said E. F. wholly refused to hire the said ship or vessel as afore- said, and thereby the said plaintiff lost and was deprived of all the profits, emoluments, rewards, and advantages he would have derived of and from the said ship or vessel having been so hired as aforesaid ; and the said plaintiff hath been also, by means of the speaking and publishing the said sever il words as aforesaid, otherwise greatly injured and damnified, to wit, at the city of Philadelphia aforesaid, to the amount of five thousand dollars. G. H., Plaintiff's Attorney. (Date.) (Affidavit.) A declaration in slander need not aver to whom or at what place the slander was uttered, nor can a bill of particulars be required. Thacher v. Schaeffer, 19 W. N., 566 (1887). The affidavit to a statement in slander, under the Act of 1887, set forth that the facts within the plaintiff's " own knowledge are true and just," and that those " stated upon information are just and true to the best of her knowledge, information, and belief, and TORTS. 325 she expects to be able to prove the same on the trial of the cause," and it was held sufficient. Orimley v. Beceveuve, 21 W. N., 573 (1888). § 540. Malicious Prosecution. The statement should aver that the plaintiff has been a good citizen, and should then set out chro- nologically the different steps of the prosecution. The defendant, on a certain day, appeared before a magistrate, naming him, who had authority to administer oaths and issue warrants, and to bind defendants over for trial at the criminal court. The substance of the information, of the warrant, the fact of the arrest, of the bind- ing over, of the prosecution of the case in the criminal court by the defendant, the return of a bill of indictment, the trial before the petit jury, the acquittal of the plaintiff, etc., should all be set forth. It should be averred that all of defendant's acts were false, mali- cious, and without any reasonable or probable cause. It should also be stated that the original prosecution is ended and deter- mined, and that the final judgment was in favor of the plaintiff. False Imprisonment. This action is akin to malicious prosecu- tion. The gist of the action is the unlawful detention, and malice will be inferred from want of probable cause. Colter v. Lower, 35 Ind., 285 (1871) ; McCarthy v. De Armit, 99 Pa. St., 63 (1881) ; Neall V. Hart, 115 Pa. St., 354 (1886). §541. FORM OF STATEMENT IN MALICIOUS PROSECUTION. A. B. ) C. P., No. . V. )■ September Term, 188 . CD. ] No. . The plaintiff, A. B., claims of the defendant, C. D., the sum of , which sum is justly due and payable to the plaintiff by the defendant upon the cause of action, whereof the following is a statement : The said plaintiff now is a good, true, honest, just, and faithful citizen, and as such hath always behaved and conducted himself, and hath not ever been guilty, or until the time of the committing of the several griev- ances by the said defendant, as hereinafter mentioned, been suspected to have been guilty (of felony), or of any other such crime, by means whereof the said plaintiff, before the committing of the said several grievances by the said defendant, as hereinafter mentioned, had deservedly obtained and acquired the good opinion and credit of all his neighbors and other good citizens at the city of Philadelphia ; yet the said defendant, well knowing the premises, but contriving and maliciously intending to injure the said plaintiff in his aforesaid good name, fame, and credit, and to bring him into public scandal, infamy, and disgrace, and to cause the said plaintiff to be imprisoned for a long space of time, and thereby to impoverish, oppress, and wholly ruin him, heretofore, to wit, on (date of warrant), at the city aforesaid, went and appeared before one E. F., Esq., then and there being one of the magistrates in and for the city and county of Philadelphia, and also to hear and determine divers felonies, trespasses, and other misde- 326 PEACTICB IN PENNSYLVANIA. meanors committed in the said county, and to bind over and commit for the same, and then and there, before the said E. F., so being such magistrate as aforesaid, to wit, at the city aforesaid, the said C. D. falsely and mali- ciously and without any reasonable or probable cause whatsoever, charged the said plaintiff with having [feloniously stolen a certain gold watch of the said defendant], and upon such charge the said defendant falsely and maliciously, and without any reasonable or probable cause whatsoever, caused and procured the said E. F., so being such magistrate as aforesaid, to make and grant his certain warrant, under his hand and seal, for the ap- prehending and taking of the said plaintiff, and for bringing the said plain- tiff before him, the said E. F. (recite the warrant correctly), or some other magistrate for the said county of Philadelphia, to be dealt with according to law for the said supposed offense. And the. said defendant, under and by virtue of the said warrant, afterward, to wit, on the day and year last aforesaid, to wit, at the city aforesaid, wrongfully, unlawfully, unjustly, and without any reasonable cause whatsoever, caused and procured the said plaintiff to be arrested by his body, and to be imprisoned, and kept and de- tained in prison for a long space of time, to wit, for the space of two hours, then next following, and until he, the said defendant, afterward, to wit, on the day and year last aforesaid, at the county aforesaid, falsely and mali- ciously, and without any reasonable or probable cause whatsoever, caused and procured the said plaintiff to be carried and conveyed in custody be- fore the said E. F., so being such magistrate as aforesaid (if the plaintiff was committed for further examination, then insert this averment), and to be committed by the said magistrate for a further examination to the prison of the said county, and there, to wit, in the said prison, the said defendant then and there, falsely and maliciously, and without any reason- able or probable cause whatsoever, caused and procured the said plaintiff to be imprisoned, and to be kept and detained in prison for a long space of time, to wit, for the space of two days then next following, and until he, the said defendant, afterward, to wit, on falsely and maliciously, and without any reasonable or probable cause whatsoever, caused and procured the said plaintiff to be carried and conveyed in custody before the said magistrate, to be examined before the said magistrate touching and con- cerning the said supposed crime. The said magistrate, having heard and considered all that the said defendant could say or allege against the said plaintiff touching and concerning the said supposed offense, then and there, to wit, on the day and year last aforesaid, at the city aforesaid, adjudged and determined that the said plaintiff was not guilty of the said supposed offense, and then and there caused the said plaintiff to be discharged out of custody, fally acquitted and discharged of the said supposed offense ; and the said defendant hath not further prosecuted his said complaint, but hath deserted and abandoned the same, and the' said complaint and prosecution are wholly ended and determined, to wit, at the city aforesaid. (If, instead of having been discharged by the magistrate, the plaintiff was bound over or was committed, you change the above form. State the action of the magistrate, that the plaintiff was compelled to find bail, or that, being unable to find security, he was committed to the county prison. Then aver that at the sessions of the Court of Oyer and Terminer and Quarter Sessions of the Peace for that county the defendant falsely, maliciously, and without any reasonable or probable cause, prose- cuted the plaintiff, and procured an indictment to be preferred against the TORTS. 327 plaintiff, charging plaintiff with the crime of ; that after- ward the said defendant falsely, maliciously, and without any reasonable or probable cause, prosecuted the said plaintiff upon the said indictment, and the plaintiff having pleaded not guilty the case came on to be tried on before said court and a jury, and thereupon the said jury on rendered a verdict of not guilty and acquitted the plaintiff, and the said plaintiff, by the judgment of the said court, was fully ac- quitted and discharged of said indictment and of said prosecution, and the said ccmplaint and prosecution are wholly ended and determined, as by the record and proceedings of said court to Sessions, 1889, number will more fully appear.) By means of which premises the plaintiff has been and is greatly injured in his credit and reputation, has been brought into disgrace among his neighbors and others, has been sus- pected of (felony), has suffered great anxiety of mind and pain of body, has been deprived of his liberty for the space of , has been obliged to lay out large sums of money, amounting in the whole to dollars, in and about procuring his discharge from said imprison- ment and defending himself in the premises, has been greatly hindered by reason of the premises from transacting his lawful business of , and by means of the premises the plaintiff has been and is otherwise greatly injured in his credit and circumstances, to the damage of the plaintiff five thousand dollars. G. H., Plaintiff's Attorney. (Date.) (Affidavit.) § 542. The action for damages arising from seduction must be brought by the father of the female seduced, if he be alive. If the father be dead, the mother may, under Act of April 19, 1843 (Br. Purd., 1909, section 1), maintain the suit. The criminal prosecution for seduction will not lie unless the female be under twenty-one years of age. She must also be of good repute, and there must be a promise of marriage. § 543. Damages in seduction. The civil remedy is founded ex- clusively upon the relation of master and servant. The female is bound to render service to the parent. She is disabled by reason of sickness, etc., hence arise a loss of service and a right of action. But this once established, the damages are not limited to the value of the service thus lost, and, if the circumstances warrant, they may be exemplary. In Fhelin v. Kmderdine, 20 Pa. St., 361 (1853), Lewis, J., quoted with approval the following statement of the law by the Supreme Court of the United States : " It is a well-established principle of the common law, that, in actions of trespass, and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offense rather 328 PEACTICB IN PENNSYLVANIA. than the measure of compensation to the plaintiff." Day v. Wood- worth et al., 13 Howard (U. S.), 371. Accordingly our Supreme Court has ruled that damages may be given for " all that the plaintiff can feel from the nature of the in- jury." Phelin v. Kenderdine, supra. § 544. As to the promise of marriage, it was ruled in the same case, so far as the promise of marriage tends to show the nature of the injury to the parent, or the means by which it was accom- plished, it is proper evidence; the jury, however, are not to award to the father any part of the damages which belong to the daughter by reason of the breach of the contract of marriage. § 545. English decisions in cases of seduction. The following are rulings in English cases : The action lies for debauching an adopted daughter. Irurin v. Dearman, 11 East, 23. A parent, in that character merely, cannot support an action for debauching or beating his daughter, which is only sustainable in respect of the supposed loss of service, some slight evidence of which must in general be adduced. Dean v. Fed, 5 East, 45 ; Weedon v. TimbreU, 5 T. E., 360. The daughter is a good witness, Qock v. Wm-tham, 2 Stra., 1024 ; though she need not be called as a witness for plaintiff, SaviU v. SaMerfit, Holt, C. N. P., 451. Not calling her, however, renders the plaintiff's case open to observation. The daughter cannot be cross-examined as to illicit intercourse with other men, and evi- dence of a promise of marriage is not admissible, and the plaintiff cannot call witnesses to the girl's good character unless the defen- dant has by evidence attacked it, Dodd v. Norris, 3 Camp., 519 ; Bamfield v. Massey, 1 Camp., 4C0. Evidence of mental pain is admissible, Bedford v. McKowl, 8 Esp., 119; and the state and situation of the family may be proved in aggravation of damages, Id. It may also be proved in aggravation of damages that the de- fendant professed to visit the family, and was received as the suitor of the daughter, EUioit v. NicMin, 5 Price, 641. The defendant may, in mitigation of damages, adduce any evidence of the im- proper, negligent, and imprudent conduct of the plaintiff himself; and where he knew that the defendant was a married man, and allowed his visits in the probabilities of a divorce, Lord Kenyon held the action could not be supported. Reddie v. SeooU, Peake's Eep., 240. § 546. Pennsylvania decisions. In addition to those already cited, it is only necessary to refer to HoUis v. Welk, 3 Clark, 169 (1845), as supporting Reddie v. SaooU, mpra; Hoffman v. Kem- TOKTS. 329 erer, 44 Pa. St., 452 (1863), forbidding the cross-examination pro- hibited by the English cases ; and Fernsler v. Moyer, 3 W. & S., 416 (1842), sustaining the right of a guardian to sue. §547. STATEMENT IN ACTION FOE SEDUCTION. A. B. ) C. P., No. . V. }■ September Term, 188 . CD. j No. . The plaintiff, A. B., claims of the defendant, C. D., the sum of , which sum is justly due and payable to the plaintiff by the defendant upon the cause of action, whereof the following is a statement : The said defendant, contriving and wrongfully and unjustly intending to injure the said plaintiff, and to deprive him of the service and assistance of E. F., the daughter and servant of the said plaintiff, heretofore, to wit, on- and on divers other days and times between that day and the day of bringing this suit, at the county of Philadelphia, debauched and carnally knew the said E. F. then and there, and from thence for a long space of time, to wit, hitherto, being the (daughter and) servant of the said plaintiff, whereby the said E. F. became pregnant and sick with child, and so remained and continued for a long space of time, to wit, for the space of nine montlis then next following, at the expiration whereof, to wit, on , at the county aforesaid, she, the said E. F., was delivered of the child with which she was so pregnant as aforesaid. By means of which said several premises, she, the said E. F., for a long space of time, to wit, from the day and year first above mentioned hitherto, became and was un- able to do or perform the necessary affairs and business of the said plain- tiff, so being her (father and) master as aforesaid, and thereby the said plaintiff, during all that time, lost and was deprived of the service of his said (daughter and) servant, to wit, at the county aforesaid ; and, also, by means of the said several premises, the said plaintiff was forced and obliged to and did necessarily pay, lay out, and expend divers sums of money, in the whole amounting to a large sum of money, to wit, the sum of dollars, in and about the nursing and taking care of the said E. F., his said (daughter and) servant, and in and about the delivery •of the said child, to wit, at cotrnty aforesaid. To the damage of said plaintiff five thousand dollars. Wherefore he brings suit. (If the female were not the daughter of the plaintiff, omit the words " daughter " and " father " throughout ; they are not necessary.) E. S., Plaintiff's Attorney. (Date.) (Affidavit.) § 548. Action for conspiracy. Where your client has been in- jured by the unlawful agreement of two or more to inflict damage, followed by an overt act giving effect to the illegal purpose, an action will lie. This was called an action on the case in the nature of a writ of conspiracy. Conspiracy falls within the category of torts, and under the Pennsylvania Act of 1887 the action for it is in trespass. 330 PRACTICE IN PENNSYLVANIA. § 549. Special cases in which it was held thai the action was main- tainaJble. When two or more acting in bad faith agree to confine another in a lunatic asylum without just cause, and do so confine him. Hinohman v. Ritchie, Brightly's Reports, 148 (1849). Where two or more agree to assist a debtor to defraud his creditor, and commit some overt act to the injury of the creditor. Mott v. Dan- forth, 6 Watts, 304 (1837) ; Penrod v. Morrison, 2 P. & W., 126 (1830). Where two or more maliciously petitioned against the ap- pointment of plaintiff to the position of school teacher. Vanars- dale V. Laverty, 69 Pa. St., 103 (1871). Where defendants con- spired to charge plaintiff, a teacher, with insanity, and did so charge him to his special damage. Wildee v. McKee, 43 Leg. •Int., 307 (1886). There must be proof of a corrupt combination and agreement. Newall v. Jenkins, 26 Pa. St., 159 (1856) ; Kirk- patrick v. Lex, 49 Pa. St., 122 (1865). It will, of course, be noted that the action will lie in many other cases than those here specially cited. In general, it may be main- tained whenever two or more have combined together to do an un- lawful act, or a lawful one by unlawful means, and any overt steps have been taken in pursuance of such combination, to the injury of the plaintiff. When one alone may be sited. One alone may be sued, but it must be alleged that he conspired with some other or others, though it has been held that .even these words may be omitted. See cases cited, Oliver's Precedents, 448, and Laverty v. Vanars- dale, 65 Pa. St., 507 (1870), explained in Oollins v. Oronin, 117 Pa. St., 35 (1887). § 550. Prcecipe in an action for conspiracy is in the form given at §§ 511, 519. § 551. Statement in Conspiracy. This must, in some respects,, follow the form of an indictment for conspiracy. Although the case noted below is liberal to the pleader, it will generally be found safer to allege precisely what the defendants illegally conspired and agreed to do ; how this was to injure the plaintiff; what they did as overt acts ; and how the plaintiff was damaged. Haldeman v. Martin, 10 Pa. St., 369 (1849), was an action for conspiracy to defame. The counsel for plaintiffs in error (defen- dants below) argued that the narr. was defective in not charging the overt acts ; that the words spoken should have been laid at least in substance ; and that the omission to aver that the reports were maliciously spread was fatal. The Supreme Court, however, affirmed the judgment, and held, further, that the plaintiff could TOETS. 331 prove that she had been deserted by her acquaintances without special averment to that effect in the narr. § 552. As to statement of special damage. Gibson, C. J. (10 Pa. St., 372) : "The law is settled, that particular damage, where it is a separate and independent part of the cause of action, must be specially laid, but where it is the natural consequence of an in- jury, actionable without it, it need not be set out ; and what is a more natural consequence of successful defamation than loss of in- tercourse with friends ? The plaintiff was, therefore, at liberty to prove that she had been deserted by her acquaintances in conse- quence of the slander, without having alleged the fact in her dec- laration." § 553. As to setting out the words. As to averring " falsely and maliciously" and as to charging overt acts. In the same case (10 Pa. St., 372) the court also said : " The objection to the counts on which the verdict was ulti- mately entered is not sustained. A conspiracy to do an illegal thing is actionable, if injury proceed from it ; and where the ille- gal purpose has been executed, it is false and malicious wherever the motive for the conspiracy to execute it was false and malicious. JEh: vi termini a conspiracy to accuse is evidence of its illegality ; and as the presumption of innocence holds till it is rebutted, it is also evidence of falsity till the contrary be shown. Falsity of the charge in the first instance implies malice ; and where the uttering of the words in which it is made is not the gist of the action, they need not be set out. The act to be done may be stated in general terms, provided it be stated with convenient certainty. In Hood v. Palm, 8 Pa. St., 237, a declaration in an action for conspiracy to charge the plaintiff with fraud, stated the charge made pursuant to the conspiracy, according to the substance, and not the words of it ; and this, too, without exception by the defendant's counsel." §554. FORM OF STATEMENT IN CONSPIRACY. A. B. I C. P., No. . V. > September Term, 188 . C. D. et al. ] No. . The plaintiff, A. B., claims of the defendant, C. D., the sum of , which sum is justly due and payable to the plaintiff by the defendant upon the cause of action, whereof the following is a statement : Before and at the time of the committing of the grievances by the defen- dants as hereinafter charged, the plaintiff followed the lawful occupation of a merchant in said city, and by means of his honesty and fairness in said calling for twenty years past had acquired the confidence of persons who sold to and who bought from him, and of many others. The defendants, well knowing the premises and intending to injure the plaintiff and to ruin 332 PRACTICE IN PENNSYLVANIA. him in liis said business, on the first day of November, in the year afore- said, at the county aforesaid, unlawfiilly, wickedly, and maliciously con- spired and agreed together to injure the plaintiff, to damage him in his said calling of a merchant, to deprive him of his customers, to defame his character, and to subject him to great loss. And the said defendants further unlawfully, wickedly, and maliciously conspired and agreed together, on the day and year and at the county aforesaid, to effect their aforesaid un- lawful, wicked, and malicious purposes by the following unlawful, wicked, and malicious means, to wit, that they would slander the said plaintiff, that they would report that he was dishonest, that they would charge him with being a thief. (Set out all the means by which the conspiracy was to be effected.) And in pursuance of said illegal, wicked, and malicious con- spiracy, combination, and agreement of said defendants, the said defendant C. D. afterward, to wit, on the day and year and at the county aforesaid, spoke and uttered, in the presence and hearing of other persons of and concern- ing the said plaintiff and of and concerning the plaintiff as a merchant as aforesaid, the following false, scandalous, malicious, and defematory words, to wit, " A. B." (the plaintiff meaning) " is a thief," thereby meaning and in- tending to charge the said plaintiff with the crime of larceny. And in farther pursuance of said illegal, wicked, and malicious con- spiracy and agreement of said defendants, the said defendant F. G. afterward (state what F. G. said or did, following the form). And the plaintiff saith that he is in nowise guilty of the said crimes so in- juriously laid to his charge, and that by reason thereof he has been greatly hurt in his good name and brought into disgrace among his neighbors and others, who, ever since the speaking of the said felse, scandalous, mali- cious, and defamatory words, have so suspected him of having been guilty of larceny that they have refused to have any communion with him, and the said plaintiff has been made liable to prosecution for said crime of lar- ceny. And the plaintiff further saith that divers persons who used to have dealings and business with him in his said lawful business and by means of which he had gained large sums of money, have ever since the speaking the said several false, scandalous, malicious, and defamatory words refused to have dealings or business with the said A. B., whereupon the said A. B. hath sustained and claims damages to the amount of five thousand dollars. E., Attorney for Plaintiff. (Date.) (Special damages can be averred according to the circumstances.) (Affidavit.) Changing the phraseology to conform to the facts, this precedent would answer for conspiracies to libel, to maliciously prosecute, and all other conspiracies to commit torts. §555. FOEM OF STATEIIEJJT IX ACTION FOR GRIM. COX. A. B. I C. P., No. . V. y September Term, 188 . CD. ) No. . The plaintiff, A. B., claims of the defendant, C. D., the sum of , which sum is justly due and payable to the plaintiff by the defendant upon the cause of action, whereof the following is a statement : TOETS. 333 The said defendant, contriving and wrongfully, wickedly, and unjustly intending to injure the said plaintiff and to deprive him of the comfort, fellowship, society, aid, and assistance of E. F., the wife of the said plain- tiff, and to alienate and destroy her affection for the said plaintiff, hereto- fore, to wit, on and on divers other days and times between that day and the day of exhibiting this bill, at the county of Philadelphia, wrongfully, wickedly, and unjustly debauched and carnally knew the said E. F. then and there, and still being the wife of the said plaintiff, and thereby the affection of the said E. F. for the said plaintiff was then and there alienated and destroyed, and also, by means of the premises, the said plaintiff hath from thence hitherto wholly lost and been deprived of the comfort, fellow- ship, society, aid, and assistance of the said E. F., his said wife, in his domestic afiairs, which the said plaintiff during all that time ought to have had, and otherwise might and would have had, to wit, at the county of Philadelphia aforesaid. To the damage of the said plaintiff of dollars, and therefore he Wings his suit, etc. G. H., Attorney pro Plaintiff. (Date.) (Affidavit.) When it may be doubtful whether the criminal couversation can be proved and the defendant has enticed away or harbored the wife, the count may be added, as in the following form, changing " servant," " apprentice," etc., to wife. §556. FORM OF STATEMENT FOB ENTICING AWAY SEKVAITT OK APPEENTICE. A. B. ] C. P., No. . V. y September Term, 188 . CD. J No. . The plaintiff, A. B., claims of the defendant, C. D., the sum of , which sum is justly due and payable to the plaintiff by the defendant upon the cause of action, whereof the following is a statement : Before and at the time of the committing of the several grievances by the said defendant as hereinafter mentioned, one E. F. was, and from thence hitherto hath been and still is, the servant (or apprentice) of the said plain- tiff, in his trade or business of a , which the said plaintiff then ex- ercised and carried on, and still doth exercise and carry on, to wit, at the county of Philadelphia ; yet the said defendant, well knowing the prem- ises, but contriving and wrongfully and unjustly intending to injure, preju- dice, and aggrieve the said plaintiff in his aforesaid trade and business, and to deprive him of the services of the said E. F. as such servant (or appren- tice) as aforesaid, and of the profits, benefits, and advantages which might and would otherwise have arisen and accrued to him from such service whilst the said E. F. was such servant (or apprentice) of the said plaintiff as aforesaid, to wit, on at the county aforesaid, unlawfully, wrongfully, and unjustly enticed, persuaded, and procured the said E. F., so then being the servant (or apprentice) of the said plaintiff as aforesaid, to depart from and out of the service of the said plaintiff, by means of which said enticement, persuasion, and procurement, and on no other ac- count whatsoever, the said E. F., so being such servant (or apprentice) as 334 PEACTICE IN PENNSYLVANIA. aforesaid, then and there, to wit, on the day and year aforesaid, at the county aforesaid, unlawfully, wrongfully, and unjustly, and without license or consent, and against the will of the said plaintiff, departed from and out of the service of the said plaintiff, and hath remained and continued absent from such service for a long space of time, to wit, from thence hitherto, whereby the said plaintiff hath, for and during all that time, lost and been deprived of the service of the said E. F. in his aforesaid trade and business, and of all the profits, benefits, and advantages which might and would have otherwise arisen and accrued to him from such service, and hath been and is otherwise greatly injured in his aforesaid trade and business, to wit, at, etc., (venue) aforesaid, to the damage of the said plaintiff, two thousand dolars. G. H., Plaintiff's Attorney. (Date.) (Aflidavit.) . §557. FORM OF STATEMEUT FOB HAEBOEING AS APPRENTICE. A. B. ) C. P., No. . V. > September Term, 188 . C. D. ] No. . The plaintiff, A. B., claims of the defendant, C. D., the sum of , which sum is justly due and payable to the plaintiff by the defendant upon the cause of action, whereof the following is a statement : That one E. F. heretofore, to wit, on the at the county aforesaid, then and still being the apprentice of the said plaintiff, unlawfully, wrongfLdly, and unjustly, without the license or consent and against the will of the said plaintiff, departed- and went away from and out of the service of the said plaintiff, and afterward, to wit, on the day and year aforesaid, there went and came to the said defendant ; yet the said de- fendant, well knowing the said E. F. to be the apprentice of the said plain- tiff, but contriving and wrongfully and unjustly intending to injure the said plaintiff, and to deprive him of the service of the said E. F., his said " ap- prentice," and of all the profits, benefits, and advantages which might and would otherwise have arisen and accrued to him from such service, then and there, to wit, on the day and year aforesaid, at the county aforesaid, unlawfully, wrongfully, and unjustly received the said E. F., so then being the " apprentice " of the said plaintiff as aforesaid, into the service of the said defendant, and harbored, detained, and kept the said E. F. in his said service for a long space of time, to wit, from the day and year last aforesaid hitherto ; whereby the said plaintiff, for and during all that time, lost and was deprived of the service of the said E. F., and of all the profits, benefits, and advantages which might and would otherwise have arisen and accrued to him from such service, to wit, at the county aforesaid, and has been otherwise greatly damaged to the amount of. dollars, wherefore he brings suit. G. H., Plaintiff's Attorney. (Date.) (Aflidavit.) TORTS. 335 § 558. Action for damages occasioned by neg^ligence. Statements in these cases are more strictly narratives than any other form of pleading. They should describe the party injured, not only by name and occupation, but by his relation to the plaintiff at the time of receiving the injury. For example, if the result has been death and the suit be by the widow and children, A. should be de- scribed as the widow of B., the deceased. The children, C, D., and E., should be so named. Their ages should be given. The occupation of the party injured, the place where the injury was re- ceived, the cause of the injury, etc., should be stated with reason- able precision. Minute details are not required, but time, place, and pertinent circumstances so far as known should be set forth. The plaintiff is not jrequired to give a particular statement of the amount claimed for each item of damage, MaUon v. Gay, 28 W. N., 93 (1891) ; but the statement must set forth the particular acts of negligence on which he relies and the accompanying affi- davit must aver the actual damage incurred. Cliilds v. Pa. JR. JR. Co., 27 W. N., 510 (1891). The Act of May 8, 1895 (P. L., 54), provides that whenever injury not resulting in death shall be wrongfully inflicted upon the wife, and a right of action thereby accrues to the wife and the hus- band, the injury shall be redressed in only one suit brought in the names of the husband and wife. The husband or wife may waive his or her right of action, and if after service of a rule to join, either party fails to join within twenty days, such waiver shall be presumed. If both join in the suit, separate verdicts shall be ren- dered and separate judgments entered and separate executions per- mitted. This Act applies to pending suits, and upon the applica- tion of either party, or on its own motion, the court may consolidate such suits. This repeals the Act of June 11, 1879 (P. L., 129). See Kdlei/ v. Township, 154 Pa. St., 440 (1893). §559. FORM OF STATEMENT BY WIDOW AGAINST THE EMPLOYEES OF HER HUS- BAND FOR CAUSING HIS CEATH BY DEFECTIVE MACHINERY, ETC. In the Court of Common Pleas, No. 4, for the County of Philadelphia, of December Term, 18 , No. . (Caption.) City and County of Philadelphia, as. The plaintiff. A., claims of the defendant, the B. Company, a corporation of the State of Pennsylvania duly incorporated, the damages hereinafter demanded, which are justly due and payable to the plaintiff by the defen- dant upon the cause of action, upon the following statement : The said plaintiff, A., was at the time of the committing of the griev- ances hereinafter mentioned the wife of one C, who died under circum- 336 PEACTICE IN PENNSYLVANIA. stances and from the causes hereinafter mentioned, leaving him surviving his widow, the said plaintiflF, but no issue, so that the said plaintiff then was and is now the only person entitled to a share in any sum that may be re- covered in this action. And whereas, also heretofore and at the time of the committing of the grievances hereinafter mentioned, to wit, on the . day of at the county aforesaid, the said C. was employed at the special instance and request of the said defendant in loading a cer- tain wagon-load of goods and merchandise and in preparing the same to be loaded, and in the course of his employment it became and was the duty of the said C, and at the special instance and request of the said defendant he was obliged to and did use and employ a certain elevator or hoisting appa- ratus then and there belonging to the said defendant and in its possession and control, and by it ftirnished to the said C. to be used in and about the employment aforesaid. Whereby it then and there became and was the duty of the said defendant to use due and proper care in and about the premises, and to use and to ftirnish to the said C. to be used a safe, secure, and proper elevator or hoisting apparatus, in and about the work aforesaid. Yet the said defendant, not regarding its duty in that behalf, did not use due and proper care in and about the premises and did not fiimish to the said C. to be used a safe, secure, and proper elevator or hoisting apparatus, as it was its duty to do, but on the contrary wholly neglected so to do, and carelessly and negligently and without the knowledge and consent of the said C. fiirnished to the said C. to use, such an unsafe, insecure, and im- proper elevator and hoisting apparatus and appliances that by reason thereof a certain shaft, connected with and necessary for the running of said eleva- tor and by the said defendant so aforesaid famished during and in the proper and ordinary and careful use thereof by the said C, in the course of his employment as aforesaid, gave way and broke, and fell upon and vio- lently struck the said C, and also by reason thereof the said elevator on which the said C. in the ordinary and proper course of his employment there was, violently fell on the ground, and the said C. was with great force and violence thrown down and upon the boxes, barrels, and merchan- dise with which the said elevator was loaded, whereby he was then and there greatly hurt and injured, and afterward, to wit, on the day and year aforesaid, at the county aforesaid, by reason thereof died. And the said plaintiff in fact says that by reason of the said premises she, the said plain- tiff, has suffered the loss of her husband, who was constantly earning and in receipt of good wages, supporting and providing for the said plaintiff and affording her a comfortable livelihood and maintenance, and that by reason of the death of the said C. as aforesaid the said plaintiff is for all time deprived of her means of support and maintenance from her said hus- band's earnings and of his society, comfort, benefit, and assistance in her affairs in the relation of husband and wife, which she could and had a right to ask and have and would otherwise have had of the said decedent. Wherefore the said plaintiff says that by reason of the premises she is in- jured and has sustained damages to the amount of twenty thousand dollars, and therefore she brings suit. D., Attorney for Plaintiff. (Date.) (Affidavit.) TORTS. 337 §560. form; of statement fok damages sustained in consequence of an open hatchway. In the Court of Common Pleas, No. 4, for the Comity of Philadelphia, of December Term, 18 , No. . (Caption.) City and County of Philadelphia, ss. The plaintiff. A., claims of defendant, the B. Company, a corporation of the State of Pennsylvania, duly incorporated, the damages hereinafter de- manded, which are justly due and payable to the plaintiff by the defendant upon the cause of action, upon the following statement : That heretofore, to wit, on the day of , in the year of our Lord one thousand eight hundred and eighty-nine, at the county aforesaid, the said defendant was the owner of a certain freight depot, situ- ated on Market Street, between Fifteenth and Sixteenth Streets, in the city of Philadelphia aforesaid, and which the said defendant kept open for the transaction of its business with persons having occasion to visit said depot ; and in said depot the said defendant maintained a certain hatch- way for the raising and lowering of an elevator ; and it thereupon became and was the duty of the said defendant to maintain said hatchway in such manner that persons entering said building and transacting business therein with or for said defendant should not be exposed to danger of life or limb by felling into or through said hatchway. Yet said defendant, its said duty in this behalf not regarding on the day and year last aforesaid, at the county aforesaid, did hot keep or maintain said hatchway in such manner that persons entering said building and transacting business therein with or for said defendant should not be exposed to danger of life or limb by felling into or through said hatchway, but, on the contrary, and notwith- standing defendant's duty as aforesaid, said defendant negligently, care- lessly, and in total disregard of the plaintiff's rights, allowed and permitted said hatchway to be left unguarded and unprotected, thereby imperilling and endangering the plaintiff's life. That by reason of said defendant's negli- gence, carelessness, and want of proper care and attention as aforesaid, the plaintiff on the said day of , in the year of our Lord one thousand eight hundred and eighty-nine, to wit, at the county aforesaid, while in the discharge of his lawful business of a clerk, fell through the said hatchway a distance of ten feet, by means whereof one of the legs of the said plaintiff became and was fractured, bruised, and broken ; and said fall also produced a concussion of the plaintiff's spinal cord, and the said plaintiff was otherwise greatly injured, wounded, and cut, insomuch that the said plaintiff then and there became and was sick, sore, lame, and disordered, and was confined to his bed for a long space of time, to wit, for the space of six weeks next following, during all which time the said plain- tiff suffered and underwent great pain, and was hindered and prevented from carrying on, transacting, and proceeding in his lawfiil and necessary aifeirs and business by him during that time to be performed and trans- acted, and thereby lost and was deprived of divers great gains and profits which had been accustomed to arise and accrue, and which otherwise would have continued to arise and accrue to the said plaintiff from the transacting and carrying on of the same, and the said plaintiff has not yet recovered • from his said injuries so as to be able to attend regularly and without inter- TOL. L — 22 338 PRACTICE IN PENNSYLVANIA. ruption to his said lawfdl business of a clerk, and he still suffers pain and disorders of the nerves and head, impairing his business capacity, and by- means of said premises the said defendant was forced and obliged to and did then and there pay, lay out, and expend divers large sums of money amounting in the whole to the sum of, to wit, one thousand dollars, in and about the curing and endeavoring to cure the said fractures, bruises, cuts, and wounds, to wit, at the county aforesaid. To the damage of the said plaintiff five thousand dollars, and therefore he brings suit. p.. Plaintiff's Attorney. (Date.) . (Affidavit.). § 561. Trover. This action, now a form of trespass, lies for the recovery of damagea for the wrongful conversion of personal property. Under the old practice the narr. averred a casual loss of the property by plaintiff, a finding by defendant, and a conver- sion of it by him to his own use. In framing a statement under the Act of 1887, the fictitious allegation of loss and finding should be disregarded save where it describes the facta as they really exist. The statement should contain a clear and succinct recital of the cause of action, embracing the facts that are relevant and that are required to make out the plaintiff's case. It should specify the whole amount claimed as well as the value of the several chattels converted. Such decisions as distinguish this action from trespass and ease have lost their importance since the consolidation of all actions ex delieto ; but the boundary line between this form of tres- pass and the action in contract is not always clearly marked. It is sometimes difficult to decide whether a suit should be brought in trover or assumpsit. Stated generally, it may be said that in order to sustain trover there must have been either a tortious taking or a tortious withholding of the property. Refusal to deliver it upon demand will in itself imply a conversion, but the conversion may be shown in many other ways. Any assumption of ownership or control which is inconsistent with the title of the true owner will be sufficient. The reports contain many cases upon this branch of the subject. They will be found in the Digests under the appro- priate head. The following will serve to exemplify the distinc- tions which have been made between this action and those sound- ing in contract, and to illustrate the cases in which trover may be maintained. § 562. When trover lies. Either an absolute or a qualified prop- erty in the plaintiff will support trover. Weidensaul v. Reynolds, 49 Pa. St., 73 (1865). A special property with right of immedi- ate possession is enough to sustain the action. GUI v. Weston, 110 TORTS. 339 Pa. St., 312 (1885). See Blakey v. Douglass, 5 Cent. Eep., 274 (1886). An unauthorized sale by an agent is a sufficient conver- sion to justify trover against him without previous demand. Etter V. Bailey, 8 Pa. St., 442 (1848). It lies for a refusal to return col- lateral security for a debt upon tender of the amount due. Moln- tire V. Blaheley, 10 Cent. Rep., 925 (1888). If one partner wrong- fully transfer firm property to a third party not in the course of business, the other partner may maintain trover against such third party. Agnew v. Johnson, 17 Pa. St., 378 (1851) ; MoNair v. Wilcox, 121 Pa. St., 437 (1888). Where, by agreement between A. and B., it was provided that B. should set up his saw mill on A.'s land, and should cut and saw timber growing thereon, the timber to be divided between them in specified proportions, but to remain the property of A. until divi- sion ; U was held that B. could maintain an action against a third party, who negligentlv destroyed or carried away the timber before division. Haverly v. B. R. Co., 23 W. N., 439 (1889). Other- wise, if B. were m^ely the agent for A. Trout v. Kennedy, 47 Pa. St., 387 (1864). Trover will lie to recover a chattel held under a lease which stipulated that the lessor should execute a bill of sale for it after rent had been paid for a certain period, the lessee having defaulted in the payment of rent and refused to de- liver the chattel upon demand. Wheeler Qo. v. Heil, 115 Pa. St., 487 (1887). For a certificate, but not " for a share " of stock. NeiHor v. Kell&y, 69 Pa. St., 403 (1871). Against one who hires a horse to go to a specified place by a particular route and who deviates from said route and stops at another place, where the horse is destroyed by an accidental fire. Brown v. Baker, 15 W. N., 60 (1884). Against one for the conversion by his copartner of chattels which came into the possession of the firm upon part- nership account. Nishet v. Patton, 4 Eawle, 120 (1833). To recover title-papers of real estate retained by a broker, under claim of lien for charges incurred in an unsuccessful effiirt to sell the real estate, after demand and refusal to deliver. Arthur v. Sylvester, 105 Pa. St. , 233 (1884). See Jacoby v. Laussatt, 6 S. & R. , 300 (1820). No previous demand is required to sustain trover against a bailee who has wrongfully parted with possession of the thing bailed. Work V. Bennett, 70 Pa. St., 484 (1872) ; Taylor v. Lyon, 12 Cent. Eep., 365 (1888). § 563. Trover will not lie. To recover bonds delivered upon the understanding that the bailee was to pledge them as security for a loan, he having so pledged them. Diiffield v. Miller, 92 Pa. St., 287 (1879). Nor where the bailee was empowered to use them in 340 PEACTICE IN PENNSYLVANIA. his business and replace them. Borland v. Stokes, 120 Pa. St., 278 (1888). Nor to recover a tenant's portion of the produce of a farm worked on shares, which produce was, by agreement, to re- main with defendant (the landlord) until it was divided. Lehr v. Taylor, 90 Pa. St., 381 (1879). In the absence of such agreement trover could be maintained. Stafford v. Ames, 9 Pa. St., 343 (1848). It will not lie to recover a debt or damages for breach of contract. Davis v. Thompson, 12 Cent. Rep., 721 (1888). Nor against one in adverse possession of land to recover chattels which he has severed from the realty. In such case ejectment and suit for mesne profits are the proper remedies. Transit Co. v. Weston, 121 Pa. St., 485 (1888). Trover will not lie where the property has come into the defendant's hands lawiully and with plaintiff's consent until demand and refusal to deliver. Taylor v. Hardon, 103 Pa. St., 504 (1883) ; Springer v. Qromn, 21 W. N., 242 (1887). Otherwise where plaintiff has parted with the possession against his consent. Springer v. Groom (supra). Trover cannot be main- tained where the plaintiff has the possession of property to which defendant has title, for an assumption of ownership on the part of defendant by a sale of his title, unaccompanied by actual taking or delivery of possession ; the plaintiff must show that the right of property was in him when he commenced the action. Moorehead V. Schofield, 111 Pa. St., 584 (1886). A tenant in common of a chattel cannot maintain trover against his co-tenant for the deten- tion of the joint property. Heller v. Hufsmith, 102 Pa. St., 538 (1883). Neglect to comply with a demand by letter for the re- turn of goods is not a conversion of them. Miller v. Smith, 1 Phila., 173 (1851). § 564. Praecipe and form of statement. In this, as in all the pre- ceding cases discussed in this chapter, your praecipe must be in an action of trespass. The facts vary in each case, and the statement should be adapted to them. The following will serve as a state- ment, in so far as it correctly recites the cause of action : In the Court of Common Pleas, No. 4, for the County of Philadelphia, of December Term, 18 , No. . (Caption.) City and County of Philadelphia, ss. The plaintiff, A., claims of the defendant, the B. Company, a corporation of the State of Pennsylvania, duly incorporated, the damages hereinafter demanded, w:Hch are justly due and payable to the plaintiff by the defen- dant upon the cause of action, upon the following statement : The said plaintiff heretofore, to wit, on the day of A.D. 18 , at the city and county of Philadelphia, was lawfiilly possessed' as of her own property, of certain (here describe particularly the goods as TORTS. 341 the case may be) of great value, to wit, of the value of thousand dollars of lawfiil money of the United States of America. And being so possessed, the said plaintiff afterward, to wit, on the day and year first above written, at the city and county of Philadelphia afore- said, casually lost the said out of her possession, and the same afterward, to wit, on the day and year first above written, at the city and county aforesaid, came to the possession of the said defendant by finding. Yet the said defendant, well knowing the said goods and chattels to be the property of the said plaintiff, and of right to appertain and belong to the plaintiff, but contriving and fraudulently intending, craftily and subtly to deceive and defraud the said plaintiff in this behalf, hath not as yet delivered the said goods and chattels, or any or either of them, or any part thereof, to the said plaintiff, though often re- quested so to do, and hath hitherto wholly refused so to do ; and afterward, to wit, on the day and year last aforesaid, at the city and county aforesaid, converted and disposed of the said goods and chattels, to his own use, to the damage of the said plaintiff thirty thousand dollars. C, Attorney for Plaintiff. (Date.) (Affidavit.) § 565. Trespass vi et armis. Here, again, the prceeipe is in an " action of trespass." For trespass of nearly every imaginable kind the books of pre- cedents furnish many forms of narrs. These, with little difficulty, can be moulded into statements under the Act of 1887. Indeed it would seem almost impossible to err, when all that is required is a full and clear exhibition, of the facts. Time and place must always be mentioned. The words " force and arms " should be introduced. §566. Actions against officers for negligence. Where an official bond has been given, you can proceed as indicated, sections 266, 267, 268, 269, etc. The common-law action for negligence may be begun by using the prceeipe given in this chapter. §567. FOEM OF STATEMENT IN CASE OF NEGLIGENCE. In the Circuit Court of the United States for the District of Pennsylvania, April Sessions, 18 , No. . (Caption.) District of Pennsylvania, ss. The plaintiff, A., claims of the defendant, the B. Company, a corporation of the State of Pennsylvania, duly incorporated, the damages hereinafter demanded, which are justly due and payable to the plaintiff by the defen- dant upon the cause of action, upon the following statement : The defendant before and at the time hereinafter mentioned was and from thence hitherto has been and still is the collector of the customs at the port of Philadelphia, to wit, at the district aforesaid, and as such collector of the customs it was defendant's duty, under the laws of the United States and the practice of the said office of collector of customs, to deliver or cause or permit to be delivered to the owners thereof or to those entitled to the pos- 342 PKACTICE IN PENNSYLVANIA. session thereof, the cargoes of vessels arriving at said port from foreign countries ; without said delivery or permission to be delivered given by the defendant, it being unlawful to receive or to take possession of said cargoes. And whereas, to wit, on the day of the bark or vessel " Herald " arrived at said port of Philadelphia, to wit, at the district aforesaid, bearing a cargo consisting of tons of of great value, to wit, ten thousand dollars, consigned to the plaintiflF, in whose name and possession was the bill of lading therefor and who was then and there the owner thereof and entitled to receive from the defen- dant the possession, thereof, whose duty it was then and there to deliver or cause or permit to be delivered to the plaintiflF the said cargo, of all of which said premises the defendant then and there had notice. Yet the said defendant, not regarding his duty as collector of the customs aforesaid, nor the laws of the United States in such case made and pro- vided, nor the usual and proper practice of the said oflice of collector of customs, but contriving and fraudulently intending subtly and craftily to defraud and injure the plaintiff in this behalf, did not nor would, though often thereto requested, deliver or cause or permit to be delivered to the plaintiff the said property, the said the cargo of the said bark or vessel " Herald," but on the contrary thereof, the said defendant, so being such collector as aforesaid, so carelessly and negligently behaved and conducted himself in the premises, that by and through the careless- ness, negligence, and default of the said defendant the said cargo aforesaid, so being of the value aforesaid, afterward, to wit, on the day and year afore- said, became and was wholly lost to the said plaintiflF, to the damage of the plaintiff ten thousand dollars, and therefore he brings suit. C, Attorney for Plaintiff. (Date.) (Affidavit.) § 568. Other forms in tort. There exist many variations of the action of trespass which have not been specially noted in this chap- ter. The greater number of them will be found in that miscella- neous group which was classified under the old practice as trespass on the case. Particular directions as to these will not be needed. As suggested in reference to trespass vi et armis, narrs. may without trouble be transformed into statements. All essential averments should be retained. Whenever the damage is mediate or the tort was committed without violence, expressed or implied, the phrase " with force and arms " should be omitted. § 569. If no appearance be entered, your summons having been duly served, you can take judgment by default. See section 23 and proceed as directed by section 573. § 570. If an appearance be filed, enter a rule to plead, and take judgment, if no plea be filed. See section 26. §571. Plea. " Special pleading is hereby abolished. * * * The only plea in the action of trespass shall be 'not guilty.'" Section 7, Act of May 25, 1887. See section 61 of this book. TORTS. 343 In SlaMmy v. R. B. Co., 21 W. N., 556 (1888), it was ruled that a plea in abatement might still be filed. See section 2791 et seq. Special matter under the plea of " not guilty " may be given in evidence, upon such notice as is provided for in the rules of the county courts. In Philadelphia, ten days' notice previous to the day set for trial is required. Section 2782. § 572. When plea filed. Put case at issue by filing replication. The only replication to the plea of not guilty is similiter. Avoid a demurrer, as imposing on you delay and the labor of paper-books. If absolutely driven to it, you must demur. As to demurrers, study some standard work on pleading. The general suggestions of sections 160, 161, 162, may be consulted, remembering that you here are plaintiff, not avowant. § 573. Assessment of damages. In Philadelphia the " prothono- tary shall assess the damages in all cases in which the amount thereof is set forth with certainty in the statement of claim." Upon judgment by default in cases where you cannot assess dam- ages as before the prothonotary, proceed by a Writ of Inquiry of Damages, as explained in Chapter XV. § 574. Limitation. By Act of 27 March, 1713, section 18, the period of limitation for persons not under disability is fixed at six years in actions of trespass on the case other than slander, in ac- tions of trespass, and of trespass quare clauswm f regit; at two years in actions of trespass (to the person), of assault, menace, bat- tery, wounding, or imprisonment ; at one year in actions for words. By Act of 25 April, 1850, section 35 (P. L., 575 ; Br. Purd., 1215, section 20), the limitation of one year is extended to all cases of slander and libel, whether spoken, written, or printed. In an action for seduction the Statute of Limitations begins to run from the time of the seduction. Dunlap v. Linton, 48 Leg. Int., 465 (1891). § 575. Executions in cases of tort. It is not proposed to give details of executions in each chapter. These are more appropri- ately considered under a separate chapter. It is only necessary to say here that in addition to the fi. fa. against personalty (form of prceoipe, section 23, and directions, sections 24, 25), and proceeding against realty (sections 172, 173, 175), you are entitled to issue a capias ad satisfaciendum. The fi. fa. and ca. sa. may both issue at the same time. If you so proceed, add to the praecipe (section 23) the words "and oa. sa." after the words "fi.fa.," so that the command will read : 344 PEAOnCE IN PENNSYLVANIA. Sie: Tasaeji,fa. and ca. sa. returnable aeg. leg. Eeal debt $ Interest from C, Plaintiff's Attorney. (Date.) To Prothonotary Common Pleas. § 576. You give to the sheriff the defendant's address. The officer demands payment of debt, interest, and costs. If the defen- dant do not pay, the sheriff^ then requires of him to point out per- sonal property whereon to levy. If this is not done, the demand is made for real property, and failing here, the body of the defen- dant is taken into custody. The proceedings after this belong more appropriately to the chapter on Executions. If defendant cannot be found, be careful to have the writ properly returned and sue oilt the bail bond which was given if you commenced the ac- tion by capias ad respondendwm. CHAPTER XIV. HOW TO COMMENCE AND PROSECUTE EJECTMENTS. No chapter of the law better illustrates the march of improve- ment than that upon which we now enter. By the old English practice, ejectment was a most cumbersome and ridiculous form. § 577. Description of the old ejectment. Those who have pa- tience sufficient for the' task should recall Blackstone's description of this remedy. He says: ''The better to apprehend the con- trivance whereby the end was effected, we must recollect that the remedy by ejectment is, in its original, an action brought by one who hath a lease for years, to repair the injury done him by dis- possession. In order, therefore, to convert it into a method of try- ing titles to the freehold, it is first necessary that the claimant do take possession of the lands, to empower him to constitute a lessee for years that may be capable of receiving this injury of disposses- sion. For it would be an offense, called in our law maintenance * * * to convey a title to another when the grantor is not in possession of the land ; and indeed it was doubted at first whether this occasional possession, taken merely for the purpose of convey- ing the title, excused the lessor from the legal guilt of mainten- ance. When, therefore, a person, who has right of entry into lands, determines to acquire that possession which is wrongfully withheld by the present tenant, he makes * * * a formal entry on the premises ; and being so in the possession of the soil, he there, upon the land, seals and delivers a lease for years to some third person or lessee ; and having thus given him entry, leaves him in possession of the premises. This lessee is to stay upon the land till the prior tenant, or he who had the previous possession, enters thereon afresh and ousts him ; or till some other person (either by accident or by agreement beforehand) comes upon the land and turns him out or ejects him. For this injury the lessee is entitled to his action of ejectment against the tenant, or this casual ejector, whichever it was that ousted him, to recover back his term and damages. But where this action is brought against such a casual ejector as is before mentioned, and not against the very tenant in possession, the court will not suffer the tenant to lose his possession without any opportunity to defend it. Where- 346 PBACTICE IN PENNSYLVANIA. fore, it is a standing rule that no plaintiff shall proceed in eject- ment to recover land against a casual ejector without notice given to the tenant in possession (if any there be), and making him a de- fendant, if he pleases. And in order to maintain the action, the plaintiff must, in case of any defense, make out four points before the court, viz. : title, lease, entry, and ouster. First, he must show a good title in his lessor, which brings the matter of right entirely before the court ; then, that the lessor, being seized or possessed by virtue of such title, did make him the lease for the present term ; thirdly, that he, the lessee or plaintiff, did enter or take possession in consequence of such lease ; and then, lastly, that the defendant ousted or ejected him. Whereupon he shall have judg- ment to recover his term and damages ; and shall, in consequence, have a lurit of possession, which the sheriff is to execute by deliv- ering him the undisturbed and peaceable possession of his term. " To this end, in the proceedings, a lease for a term of years is stated to have been made by him who claims title to the plaintiff who brings the action, as by John Rogers to Richard Smith, which plaintiff ought to be some real person and not merely an ideal, fictitious one who has no existence, as is frequently though unwarrantably practised ; it is also stated that Smith, the lessee, entered ; and that the defendant, William Stiles, who is called the casual Rector, ousted him, for which ouster he brings this action. As soon as this action is brought, and the complaint fully stated in the declaration. Stiles, the casual Rector or defendant, sends a written notice to the tenant in possession of the lands, as George Saunders, informing him of the action brought by Richard Smith, and transmitting him a copy of the declaration ; withal assuring him that he. Stiles, the defendant, has no title at all to the prem- ises, and shall make no defense ; and therefore advising the tenant to appear in court and defend his own title, otherwise he, the casual ejector, will suffer judgment to be had against him ; and thereby the actual tenant, Saunders, will inevitably be turned out of possession. On receipt of this friendly caution, if the tenant in possession does not, within a limited time, apply to the court to be admitted a defendant in the stead of Stiles, he is supposed to have no right at all ; and, upon judgment being had against Stiles, the casual ejector, Saunders, the real tenant will be turned out of possession by the sheriff. " But if the tenant in possession applies to be made a defendant, it is allowed him upon this condition ; that he enter into a rule of court to confess at the trial of the cause, three of the four requi- EJECTMENTS. 347 sites for the maintenance of the plaintiff's action, viz. : the lease of Rogers the lessor, the entry of Smith the plaintiff, and his ouster by Saunders himself, now made the defendant instead of Stiles ; which requisites being wholly fictitious, should the defendant put the plaintiff to prove them, he must, of course, be non-suited for want of evidence ; but by such stipulated confession of lease, entry, and ouster, the trial will now stand upon the merits of the title only. This done, the declaration is altered by inserting the name of George Saunders instead of William Stiles, and the cause goes down to trial under the name of Smith (the plaintiff) on the demise of Rogers (the lessor), against Saunders, the new defendant, and therein the lessor of the plaintiff is bound to make out a clear title, otherwise his fictitious lessee cannot obtain judgment to have possession of the land for the term supposed to be granted." Blackstone's Commentaries, Book III., p. 201. § 578. It is difficult for those who live and practice in an atmos- phere of realities, rather than in a mist of fictions, to grasp all this description of the ancient law, though it is very clearly stated by an able jurist. Whilst the author was on a professional visit to Raleigh, the Chief Justice of -the Supreme Court of North Caro- lina asked him "What would be done in Pennsylvania if the defendant should, on the trial of an ejectment before the jury, insist upon the plaintiff proving the ouster, which had never taken place?" This, it may well be understood, was a terrific question. The only response that could be made was to refer to the Pennsylvania system as having entirely superseded the obsolete fictions. As to the occurrence of the supposed case under the old practice, reply was made that as the claimant was never permitted to defend save upon condition of admitting the ouster, it was impossible that he could at the trial require his adversary to prove it. Such ruling was made in Pennsylvania in the case of Wilson v. Oampbell, 1 Dallas, 126 (1785). But the Chief Justice said the defendant, when allowed to appear, did not, in fact, confess ; he only entered into a rule to confess this at the trial. (So, indeed, Blackstone states it.) And if he broke the rule, and, instead of confessing, required proof of his adversary, the question recurred, What was to be done ? It was admitted to the Chief Justice that this point had never before been considered, and he was in turn asked for his solution of the difficulty. The answer was another illustration of the utter confusion of the old practice. The trial judge was to refer the whole record back to the court, and it punished this re- creant defendant as for a contempt. Surely no better illustration 348 PBACmCB IN PENNSYLVANIA. than this anecdote could possibly be furnished of the folly of try- ing fictions instead of settling real issues. § 579. Fennsylrania statates. In place of all the old jargon, it is refreshing to turn to the Pennsylvania statutes. The first now in force was passed whilst the old system was in operation. It is the Act of March 21, 1772 (1 Smith, 372). Tenants to notify landlords. The eighth section requires tenants receiving declarations in ejectment to give notice forthwith to their landlords, under penalty of two years' rent. The ninth section authorizes the courts to suffer landlords to make themselves defen- dants. § 580. JSstrepements. The Act of April 2, 1803, section 2 (4 Sm., 89), gave greater effect to the statute of Gloucester for the prevention of waste pending the ejectment. It authorizes the pro- thonotary in whose court the suit is pending to issue a writ of estrepement, upon filing of affidavit of any person knowing the fact that the tenant or defendant has committed or is committing waste. The affidavit is to be sworn to before one of the judges named. (See § 651 et seq.) § 581. Form of writ. The Act of March 21, 1806, created our present system. The twelfth section (4 Sm., 332), declared that " all writs of ejectment should be in the form following, and not otherwise, viz.: [l. s.] County, ss. The Commonwealth of Pennsylvania : To the sheriff of said county. Greeting : You are hereby commanded that you summon A. B. to appear before the judges of the Court of Common Pleas, in and for said county, to be holden at on the day of next, then and there to answer to a certain complaint made by G. D. that he the said A. B. now hath in his actual possession a tract of land, situate in township, in the said county, containing acres or thereabouts, bounded by lands of E. F., G. H., the right of posses- sion or title to which he, the said C. D., saith is in him [or them, as the case may be] and not in the said A. B., all of which the said C. D. aver- reth he is prepared to prove before our said court. Hereof fiiil not. Wit- ness J. B., president [or judge, as the case may be] of our said court at , the day of , Anno Domini one thousand eight hundred and . Attested : J. M., Prothonotary. § 582. Description to be filed, etc. It also enacted that it shall be the duty of the plaintiff to file in the prothonotary's office, on or before the first day of the term to which the process is return- able, " a description of the land, with the number of acres which he claims and declares that the title is in him. And the defendant shall enter his defense (if any he hath) for the whole or any part EJECTMENTS. 349 before the next term, and thereupon issue shall be joined." Id., section 12. The Act of April 13, 1807 (4 Sm., 476), directed that the ejectment thus provided for in Act of 1806 should give a full and effectual remedy ; that parties having undivided interests may join and recover according to their title ; that minors might sue by guardians ; that defendant might defend upon his own title or title of another ; and that the landlord might be admitted as de- fendant, and should on the trial admit himself to be in possession. § 583. Statutory requirements as to service of the Summons. The second section of the Act of 1807 provided, as to the service, that wherever it appeared that others not named in the writ are in possession of the whofe or of part of the premises the sheriff shall add their names and serve them, and the prothonotary shall enter them to the action, and they shall be parties. § 584. Judgment for want of Appearance. In case any defen- dant does not appear, on motion to the court and an affidavit of officer serving the writ, stating manner of service, the same being deemed by the court agreeable to law, judgment may be entered by default for such part as he is possessed of, a writ of possession may issue, and the action proceed as to other defendants. § 585. Effect of return of served. The sheriff's return of served on any defendant is evidence of such person being in actual pos- session of the premises or of part thereof. § 586. Writ not to abate by death. The third section of same Act declares that no writ shall abate by death of either plaintiff or defendant, but the person next in interest may be substituted. Where the plaintiff in an ejectment dies, his heirs may be sub- stituted as parties, whether or not they so desire. Ballantine v. NegUy, 158 Pa. St., 475 (1893). § 587. Effect of two verdicts f Court, Term, No. B. j Prmcipe in ejectment and description of land claimed. CD., Plaintiff's Attorney. Amendment of a prceeipe in ejectment which included more land than the plaintiff intended to claim, was allowed in Supreme Court. Brothers v. Mitchell, 157 Pa. St., 484 (1893). EJECTMENTS. 357 § 625. Description to be filed. As already noted, the Act of 1806 requires the plaintiff to file, on or before the first day of the term a "description of the land with the number of acres." § 626. Let description he filed toith prcedpe. Your prcedpe should describe the land. Indorse it : Prcedpe in ejectment and description of the land claimed. § 627. Let the deseription be full. The decisions are not exactly in accord. In Hawn v. Norris, 4 Binn., 77 (1811), the description was in these words : "A tract of land situate in Armagh Township in the said county, containing fourteen acres and sixty-three perches or thereabouts, bounded by land of the said John Hawn." Upon objection to this, the court below said : " The difficulty is as to a deseription of the land. What is the meaning of this ? * * * What is a description under the Act ? If the legisla- ture had meant a draft, they would have said so. The word is vague ; but it would seem to mean not a draft, but some convenient notice of the claim, which might inform the defendant what was to be tried. * * * The court think the substance has been complied with." In the Supreme Court, Tilghman, C. J., said : "It is not for us to say that the form prescribed by the Act is insufficient. In- deed the description contains as much certainty as the ancient form of ejectment, and in some respects more ; for the old form did not require that the owners of the adjoining lands should be named." Judgment affirmed. The same ruling seems to have been adopted in LyoTis v. MiUer, 4 S. & E., 279 (1818); Thomas v. Kulp, Id., 271 (1818); Tryon V. Carlin, 5 Watts, 371 (1836) ; and in B. B. Co. v. Boberts, 8 W. N., 6 (1879). But in Sunt v. MoFarland, 38 Pa. St., 69 (1860), a different rule was adopted. The description was "a tract of land in Scott Township, Lawrence County, bounded on the west by George and Jacob McCracken, on the south by James Hunt and Alexander Hunt, east by land of Zachariah Dean, and north by land of plain- tiff, containing about sixteen acres, more or less, being part of tract No. 1946, in the second district of donation lands," and the Su- preme Court ruled, Thompson, J., "we think the verdict too vague and uncertain. It was a general verdict for the land described in the ejectment, with six cents damages. On referring to the writ, it is indescriptive excepting by adjoiners. No shape or form of the land in dispute is given. We think a delivery of it could not be made by the sheriff. If the jury had found for the plaintiff by a straight line from the maple to the chestnut corner, as they doubt- 358 PRACTICE IN PENNSYLVANIA. less intended, it would have been sufBcient, for this could have been made certain. But they did not do so. The instructions of the court were right enough, but the finding is too vague to sustain the judgment." In Manigen v. The OUy, 51 Pa. St., 491,(1866), it was ruled that in a city the description by the number of the house, etc., was sufficient. But that was a confessed judgment in an amicable ac- tion. The safe practice is, undoubtedly, so to describe the land that the sheriff can execute his original and final writs without difficulty and with no extrinsic aid or explanation. If the plaintiff say that the property is in a certain township and has certain adjoiners, and no more, that description might fit two or more tracts in dif- ferent parts of the township. Besides naming the township — or ward — and county, say oa what road — or street — on what side of the road or street, the land is, the distance north, south, east, or west from the nearest intersecting street or road, how it is bounded, and its area — if a city lot, its frontage and depth. Thus : All ttat certain lot or piece of land (with the thre.e-story brick dwelling, etc., describe improvements as nearly as may be, thereon erected) situate on the west side of South Sixth Street, in the city of Philadelphia. Begin- ning at a point fifty feet north from the north side of Chestnut Street, thence extending north on Sixth Street twenty-five feet, and in depth between lines at right angles with Sixth Street sixty feet. Bounded on the north by land of A. B., on the south by land of C. D., on the west by land of E. F., and on the east by Sixth Street aforesaid. § 628. Service of Writ. Having filed your description and se- cured the summons in ejectment, you deliver it to the sheriff, pay- ing him his costs and giving him directions as to the service. If the defendant reside on the land, you can mark under his name "on the premises." If he reside elsewhere and in the county, note his address, so that he may be served. Besides this, direct the deputy to serve on the land, and if there be any difficulty as to finding it, let him have full explanations. Remind him to se- cure the names of all who are " in possession of the whole or of part of the premises," to add their names to the writ, and to serve them. See Nemns v. Manufacturing Co., 15 W. N., 344 (1884). In that case the sheriff returned one Griffith as in possession, but he did not add Griffith's name as a defendant. The plaintiff took judgment against Griffith for want of an appearance. The court struck it off, and said the sheriff should have added the name of Griffith as a defendant, and that the sheriff should state " in his return his whole action, including the fact of his having found a EJECTMENTS 359 person not named in the writ in possession, and that thereupon he had added the name of such person to the writ and served the same upon him." Leave was given to the sheriff to amend his return accordingly, and the name of Griffith was added as a defen- dant. § 629. Sheriff must return served — Plaintiff must prove defen- dant was in possession. In Molntire v. Wing, 113 Pa. St., 67 (1886), where the sheriff did not serve defendants named in writ, but they appeared and pleaded, the plaintiff was non-suited on the trial because he did not prove that defendants were in pos- session. The plaintiff relied upon the fact that they appeared and pleaded. The Supreme Court affirmed the judgment, holding that in such a case it was necessary to prove that the defendants "were in possession of the premises." In Kulp V. Bmoen, 122 Pa. St., 78 (1888), it was ruled that the sheriff's return of service raised but & prima fade presumption of possession by defendant, which bound no one. The plaintiff is not estopped thereby from denying defendant's possession in another action. On the authority of Mitchell v. Bratton, 5 Watts, 70 (1836), and Ziegler v. Fisher, 3 Pa. St., 367 (1846), a plaintiff, in order to re- cover in ejectment, must establish not only his own title, but also the possession of the defendant. MoCanna v. Johnston, 19 Pa. St., 438 (1852). Under the plea of " not guilty," the defendant oan defend as to the whole or any part of the land in controversy. Ziegler v. Fisher, 3 Pa. St., 365 (1846). By pleading the general issue, defendant does not admit himself to be in possession of the whole of the land claimed. Branson v. Lane, 91 Pa. St., 153 (1879); Contra: TJlsh v. Strode, 13 Pa. St., 433 (1850) ; Hill v. Hill, 43 Pa. St., 521 (1862). " Not guiliy," in ejectment, relieves the defendant from shotoing possession — the onus is on the plaintiff. MoCanna v. Johnson {supra). Lewis, J.: * * * ''H. M., after joining with Mo- Canna in the plea of not guilty * * * claims a ground of de- fense arising from the failure of the plaintiff below to prove that M.'s actual possession extended over any part of the land in con- troversy. Be it so. * * * On the authority of Mitchell v. Bratton (supra) and Ziegler v. Fisher (supra), it seems that * * * a plaintiff, in order to recover in ejectment, must estab- lish not only his own title, but also the possession of the defen- dant. There was error, therefore, in permitting a recovery against M. without proof of his possession." * =i= * 360 PEACTICE IN PENNSYI^VANIA. Branson v. Lane {mpra). In ejectment for the land by A., the sheriff returned the writ as "served" upon the defendants, and the latter pleaded " not guilty," but at the trial proved that what they possessed they rightfully possessed under the grant, and as to the residue disproved possession. Shaeswood, C. J. : " We have failed to discover any evidence sufficient to be submitted to the jury which showed possession by the defendants more than under their deeds they had a right to have. * * * Much stress was laid * * * on the fact that there was no disclaimer by the defen- dants of right to any part of the surface. * * * Disclaimer is never necessary — it may sometimes be advantageous to defen- dants as regards costs. " The plea in ejectment, by the Act of 1807, is ' not guilty.' The defendants proved that whatever they possessed, they did rightfully possess under their grants, and as to the residue dis- proved possession ; thus the prima fades of the sheriff's return was met and rebutted. The plaintiff's claim was for the whole and defendants had a right to a general verdict." Lowenstein v. Searfoss, 26 Atl. Eep., 448 (1893). Ejectment is a possessory action, and, in order to recover, the plaintiff must al- lege and prove that the defendant was in actual possession of the land at the time of the service of the writ. By the Act of 1807, the sheriff's return of service is made prima facie evidence of the fact, but it may be rebutted by other evidence, and, if rebutted, the defendant has made a complete defense, whatever may be his lia- bility to the plaintiff in another form of action. Whether or not the defendant was in actual possession is a ques- tion of fact, and where, upon competent evidence, a jury specially finds that the defendant was not in actual possession, a judgment cannot be entered against him, but he is entitled to judgment for his costs, even though he did not file a disclaimer with his plea. The sheriff's return to a writ of ejectment was : " Served the witMn writ of ejectment by giving a true and attested copy ■thereof to L. W. B., defendant, personally, and making known to him the contents thereof on December 27, 1888. C. B. served as above. So answers "G. B.S., "Sheriff." (Affidavit of service.) It was objected that the return did not show that C. B. had served as deputy sheriff, and that the copy filed was not attested. The return was held sufficient. Benndhum v. Bowers, 26 W. N. 8 (1890). The sheriffs return to a writ of habere facias possessionem, show- ing that he had placed the plaintiff in possession, is prima, fade EJECTMENTS. 361 evidence of possession in a second action wherein the plaintiff in the original suit is defendant. Hawpt v. Haupt, 157 Pa. St. , 469 (1893). § 630. If defendant be not in the county, the Act of April 18, 1853, already quoted, authorizes the service on any person in the county having charge or superintendence of the land as agent of the defendant, and if defendant be a corporation, the notice must be given to the president or other chief officer. In Losee v. MoFarland, 86 Pa. St., 33 (1877), it was held that service on the defendants, who were tenants about to remove from the premises, bound the landlord under whom they were in pos- session. § 631. Sheriff to make affidavit of service. The Act of April 13, 1807, section 2, requires that the officer shall make affidavit " stat- ing the manner in which the said service was made " before judg- ment by default for want of appearance can be entered. § 632. Defendant not bound to appear first term. You will ob- serve that the defendant, by the Act of December 5, 1860, has until the second term to appear. No judgment by default can be entered the first term. After your writ has been served, have the affidavit of service made, and note the case on your memorandum book, to see if an appearance be entered. It is supposed by many that it is not necessary to file a narr., but as an objection is here, as often elsewhere, saved by labor, it is recommended to file a narr. before the return-day, and to be ready with summons returned and with affidavit of service, to take judgment at the second term if no appearance has been entered. See section 171 of this work, as to judgment for want of appearance. As you cannot take judgment in ejectment for want of an affidavit of defense, the remarks in that section in regard to the advisability of waiving your right to judg- ment for want of appearance have no place here. Though the prcedpe and description have been treated as a narr. in many cases, some practitioners prefer to file a narr. As already suggested, this would seem to be the better practice. It is especi- ally advisable where you intend to claim mesnd profits. Even when they are not claimed," the practice of filing a narr. ^has advantages. , The following may be used as a FORM OF NARR. IN EJECTMENT. In the Court of Common Pleas, No. 4, of Philadelphia County. Of March Term, A.D. 1889, No. . County of Philadelphia, ««. C. D. was summoned to answer A. B. in a plea why with force and arms into all that (here describe the land) in said county, the right of possession 362 PEACTICE IN PENNSYLVANIA. whereof was and is in the said plaintifF, the said defendant on (lay a day before teste of writ) at the county aforesaid, entered and from the said land with the appurtenances, buildings, profits, and privileges aforesaid ejected the plaintiff and committed other outrages upon him to the great damage of the said A. B. and against the peace, etc., whereby he says he has lost in mesne profits of said land, which he hereby claims, the sum of . dollars, and that he is injured and has sustained damage to the value of $20,000, and therefore he brines suit. E. R, Plaintiff's Attorney. (Date.) § 633. As to claiming mesne profits. If you recover in the eject- ment, your judgment is conclusive in an action of trespass for the mesne profits. The ejectment may involve the same questions of fact for the jury, and a claim not only for the land, but for damages may give hostile jurors margin for compromises. It is therefore sometimes expedient to omit in the ejectment all claim for mesne profits. If you conclude to do so, alter the above form and charge that defendant entered, etc. And from the said land with the appurtenances aforesaid ejected the plaintiff against the peace, etc., to the damage of the said A. B., and there- fore he brings suit. E.F., Plaintiff's Attorney. (Date.) § 634. If yon obtain jndgment for want of an appearance, you secure possession by issuing an habere. Give the prothonotary your PE^CIPE FOE THE HABEEE. I Common Pleas, No. 4, of Philadelphia County. (^^^ f March Term, 1889. No. . To the Prothonotary of said court : SlE : Issue habere faeias possessionem and fi.fa. for costs, returnable sec. kg. E. F., Plaintiff's Attorney. (Date.) § 635. Form of habere facias possessionem. The writ will be given to you in the following : FOEM OF HABEEE. County of Philadelphia, ss. [seal] The Commonwealth of Pennsyl- vania to the Sheriff of the County of Philadelphia, greeting : Whereas, plaintiff lately, that is to say, on the day of , A.D. 188 , in our Court of Common Pleas, No. 4, of the County of Philadelphia, before our judges, at Philadelphia, by the consid- eration of the said court, recovered against defendant EJECTMENTS. 363 late of your county, Now, therefore, we com- mand you that, justly and without delay, the aforesaid plaintifi" possession of and in the tenements aforesaid, with the appurtenances, you cause to have, etc. And how you shall have executed this our writ, make known to our judges, at Philadelphia, at our said Court of Common Pleas, No. 4, there to he held the first Monday of next. And we also command you, that of the goods and chattels, lands and tenements of the said defendant in your bailiwick, you cause to be levied the sum of dollars and cents, which was adjudged to the said plaintiff in our said court, for the damages which he sustained by occa- sion of the trespass upon the said premises by the said defendant and the ejectment of the said plaintiff therefrom, whereof the said defendant is convict, as appears of record, etc. And have you that money before our said judges, at the day and place aforesaid, to render to the said plaintiff for the damages aforesaid. And have you then and there this writ. Wit- ness the Honorable j President Judge of our said court, at Philadelphia, the day of , in the year of our Lord one thousand eight hundred and eighty- Prothonotary. If appearance entered, the plaintiff enters a rule to plead (see sec- tion 26), and if no response be made, he enters judgment for want of a plea. (Section 26.) Such judgment cannot be had until the second term, however. Young v. Cooper, 6 W. N., 43 (1878). If the case be defended, there may be a disclaimer filed by one or more of the defendants, or an application by the landlord to in- tervene. We will consider these in order. § 636. A disclaimer is filed when a person served has no claim or title. In such a case, service of the writ has been made upon a stranger who should not have been served. If a defendant appear and plead ''not guilty," he can defend as to all or as to part, and disprove possession as to the residue. But the correct practice for one who has no claim is not to plead. The plea being prescribed as a method of trying the title, should not be resorted to where there is no claim of title. One who makes no pretense of title must enter his disclaimer early. Steinmdz v. Logan, 3 Watts, 160 (1834). §637. FORM OF riSCLAIMBE. A R 1 [ In the Court of Common Pleas, No. 4, of Philadelphia J'-^ r County. Of March Term, 1889. No. . And now C. D., served as defendant in the above-entitled cause (or E. -F., returned as served by the sheriff in the above case), comes into court, and in his own proper person files this his 364 PRACTICE IN PENNSYLVANIA. Disclaimer of all title or claim of title or of posession to the premises described in the writ in the above case, and to every part thereof. 0. D. (or E. F.), (Disclaimant's signature.) G. H., Att'y for (Date.) The disclaimant should siga and acknovrledge this before a magis- trate, judge, or notary. It should be indorsed : A. B. 1 V. )■ (Court, Term, and No.) CD. ] Disclaimer of C. D. (or E. F.). Name of Attorney. Obviously, no man should disclaim who has any title. The in- strument is a very solemn renunciation of all claims. § 638. Disclaimer as to part. If part of the land be claimed by the person served, he can plead, as to it (describing the part), " not guilty," thus : And the said C. D., as to the part of the premises named in said writ, which is embraced in the following DESCBIPTION : (Here describe part claimed.) Pleads Not Guilty. And as to the residue of said land the said C. D. files this his Disclaimer of all title or claim of title or of possession to said last-mentioned premises and to every part thereof. (Signature and acknowledgment as above directed.) § 639. If Disolaimard had been aotuaUy in possession as daimimf title, the plaintiff can order the case on the trial-list, and by proving defendant had first claimed and excluded plaintiff, then by giving in evidence the sheriff's return and the disclaimer, the plaintiff would be entitled to a verdict which would give him possession and costs. This applies to the case of a defendant who plays fast and loose. Ordinarily, the disclaimer is filed by one of several de- fendants, the rest pleading "not guilty." Do not treat the dis- claimant as not pleading and enter a judgment against him for want of a plea. The counsel who did this in Abrahams v. Trip- ner afterward discovered his error, and asked the court to strike off his own judgment. Tripner v. Abrahams, 47 Pa. St., 220 (1864). § 640. Where husband disclaims. In Duncan v. Sherman, 121 EJECTMENTS. 365 Pa. St., 520 (1888), the husband was sued alone. He filed a dis- claimer. The plaintiff, instead of taking judgment without costs, went to issue. On the trial, the defendant showed that his acts were as agent of his wife. But he did not prove any title in his wife. Under instruction, the jury found for defendant. The Su- preme Court reversed. Williams, J., said : " The plaintiff had the right, when this statement went upon the record, to take judg- ment against the defendant, and so end the case ; but such judg- ment, as it must rest upon the disclaimer, would necessarily be at the plaintiff's own cost. * * * But the plaintiff had the right to take issue with the defendant upon the question of his posses- sion, and, if he succeeded in showing that the disclaimer was in this particular untrue, then the action was necessary, and the plain- tiff was entitled to a judgment for his costs, as well as for the land described in his writ. * * * "The plaintiff showed possession, jsrima /aeie, by the sheriff's return, and followed this by proof that the defendant was upon the land, in the exercise of acts of apparent ownership, from time to time. To this showing the defendant's reply was that he was the agent of his wife, and his acts upon the ground were hers, done under her direction. We think this would have been a sufficient reply if he had shown that his wife had title. His disclaimer was, for the purpose of the trial, an admission of the plaintiff's title upon which, as we have seen, judgment might properly be entered against him, and he could not defend his possession under the title of a stranger after such an admission. But we have held that this rule is subject to an exception in favor of the wife ; because otherwise, as has been well said, she would be worse off than a stranger, as she would be put out of possession, with her husband, without a hearing upon her separate right to the possession. * * * j^ was necessary to show affirmatively that she did not derive her title from him, but by an honest purchase, with her own separate means, or in such other legal manner as would give her a title good against the pursuing creditor. * * * Tjjg defendant having, in effect, admitted the title of the plaintiff by his disclaimer, could not de- fend his position under his wife without showing a title in her. Until this was shown, the legal presumption was in full force that she was in by virtue of his title." § 641. Intervention by landlord. Cases may occur in which the landlord is not named in the writ or in the sheriff's return. Whilst the tenant might be assisted by the landlord to defeat the plaintiff^s recovery, the law allows the landlord to become a party to the case, and this is the safer course. 366 PRACTICE IN PENNSYLVANIA. The Act of 1772, already noted, requires the tenant to give no- tice to the landlord, and declares that it shall be lawful for the court to suffer the landlord to make himself a defendant. §642. landlokd's petition to become a party. I In tie Court of Common Pleas, No. 4, of Philadelphia County. ^- f Of March Term, 1889. No. . To the Honorable the Judges of said Court : The petition of C. D. humbly showeth : That a summons in ejectment has been issued in the above case, which has been returned by the sheriff as served upon B. That by said writ the plaintiff claims to recover possession of (brief description of the land). That no other person has been returned as served by the sheriff except the defen- dant B. (If the sheriff have served others, state the fact according to the record.) That petitioner is the landlord of the defendant B. for said premises under a lease from petitioner to defendant (in writing, a copy whereof is hereto attached) or made (mention date and the term). That defendant has no interest in, or title to, said land save as petitioner's tenant. That the petitioner is the owner of said land in severalty. Your petitioner desires to appear and to defend. (If he failed to petition at the return of the writ, state the reason for the delay, etc.) He therefore prays the court to suffer him to make himself a defendant, to appear and to plead to said writ and to defend the same. CD. (Affidavit of truth of the facts set forth in the petition.) Indorse : A. ] V. )■ Court, Term, No. . B. ] Petition and affidavit of C. D., landlord, to be made party defendant, to appear, to plead, and to defend. And now on motion of E. F., attorney pro C. D., the court grant a rule on plaintiff and on defendant to show cause why the prayer of the petition should not be granted, and why the petitioner should not be made a party defendant to appear, to plead to said writ, and to defend the same. Bule returnable § 643. If the pkumiiff oppose this nde, he should file his answer, stating his reasons. One objection might be that the petitioner was not the landlord of the defendant — that he was an intruder — that the plaintiff was defendant's landlord, and that the petitioner really claimed adversely to both. This was the case in Bayer v. Smith, 5 Watts, 55 (1836). § 644. The court must pass upon the appliccUion. The statute 11 Geo. II., eh. 19, s. 13, is similar to the Pennsylvania Act, It was at first held in England that no one could be admitted unless he had been in some degree in possession, as receiving rent. But this EJECTMENTS. 367 was repudiated by Lord Mansfield, Burr. Rep., 1290, and the Act was construed to extend to any person whose title was connected and consistent with the possession of the occupier. This is cited in Mcdlay v. Benedict, 1 Rawle, 424 (1829), where it was ruled that the admission of a party claiming right to defend in ejectnient as landlord, under the ninth section of the Act March 21, 1772, is an act of the court, " whose duty it is to inquire, before making the order, whether the applicant stands in relation of landlord, or whether his claim of title is consistent with the possession of the occupier." RoGEES, J., said : "The ninth section of the Act March 21, 1772, prescribes that it shall and may be lawful for the court, where an ejectment faay be brought, to suffer the landlord to make himself a defendant. * * * It is not a matter of course that a person should be made a co-defendant. * * * The very question in dispute between the parties may be, whether the person claiming to be made a co-defendant is entitled to b* landlord or not. * * * Hence it is that the Act has very wisely given the court a control over this matter, as otherwise a stranger to the record might obtain an advantage over the parties to the suit." In that case, no petition or affidavit was filed and no order of court was obtained. A person calling himself attorney for a land- lord appeared and entered a rule of reference. It was held that this was irregular. § 645. No intruder can he heard, and there should be no delay. To B(yyer v. Smith, 5 Watts, 55 (1836), above cited, may be added the case of Idnderman v. Berg, 12 Pa. St., 301 (1849). That suit was commenced in 1846. In 1848, Stewart, a member of Con- gress, presented a petition setting forth that he had sold the land to the defendant with warranty, and praying to be substituted as defendant, and for delay on account of his official duties requiring his absence. The court below refiised the application. The Su- preme Court affirmed. They held that as the petitioner had no reversionary interest, he was not within the statute. They commented also on the delay, saying : " Where the purpose is delay, it might perhaps be thought that the party had dispensed with his right till the exercise of it would be an abuse of it." § 646. Where rdation of la/ndlord and tenant subsists, and no wnr- reasonable delay, the Ad is mandatory. In BeU v. CaldweU, 107 Pa. St., 46 (1884), the application to intervene was refused. The Supreme Court reversed. Claek, J., stated the law with great clearness : "The power to be exercised by the courts in this behalf 368 PKACTICE IN PENNSYLVANIA. is in the interests of public justice, and although the language of the statute is merely permissive in form, yet as public as well as private interests call for its exercise, it must be considered as man- datory. " W. Patterson Bell was in the actual possession of the premises at the service of the writ — it should have been served upon him and his name entered upon the record as a defendant. He was then, however, a tenant for years, and his landlord was a party to the action. The tenant's possession was involved in the contest of the title — he bad no rights which were not identical with those of his landlord, who was the real and substantial party. The tenant, in such case, might well deem it unnecessary to join in the defense. It was the entry of the non-suit by the plaintiff which developed the duty of W. Patterson Bell to defend. If the defendant had not suffered non-suit, the possession of Joseph Bell might have been vindicated by the exhibition of his co-defendant's title. By a mere juggle &f a non-suit it is attempted to exclude all evidence of the title upon which that possession might be defended." § 647. Plea. The only plea is "not guilty." This puts the case at issue. Order the case on the trial-list. Notify your client. Examine every link of your title. Prepare to prove every- thing. Order certified copies of all papers, and exemplifications of all records necessary for your case. Examine and cross- examine your client and all his witnesses. Then dive into the defense. Prepare your brief for trial, your brief of title, your brief of the law as to all the points which may arise. If any witness be in bad health or about to depart, secure his deposi- tion. If any be absent, enter rule for a commission. In many counties it is the practice, established and regulated by rule of court, to require the parties to file abstracts of their respective titles before trial. See Scott v. Ames, 4 Penny., 475 (1884) ; Ire- land V. Bagaley, 21 W. N., 240 (1888). When ejectment is brought by a purchaser at a sheriff's sale, the defendant in the execution cannot set up title under a lease from a third person offer judgment under which the land was sold. Dwn- lap V. Cooke, 18 Pa. St., 454 (1852). § 648. If you obtain verdict and judgment, issue habere and fi, fa., as already noted above. Where judgment has been entered under an amicable action in ejectment, the sheriff will be ordered to proceed to execute the writ of habere possessionem, although a third person intervene claiming the possession. Kdly v. Northrop, 159 Pa. St., 537 (1894). When possession delivered, sue for Toesne profits. EJECTMENTS. 369 § 649. Execution for mesne profits. If the recovery in ejectment include mesne profits, execution should be issued for them also. Prepare p-CEcipe for/, fa., and proceed as directed in sections 23, 24, and 25. A capias ad satisfaciendum may also issue in such case. Hop- Mnson v. Cooper, 8 Phila., 8 (1871). § 650. Under rule for farther process, time begins to run from making rule absolute. In Herron v. Fetterman, 14 W. N., 480 (1884), it was held that when proceedings are instituted under the Act of June 11, 1879 (P. L., 127), by the party in possession to compel another to bring ejectment in ninety days or be forever barred, the ninety days begin to run from the time when the rule is made absolute. " The Act * * * must receive a reasonable construction. It is not the initiation of the proceedings before the court which bars the right to bring ejectment, but it is the judgment of the court on making the rule absolute." By Act of June 24, 1885 (P. L., 152), the process was amended, and the ninety days made by legislative enactment to run from the making absolute of the rule. § 651. Estrepement. A few suggestions as to estrepement may not be out of place. There were in England two kinds of writs forbidding waste pendente pladto (pending the suit) : one out of chancery, the other issued by the court where the suit was pending. A guardian was forbidden by Magna Charta to commit waste. The Statute of Marleberge, 52 Henry III., ch. 23, was directed against fermors (farmers). By the common law, the only prohibition was against tenant by courtesy, in dower, and guardians. § 652. The English Statutes in force in Pennsylvania : 6 Edward I., ch. 5 (1278). " It is provided, also, that a man from hence- forth shall have a writ of waste in the chancery against him that holdeth by law of England or otherwise, for term of life or for term of years or a woman in dower. And he which shall be at- tainted of waste shall lease the thing that he hath wasted, and more- over, shall recompense thrice so much as the waste shall be taxed at. " § 653. 6 Edward I., eh. 13 (1278). " It is provided, also, that after such time as a plea shall be moved in the city of London by writ, the tenant shall have no power to make any waste or estrepe- ment of the land in demand (hanging the plea), and if he do the mayor and bailiffs shall cause it to be kept at the suit of the de- mandant. And the same ordinance and statute shall be observed in other cities, boroughs, and everywhere throughout the realm." vol. I. — 24 370 PKACTICE IN PENNSYLVANIA. § 654. The Statute of 13 Edward I., oh. 14 (1285), provided for a summons in cases of waste in lieu of the prohibition formerly allowed. § 655. The Statute of 13 Edward I., eh. 22 (1285), allowed ten- ant in common to maintain action for waste against his co-tenant. § 656. The Statute of 20 Edward I. (1292) allowed the heir to sue for waste committed in the lifetime of his ancestor. § 657. The Statute of 2 Henry VL, ch. 5 (1433), provided a remedy by reversioners, with treble damages against tenants for waste committed after the tenants have sublet their estates. § 658. The Pennsylvania Statutes. All plaintiffs in y'ectments may have the writ. Act of April 2, 1803, section 2 (4 Sm., 89), already cited, declares that the prothonotary or clerk of the court in which the ejectment shall be depending, upon affidavit filed of plaintiff or other person knowing the fact that the tenant or de- fendant has committed or is committing waste and destruction of or in the premises, shall issue a writ of estrepement to prevent the same, of course, without motion and in vacation, the affidavit to be sworn to before judge of Supreme Court or in any Court of Com- mon Pleas. § 659. Writ extended to Landlordn. Purchasers at Sheriffs Sales. Judgment Creditors and Mortgagees. The next Act was that of March 29, 1822 (7 Sm., 520). In section 1 it extended the remedy to three classes of persons : 1. Any owner during the lease or after its expiration and due notice to the tenant to leave. 2. Any purchasers at sheriff's or coroner's sale after they have been declared highest bidders. 3. Any mortgagee or judgment creditor after condemnation of land by inquisition, or where land is subject to be sold by a vendi- tioni or a levari. These parties may apply to Court of Common Pleas of proper county or to judge in vacation, and in petition and affidavit by them or any credible person charge that tenant or person in posses- sion has committed waste or allows or threatens it, and that it is verily apprehended, in consequence of such threat, that such waste will be committed unless restrained. The court or judge, in their or his discretion, may order pro- thonotary to issue estrepement, which shall have same effect as an estrepement issued after ejectment brought. The second section authorizes the court to dissolve the estrepe- ment or make further order therein. § 660. Quarrying, Mining, etc., are Waste. The Act of March EJECTMENTS. 371 27, 1833 (P. L., 99), makes quarrying and mining, and all such acts as will do lasting injury, waste. But if the working and opening were previous to the ejectment, no estrepement can issue until the next term, or until plaintiff file affidavit that the title or right of possession to the premises or part thereof is in him, and until his attorney shall certify his opinion that the title or right, etc. , is vested in plaintiff. The court may dissolve the estrepement on security to plaintiff, or on such other terms as court may deem just. § 661 . Bemainde>'-man may have Estrepement. The Act of April 10, 1848 (P. L., 472), extended the remedy so as to embrace estates and tenants for life, and upon application of remainder-man or his agent. But five days* notice must be given not to commit waste or to desist therefrom ; and upon motion to dissolve the writ, the court must inquire into and determine the extent of the reasonable and necessary use and enjoyment by tenants for life. Such use and enjoyment shall not be restrained. Persons having contingent interest rnay sue to prevent waste or for damages for its 'commission. The Act of June 8, 1891 (P. L. , 208), provides : Ttat from and after the passage of this Act it shall be lawful for any per- son or persons having a contingent interest in any real estate in this Com- monwealth, and not being in possession of the same, to commence and prosecute any suit or suits at law or in equity to prevent the commission of waste to such real estate, or to recover damages for waste committed or in- jury done to such real estate, in the same manner and form as they might or could do was such interest vested and the person or persons having such interest in actual possession of the same : Provided, That before any suit at law or equity is commenced the said person or persons having such con- tingent interest shall apply to the Court of Common Pleas of the county where such land or part of the same is situated, for the appointment of some suitable person to take and receive any and all moneys that may be so received in any suit or suits, which person shall, after recovery of judg- ment and before any money or property passes, give such bond with such sureties as may be approved by said court, and shall hold any and all such moneys received as aforesaid subject to the orders of said court. Such re- ceiver shall receive such compensation for his services as the court may allow. § 662. Mortgagees, after commencing proceedings, may issue the Writ. The first section of Act of April 22, 1860 (P. L., 549 ; Br. Purd., 2080, section 8), went a step further in favor of mort- gagees than the Act of 1822. Under the Act of 1822, the land must be subject to be sold by levari. The Act of .1850 extended the remedy to all cases after proceedings instituted to collect the mortgage. No mortgagor to be restrained from reasonable and 372 PRACTICE IN PENNSYLVANIA. necessary enjoyment of the land, and the court to have power to njodify the writs, to make equitable orders, and to enforce them by attachment. § 663. Creditors of Decedent may have the Writ. The second section of the Act of April 22, 1850, extends the right to the cred- itor of a decedent, the personal estate being insufficient to pay just debts. § 664. Timber trees not to be removed. The third section forbids removal of timber trees, although cut down before issuing of the estrepement, if the removal be injurious to the petitioner ; and all timber so removed may be replevied. § 665. Courts may dissolve, etc. The Act of May 4, 1852, sec- tion 2 (P. L., 584), authorizes the courts to hear parties in a sum- mary way, and dissolve estrepements or make further order. % 666. Plaintiffs in Foreign Attachments may have the Writ. The Act of May 8, 1855, section 4 (P. L., 533), extends the right to an estrepement to plaintiffs in foreign attachments after execution of the writ. § 667. Seowrity to be entered before Estrepement issues, except where ^ectment brought to compel specific performance of contract of sale. The Act of April 11, 1862 (P. L., 430), is very important, for rt extends to estrepement the provisions of the Act of May 6, 1844, requiring security upon injunctions. The Act of May 6, 1844, directs that " 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, con- ditioned to indemnify the other party for all damages that may be sustained by reason of such injunction." But this security need not be entered in any action of ejectment brought to compel specific performance of contract for sale of land. Act April 2, 1863 (P. L., 250). § 668. Estrepement may issue pending Writ of Error. Estrepe- ment allowed in real actions, dower, partition, waste, and ejectment after writ of error issued by defendant. Act April 20, 1869, sec- tion 1 (P. L., 76). By the second section the writ is to issue, of course, upon filing affidavit and bond ; the court may dissolve on defendant giving bond. § 669. Tenant in common of timber land cannot ewt or remove tim- ber trees without written consent of all co-tenants. Act May 4, 1869, section 1 (P. L., 1251). The second section declares no title shall pass by his sale, and the others may sue at law and in equity to recover the timber. The third section allows the estrepement to EJECTMENTS. 373 issue on aifidavit, etc., as in ejectments for real estate, upon viola- tion of this Act, § 670. Estrepements where mortgage cm leasehold sued out. The provisions of these Acts still further extended to proceedings on mortgages of leaseholds ; affidavit to be filed, security may be re- quired, court may dissolve, enforce orders by attachments, etc. Act June 2, 1871 (P. L., 290). § 671. President Judges may dissolve Estrepements in vacation on notice. Act Feb. 18, 1873 (P. L., 35). § 672. Estrepement may issue to prevent production of petroleum where ejectment pending. Act June 5, 1883 (P. L., 79). Affidavit and bond are to be filed. § 2. Writ may be dissolf ed. § 3. Receiver may be appointed (if there be an open well) by law judge at chambers unless defendant give bond of indemnity. § 4. § 673. Purchasers of unseated lands sold for taxes by County Treasurer, on petition and affidavit, may obtain estrepement from court or any judge in vacation. The writ may be dissolved on payment of redemption-money during time allowed by law, and all costs of the estrepement ; the pro rata amount of twenty-five per cent. , which would have accrued at the time such redemption is made, being only required to be paid. Act June 13, 1883 (P. L., 89). § 674. Estrepement pending tax lien to prevent waste of timber. When taxes are returned to the commissioners, under section 1 of Act June 2, 1881 (P. L., 45) [said Act does not extend to cities of first, second, and fourth classes], of any county, they may sue out a writ of estrepement to prevent cutting of timber trees on land upon which the taxes are assessed, or the removal therefrom of any timber, bark, lumber, or other article manufactured from said timber. The writ shall be in force until the taxes shall have been paid. It shall be obtained by affidavit, and allowed in the same manner as estrepement pending ejectment, with like proceed- ings and effect as to service and dissolution. Act May 4, 1889 (P. L., 83). § 675. What acts may be restrained by estrepement. Clearly all acts which amount to waste may be enjoined. Vastum is defined by Blackstone to be ''a spoil or destruction, in any corporeal here- ditaments, to the prejudice of him that hath the inheritance." Black. Comm., Book II., p. 281. § 676. The legislative definitions in the Pennsylvania statutes above quoted are as follows : " Quarrying and mining, and all such other acts as will do last- 374 PRACTICE IN PENNSYLVANIA. ing injury to the premises." Act March 27, 1833, section 3 (P. L., 99). " Cutting of timber, extracting coal, stone, gravel, sand, oil, peat, slate, plumbago, clay, iron, and other ores and minerals." Act April 20, 1869, section 1 (P. L., 76). " The cutting of timber trees." Act May 4, 1869, section 1 (P. L., 1251). " Production of petroleum from land in controversy in any ac- tion of ejectment." Act June 6, 1883, section 1 (P. L., 79). Every act, therefore, which produces a lasting injury to the land may be subject of complaint. § 677. By decision, it has been held waste for a tenant to open new mines or quarries upon the land. Griffin v. Fellows, 81 Pa. St., 114 (1873). But tenant for life may work mines already opened, even to exhaustion. Neel v. Neel, 19 Pa. St., 323 (1852); Lynn's Appeal, 31 Pa. St., 44 (1857); Westmoreland Coal Co.'s Appeal, 85 Pa. St., 344 (1877) ; Irvdn v. Covode, 24 Pa. St., 162 (1854); Sayers v. HosUnson, 110 Pa. St., 473 (1885). He may also cut timber required in such mining opera- tions. Neel V. Neal (supra), Lynn's Appeal (supra). It is waste for tenant for life to remove during his occupancy buildings of a per- manent character erected by himself, if the inheritance be thereby injured. McCvMough v. Irvine, 13 Pa. St., 438 (1850). So if a judgment debtor remove a house from his land after levy thereon, and the price realized at the sheriff's sale be thereby lessened, this is waste which will sustain an action by the execution creditor. Christian v. MiUs, 16 W. N., 393 (1885). It is waste for the out- going tenant of a farm to remove the manure. Lewis v. Jones, 17 Pa. St., 262 (1851). But it is not waste for defendant in ejectment to harvest the annual crop. Snyder v. Depew, 1 Lack. L. Rec., 477. § 678. Whether the removal of timber constitutes waste will de- pend upon the facts of each case, the value of the timber, the cus- tom of neighboring landholders, etc. Givens v. McCalmont, 4 Watts, 460 (1835) ; McOdlough v. Irvine, 13 Pa. St., 438 (1850). Cut- ting timber to the injury of the inheritance by a vendor, under articles of agreement for sale of the land, is waste. Smith's Ap- peal, 69 Pa. St., 474 (1871). A life tenant may cut timber though the land be valuable for no other purpose. Williard v. WUliard, 56 Pa. St., 119 (1867); Hastings v. CruncMeton, 3 Yeates, 261 (1801) ; Beam v. Woolridge, 3 Pa. C. C, 17 (1887). But wanton or excessive use of timber by the life-tenant will be restrained by estrepement. WiUiard v. Williard (supra). It is not waste for EJECTMENTS. 375 life-tenant to fell and remove decaying trees which would otherwise become worthless. Sayera v. Hoskmson, 110 Pa. St., 473 (1885). § 679. Mofiigagor of property intended to be used as building lots will be restrained from digging sand and stone when he is thereby lessening the value of the property and diminishing the security of the mortgagee. Martin's Appeal, 3 Montg., 75 (1887), The mortgagor of real estate may continue, after the execution of the mortgage, to cut and sell the timber growing upon the prem- ises, and the mortgagee cannot maintain an action for the value of the timber against the vetidee thereof, in the absence of collusion or fraud between the vendee and the mortgagor. Angler v. Ag- new, 98 Pa. St., 587 (1881). Under the Act of "March 29, 1822 (7 Sm., 520), estrepement may issue against a tenant during the continuance of the lease without previous notice to quit. Hdl v. Strong, 44 Pa. St., 264 (1863). § 680. Who can issue Estrepements. 1. As a general rule, all plaintiffs in ejectment. (Act of April 2, 1803.) 2. Judgment plaintiffs who have levied on and condemned land, and the land is subject to be sold by a venditioni exponas. (Act of March 29, 1822.) 3. Mortgagees who have proceeded upon their mortgages. (Act of April 22, 1850.) 4. Any owner during the lease, or after its expiration and notice to leave. (Act of March 29, 1822.) 5. Purchasers at sheriff's sales. (Act of March 29, 1822.) 6. Eemainder-men. (6 Edward I., ch. 5, and Act of April 10, 1848.) 7. Creditors of decedent. (Act of April 22, 1850.) 8. Plaintiffs in foreign attachment. (Act of May 8, 1855. ); 9. Tenants in common of timber land. (Act of May 4, 1869.) 10. Commissioners to pi'event waste of timber when taxes are returned- unpaid. (Act May 4, 1889.) In Oivens v. McCalmont, 4 Watts, 460 (1835), it was held that a mortgagee in possession might be restrained from committing waste. A devisee of a contingent remainder cannot maintain an action for waste. Soger v. Galloway, 113 Pa. St., 500 (1886). See Act of 1891, cited at § 661. § 681. To obtain Estrepement. Plaintiffs in ejectment make affi- davit, and where the ejectment is not to enforce specific performance on contract for sale of land, they give bond. 376 PEACTICE IN PENNSYLVANIA. When the ejectment is to enforce such specific performance, estrepement issues of course. The other parties named in the foregoing summary are not treated of in this chapter. §682. AFFIDAVIT FOK ESTKEPEMENT. A. B. ) In the Court of Common Pleas, No. 4, of Philadelphia V. [ County. Of March Term, 1889. No. . CD. ) A. B., the plaintiff in the above case, having been duly sworn according to law, doth depose and say : That the above action is an ejectment brought for the recovery of (here briefly describe the land) in the comity of Philadelphia, and that the writ has been duly served on 0. D. and so duly returned. That deponent is the owner of said premises, and entitled to possession thereof. That C. D., the defendant, has been for some time past, to wit, since and still is unlawfully committing waste upon said property and materially injuring and destroying- the value of the same in this, that the said defendant has been during the time aforesaid and still is unlawfiilly (here describe the acts of waste) cutting down and carrying away valuable timber, or quarrying stone, or mining coal or iron ore (etc., as the case may be). That the said C. D. threatens to continue said illegal acts and to commit other acts of waste. That the aforesaid acts of said C. D. have already resulted in producing injury to said property and loss and damage to deponent to the amount of at least dollars. That if the said C. D. is not restrained, he will continue to commit waste and produce an irreparable loss and injury to deponent. (Plaintiff's signature.) Sworn to and subscribed before me. Judge of Court of Common Pleas, No. , of the County of Philadelphia. Under the Act of 1803, this affidavit may be made "by the plaintiff or other person knowing the fact." If the affidavit be made by another than the plaintiff, the phrase- ology can easily be changed to conform to the fact. The Act of March 29, 1822, as to landlords, etc., speaks of a ".Petition and affidavit." Where a petition is required, the above form of affidavit can readily be changed to a petition, and an affi- davit of the truth of the facts can be added. § 683. PrcBcipe for Estrepement. When the writ issues of course, file the above affidavit and the following prcedpe : EJECTMENTS. 377 \^- I O.P,No. . Q jj j Term, 189 . No. . To the Protionotary of the Court of Common Pleas (No. 4) of Philadelphia County. Sir : Issue estrepement, sec. leg. E. F., Plaintiff's Attorney. (Date.) Indorse this : A. B. ] V. y Court, Term, No. CD. J Praecipe for estrepement. The prothonotary then signs and puts the seal of the court to the writ. It is rarely issued, and counsel may be compelled to prepare it. §684. FORM OF WRIT OF ESTREPEMENT (iN CASE OF A MORTGAGE). The Commonwealth of Pennsylvania. To the High Sheriff of the City and County of Philadelphia, and to (name of defendant), greeting : Whereas, By the law of the land no waste or strip ought to be committed in any lands or tenements by any tenant during his possession of premises conveyed to him Tinder and subject to the payment of any mortgage debt, and whereas on the day of , A.D. 18 , executed and delivered to a mortgage upon (description of premises) to secure to the said the payment of the sum of dollars, with interest thereon, in years from the date thereof, which mortgage contained a proviso, that in case the interest upon the said prin- cipal sum in the mortgage shall not be paid within days after the same shall become due and payable, that then and in such case, at the option of the mortgagee, the whole principal sum shall become due and pay- able. That the said interest is more than days in arrears, and that the principal sum has thereby become due and payable, and that the said mortgage is still unsatisfied, and the premises are subject to be sold by a levari facias on said mortgage ; and whereas the said (name of defendant) has become the owner of the premises subject to the payment of the mort- gage debt of dollars with interest thereon, and he is now in the pos- session and occupancy of said premises ; and whereas, by an Act of Assem- bly of the Commonwealth of Pennsylvania, it is amongst other things provided that it shall and may be lawful for the prothonotary or clerk of the Court of Common Pleas of the proper county, upon petition to the said court setting forth that the defendant is committing waste, and sworn to by the plaintiff, to issue a writ of estrepement to prevent the same ; and whereas the said , the plaintiff in this writ, has presented his petition to the Court of Common Pleas, No. , for the County of Philadelphia, setting forth that the defendant is in possession of the said mortgaged prem- ises, as the owner thereof, and that he has committed and is committing waste and destruction of and in said premises in this, that he is (here set forth the grievances). We, therefore, being willing that the law and statute aforesaid shall be maintained and duly observed, do command you, the said sheriff, that you strictly prohibit and restrain the said (name of defendant) 378 PEACTICE IN PENNSYLVANIA. and his agents, and several employes, from doing or committing tte said waste and destruction of, and in ;the said premises contrary to the law and statutes aforesaid. And we command you, the said (name of the defen- dant), that you do not do or commit or cause to be done or committed any waste or destruction of or in the said premises, and particularly (here set forth specifically the matters of grievance). 'Witness the Honorable President Judge of the Court of Common Pleas, No. , for the County of Philadelphia, the day of , in the year of our Lord one thousand eight hundred and (Signature of Prothonotary.) Indorsement : No. , Term, 1889. A. ] V. \ C. P. No. B. ] Estrepement. § 685. Service of Estrepement. The sheriff should read the orig- inal writ to the defendant and give him a true and attested copy. § 686. If writ disobeyed, file affidavit of service as above and of the acts of disobedience, obtain a rule on defendant to show cause why he should not be attached for disobedience of the estrepement, serve this rule personally, have affidavit of personal service ready ; if no answer be filed, the court will maiie the rule absolute. Issue and serve the attachment. If defendant file an answer denying the charges against him, enter a rule to take depositions, prove your client's allegations, and secure the attachment. § 687. After judgment in ejectment, the plaintiflF cannot assess his damages by writ of inquiry, lie must sue for mesne profits. The British Statute, 16 and 17 Chas. II., ch. 8 (Eob. Dig., *42), which provides in section 4 for a writ of inquiry of the mesne profits as damages by any waste committed after the first judgment in dower or in ejectione firmcB, is not in force in Pennsylvania. The Act of June 11, 1879, and Act of Feb. 23, 1889, cited at §§ 607, 608, provide : " That whenever an action of ejectment is pending for the recovery of real estate, the plaintiff or plaintiffs therein, or any person having such right of action may, as well before as after the termination of said ejectment, bring an action or actions for mesri^ profits against any person or persons, but such action or actions for mesne profits shall not be proceeded with to trial and judgment until the plaintiff or plaintiffs shall have recovered possession of the real estate in controversy." In Warren v. Steer, 118 Pa. St., 529 (1888), Paxson, J., it was held that the Act of 1879 afforded a complete remedy for rents, etc., retained pending a writ of error, if the judgment below were affirmed. CHAPTEE XV. WRIT OF INQUIRY OF DAMAGES. § 688. When issued. This writ issued at common law where judgment had been entered by default for damages generally and the damages did not admit of calculation. The writ issued to the sheriff, who, with his jury, assessed the damages. The return merely informed the court, who could in all cases assess the dam- ages. § 689. In Philadelphia, the rule of the Courts of Common Pleas (section 95 a) is in these words : " Judgment by default of any kind may be moved before and entered by the prothonotary, who shall assess the damages in all cases in which the amount thereof is set forth with certainty in the statement of claim filed." § 690. The old rule of Oovrt of Common Pleas in Philadelphia was in these words : " The prothonotary shall ascertain the damages in all cases of judgment by default, where the suit is brought on a promissory note, bill of exchange, or book account. He shall also ascertain the damages in all other cases founded on contract, and sounding in damages, where the defendant does not object. But if the defendant object in these last-mentioned cases, or if the action is founded on a tort, the damages shall be ascertained by a jury of inquiry. Notice shall always be given at least four days of the execution of a writ of inquiry of damages." § 691. When writ of inquiry not necessary. In foreign attach- ments, the prothonotary may assess the damages. See section 87. The Act of 1870 is very clear. In Thornton v. Bonham, 2 Pa, St., 102 (1845), it was decided that an assessment by writ of in- quiry was necessary ; but this was before the Act of 1870. When the statement is on a note, draft, bill of exchange, book account, I O U, lease, ground-rent deed, bond, mortgage, on any contract, verbal or written, for the payment of money, or when the cause of action exhibited in the statement admits of a ready liquidation of the amount due, the prothonotary can assess the damages. § 692. When the writ is necessary. But in actions of slander, libel, malicious prosecution, conspiracy, seduction, crim. con., en- ticing away apprentices, trover, actions for damages from negli- gence, from trespass vi et armis, from breach of marriage promise, 380 PRACTICE IN PENNSYLVANIA. and generally in torts and actions sounding in tort where witnesses are to be cross-examined, where the defendant has the right to call witnesses on the question of damages, in all such cases after judg- ment by default an inquiry is necessary. The prothonotary can- not summon or swear jurors. The rule of court in Philadelphia, above quoted, does not extend to these cases. If a defendant admit liability where the amount of damages claimed is unliquidated, a writ of inquiry may issue or the dam- ages be assessed by a jury, under the Act of 1722. Bradly v. Potts, 33 W. K, 570 (1893). § 693. Act of 1722. The old law of May 22, 1722, section 27 (1 Sm. Laws, 144), is in these words : "The justices who give any interlocutory judgment shall, at the motion of the plaintiff or his attorney in the action where such judgment is given, make an order, in the nature of a writ of inquiry, to charge the jury attending at the same or next court, after such judgment is given, to inquire of the damages and costs sustained by the plaintiff in such action, which inquiry shall be made, and cSvidence given in open court, and after the inquest consider thereof, they shall forthwith return their inquisition, under their hands and seals ; whereupon the court may proceed to judgment, as upon inquisitions of that kind returned by the sheriff. " This Act is not obsolete. Wright v. Oram, 13 S. & R., 447 (1826) ; TutUe v. Loan Co., 6 Wh., 216 (1841). But in counties where the trial-lists are heavy, it would be a serious interruption to the regular business to take up questions of the assessment of damages in eases of slander and other twts. The Common Pleas, especially in Philadelphia County, have often shown extreme re- luctance in permitting the assessment of damages in the manner sanctioned by the Act. Lawyers familiar with the common-law practice naturally prefer it ; but, as indicated below, the nature and circumstances of your case will sometimes suggest reasons why the interests of your client are likely to be better served by pro- ceedings under the statute. § 694. Decisions nnder the Act of 1722. Under this Act, the following rulings have been made. In KoUer v. Ijuckenbaugh, 84 Pa. St., 258 (1877), it was held that the Act did not abrogate the writ of inquiry, but gave the plaintiff his choice under which to proceed. In JBell V. BeU, 9 Watts, 48 (1839), it was decided by Chief Justice Gibson that there is nothing in the Act of 1722 to give a party a bill of exceptions upon the execution of a writ of in- quiry of damages. The difference between proceedings by the WitlT OP INQX7IEY OP DAMAGES. 381 court to assess damages in England and our own process, he said, is " that what is discretionary in the English practice is a matter of right in ours. By the twenty-seventh section of the Act of 1722 an order in the nature of a writ of inquiry is substituted for the writ itself, pursuant to which the inquest is taken from a panel of jurors on attendance, instead of being composed of per- sons selected by the sheriff ; but when constituted, it finds not a verdict recorded in the usual way, but an inquisition signed and sealed, on which judgment is given as if it were returned attached to a writ by the sheriff. § 695. No bills of exceptions. The statute allowing bills of exceptions is restrained in practice to the trial of issues of fact. An assessment of dam^es under the Act of 1722, not being such an issue, no exceptions may be taken in that proceeding. § 696. Jury trying issues of defendants who plead may assess damages against the others. In Ridgely v. Dobson, 3 W. & S.', 118 (1842), it was ruled that where two or more are sued, the plaintiff takes judgment by default against those who do not plead ; when the issue is tried as to those who plead, "the ver- dict ascertains the amount due as well by those who plead as those who suffered judgment, and the execution issues against all." In Farley v. HaM, 1 W. N., 115 (1874), a mandamus was ap- plied for to compel the judges of the District Court of Philadel- phia to make the order directed by the Act of 1722. But the Supreme Court refused the mandamus. This was followed by another application to the District Court of Philadelphia, in Sully v. Baum, 1 W. N., 115 (1874), for an order under the Act of 1722. The court, in refusing the applica- tion, gave the following reason : "Notwithstanding the expressions of Chief Justice GiBSOsr, in Bell V. Bell, which might seem to imply that this order is a matter of right in all cases, yet the uniform practice in this county for many years past has been to confine it to cases where a jury is sworn to try the issue as to some of the defendants, and to assess the damages as to others against whom judgments by default have been taken. AW other cases of assessments of damages on inter- locutory judgments, where the amount is not capable of liquidation by the prothonotary, are sent in the regular course to the sheriff's inquest. To disturb so long settled a practice would be extremely inconvenient." § 697. Practice under Act of 1722 sometimes adopted. It guards against corruption. In MoHenry v. The Union Pass. Bwy. Co. (C. P., 3, Philada.), 14 W. N., 404 (1884), upon judgment for 382 PEACTICE IN PENNSYLVANIA. want of a plea, a rule was taken to show cause why the court should not make an order in the nature of a writ of inquiry to charge the jury attending the next court to inquire of the damages and costs sustained by the plaintiff in accordance with the Act of May 22, 1722. The rule was opposed. The court, in an able opinion by Ludlow, P. J., said : "Undoubtedly where a judgment has been taken by default, the common-law writ of inquiry to ascertain damages issued. As a matter of course, the sheriff alone summons the jury, and he may select the requisite number of jurors as he pleases ; the power is in his hands alone, and the direction and control of the whole proceeding before the jury is apart from and entirely out of the presence of the court. In ordinary cases, this system is admirably adapted to the dispatch of business, and was intended, we take it, to reach a class of cases wherein to assess damages was not a complicated thing, and was not embarrassed by a multitude of questions which would seem to require the control of an officer presumed to be learned in the law, and clothed with supervising power of a law judge of a court of record. * * * "We feel we are not at liberty to adopt any other course than the one we are about to pursue. * * * Complaint is made to us of what are called ' excessive and almost prohibitive damages against corporations and even individuals in all accident cases,' and therefore we are asked to sanction the practice said to exist, and to discharge this rule ; to all this we reply, that as a matter of public policy, it is better to trust to the jury taken by lot from the wheel and in attendance in open court, than to place cases of this description in the control of men selected by any one man. At the present time, and with the present sheriff, we have no doubt that the jury would be honestly and fairly selected. That is not the question to be solved ; the law gives the plaintiff the power with which we ought not to interfere, especially as the selec- tion of the jury from the panel in open court is more consistent with our idea of right in cases of this description, and when it is also remembered that a corrective power is lodged with the judges, . and is freely exercised where it is apparent that a jury have ren- dered a verdict in any just sense 'excessive' or 'prohibitive.'" B>ule absolute. In HamiU v. Rwy. Go. (of September Term, 1883, No. 521), an unreported case in Court of Common Pleas, No. 4, of Philadelphia County, judgment by default for want of a plea was entered, and a rule similar to that in McHenry v. Rwy. Co. (supra) was dis- charged. (March 10, 1884.) WRIT OF INQUIRY OF DAMAGES. 383 In McKeown v. Bwy. Co. (C. P. 1, Phila.), 15 W. N., 125 (1884), after judgment for want of a plea, the plaintiiF obtained a rule to show cause why the court should not make an order under the Act of 1722. The application was resisted, but the court made the order, holding, however, that it rested within their discretion whether to do so or not. It may seem strange that there should be any struggle on the part of a defendant who has not cared to plead, as to the precise method in which the damages should be assessed. When it is re- membered, however, that upon the writ of inquiry influences may be brought to bear which could not be successfully invoked before the court and the regular panel, the difficulty is solved. Default may be made for the very purpose of compelling plaintiff to take judgment and forcing him to go before a sheriff's jury to have his damages assessed. § 698. The condusions to be drawn from the decisions above noted are somewhat conflicting. 1. It would seem that under the Act of 1722 it is the absolute right of a plaintiff to have his damages assessed by the regular panel. 2. But that this right will not be enforced by mandamus. 3. That the plaintiif may elect whether to issue the old writ of inquiry or proceed under the Act of 1722. 4. Yet the court may refuse to proceed under the Act of 1722. The practical suggestion to cownsdfor plaintiff is to issue the writ of inquiry where he has nothing to fear from the defendant's in- fluence with the sheriff or his jury. He may thus reach a result with more speed and satisfaction. But if there be any fear of cor- ruption, if the defendant be a corporation, and especially a rail- road, it is recommended to resort to the regular panel, and to pur- sue the course marked out in the cases last cited. § 699. Mode of taking judgment by default. The form in foreign attachments is given at section 87. The assessment of damages in foreign attachments, as already noted, is not by writ of inquiry, but according to the form stated at section 87. Judgment for want of appearance. Vide section 171. Judgment for want of a plea. Vide section 26. § 700. Bairnig judgment by default, if the prothonotary cannot assess the damages, you proceed under Act of 1722, in the form indicated by the cases cited, or you give to the prothonotary the following 384 PRACTICE IN PENNSYLVANIA. PRECIPE FOB WKIT OF INQUIRY. A. ) V. y Court. Term. No. G. j Sir: Issue Writ of Inquiry of Damages in the above case, returnable sec. leg. C, Plaintiff's Attorney. (Date.) To tbe Prothonotary of the Court of Common Pleas of County. §701. FORM OF WRIT OF INQUIRY. County of Philadelphia, ss. The Commonwealth of Pennsylvania. To the sheriff of the County of Philadelphia, greeting : V. . Whereas, the said plaintiff heretofore, to w^, in the term of , A.D. 18 , came into our Court of Common Pleas, No. , for the County of Philadelphia, and impleaded the said de- fendant in a certain plea of in which the said plaintiff declared as is hereinafter set forth, and the said defendant made default in not . And the said cause was in such manner proceeded in, that it was adjudged by our said court that the said plaintiff ought to re- cover damages against the said defendant which sustained by reason of the premises. But because it is unknown what damages the said plaintiff ha sustained ; we command you, that, by the oaths or aflSrma- tions of twelve honest and lawfiil men of your bailiwick, you diligently in- quire what damages the said plaintiff ha sustained, as well by occasion of the premises, as for costs and charges by about suit in that behalf expended. And the inquisition that you shall take thereof, make manifest before our Judges, at Philadelphia, at our said Court of Common Pleas, No. , for the County of Philadelphia, there to be held the first Mon- day of next, under your seal and the seal of those by whose oaths or aflSrmations respectively you shall make that inquisition. And have you then there the names of those by whom you shall make that inquisition, and this writ. Witness the Honorable presi- dent of our said court, at Philadelphia, the day of , in the year of our Lord one thousand eight hundred and eighty- Prothonotary. §702. After writ issues. Give it to the sheriff. Ascertain time and place for executing it. Notify defendant. If an appearance has been entered, notify his counsel. It is sometimes required by rule of court to put up a notice in prothonotary's office and in the sheriff's office. Tou can use the following form : A. ] V. }■ Court. Term. No. B. ] To the defendant above named. Please take notice that a writ of inquiry of damages has been issued in the above case, and that the same will be executed by , Esq., WRIT OF INQUIRY OP DAMAGES. 385 high sheriflf, and the case submitted to a sheriflf 's jury at (name the place as, at the office of said sheriff, or at the Hotel on the side of street near Street, in the County of ) on (name the day and time, as on Friday, the thirtieth day of November, A.D. 18 , at 10 o'clock A.M.). EespectfuUy, C, Plaintiff's Attorney. (Date.) § 703. Proof of Serving Notices. Let your notices be served and posted by some one who can read and who compares the papers before they are served and posted, with a copy kept. Let him make affidavit at foot of the copy of the time and manner of ser- vice. When service is not made personally on a defendant) have it made, if possible, on an'adult member of his family at his dwelling- house. Let this be stated in the affidavit. Service on an attorney should be made personally or on an adult in charge of his office. § 704. Time of Service. In Moore v. ffdss, 4 Yeates, 261 (1805), and in Drmean v. Lloyd, 1 Miles, 350 (1836), eight days were re- quired. The old rule of court in Philadelphia, already quoted, re- quired but four days. Follow the rule of court, if there be a rule on this subject. § 705. At meeting of Sheriff's Jury. Be prepared to prove your damages. The jury are sworn. If defendant does not appear in person or by counsel, prove the service and the posting of the no- tices ; then state to the sheriff and jury the names of the parties, who your client is, his occupation, etc. Mention the cause of ac- tion — the judgment — read your statement or state its substance. Call your witnesses. After they are sworn, examine them as to the items of your damage. You will remember that you are not required to prove your cause of action, but the amount which you are entitled to recover. It is usual, in cases of accounts, to hand to the jury a calculation of your claim and the interest to date. Where the suit is in tort, this is not done. Your opponent, if present, has the right to call witnesses. Examination, cross-exam- ination, and addresses to the jury are the same as in other cases. When the parties retire, the jury assess the damages. This is written out and handed to you when you call for it, by the sheriff, or he may prefer to send it to the prothonotary. If you receive it, file it with the prothonotary. §706. FORM OF INQUISITION UPON WRIT OF INQUIRY. County of Philadelphia, ss. An Inquisition, indented and taken at the city of Philadelphia, in the county aforesaid, this day of in VOL. I. — 25 386 PRACTICE IN PENNSYLVANIA. the year of our Lord one thousand eight hundred and before High Sheriff of the City and County aforesaid, by the oaths and affirmations of the jurors whose names and seals are hereunto annexed, good and lawful men of my bailiwick, who say, upon their oaths and affirmations, that Plaintiff in the writ 'to this Inquisition annexed, named, has sustained damages by means of the premises in the said writ mentioned against Defendant to the amount of lawful moiiey , and costs. In testimony whereof, as well I, the said sheriff, as the jurors aforesaid, to this Inquisition, have affixed our hands and seals, the day and year above mentioned. Sheriff, [seal] (Attach twelve seals.) § 707. Exceptions to the Execution of Writ and to the return. Either party has the right to except to the execution of the writ for (a) Misconduct of the Sheriff. Summoning a juror incompetent to serve, and retaining him on the panel after challenge and proof ; corruption ; refusing to swear the jury ; refusal to hear witnesses, and any other irregularity defeating justice. (6) Misconduct of the Jury. Receiving improper communications as to the case ; corruption, etc. In general, it may be stated that whatever would vitiate the or- dinary verdict of a jury will be good ground for exception here. I know no better guide upon this point than Graham & Water- man on New Trials. (c) Defective return. Want of signature of sheriff, or signatures of sufficient number of jurors, etc. The return might be amended in a proper case. (d) The plaintiff might complain that the assessment was inade- quate, or the defendant might object that the damages were grossly excessive. In Ldb V. Bolton, 1 Dall,, 82 (1784), a motion was made to set aside the return of the jury of inquiry on the ground that improper evidence had been received by them. But there was other evi- dence, and the court refused the motion. The same ruling was made where it was alleged the damages were too low. Bender v. Gibson, 4 W. N., 543 (1877). But where the jury have made a plain mistake of law, and proceeded to try the case upon its merits rather than ascertain the amount due, the assessment of damages will be set aside. Reilly v. Union, 12 "W. N., 93 (1882). § 708. Time for excepting. By analogy, these objections should be filed within four days after return of the writ. But I would suggest to file them immediately, and obtain a rule to show cause why the assessment should not be set aside. WEIT OF INQUIRY OP DAMAGES. 387 Allegations of facts must be supported at first by affidavit of client or his agent. Subsequently, you must take depositions to sustain your averments. Upon motion and argument swr exceptions, you again follow the practice upon motions for new trial. § 709. If Assessment set aside, the plaintiff can proceed as before, issuing an alias writ of inquiry, etc. § 710. If Assessment stand, execution can be issued as in other cases. Form of prcedpe for j^. fa., section 23. Suggestions as to levy, etc., section 24. § 711. Writ of Inquiry cannot be used as substitute for action for mesne profits. The British Statute, 16 and 17 Chas. II., ch. 8 (Eoberts's Digest, *42),* which provides, in section 4, for a writ of inquiry of mesne profits, as damages by any waste committed after the first judgment in dower, or in ejectione firmce, is not in force in Pennsylvania. The Act of 11 June, 1879 (P. L., 109) provides : " That whenever an action of ejectment is pending for the recovery of real estJtte, the plaintiff or plaintiffs therein may, as well before as after the termination of said ejectment, bring an action or ac- tions for mesne profits against any person or persons, predecessor or predecessors in title of the defendant or defendants in said eject- ment, but such action or actions for mesne profits shall not be pro- ceeded in to trial and judgment until the plaintiff or plaintiffs shall have recovered the possession of the real estate in controversy." In Warren \. Steer, 118 Pa. St., 529 (1888), Paxson, J., it was held that this Act afforded a complete remedy for rents, etc., re- tained pending a writ of error, if the judgment below were affirmed. CHAPTER XVI. DETINUE. § 712. Definition. Detinue is the name of an action brought for the recovery in specie of personal chattels. At common law the action was originally thought to lie only where the taking was law- ful and the detention wrongful ; but later this distinction was aban- doned, and in proper cases detinue is held maintainable upon an unlawful detainer, irrespective of the manner in which defendant obtained possession. Shars. Blackstone's Comm., Book III., *151, *152, notes. Incidentally, damages for the detention are recover- able in addition to the chattel itself or its value. • § 713. Infrequency of use. Under our practice, the action has fallen into almost complete disuse. The superior advantages of replevin, which has been given such extended applicability in this State, and the growing preference for equitable forms of procedure, have tended to make the action of detinue almost obsolete. In England, detinue was formerly decided by wager of law, that is, the defendant in the action, by virtue of his own oath and that of eleven of his neighbors, was permitted to acquit himself of the unlawful act alleged against him as the basis of the suit. This naturally discouraged the use of that form of action, and accord- ingly it is not often met with in the English reports previous to the abolition of wager of law by Statute 3 and 4 William IV., ch. 42, section 13 (1833). § 714. When preferable. In the Southern States, detinue was frequently employed for the recovery of slaves. With us its best use would be in those cases where the chattel in question has some peculiar value to its owner apart from its worth to others, as deeds or title papers, or articles endeared by association ; and where re- plevin or bill in equity may not be desired. § 715. Classification. Authorities conflict as to whether this ac- tion is one of contract or in tort. It has been held, on the one hand, that it may be joined with debt and that it will lie where defendant's possession is entirely contractual ; on the other, that the gist of the action is the wrongful detainer, even though such detainer be a vio- lation of contract. 1 Chitty's Pleadings (12 Am. ed.), 121. It is. DETINUE. 389 however, most frequently, and perhaps most properly, classed with actions ex contractu. § 716. When it lies. Detinue may be brought only for the re- covery of chattels, not for real property. The goods must be dis- tinguishable from others ; thus, it will lie for money in a bag or for a particular bank note, but not for a sum of money generally. It will lie for a horse or cow, or for definitely ascertained head of cattle, but not for so many cattle not specially described ; for wheat or grain in a certain place, but not for a number of bushels uniden- tified. Where a contract to deliver a special article is violated by the wrongful refusal so to do, detinue may be brought, but not unless the contract distinguish the articles from all others. As in replevin and tfover, a special property in the plaintiff, as that of a bailee, will support the action ; but he must have right of immediate possession. It cannot be brought, therefore, by one entitled only in reversion. The right to possession must have ex- isted at the impetration of the action. A life-tenant of real estate may maintain detinue for the title papers. It is immaterial whether the plaintiff ever had actual possession. § 717. What constitutes possession. The person who has posses- sion and who wrongfully detains is the proper defendant ; and the action cannot be maintained against one never in possession. It is indifferent how possession may have been obtained, so that the de- tention be improper. An executor whose testator has had posses- sion is not liable in detinue unless the possession came to him. If a bailee lose the chattels by accident before demand, the action will not he against him ; though it is said to be otherwise if he wrong- fully deliver to another, or if he induce the plaintiff to bring the action against himself by a false representation that they are in his possession. It will lie against an infant for goods still in his pos- session, which he has bought and refuses to pay for on the ground of his infancy. Cases cited, 1 Chitty's PI. (12 Am. ed.), 120-125. § 718. Joinder. It was permissible, and not unusual, under the old practice, to join a count in detinue with others in debt. Under our Act of 1887, which substitutes assumpsit for debt, and a state- ment for the former declaration, it might require nice ingenuity to weld the two together. Detinue may not be joined with actions ex delicto. § 719. Jurisdiction. Justices of the peace have no jurisdiction in this action. It must be brought in the Common Pleas. Spren- M V. ^ots (C. P., York County), 2 Tr. and H. Pr., section 1538, n. 11. 390 PEACTICE IN PENNSYLVAMTA. §720. FOEM OP PEiECIPE FOE SUMMONS. A. B. V. CD. Sie: Issue summons in detinue returnable sec. leg. E. F., Plaintiff's Attorney. (Date.) To Proth.onotary of Court of Common Pleas, No. , Philadelphia County. § 721. Service of Summons. Having received from the pro- thonotary a summons, note defendant's address (residence) upon it. The writ of summons will be entitled to a term and number. It should be in the usual form, directing the sheriff to summon the defendant to answer plaintiff " in a plea of detinue." It is to be taken to the sheriff for service {supra, section 16), and is to be served as are writs of summons in other personal actions. See Act 13 June, 1836, section 2, P. L., 572. § 722. Capias. The action being regarded as one essentially sounding in contract, it would usually seem improper to b^in it by capias ; but the writer is not aware of any Pennsylvania deci- sion directly upon the point. If defendant's possession be actu- ally tortious, it may be justifiable to employ that writ. As to praecipe for capias, affidavit to hold to bail, etc., see sections 39- 40 d seq. ; sections 511-512 ei seq. § 723. Declaration. Service of the writ of summons being effected, plaintiff's declaration should be filed. In framing the declaration, the necessary averments to establish a good cause of action must be included. The chattels must be described with sufficient particularity to enable the sheriff, upon final judgment and execution, to take them into his possession. Papers should be so described as to distinguish them from all others. Rementer v. Enmn, 11 W. N., 194 (1882). And even more particularity is required than in trover or replevin. It is not essential, however, to state the date of a deed ; nor need the value of each of several chattels be separately averred, though there should be a total valu- ation placed upon them all. Eight of property or possession in plaintiff, and defendant's wrongful detainer, are to be alleged. Where a request for delivery is necessary in order to convert de- fendant's holding into a wrongful detention, as in the case of a bailment, such request should be laid. The date and place of bailment need not be precisely stated. In the case of a bailment, it is usual to declare upon it ; in other cases, a fictitious finding by DETINUE. 391 defendant is generally alleged, as in the old narr. in trover. Both forms may be and often are joined in separate counts. § 724. Form of Declaration. The following, adapted from Chitty's Pleadings, will serve as models upon which to frame the narr. : UPON A BAILMENT TO BE DELIVERED ON BEQUEST. A. B. ) V. >■ In the Court of Common Pleas, No. , of Philadelphia County, CD. j Term, , No. . Philadelphia County, ««. C. D., late of the county aforesaid, yeoman, was summoned to answer A. B., the plaintiff, of a plea in detinue, and thereupon the said A. B., by E. F., his attorney, complains : For that whereas the said plaintiflf heretofore, to wit, on the day of , A.D. 18 , at the county aforesaid, delivered to the said defendant certain goods and chattels (or deeds and writings), to wit (here describe them in accordance with above directions), of the said plaintiff, of great value, to wit, of the value of dollars of lawful money, to be redelivered by the said defendant to the said plaintiflf, when he, the said defendant, should be thereunto afterward requested, yet the said defendant, though he was afterward, to wit, on the day and year aforesaid, at the county aforesaid, requested by the said plaintiff so to do, hath not as yet delivered the said goods and chattels (or deeds and writings), or any of them, or any part thereof, to the said plaintiflT, but hath hitherto wholly neglected and re- ftised, and still doth neglect and refuse, so to do, and still unjustly detains the same from the said plaintiff, to wit, at the county aforesaid, to the dam- age of the said plaintiff dollars. And therefore he brings suit. E. F., Plaintiff's Attorney. (Date.) § 725. Count upon a supposititious finding. The following may be added as a second count. Insert it between the words " un- justly detains the same from the said plaintifiF, to wit, at the county aforesaid," and the words " to the damage of the said plaintiff:" And whereas also the said plaintiff heretofore, to wit, on the day and year aforesaid, at the county aforesaid, was lawfully possessed of certain other goods and chattels (or deeds and papers), to wit (describe them), of great value, to wit, of the value of dollars, of like lawful money, as of his own property, and being so possessed thereof, he, the said plaintiff, afterward, to wit, on the day aforesaid, at the county aforesaid, casually lost the same out of his possession, and the same afterward, on the day and year aforesaid, at the county aforesaid, came to the possession of the said defendant by finding, yet the said defendant, well knowing the said last-mentioned goods and chattels (or deeds and papers) to be the property of the said plaintiff, and of right to belong and appertain to him, hath not as yet delivered the same, or any or either of them, or any part thereof, to the said plaintiff, although afterward, to wit, on the day and year aforesaid, at the county aforesaid, requested by the said plaintiff so to do, but hath hitherto wholly refused so to do, and hath detained, and still doth detain, the same from the plaintiff, to wit, at the county aforesaid. 392 PRACTICE IN PENNSYLVANIA. If it be desired to declare solely npon a fictitious allegation of finding, the foregoing may be employed with such slight alteration as is required, and in that case it should be preceded and followed by the heading and conclusion given in the first form. § 726. Appearance and rule to plead. If no appearance be en- tered, having filed your narr. before the return-day, you may take judgment four days thereafter, provided it be fourteen days after service of the writ. (See section 23.) If defendant enter an appearance, enter a rule upon him to plead. In regard thereto and taking judgment for want of a plea, see section 26. If judg- ment go by default, damages are to be assessed by writ of inquiry. (See chapter XV.) § 727. Pleas. The general issue plea in this action is non detinet, that the defendant does not detain the goods specified. It is a disputed question whether defendant may deny plaintiff's prop- erty in the goods under this plea, and it would be advisable fol: him to plead specially if he intend to do so. It is held, however, that he may show plaintiff's title to be fraudulent. Stratton v. Minnis, 2 Munford (Va.), 329 (1811). But he may not show a lien on the goods under that plea, or that the goods were pawned to him, or that plaintiff, who has declared as administrator, is not rightfully so. All these things, [and in strictness almost all de- fenses, except non-detention, should be pleaded specially. The following is the extended §728. FOEM OF GENERAL ISSUE PLEA. A. B. ) V. [ C. p. No. 1. June Term, 1890. No. . CD. J And the said defendant, by G. H., his attorney, comes and defends the wrong and injury, when, etc., and saith that he doth not detain the said goods and chattels (or deeds and papers) in the said declaration specified, or any part thereof, in manner and form as the said plaintiff hath above thereof complained against him, and of this the said defendant puts himself upon the country,' etc. This is briefly pleaded " non detinet." Many forms for special pleas are given in Chitty on Pleading (12 Am. ed., vol. 3, 1023 et seq.), and other standard authors on pleading. These may easily be adapted to suit the circumstances of particular cases. § 729. Replication and issue. To the general issue plea, a sim- iliter is the only reply necessary. Other pleas should bie replied to accordmg to their nature and the matters to be alleged in response DETINUE. 393 to them. If the replication put the suit at issue, order it on the list for trial, as in other cases. § 730. Trial. At the trial of the cause plaintiff must prove such facts as show a good cause of action in him ; thus he must prove his property, absolute or qualified, in the goods, together with right of possession. He must also show defendant to have been in pos- session before issuance of the writ. The defendant himself must show the fact if he have been legally dispossessed. Proof of de- mand by plaintiff is only necessary in those cases where demand is relied upon to convert the detainer into a wrongful one, but the detainer must be shown as to the precise goods described in the declaration. It is not necessary to show in what manner defen- dant became possessed, nor need the fictitious allegation of finding be sustained by evidence ; such allegation cannot be controverted. § 731. Verdict and Judgment. The jury should find the value of each chattel separately if the verdict be for plaintiff, together with damages, if any, for the detention. This is to enable the sheriff to levy for the proper amount in money in case the goods or part thereof should not be forthcoming. Where they value only in gross, however, the defect may be remedied by writ of inquiry. It is not necessary for them to put a separate valuation upon each component part of an aggregate whole, as of a flock of sheep, etc. If the chattels have been returned to plaintiff, the jury may still find for him in damages for the detainer. The judgment follows the verdict, and if for plaintiff, it is in form that he recover the goods demanded, or the value thereof if he cannot have the goods, and his damages (for the detention), together with costs of suit. § 732. Execution. Writ of _^. fa. or capias ad satisfadendwm is obtained by prcedpe, as in other cases. See sections 23, 575 ; and Chapter on Executions. The sheriff is commanded to seize the articles detained ; and, in default of them, to levy for their value, with damages and costs, from the goods of the defendant if the writ be afi. fa., or to take his person if it be a ca. sa. The sheriff proceeds as under other executions, following the directions of his writ. See Chapter on Executions. § 733. Appeal and Limitation. Appeal lies from the judgment in this as in other actions. See the Chapter on Appeals. The period of limitation is six years from the time the right of action accrues. Act of 27 March, 1713 (1 Sm. L., 76). CHAPTER XVII. DIVOECE. § 734. Preamble of the Divorce Law. It is well, in considering the practice in cases of divorce, to bear in mind the preamble of the Act of March 13, 1815. It is rarely referred to. It is in these words : Whbebas, Tte divine precepts of the Christian religion, the promotion of the best interest of human, happiness, the design of marriage, and the object of parties entering into the marriage state, require that it should continue during their joint lives : Yet, where one of the parties is under a natural or legal incapacity of faithfully discharging the matrimonial vow, or is guilty of acts inconsistent with the sacred contract, the laws of every well-regulated society should give relief to the innocent and injured party. § 735. Causes of Divorce. Certain grounds of divorce, as declared by Pennsylvania Statutes, are common to both parties. Others apply simply to the case of the wife being libellant. § 736. Common to both husband and wife. Impotence, second marriage, adultery, desertion. That either party at the time of the contract was and still is naturally impotent or incapable of procreation ; Or that he or she hath knowingly entered into a second marriage, in vio- lation of the previous vow he or she made to the former wife or husband, whose marriage is still subsisting ; Or that either party shall have committed adultery ; Or wilful and malicious desertion, and absence from the habitation of the other, without a reasonable cause, for and during the term and space of two years. » * » In every such case, it shall and may be lawful for the innocent and in- jured person to obtain a divorce from the bond of matrimony. (Act of March 13, 1815, section 1 ; 6 Sm., 286.) § 737. Incest. All marriages within the degree of consanguinity or affinity according to the table established by law are hereby declared void to all intents and purposes ; and it shall and may be lawful for the Courts of Common Pleas of this Commonwealth, or any of them, to grant divorces from the bonds of matrimony in such cases, and the parties shall be subject to the like penal- ties as are contained in the Act against incest ; but when any of the said marriages shall not have been dissolved during the lifetime of the parties, the unlawfulness of the same shall not be inquired into, after the death of DIVOECE. 395 either the husband or wife. (Act of March 13, 1815, section 5 ; 6 Smith, 286.) § 738. Desertion. The Act of April 26, 1850, section 5 (P. L., 591), re-enacts the desertion clause of the Act of 1815, and author- izes the filing of the libel " at any time not less than six months after the cause of divorce shall have taken place," but the final de- cree cannot be entered until after the two years have expired. § 739. Jurisdiction in desertion and adultery, although parties not domiciled in State. The sixth section of the same Act confers juris- diction in desertion and adultery " notwithstanding the parties were at the occurrence of said causes domiciled in any other State ; " Provided, The applicant shall be a citizen of this Commonwealth or reside therein one year. In Bishop v. Bishop, 30 Pa. St., 412 (1858), jurisdiction was denied where the cause occurred in another country. But by supplement of April 22, 1858 (P. L., 451), the jurisdiction is extended to cases in which the cause occurs in any other country. § 740. Fraud, force, coercion, sentence for felony. In addition to the cases now provided for by law, it shall be lawfal for the Courts of Common Pleas of this Commonwealth to grant divorces in the following cases : I. Where the alleged marriage was procured by fraud, force, or coercion, and has not been subsequently confirmed by the acts of the injured party. II. Where either of the parties shall have been convicted of a felony and sentenced by the proper court either to the county prison of the proper county, or to the penitentiary of the proper district, for any term exceeding two years ; Provided, That such application for a divorce be made by the husband or wife of the party so convicted and sentenced. (Act of May 8, 1854, section 1 ; P. L., 644.) By Act of June 1, 1891 (P. L., 143), the second subdivision of § 1 of Act of May 8, 1854, was amended so as to read as follows : When either of the parties heretofore has been or hereafter shall be con- victed of forgery or any infamous crime, either within or without this State, and sentenced to imprisonment for any term exceeding two years : I¥o- mded, That such application for a divorce be made by the husband or wife of the party so convicted and sentenced : And provided further, In cases where the conviction was had outside this State, that the crime for which it was had be one which by the laws of this State may be punished by im- prisonment for two years or more. This extends the jurisdiction to grant divorces when either party has been convicted of forgery, or of any infamous crime, and sen- tenced to imprisonment therefor, whether within or without this State. The Act of June 1, 1891, does not apply to a case where the re- 396 • PEACTICE IN PENNSYLVANIA. spondent has been convicted of crime punishable in another State by imprisonment for two years only — although the crime be pun- ishable by imprisonment for more than two years here. Frardz V. Frantz, 1 Dist. Rep., 241 (1892). Assault with intent to rape is not an infamous crime in Pennsyl- vania within the meaning of the divorce law of June 1, 1891. Wheder v. Wheeler, 2 Dist. Rep., 567 (1893). § 741. Personal abuse, etc. It shall be lawful for the several Courts of Common Pleas in this Com- monwealth to entertain jurisdiction of all cases of divorce from the bonds of matrimony for the cause of personal abuse, or for such conduct on the part of either the husband or wife as to render the condition of the other party intolerable and life burdensome, notwithstanding the parties were at the time of the occurring of said causes domiciled in another State : Fi-o- vided, That no application for such divorce shall be made unless the appli- cant therefor shall be a citizen of this Commonwealth, or shall have resided therein for the term of one year, as provided for by the existing laws of this Commonwealth. (Act of March 9, 1855, section 1 ; P. L., 68.) The Act of June 8, 1891 (P. L., 247), provided that "A wife forced to return to her domicile in this State by husband's adultery, cruelty, indignity, or desertion in another State or country, might sue here ; but if defendant not served, registered letter must be sent." This Act was repealed by the Act of June 20, 1893, and was declared unconstitutional in Burdiok v. Burdick, 2 Dist. Rep., 622 (1893). § 741 a. Jurisdiction in Divorce extended to various causes. Former domicile of wife. Service of notice, residence, etc. That it shall be lawful for the several Courts of Common Pleas in this Commonwealth to entertain jurisdiction of all cases of divorce from the bonds of matrimony, and from bed and board for the causes of adultery committed by the husband, or wilful and malicious desertion on the part of the husband, and absence from the habitation of the wife without reason- able cause, for and during the term and space of two years, or where any husband shall have, by cruel and barbarous treatment, endangered his wife's life or offered such indignities to her person as to render her condi- tion intolerable and life burdensome, and thereby force her to withdraw from his house and family ; where it shall be shown to the court by any wife that she was formerly a citizen of this Commonwealth, and that having intermarried with a citizen of any other State or any foreign country, she has been compelled to abandon the habitation and domicile of her husband, in such other State or foreign country, by reason of his adultery or wilfiil and malicious desertion and absence from the habitation of the wife without reasonable cause for and during the space and term of two years, or by cruel and barbarous treatment endangered his wife's life or offered such in- dignities to her person as to render her condition intolerable and life bur- DIVOECB. 397 densome, and thereby force her to withdraw from his house and family, and has thereby been forced to return to this Commonwealth in which she had her former domicile : Provided, That where, in any such case, personal service of the subpoena cannot be made upon such husband by reason of his non-residence within this Commonwealth, the court, before entering a de- cree of divorce, shall require proof that in addition to the publication now required by law, that actual or constructive notice of said proceedings has been (given) to such non-resident husband, either by personal service or by registered letter to his last known place of residence, and that a reasonable time has thereby been afforded to him to appear and defend in said suit : And provided further, That no application for such divorce shall be made, unless the applicant therefor shall be a citizen of this Commonwealth, or shall have resided therein for the term of one year prior to filing her peti- tion or libel as provided by the laws of this Commonwealth. § 741 h. In desertion, libel may be filed in not less than six months after desertion, but no decree until two years elapse. Sec. 2. Where the wife petitions the court for a divorce under the pro- visions of section first of this Act on the ground of wilful, malicious, and continued desertion by the husband from the habitation of the wife without reasonable cause, it shall be lawful for the wife to make application in such case by petition or libel to the proper court at any time not less than six months after such cause of divorce shall have taken place, but the said court shall not proceed to make a final decree divorcing the said parties from the bonds of matrimony aforesaid until after the expiration of two years from the time at which such desertion took place. Sec. 3. The proceedings in cases embraced within the provisions of this Act, except so far as they are prescribed by this Act, shall be the same as those prescribed by the Act entitled " An Act concerning divorces," approved the thirteenth day of March, Anno Domini one thousand eight himdred And fifteen, and the several Acts supplementary thereto, with the like right ■of appeal as is therein given. Sec. 4. The provisions of this Act shall apply to all suits or proceedings for divorce which may be pending in the courts of this Commonwealth &t the time it is approved, and to all subsequent divorce proceedings. Sec. 5. The Act approved the eighth day of June, Anno Domini one thousand eight hundred and ninety-one, entitled " A further supplement to an Act entitled ' An Act extending the jurisdiction of the courts of this -Commonwealth in cases of divorce,' " approved the ninth day of March, Anno Domini one thousand eight hundred and fifty-five, is hereby repealed. Act of June 20, 1893 (P. L., 471). See Burdick v. Burdick, 2 Dist. Rep., 622 (1893). § 742. Bigamy. In all cases where a supposed or alleged marriage shall have been con- tracted which is absolutely void by reason of one of the parties thereto having a husband or wife living at the time, the Court of Common Pleas shall have power to decree the said supposed or alleged marriage to be null and void upon the application of an innocent or injured party, and the jurisdiction shall be exercised and proceedings conducted according to the principles and forms which are or shall be prescribed by law for cases of 398 PEACTICE IN PENNSYLVANIA. divorce from the bond of matrimony. (Act of April 14, 1859, section 1 ; P. L., 647.) § 743. Causes pecnliar to the wife. When any husband shall have, by cruel and barbarous treatment, endan- gered his wife's life, or offered such indignities to her person as to render her condition intolerable and life burdensome, and thereby force her to withdraw from his house and family, in every such case it shall and may be lawful for the innocent and injured person to obtain a divorce from the bond of matrimony. (Act of March 13, 1815, section 1 ; 6 Sm., 286.) § 744. Abandonment, Crudty, Divorce k mensa, Alimony. If any husband shall maliciously either abandon his family or turn his wife out of doors, or by cruel and barbarous treatment endanger her life or offer such indignities to her person as to render her condition intolerable or life burdensome, and thereby force her to withdraw from his house and family, it shall be lawful for the Court of Common Pleas of the respective counties, upon complaint and due proof thereof made in the manner pre- scribed in the Act to which this is a supplement, to grant the wife a divorce from bed and board, and also to allow her such alimony as her husband's circumstances will admit of, so as the same do not exceed the third part of the annual profit or income of his estate or of his occupation and labor, which shall continue until a reconciliation shall take place or until the husband shall, by Ms petition or libel, offer to receive and cohabit with her again and to use her .as a good husband ought to do, and then, in such case, the court may either suspend the aforesaid sentence or decree, or in case of her refusal to return and cohabit, under the protection of the court, dis- charge and annul the same according to their discretion ; and if he fail in performing his said offers and engagements, the former sentence or decree may be revived and enforced and the arrears of the alimony ordered to be paid. (Act of February 26, 1817, section 1 ; 6 Sm., 405.) § 745. Divorce k mensa /or Adultery. In addition to the several causes mentioned in the Act or Acts to which this is a supplement, for which a married woman may obtain a divorce from the bed and board of her husband, with allowance of alimony, shall be that of adultery, and it shall be lawftd for the Court of Common Pleas of the respective counties, upon complaint and due proof thereof, made in the manner prescribed by the said Acts to which this is a supplement, or either of them, to grant the wife a divorce from bed and board ; and in addition to the powers now conferred upon the said court by the said Acts, or either of them, to grant alimony and the amount thereof it shall be law- ful for the said court to decree to be paid by the said husband, in addition thereto, to his said wife, the one-half of the value of all money and prop- erty of every kind whatsoever, which the said husband may have received by, through, or from his said wife, as her individual money and property ; which amount the said court shall inquire into and ascertain, by proper proof, on and at the time of the hearing of the said complaint ; which de- cree the said court shall have power to enforce, suspend, or discharge and annul, in the same manner as the said court may now enforce, suspend, or discharge and annul its decrees imder and by virtue of the said Acts oi either of them. (Act of April 11, 1862, section 1 ; P. L., 430.) DIVOECE. 399 § 746. Cause peculiar to Husband — Orudty. Where the wife shall have, by cruel and barbarous treatment, rendered the condition of 3ier [husband [intolerable or life burdensome : Provided, That in cases of divorce under this Act, if the application shall be made on the part of the husband, the court granting such divorce shall allow such support or alimony to the wife as her husband's circumstances will admit of, and as the said courts may deem just and proper. (Act May 8, 1854, sec- tion 1, III.; P. L., 644.) The above section, Act of May 8, 1854, as aiaended by Act of June 25, 1895 (P. L., 309), is as follows : " Where a wife shall have, by cruel and barbarous treatment or indignities to his person, ren- dered the condition of her husband intolerable or life burdensome : JPrmdded, That in case of divorce under this Act, if the application shall be made on the part of the husband, the court granting such divorje may allow such support or alimony to the wife as her hus- band's circumstances may admit of, and as said court may deem just and proper." Under the Act of 1854 a divorce may be granted a husband where the wife has been guilty of cruel and barbarous- treatment which renders his condition intolerable or life burdensome, although such acts do not endanger his life. Bams- daU V. BamsdaR, 171 Pa. St., 625 (1895). § 747. Besnme of the kinds and causes of divorce. From a re- view of the statutes cited, it will be noted that two kinds of divorce are allowed. A divorce a vinculo may be obtained under certain conditions, by either husband or wife. A divorce d, mensa et thoro, with alimony, may be obtained by the wife. § 748. The causes common to both may be classified briefly as im- potence — second marriage — adultery — desertion — ^incest — fraud — force — sentence for felony — personal abuse— bigamy — cruelty. For these, absolute divorces may be decreed. § 749. The causes peculiar to the wife are abandonment and turning her out of doors. For these, and for adultery, she may sue h mensa and for alimony. Cruelty is not here noted as a cause peculiar to the wife, for the husband can also sue her for this reason. (See swpra, section 746.) § 750. For cruelty, the wife may also have alimony, whether she be libellant (Act of February 26, 1817, section 1 ; cited supra, section 744), or defendant (Act May 8, 1854, section 1, III., amended by Act of June 25, 1895 (P. L., 359); supra, section 746). These causes will be considered in their order. § 751. Impotence. It will be observed that the preamble to the Act of March 13, 1815 (section 734 of this chapter), recites that 400 PRACTICE IN PENNSYLVANIA. relief should be given " where one of the parties is under a natu- I.J^| * * * incapacity." Hence the first section states as the leading ground " where either party at the time of the contract was and still is naturally impotent or incapable of procreation." § 752. The impotence must date back to the eontraot. If it were the result of subsequent accident or disease, and did not exist at the time of the marriage, it is no ground for divorce. § 753. If impotence existed at date of contract, but was subse- quently Gured before the application for divorce, it is no ground for a decree. § 754. Definition of impotence. This is well defined " want of procreative power, inability to copulate or to beget children, ster- ility, barrenness." The statute furnishes an excellent definition in the words " in- capable of procreation." § 755. This is recognized elsewhere as ground of divorce. The ecclesiastical law and the statutes of Arkansas, California, Colo- rado, Delaware, District of Columbia, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New York, North Carolina, Ohio, Ore- gon, Ehode Island, Tennessee, Texas, Utah, Washington Territory, West Virginia, Wisconsin, all refer to this as a cause of com- plaint. § 756. Impotence — Possibility of cure when coupled with — Re- fusal to submit to operation is tio defense. In a husband's suit for a declaration of nullity of marriage on the ground of his wife's in- capacity, it appeared that the parties had cohabited irregularly dur- ing two years and eight months after the marriage, but that the respondent had always refused to allow the petitioner to attempt to consummate the marriage, alleging that she was not fit for it, and had no sexual desire. The medical evidence showed that sexual con- nection with the respondent was impossible, but tbat she might prob- ably be cured by submitting to an operation which would involve very little risk to her life. She had refused to submit to any opera- tion. Seld, that the petitioner was entitled to a decree of nullity of marriage. L. v. W. {otherwise L.), 51 Law Jour. Rep. (P. D. & A.), 23 ; 7 Law Eep. (P. D.), 16 (1882). § 757. Impotence — Unreasonahle dday in smng held a bar. A wife lived with her husband for one year and nine months after the marriage. After a lapse of nine years she again lived with him for five years and six months, and left him in consequence of, amongst other things, his ill treatment. Twenty-seven years after DIVORCE. 401 the marriage, and when she was forty-eight years of age she brought a suit for nullity of marriage by reason of his impotence. It was proved that she was virgo intacta. Held, that she was not entitled to relief. Reynolds v. Reynolds, 45 Law Jour, Eep. (P. D. & A.), 89 ; 1 Law Rep. (P. D.), 405 (worn. W., falsely called R., v. R.) (1876). Semble, even though one of the parties is impotent, the marriage cannot be annulled if there has been unreasonable delay in instituting suit. Ibid. § 758. Impotence — Delay a bar when coupled with acquiescence, etc. A decree annulling the marriage was refused where suit was brought on the ground of incurable impotence of the man, and it was shown that considerable time had elapsed since the marriage and the separation, during all of which time the petitioner knew of her husband's infirmity ; that after separation she had vainly but repeatedly requested to be received back by him ; that she had as his wife contracted debts for necessaries which the husband had been compelled to pay, and that she subsequently received an al- lowance, ff V. G , 1 Law Times Rep. (N. -S.), 489 (1860). § 759. But delay is not a bar where it is not evidence of insin- cerity. Delay is not by itself a ground for refusing a decree of nullity of marriage on the ground of the respondent's impotence. A marriage remained unconsummated after seven years' cohabita- tion through the impotence of the husband. The wife cohabited with another man, and when her husband discovered her miscon- duct she instituted a suit for a declaration of nullity of marriage. Held, that the petitioner's conduct did not amount .to such want of sincerity as to disentitle her to a decree of nullity of marriage. M. {otherwise!).) v. X>., 54 Law Jour. Rep. (P. D. &A.), 68 (1885). § 760. Impotence — Delay, acquiescence, and proofs balanced — Libel dismissed. The woman cohabited with her husband from their marriage in November, 1848, till July, 1862 ; she then occu- pied a separate bed for two or three weeks, and left his house in August, 1862, after disputes about other matters, and did not return to it. In May, 1864, she filed her petition for nullity by reason of his impotence ; he traversed this, and alleged consumma- tion: The report of the inspectors pronounced her to be a virgin and apt, and stated that the man had no apparent imperfection. At the hearing, the petitioner and respondent both gave evidence, and medical men, besides the inspectors, gave evidence on both sides. In the result the court held, that the petitioner had failed to prove that the marriage had remained unconsummated by rea- son of the impotence of the man, and dismissed him from the suit. L V. E , 4 Swab. & T, 115 (1865). VOL. I. — 26 402 PEACTICB IN PENNSYLVANIA. § 761. Impotence — Delay and charge sustained only by libeUani's testimony — Libel dismissed. In a suit of nullity, by reason of the impotence of the husband, the evidence of the wife was entirely unsupported by the medical witnesses. The parties had resided together without any complaint by the wife on this matter for eight years, and the separation was then enforced by the husband. The court held that the charge was not made out, and dismissed the petition. Tavemor, falsely called Ditchfidd, v. Bitchfield, 35 Law Jour. Kep. (N. 8.) (P. & M.), 51 (1866). § 762. On a charge of impotence, the unsupported oath of the libd- lant is not sufficient. In a suit of nullity by reason of the husband's impotency, the surgical report stated that the physical appearances of the wife were such that she might have had .regular connection •with her husband during cohabitation. The wife, during the two years' cohabitation, had not complained to her family on this mat- ter, and had separated from her husband by reason of his alleged violence. The respondent affirmed on oath that the marriage had been consummated. The court declined to pronounce the marriage in- valid on the unsupported oath of the party seeking to be relieved from its obligations. U , falsely called J , v. J , 37 Law Jour. Eep. (N. S.) (P. & M.), 7 (1867). § 763. Impotence — If wife apta — Non-consummation of marriage ground for decree. In a suit of nullity of marriage by a woman on the ground of impotence, the court not being satisfied with the evi- dence at the hearing suspended its decree ; but afterward, on mo- tion, pronounced the marriage null upon affidavits that, since the hearing, the parties had renewed cohabitation for some weeks, and that the marriage had not been consummated. M v. i? , 34 Law Jour. Kep. (N. S.) (P. M. & A.), 12 (1864). § 764. Decree granted for impotence where, after fourteen years, the wife was pronounced intacta et apta — In such a case onus is on husband. After a cohabitation of fourteen years, a woman pre- sented a petition in the court for divorce and matrimonial causes for a decree of nullity of marriage, on the ground of the man's im- potence. The report of the inspectors and the medical evidence showed that the woman was virgo intacta et apta viro, and that there was no apparent defect or malformation in the man. The court was satisfied that the marriage had never been completely consummated, but was not satisfied that the non-consummation arose from the in- capacity of the man, and therefore dismissed the petition. Held, by the House of Lords, reversing the decree of the court below DIVOECB. 403 34 Law Jour. Rep. (N. S.) (M. & A.), 81 (1865), that the woman was entitled to a decree ; that the marriage was null and void, on the ground that the cohabitation had been for a much more length- ened period than was required to raise the presumption against a husband ; and that the onus was thrown upon the respondent either of disproving the facts or of showing, by clear and satisfactory evi- dence, that the result was attributable to other causes than his own impotency. Levris, falsely called Hayward, v. JSayward, 35 Law Jour. Rep. (N. S.) (P. & M.), 105 (1866). Lord Chancellor Chelmsford. § 765. Impotence — Where respondent absent, no decree will be granted without examination. As a general rule, a decree of nullity of marriage on the ground of malformation will not be granted unless the existence of incurable malformation is proved by a med- ical man who has examined the person of the respondent. In a suit of nullity on the ground of the malformation of the woman, the respondent (who was abroad, and who, in consequence of her address being unknown, had not been personally served) had not been examined by the medical inspectors or other medical men. The court suspended its decree, in order that the petitioner might have an opportunity of procuring such an examination, if the re- spondent should come to England. T v. M., falsely calling herself G , 35 Law Jour. Rep. (N. S.) (P. & M.), 10 (1865). § 766. Impotence — Attachment will lie to enforce order for exami- nation. In a suit for nullity of marriage by reason of malforma- tion, the respondent refused to comply with the order for inspec- tion. The court declined to issue an attachment against her till after the hearing, but intimated that the attachment would issue forthwith if she attempted to remove out of the jurisdiction. B V. L , falsely called B , 38 Law Jour, Rep. (N. S.) (P. & M.), 35 (1869). § 767. Impotence — Decree granted where wife refused to be exam- ined, and the husband's testimony showed that marriage had not been consummated. Decree of nullity nisi granted, in a case where the wife refused to submit to inspection ; on evidence by the husband that during three years he had never been able to consummate the marriage, as his attempts to do so had produced hysteria on the part of the wife, ff v. P., falsely called H , 3 Law Rep. (P. & M.), 126 (1873). § 768. Impotence — Order for personal examination — Our practice has followed the English rule. In an action for divorce for impo- tency, an order was made for personal examination of respondent, whereupon each party selecteda physician, the commissioner ap- 404 PRACTICE IN PENNSYLVANIA. pointed one, approved all three, and prescribed the regulations. A. a V. B. Q., 11 W. N., 479 (1882). This is the same case in which it was ruled that the libel must aver incurability. The libellant amended. The examination was submitted to. The unanimous report of the physicians was in favor of the respondent. The libel was dismissed. § 769. Libel must charge that impotence is incurable. A libel charging impotency must distinctly aver that it is incurable. A. a V. JB. a, 10 W. N., 569 (1881) (per Ewing, P. J.). This case is sometimes cited with names of parties (not here repeated), as re- ported 29 Pitts. Leg. J. (O. S.), 319. § 770. Impotence — Decree might be refused where both parties of advanced age. It is uncertain if a divorce for impotence would be decreed if the parties are of advanced age. Fulmer w.Fulmer, 13 Phila. Rep., 166 (1879). In this case, Thayer, P. J., said : " The husband, who is libellant, is in his seventy-third year, and the respondent is sixty. The cause of divorce assigned is impotentia, whether propter aetatem or propter aliquod naturale impedimentum, does not appear. It may be doubted whether we would decree a divorce for such a cause between persons of such ages. The English courts, under similar circumstances and for obvious reasons, have refused to do so. Briggs v. Morgan, 2 Haggard, 339. A celebrated civilian, in commenting upon the subject, inquires nxum mairimonium proprie vocari queat quando elumhis senex vetulam eff'etam ducit, and rather considers them as honorary members of the matrimonial state, en- joying a title without an office. Puffendorf, Lib. 6, c. 1, 25 ; Poynter, 123, n. b. Fortunately for us, the defects of the libel- lant's case relieve us from the necessity of deciding so delicate a question as that which presents itself on the threshold, as well as some others which would inevitably arise in the cause of such an inquiry, such, for example, as the nature of the proofs ad pro- bandum defectum, and whether in Pennsylvania as in the ecclesias- tical courts of England jurandce sint obstetrices ad inspidendam mulierem. There is no proof of the charge contained in the libel except the libellant's own statements, and those alone are inade- quate. Winter v. Winter, 7 Phila. Eep., 369. In addition to this the proofs, such as they are, have not been taken in conformity with the rules of court upon this subject." Libel dismissed. § 771. Divorce decreed for impotence, although no malformation er structural defect existed. A marriage is void if consummation is practically impossible, although there be no malformation or struo- DrvoECE. 405 tural defect rendering consummation physically impossible. O V. G , 40 Law Jour. Eep. (N. S.) (P. & M.), 83 (1871). In this case the wife had been examined by three physicians. They testified that there was no malformation or structural impedi- ment. But it appeared that sexual intercourse was practically im- possible, and that her condition was hysterical, etc. The judge ordinary held " that consummation was practically impossible," and therefore granted a decree of nullity. § 772. Impotence — No decree granted after death. The validity of a marriage cannot be questioned on the ground pf impotence after the death of one of the parties to the marriage. A v. £ and another, 1 Law Rep. (P. & D.), 559 (1868). § 773. Second marri&ge in violation of first — Bigamy. The next ground is thus stated by the Act of 1815, ''that he or she hath knowingly entered into a second marriage in violation of the pre- vious vow he or she made to tlie former wife or husband, whose marriage is still subsisting." In Jeffries v. Jeffries (C. P. of Phila., March Term, 1845, No. 128), an unreported case, Mr. J. Murray Rush, for the respondent, made a very able argument in support of the position, that the wife, who had been guilty of bigamy, could not be sued under this law for a divorce by the second husband, because the second ceremony was a nullity. He therefore urged that the law could not divorce persons who had never been legally married, and that only the first husband could sue. The Act of 1859, authorizing a decree of nul- lity, had not been passed. The divorce was, however, decreed. The language of the Act of 1815 certainly applies in the case men- tioned in favor of either husband. If No. 1 could prove cohabita- tion with No. 2, he could present a libel for adultery. But without any proof of the parties living together, with the simple evidence that his wife had remarried, the statute authorizes the divorce. In like manner No. 2, before the Act of 1859, would seem to have been within the provisions of the Act of 1815. The divorce was decreed in Jeffries v. Jeffries, and for the same ground in Hyde v. Hyde (C. P. of Phila., December Term, 1860, No. 50). In both of these cases the libellant was the second hus- band. In Thompson v. Thompson, 10 Phila., 131 (1874), the facts were that libellant married respondent July 10, 1868 ; that May 10, 1866, she had married one Ryan, who was still her lawful husband. Alli- son, P. J., said : "A subsisting marriage at the time the second marriage was entered into is a distinct ground for a divorce from the bond of matrimony ; not, as often contended, that as between 406 PEACTICE IN PENNSYLVANIA. the contracting parties, it may be treated as absolutely null and void, but that inter parties it is a cause for which the Courts of Common Pleas may decree a divorce. * * * " The courts of this Commonwealth do not permit every party to a void marriage to maintain a suit for nullity of marriage ; he must show prima fade at least that he is an innocent and injured party. In England, either party to a void marriage jnay ask for a decree of the nullity of the marriage, even though he or she en- tered into the contract with a knowledge of an existing disability, and it is only where such marriage has been induced by positive fraud that the party practising it will be denied relief. "The libellant confesses in his testimony that he knew, before and at the. time of his marriage with respondent, that she had been twice married, first to one J. D., and afterward to W. R." There was no proof that 'Ryan was living when the marriage between libellant and respondent took place. Decree refused. Where the libel prayed for a decree of nullity upon the ground that respondent had a husband living at the time of her marriage with libellant, her answer, denying " that she knowingly entered into a marriage with libellant in violation of a previous vow," and " so far as she is aware, she had another husband living," and averring adultery of the libellant, was held insufficient and was stricken off, with leave to file a new answer. Jordan v. Jordan, 13 W. N., 110 (1883). A second answer was filed averring that libellant was not unaware of the existence of the first husband, if any there was ; that he had more knowledge on the subject than respondent ; that he had been guilty of adultery, and that respondent had married on false report of her husband's death. The court refused the issue prayed by respondent, the averments in her answer being immaterial, but refused to strike off the answer. Id. v. Id., 13 W. N., 193 (1883). § 774. Well-founded belief in death. Where a woman married a second time during the life of her first husband, but with a well- founded belief in his death, it was held that while exempt from the pains of bigamy, yet her. first husband, being in full life, and their marriage not having been annulled, the second marriage was ipso facto void and null. Thomas v. Thomas, 124 Pa. St., 646 (1889). A celebrated case arose out of the marriage of Mrs. Carson to Major Smith. The lady, not having heard from her husband for years, married Major Smith. Carson returned and ordered Smith out of the house. Smith shot and killed him. On the trial, be- fore Judge Rush, Oyer and Terminer of Philadelphia, May, 1816, DIVORCE. 407 Smith set up the defense that Carson had raised his arm to strike him. The jury convicted of murder in the first degree, and the defendant was hanged. In order to intimidate the governor into granting a pardon, a plot was laid to kidnap his child, but it failed. In this case, the words, "rumor of the death in appearance well founded," were construed by Judge Rush thus : " We think it means general refort that a man died at a particular town or place, was shipwrecked, or lost his life in some way which the report spe- cifies." Wheeler's Criminal Cases, vol. 2, page 81. § 775. Conviction of bigamy avoids the second marriage. Con- viction of bigamy makes the second marriage void, and under the Act of 1815 the court will not decree a divorce after a conviction of bigamy. Harrison v. Harrison, 1 Phila., 389 (1852). This decision was under the Act of 1815. The Act of 1859 had not been passed. In Hefner v. Hefner, 23 Pa. St., 104 (1854), it was held that the second marriage during the existence of the first contract is ab- solutely void. § 776. The Act of 1859 recognizes the nuUity of the second mar- riage, and authorizes the decree. Knowledge or notice immaterial. The Act of 1859 seems to settle whatever doubts may have existed as to the interpretation of the Act of 1815. The Act of 1859 de- clares : (1) That the second marriage is absolutely void ; (2) that the court may decree it to be null and void. This differs from the old divorce, for it gives the courts of Pennsylvania the power pos- sessed in England of entering a decree of nullity. Questions of knowledge or notice of the first marriage must be wholly immaterial where the law declares that the second marriage is absolutely void. Under the Act of 1859, if either party to a marriage, contract a bigamous marriage with a third party, divorce will be decreed upon proof of such fact without proof of adultery. Halston v. Ralston, 2 Dist. Rep., 242 (1893). Under the terms of the Act of 1859, to decree the nullity of a marriage for bigamy it must be shown : (a) That the respondent was married to another when the marriage to libellant took place, and (6) that the libellant was an innocent or injured party. (JKeefe V. O'Keefe, 34 W. N., 631 (1894). Under the Act of 1859, the court can declare a supposed mar- riage void upon the application of the innocent and injured party. Heinzman v. Heinzman, 4 Dist. Rep., 225 (1894). § 777. Adultery, definition of. " The voluntary sexual inter- course of a married person with a person other than the offender's 408 PRACTICE IN PENNSYLVANIA. husband or wife." The crime of the married party will be adul- tery ; if the other be unmarried, his (or her) crime is fornication. § 778. To sustain this charge, positive proof is not required. A wife's visit with a man to a brothel or to a man at his lodgings may be sufficient proof of adultery. Lord Stowell said, in Loveden v. Loveden, 2 Hagg., 2 (1810), "Adultery is seldom susceptible of proof, except by circumstances which would lead the guarded discretion of a reasonable and just man to a conclusion of guilt." This was cited and approved by Chief Justice Gibson, in Matchin V. Matchin, 6 Pa. St., 332 (1847). § 779. Confession of adultery. A wife's disclosure of her crime, unless it be full, confidential, reluctant, free from suspicion of col- lusion and corroborated by circumstances, cannot be admitted in evidence. The confession of her paramour, not being communi- cated to and confirmed by her, cannot be evidence of the crime. Matchin v. Matchin, 6 Pa. St., 332 (1847). § 780. Insanity is not a defense. In the case just cited. Chief Justice Gibson said that the depositions established that the "wife was actually insane." He added, " but the wife's insanity * * * would not be a defense to a libel for adultery." This was decided in 1847. It is gratifying to find that twenty-seven years after this date the House of Lords made the same ruling. Sir Charles Mor- daunt sued Lady Mordaunt for dissolution of marriage on the charge of adultery with Viscount Cole and others. The judge or- dinary allowed the defendant's father, Sir Thomas Moncreiffe, to appear as guardian ad litem. He set up that Lady Mordaunt was insane when sued. On issue framed to try this question, the jury found for respondent. The judge ordinary stayed the proceedings. The court of appeal affirmed. The libellant then asked that his petition be dismissed, with right to test the question in the House of Lords. The court below was reversed. The opinions of Bkett, J. , and Keating, J. , were in favor of the respondent ; Kelly, C. B., Denman, B., Pollock, B., Lord Chelmsford, and Lord Hatherly, contra. Mordaunt v. Moncreiffe, 43 Law Jour. Rep., 49 (Probate and Divorce Cases) (1874). § 781. Adultery — The evidence must be confined to the specifica- tions. Evidence of matters and facts and as to other times and places than those mentioned in the specifications is not admissible. Realfw. Realf, 11 Pa. St., 31 (1874). Where husband and wife have separated by agreement, adultery by either thereafter and not condoned is ground for divorce. Gee v. Gee, 2 Dist. Rep., 773 (1893). DIVOECB. 409 § 782. Desertion. The next grouDd mentioned in the statute is " wilful and malicious desertion and absence from the habitation of the other without reasonable cause for and during the term and space of two years. It is not necessary that the defendant should in the strict sense have left the libellant or the home. Refiisal to return with the libellant to the home would be a desertion. As if the two should leave the house together for a walk, for a visit, or for a summer sojourn, and the wife should say " I will not go home ; I will never return." This would be a desertion. So, too, if the husband's health or business required a change of residence, it would be the duty of the wife to accompany him. Everything in these cases depends upon the good faith of the libellant and the bad faith of the respon- dent. § 783. Good faith required of the libellant. A husband cannot, from mere caprice, compel his wife to remove from the comforts of home, friends, and refinement. Colvin v. Seed, 55 Pa. St., 380 (1867). But he has the undoubted right to change his domicile as often as business, comfort, or health requires. Cutler v. Cutler, 2 Brews. j 513 (1868). Where a husband changes his residence and provides a suitable home for his wife, if she refuses to accompany him without cause, such refusal constitutes a desertion. Beak v. Beck, 163 Pa. St., 649 (1894). Where the causes set forth in a divorce are merely to advance a scheme or trick to make out a technical case to sever the bonds of matrimony, the libel will be dismissed ; otherwise the libellant would be taking advantage of his own wrong. In an attempt to rescind the contract, chicanery will defeat the party practising it. Thus in Angier v. Ajigier, 63 Pa. St., 450 (1870), the libellant broke up housekeeping in the absence of his wife without consul- tation, and then informed her that he had taken board. The re- spondent's father had fully answered libellant's excuses as to ex- pense, assuming the responsibiUty of payment of respondent's expenses, and respondent had offered to return to her husband if he would provide a suitable residence where strangers might not be witnesses to his unkind treatment ; this he refused to do. His libel was dismissed. The Supreme Court did not regard his con- duct as bona fide. In Butler v. Butler, 1 Pars. Select Eq. Cas., 344 (1849), Judge King said : "A husband may, by a course of humiliating insults and annoyances, practised in the various forms which ingenious malice could readily devise, eventually destroy the life or health of 410 PRACTICE IN PENNSYLVANIA. his wife, although such conduct may be unaccompanied by violence, positive or threatened. * * * To hold absolutely that if a hus- band avoids positive or threatened personal violence, the wife has no legal protection against any means short of these, which he may resort to and which may destroy her life or health, is to invite such a system of infliction by the indemnity given the wrongdoer. The more rational application of the doctrine of cruelty is to consider a course of marital unkindness with reference to the effect it must necessarily produce on the life or health of the wife ; and if it has been such as affect or injure either, to regard it as true legal cruelty. * * * If austerity of temper, petulance of manner, rudeness of language, a want of civil attention, occasional sallies of passion do threaten bodily harm, they do amount to legal cruelty. " In Cattison v. Cattison, 22 Pa. St., 275 (1853), the absence of respondent was justified on the ground of the violent temper and intemperate habits of libellant and his assault upon respondent with a knife, as well as other cruel and barbarous treatment. The divorce was refused on this ground. In Edmond's Appeal, 57 Pa. St., 232 (1868), the facts that bruises were constantly inflicted upon respondent by libellant in fits of temper, and his constant interference with respondent's plans even after separation, rendering her unhappy and ill, were offered as an offset to desertion. The libel was dismissed. Desertion is an actual abandonment of matrimonial cohabitation with an intent to desert, wilfully and maliciously persisted in, with- out cause, for two years. But separation is not desertion. In Ingersoll v. Ingersoll,49 Pa. St., 251 (1865), the libel set forth that, in consequence of the neglect of the respondent to provide for his wife, she was compelled to live with her relations. It appeared that for a long time the parties corresponded, but that the respon- dent had not answered his wife's letters for years. The libellant claimed that she was willing to cohabit with her husband. Her libel was dismissed. § 784. Nor has the husband the right to ash the mfe to expatriate herself. In Bishop v. Bishop, 30 Pa. St., 412 (1858), the respon- dent would not follow her husband, the libellant, to America. He had married and settled in England; subsequently, his health being bad, he endeavored to persuade respondent to go with him to America. This she refused to do, and he came alone. The libellant re- turned to England some few years after for his family, but his wife refused to come to America, and retained a portion of the family. DIVORCE. 411 Thompsojt, J. : " Would the facts disclosed justify the court in coming to a conclusion favorable to the complainant ? The woman had for years followed the fortunes of her husband — faithful in everything * * * in tijg f^ce of a great trial, she fails ! The leaving home and country ; the dangers of a long ocean-voyage ; the privations of a stranger in a strange land, may have overmas- tered her strongest desire to follow his footsteps further, and deter- mined her to cling to her native country, and does not establish wilful and malicious desertion." The libel was dismissed and de- cree affirmed. See also Colvin v. Beed, 55 Pa. St., 380 (1867). § 785. Evidence of desertion. Bailey's Appeal, 10 ~W. N., 420 (1881), was a libel by the wife against the husband for desertion. The husband and wife had been living at the residence of his mother. The mother ordered the wife away. She appealed to her husband, who refused to accompany her or to provide another home for her. She thereupon was compelled to return to her for- mer home. The husband ever afterward refused to provide a home for her or to contribute toward her support, and never called to see ber except upon one occasion. The court below directed a verdict for respondent, but the Su- preme Court reversed, holding that there was sufficient evidence of a wilful and malicious desertion to go to the jury. § 786. Sentence of husband for desertion in Quarter Sessions is no bar to his libel for divorce. If a husband offer to receive and provide for his wife, and she refuse, without just cause, for two years, this is a desertion. The fact that the husband, meanwhile, was sentenced in the Quarter Sessions to pay for her support may be considered by the jury, but is not a legal bar. Bander's Ap- peal, 115 Pa. St., 480 (1887). This is a clearer statement of the law than Vanleer v. Vanleer, 13, Pa. St., 211, or Schotte v. Schoite, S W. N., 236 (1880). § 787. The excuse for the desertion must be that which would jus- tify an independent proceeding for a divorce by the deserter. If a wife desert her husband for two years, she cannot defend his libel by saying that his temper was bad, his treatment of her capricious or even wicked. She must show cruelty which endangered her life or some other ground which would support a libel on her part. The reason for this is very obvious. Two wrongs do not make a right. The divorce laws permit adultery to be a bar of adultery. But they are silent as to other offsets. Absence of luxurious diet, hard work, scolding, not allowing the wife to go to church, treating her family coldly, do not justify desertion. " The marital contract is one of a binding and solemn character, and it is no light reason, 412 PRACTICE IN PENNSYLVANIA. no slight faults, or incompatibility of temper which will justify one of the parties thereto in rescinding it," DetricFs Appeal, 117 Pa, St., 459 (1888), Paxson, J.; nor the fact that libellant occupied a different bed, and had frequently said that he had respondent's per- sonal property, and that was all he cared about, Eshbaeh v. Esh- baek, 23 Pa. St., 343 (1854) ; nor mere rudeness, reproachful lan- guage, disagreeable manners, ebullitions of ill temper, Gordon v. Gordon, 48 Pa. St., 226 (1864). A mere change of residence by the husband and inability to support the wife are not sufficient grounds for a libel by her. Bell v. BeU, 11 W. K, 156 (1881). In MoBermott's Appeal, 8 W. & S., 252 (1844), it was held that the refusal of a husband to receive his wife was a virtual turning her out of doors. A respondent is not guilty of wilful and malicious desertion who leaves her husband's house in resentment, but soon after returns and is denied admittance. Sardie v. Hardie, 162 Pa. St., 227 (1894). The fact that a wife denies a husband her presence and society and refuses to cook his meals, but does not leave him, does not con- stitute a desertion. Smith v. Smith, 4 Dist. Rep., 397 (1895). In Sowers v. Sowers, 11 Phila., 213 (1876), the libel averred that respondent had offered indignities to the person of the wife rendering her condition intolerable and life burdensome, and that he had turned her out of doors. Respondent had written a letter re- fusing to receive his wife, but adding " I cannot refuse you admit- tance." No effort had been made on the part of the wife to gain admission to respondent's habitation. Divorce refused. This de- cree was affirmed in the Supreme Court. Sowers' Appeal, 89 Pa. St., 173 (1879). Bealor v. Hahn, 47 Leg. Int., 120 (1890). McCollitm, J. : " It is well settled that the reasonable cause which will justify hus- band and wife in abandoning each other is such as would entitle the party to a divorce. * * * Five witnesses called by the plaintiff speak of the relations and conduct of the husband and wife before their separation. H. C. Gibble, a justice of the peace, to whom Mrs. Hahn applied for a warrant against her husband for desertion, says it was Mrs. Hahn's nature to scold and be cross, and that she admitted to him that she had not treated her husband as she should have done. Charles Hahn, a son of the plaintiff, aged twenty-two years, says that he heard his mother call his father ' a d — d liar,' and on one occasion, while he and his father were at the breakfast-table, she said, ' I might just as well poison you, and then you would both be out of the road ; ' and that in DIVORCE. 413 consequence of this remark he was afraid, and left home two weeks afterward. * * * Samuel Plasterer says that Mrs. Hahn once said to him, ' It is a wonder that Mr. Hahn don't take the horses away ; they might get poisoned ; ' but it does not appear that he mentioned this to plaintiff. Priscilla Long says that Mrs. Hahn was not very pleasant when her husband was present, and that she talked unkindly about him. * * * Abraham Schopp says Mrs. Hahn would talk rough and unpleasant to her husband. * * * This is the substance of the evidence on which the plaintiff relies as his justification for abandoning his wife. It exhibits a state of domestic infelicity, but it does not present a case of cruel and bar- barous treatment by the wife of the husband, which renders his condition intolerable and*life burdensome. Grordon v. Gwdon, 48 Pa., 226 ; Jones v. Jones, 66 Pa., 494. The single so-called threat, testified to by the son, did not alarm the husband ; there was no act of violence to his person committed by the wife, and there was no evidence from which an attempt or intent to harm him or his estate could be fairly inferred. * * * Where an unexplained desertion appears, it is presumed to be wilful and malicious, and it lies on him to show reasonable and lawful cause for it. If he cannot justify his abandonment of her by evidence which would entitle him to a divorce, he cannot have the rights of a husband in her estate." In Grooms Appeal, 37 Pa. St., 443 (1860), it appeared that the respondent had turned libellant out of doors and forbidden her the house, and likewise subjected her to degrading abuse in the pres- ence of third parties, as well as personally abusing libellant. It further was shown that on a cold and snowy night she had returned, but with difficulty obtained permission to warm herself at respon- dent's house, and was allowed to stay but a short time ; that on different occasions she offered to return, but he, the respondent, steadily refused to receive her. Divorce decreed. i Such a course of cruel treatment on the part of the husband as endangers life or health, and renders cohabitation unsafe, is a good ground for desertion. Cattison v. Cattison, 22 Pa. St., 275 (1853) ; May V. May, 62 Pa. St., 206 (1869). To justify a turning out of doors of his wife by a husband, the libellant must show such cruel and barbarous treatment as renders his condition intolerable and life burdensome. Gordon v. Gcyr- 4on, 48 Pa. St., 226 (1864), In VanDyke v. VanDyhe, 26 W. N., 228 (1890), McOollum, J., said : " Incompatibility of temper is not a cause for divorce in Pennsylvania, and we may add that it will not justify an aban- 414: PRACTICE IN PENNSYLVANIA. donment by the husband or wife of his or her marital obligations and duties. If there is anything settled in the law of divorce, it is that the reasonable cause which will justify a desertion must be such as will authorize a dissolution of the marriage bond. Where a desertion is conceded or appears, and is without sufficient legal reasonable cause, it is presumed to be wilful and malicious, and if persisted in for two years or more will entitle the injured party to a divorce." § 788. Subsequent adulter^/ no offset to desertion. Adultery by the husband after a separation is no bar to his obtaining a divorce for "wilful and malicious desertion and absence from his habita- tion without reasonable cause for two years and upward." Ris- tine V. Bistine, 4 Eawle, 460 (1834). § 789. Temporary cohabUaiion is not a bar to complaint for deser- tion. Kennedy v. Kennedy, 87 111., 250 (1877). Where a wife, without justification, refused for more than two years to go with her husband to a new home, acquired by him within a mile of the old homestead, which they had conveyed to her brother, and live with him there, it was held, that his cohabiting with her on one occasion within the time, at her brother's house, while she still so refused, did not bar him of the right to a decree of divorce. Jacobs V. Tobleman, 36 La., 842 (1884). The fact that a hus- band who has obtained a judgment of separation from bed and board continues to occupy the same house but a separate apartment from that of his wife, while preparing a new home, to which he moves alone as soon as it is ready, is not a reconciliation within the Louisiana Code, and his right to an absolute divorce in one year from the time when judgment was rendered is not barred thereby. Ghithrie v. Guthrie, 26 Mo. App., 566 (1887). The wife having separated from the husband for causes which would entitle her to a divorce, her return to him for the sole purpose of nursing him while he is suffering from a supposed mortal ailment, is not neces- sarily a condonation of past offenses, even though she remain with him thus for several years. § 790. Offers to rdurn must be bona fide. MaClurg's Appeal, 66 Pa. St., 366 (1870), was a libel filed by the wife for desertion and cruelty. The answer denied the desertion and set up offers on the part of the husband to receive and cohabit with the wite. The desertion took place July 1, 1864. The libel was filed February 9, 1867. There were three letters written to the wife by the husband, one in January, 1865, and one in March, 1865, and one about twenty DIVORCE. 415 months after March 8, 1865, The last two of these letters contained offers on the part of the husband to return to his wife. August 10, 1868, during the pendency of the proceedings, the husband's counsel wrote a formal letter to the wife offering a re- turn, and about a week later the wife called upon the husband relative thereto. The lower court disregarded these letters, be- cause it was evident from them that the offers to return were not bona fide. The wife got a decree from bed and board, with alimony. The Supreme Court affirmed. § 791. Separation by agreement is not desertion. An allowance to the respondent by the libellant for over two years may be evi- dence of an agreement to separate and a bar to a decree for deser- tion. Ralston' s Appeal^ 93 Pa. St., 133 (1880). § 792. Incest, All marriages within the degree of consanguinity or affinity, according to the table established by law, are declared void. The table here referred to is that exhibited in the Act of March 31, 1860, section 39 (P. L., 392). It is as follows : " If any person shall commit incestuous fornication or adultery, or in- termarry within the degrees of consanguinity or affinity, according to the following table (established by law), he or she shall, on convic- tion, be sentenced to pay a fine * * * and to undergo an imprison- ment * * * and all such marriages are hereby declared void." The table of degrees of consanguinity and affinity is as follows : DEGEBES or CONSANGUINITY. A man may not marry his mother. " " " father's sister. " " " mother's sister. sister. " " " daughter. " " " the daughter of his son or daughter. A woman may not marry her father. " " " father's brother. " " mother's brother, brother, son. " " " the son of her son or daughter. DEGEEES OF AFFINITY. A man may not marry his father's wife. " " " son's wife. " " " son's daughter.* " " " wife's daughter. " " " the daughter of his wife's son or daughter. * This is copied from the Statute Book. A man's granddaughter is not related to him by " aflinity." She is named in the above table of con- 416 PRACTICE IN PENNSYLVANIA. A woman may not marry lier mother's husband. " " " daughter's husband. " " " husband's son. " " " the son of her husband's son or daughter. § 793. Incest cannot be charged after death. In Parker's Appeal, 44 Pa. St., 309 (1863), an uncle was married to his niece, and on his death his widow was granted letters of administration. The question arose as to her right to administer, and it was decided that such a marriage was voidable under the Act of March 13, 1815, section 5 (P. L., 150), but could not be questioned after the death of either party. In Walter's Appeal, 70 Pa. St., 392 (1872), a man married his daughter-in-law, and upon his death his heirs resisted her claim against the estate on the ground that the marriage was void, but it was held that the Act of 1860 was simply a declaration of the law of 1815 limiting dissolution of incestuous marriages to the life of the party. § 794. Fraud, force, coercion, sentence for felony. The Act of 1854, granting divorces for these reasons, has been already quoted. ''It is settled that fraud which would vitiate any other contract will not have that eifect when the marriage has actually been sol- emnized and consummated." * * * " The want of chastity on the part of the woman, antenuptial incontinence, even though she may have expressly represented her- self as virtuous, forms no ground for avoiding the contract." Shaeswood, C. J., Allen's Appeal, 99 Pa. St., 199 (1881). To secure a divorce under the Act of May 8, 1854, on the ground of coercion by threats, the latter must be against life and render libellant liable to bodily harm. Mere representations as to preg- nancy are not sufficient. Todd v. Todd, 149 Pa, St., 60 (1892). Where the libel averred that the respondent had alleged herself to be pregnant by the libellant, and that such representation was false, it was held to be an insufficient ground for divorce. JSoff- man v. Hoffman, 30 Pa. St., 417 (1858). § 795. pnress. Where a marriage was celebrated under the fear of imprisonment on the false charge of fornication and bas- sanguinity. If the " son's daughter " is to be excluded under " affinity," why not the " daughter's daughter ?" And why should it not be extended to the table below, and under " Affinity " prohibit a woman from marrying her -son's son or her daughter's son? The line thus criticised is a clear mistake, and the fact that it passed and has been allowed to stand is only another evidence of our loose legislation. DIVORCB. 417 tardy, and an arrest thereunder, such duress will avoid the mar- riage. Collins V. Collins, 2 Brews., 515 (1869). A false statement of the woman that she was pregnant by the man, if not believed by the man, is no ground for divorce. Todd V. Todd, 24 W. JST., 31 (1889). Threats made against the man by the woman's relations to third persons (there being no constraint or fear at the time of cere- mony) are not ground for divorce. Ibid. § 796. Personal abuse. The Statute of 1855 gives both parties the right to apply " for the cause of personal abuse, or for such conduct on the part of either the husband or wife as to render the condition of the other party intolerable and life burdensome." § 797. " Cruelty within our statute which entitles a wife to divorce from her husband is actual personal violence or the rea- sonable apprehension of it ; or such a course of treatment as endan- gers her life or health, and renders cohabitation unsafe." Butler v. Butler, 1 Pars. Select Eq. Cas., 344 (1849), King, P. J. § 798. Cruel and barbarous treatment — Endangering wife's life — Indignities rendering her condition intolerable, life burdensome, and thereby forcing her to loithdraw. It will be observed that if life be endangered, the wife need not withdraw. But she cannot sue for indignities unless they were so intolerable as to render life burdensome and thereby forced her to withdraw. As long as she remain she cannot sue under this head. Nor can she leave unless the excuse come fully up to the requirement of the law. In Biohards v. Biehards, 1 Grant, 392 (1856); 37 Pa. St., 225 (1860), the wife sought to obtain a divorce on the ground of indig- nities offered to her person, and the act of twisting libellant's nose by respondent was relied on. The libel was dismissed, the court ruling that such conduct, though unlawful and barbarous, was not sufficient to compel her to withdraw from his house and family. It must be continued treatment, and the indignities must not be provoked by libellant. In Mason v. Mason, 25 W. N., 178 (1889), Williams, J., said : " Bad temper alone is not a ground for divorce, nor is mere drunk- enness, or indolence, or thriftlessness, or jealousy ; but when to all these is added a course of the most abusive and humiliating treat- ment, public and repeated charges of adultery and abortion, threats to shoot, to kill, to cut out her heart, to cut her into mince-meat, and the like, accompanied by such unmistakable evidence of his purpose to carry his threats into execution as was offered by draw- ing a razor, by pushing her off the porch of the house, and by breaking up her home and throwing its contents into the street, it VOL. I.— 27 418 PRACTICE IN PENNSYLVANIA, seems very clear to us that the condition of this wife was made in- tolerable and her life burdensome. " To deprive her of food and other necessaries of life is an in- dignity to her person. To assault her with a razor or inflict vio- lence upon her is an indignity to her person. To put her in mortal terror by repeated threats to kill is as truly destructive to health as to administer poison." A libel in divorce by the wife for cruel and barbarous treatment must contain the averment that by reason of such treatment libel- lant was forced to withdraw from her husband's house and family. Dunkel v. Dunhd, 1 Dist. Rep., 684 (1892). A single offer of indignity will not support a divorce proceeding. A decree is justified when indignities have been practised often enough to be designated as a course of conduct. This does not mean physical indignity alone. All indignities must be borne until they render life burdensome and force the libellant to with- draw from her husband's house. Brubdker v. Brubaker, 4 Dist. Eep., 186 (1894). Insanity a defense to libel on ground of cruelty. In an action for divorce on the ground of cruel and barbarous treatment, insanity is a sufficient defense. SanseCl v. HanseU, 3 Dist. Rep., 724 (1894). § 799. Qrudly to husband. Prior to the Act of June 25, 1895 (P. L., 308), it was decided that a husband could not maintain a libel upon the charge of "indignities to his person, rendering his con- dition intolerable." He must aver "cruel and barbarous treat- ment." Hancock v. Hancock, 13 W. N., 29 (1882). Powers' Appeal, 120 Pa. St., 320 (1888), Paxson, J. (See section 746.) In Jones v. Jones, 66 Pa. St., 494 (1870), the libel set forth that the respondent had threatened to kill libellant ; that she kept poison in the house, threatening his life ; that by pounding and by opprobrious epithets she endeavored to vex him ; that she cast things off the cooking-stove, compelling -the family to withdraw to a wash-house, and otherwise made the husband's condition in- tolerable and life burdensome. Decree granted. We pass now from these general matters to the question of — § 800. Jurisdiction As to the libellant. The Act of 1815 declares that the libel may be exhibited " to the judges of the Court of Common Pleas of the proper county where the injured party resides." Citizenship and residence for twelve months are, under the statute, made synony- mous. But no libellant can sue here if residing out of the Staie. DIVOECE. 419 The verb is not used in the past, but the present tense. It is not "where the libellant has resided, but where the libellant resides. It is important to keep in view the distinction between these legisla- tive provisions. Citizenship and residence required. The Act of 1815 says : " No person shall be entitled to a divorce from the bond of matrimony by virtue of this Act who is not a citizen of this State, and who shall not have resided therein at least one whole year previous to the filing his or her petition or libel." The Act of May 8, 1854, section 2 (P. L., 644 ; Br. Purd., 684), declares that the word " citizen " shall not be so construed as to exclude " any party who shall for one year have had a bona fide residence within this Commonwealth previous to the filing of" the petition. The personal abuse Act of March 9, 1855, section 1 (P. L., 68 ; Br. Purd., 684), requires that the applicant shall be a citizen, or shall have resided for one year within the Commonwealth. A mistake might be made in supposing that a proceeding under this Act could be instituted by a non-resident if a citizen ; or that a resident could sue in some other county than that in which he re- sides. But — § 801. The libdlant must reside in the county where libel filed. This not only appears from the Act of 1815, above quoted, but it has been expressly ruled in Sherwood's Appeal, 17 W. N., 338 (1886) : " The court of the county in which the libellant resides has alone jurisdiction of the libel. She cannot go into another county and sue." § 802. Jurisdiction of the cause. If the parties have always been domiciled in Pennsylvania, or even if their domicile had at one time been outside of the State, but had been unquestionably changed to Pennsylvania, and a cause of divorce should occur outside of the State, the party preserving the domicile here could undoubtedly sue. For instance, if the parties, having married and resided in this State, one of them should commit adultery in New Jersey, the innocent party could sue in Pennsylvania. The same result would follow if they both left the State upon a pleasure excursion and one should desert the other in the State of New Jersey. The party returning to the Pennsylvania home could file a libel here. But where the common domicile was not in this State, and the cause occurred outside the State, and the defendant is not served within the State, our courts have not jurisdiction. The Act of June 20, 1893 {supra, sections 741o, 7416), permits a wife to obtain a divorce for adultery, desertion, or cruel treatment, 420 PEACTICE rCT PENNSYLVANIA. where the wife, having been a citizen, marries a foreigner and is compelled to abandon her foreign domicile ; the court, before enter- ing a decree, requires actual or constructive notice to the husband by personal service or registered letter. In New York, the Court of Appeals has decided very strongly against a service by advertisement. In the case of People v. Baker, 31 Sickels (76 N. Y.), 78 (1879), it appears that one Baker married Sallie West in Ohio. He came to New York. She sued him in Ohio, where the marriage had taken place, and she obtained a divorce. He thereupon married a woman in New York. He was indicted, sentenced for bigamy, and this was af- firmed by the Court of Appeals. They held that a court of an- other State cannot adjudge the dissolution of the marital relations of a citizen of New York residing there during the proceedings elsewhere, without a voluntary appearance and with no actual no- tice to him, and this although the marriage was solemnized in such other State. At page 80, it was held that even a personal service in New York would not give jurisdiction to the other State. Judge Folger (at page 87) touches the argument that New York had in former cases allowed a substituted service, and says that this was true until the new code. (yDea V. CfDea, 1 Cent. Rep., 785 (1885). "A divorce granted by a court of another State against a person who did not reside within that State, was not served with process therein, and did not voluntarily appear, will not be recognized as valid in the courts of New York." The husband sued for a divorce upon the ground that a former husband of his wife was living at the time of the marriage. The plaintiff and defendant were married in New York, August 30, 1866. In July, 1844, the defendant had married K. in New York and Uved with him until 1860, when she went to Toronto. K. went to Ohio, remained there a year, and in March, 1864, sued the woman for a divorce. A copy of the writ and petition was sent by mail and received by the wife. Depositions were taken in Toronto in support of the petition. She was present. May 24, 1864, the Ohio Court decreed a divorce. She then married this plaintiff, as above stated, in New York, in 1866. He sued for this divorce, alleging the nullity of the Ohio decree, and that she was, notwith- standing that divorce, the wife of K. when she married this plain- tiff. Judgment was entered for plaintiff in the lower court, was reversed at the general term, but on appeal to the High Court of Errors and Appeals the last order was reversed and the first judg- ment affirmed. DIVOECE. 421 These authorities clearly show that New York does not recog- nize a divorce decreed in another State where the defendant was not within the jurisdiction of that State and was not served within it. In New York, and in most of the other States, the rule is adhered to that there must be in the courts of the State either jurisdiction of the cause of divorce by events occurring within the State, or jurisdiction of the parties by common domicile, or the service of process upon the respondent within the State, or appearance. Allison V. Allison, 18 W. N., 508 (1886). In this case the par- ties were married in West Virginia. Libellant resided in Philadel- phia in 1875, since which time she had supported herself in that city. The libel filed averred desertion by respondent in 1873, while the parties were living in Maryland. The libel was dis- missed for want of jurisdiction. In Bishop v. Bishop, 30 Pa. St., 412 (1858), the parties had re- sided together in England, and then libellant had come to America alone. He returned to England to bring his wife and family with him, but respondent, through fear and love of country, refused to come with him to America, and part of the family remained with her. The libel was dismissed for want of jurisdiction. This was remedied by the Act of April 22, 1858 (P. L., 451), which gives jurisdiction where either party at the occurrence of the cause is domiciled in another State or eovmtry. In Love v. Love, 10 Phila., 453 (1873), the proceedings were entirely ex parte. It appeared that respondent resided in St. Louis, Mo. , had never been served, and had not appeared. The court said : " It is clear, then, that actual service upon a non-resident or his or her appearance is necessary to give jurisdic- tion." The remark here as to "actual service" refers to service upon a non-resident who, at the time of service, is within the State, for an extra-territorial service would be of no validity. Ralston' s Appeal, 93 Pa. St., 133 (1880). In Plait's Appeal, 80 Pa. St., 501 (1876), it appeared the parties were married in New York, and then removed to Ohio. The hus- band subsequently came to Philadelphia. At the same time the wife went to Wisconsin ; the husband moved to Michigan six months afterward and obtained a divorce. The decree was declared nugatory, the respondent not being served with process, and not appearing. The court has no jurisdiction where the marriage was celebrated in another country in which the respondent has always resided. The fact that the plaintiff is a citizen of Pennsylvania, and that 422 PRACTICE IN PENNSYLVANIA. he has resided therein for one year previous to the filing of the libel, does not confer jurisdiction. Lakes v. Lohes, 14 W. N., 306 (1884). In this case the cause of divorce was desertion. The parties were married in England, and libellant had subsequently come to Philadelphia, but respon- dent remained in Nottingham, England. The courts of the State of the domicile have alone jurisdiction. All other process is void. Cmnm. v. Maize, 23 W. N., 572 (1889). In this case the cause of divorce was desertion. The parties were married and domiciled in Centre County, Pa. In 1886, the husband went to Missouri ; in 1887, he filed a libel for divorce from his wife in that State ; a service of the subpoena was made upon her by sheriff of Centre County. A decree a v. m. was entered against her in Missouri. The hus- band then returned to Centre County, married another woman, and refused to support the first wife. On a proceeding against him, the^question arose as to the validity of the decree in divorce. The Quarter Sessions of Centre County, in a learned opinion by Fuest, P. J., refused to recognize the divorce, and held that the husband was bound to support the first wife. A divorce cannot be decreed where a desertion occurred in an- other State of which both parties were then resident, and the re- spondent has not appeared or been personally served. The court has*no jurisdiction. Burdiek v. Burdich, 2 Dist. Kep., 622 (1893) ; Davis V. Davis, 2 Dist. Eep., 621 (1893). In McCartney v. MoOartney, 30 "W. N., 182 (1892), a libel was filed for desertion ; both parties lived and were married in Ire- land ; their common domicile was Ireland, and subsequently Scot- land, where the desertion took place. The libellant had lived here three years and more, but respondent had never been within the jur- isdiction of the court, ffeld, that this court had no jurisdiction. The wife may apply for the divorce in the county of her actual home, although her husband resides in another county. Smith v. Smith, 1 Dist. Rep., 550 (1892). § 803. Brief of the Pennsylvania Statutes. The laws specifying the grounds of divorce have been already cited. Before proceeding to the details of the practice in divorce cases it may be appropriate to furnish an abstract of what the legislature has said upon this subject. § 804. Divorces validated. The Act of February 27, 1847, section 1 (P. L., 169 ; Br. Pur., 683), un- dertook to validate divorces theretofore granted for adultery committed out- DIVORCE. 423 side the State, both parties being then non-residents, but the libellant having resided in Pennsylvania for one year. § 805. Desertion libel may be filed in six months. The Act of April 26, 1850, section 5 (P. L., 591 ; Br. Pur., 683), author- izes the filing of a libel for desertion six months after the desertion, the final decree not to be entered until two years after the desertion. § 806. Jurisdiction in cases of desertion, adultery, etc., outside the State. The same Act gives jurisdiction for desertion and adultery, although the parties were then domiciled in another State. The applicant to be a citizen or a resident for one year. The Act of April 22, 1858, section 1 (P. L., 450 ; Br. Pur., 685), extends the jurisdiction of the original Act to all cases where either party was domi- ciled outside the State. The applicant must be a citizen or a resident for one year. § 807. Proceedings — L^el in proper county. The Act of March 13, 1815, section 2 (6 Sm., 287 ; Br. Pur., 686), directs that the libel must be exhibited by the husband or the wife by her next Mend " to the judges of the Court of Common Pleas of the proper county where the injured party resides," thirty days before the next term. In Fordham v. Fordham, 15 "W. N., 250 (1884), a libel issued August 18, returnable to September 18. Held, that it was exhib- ited " thirty days before the next term," although the last of the thirty days fell on Sunday. § 808. Mequirements of libel. It must " set forth particularly and specially the causes of complaint." It must, when filed by the wife, be signed by her next friend. Grissom v. Orissom, 8 W. N., 484 (1880). And she must not sue in the name she bore before marriage. Howard v. Lewis, 6 Phila., 50 (1865). § 809. Affidavit required. An affidavit must accompany the libel. " That the facts contained in said petition or libel are true, to the best of his or her knowledge and belief, and that the said complaint is not made out of levity or by collusion between the said husband and wife, and for the mere purpose of being freed and separated from each other, but in sincerity and truth for the causes mentioned in the said petition or libel." § 810. Statutory form of affidavit must be followed. An affidavit that the facts set forth in the libel are true is not sufficient. It must be sworn to in the form prescribed by the Act March 13, 1815. Hoffman v. Hoffman, 30 Pa. St., 417 (1858). § 811. Prior to the Act of 1895, a notary could not administer the oath, and the libel might he demurred to for this reason. Peeves V. Reeves, 12 Phila., 188 (1877) ; Grissom v. Grissom, 8 W. N., 484 (1880). 424 PRACTICE IN PENNSYLVANIA. In Garrdt v. Oarrett, 4 W. N., 240 (1877), Judge BjaiGGS was of opiniou that the notary could administer the oath. The Act of August 10, 1864, section 2 (P. L., 962; Br. Purd., 1610), was xjited as conferring on a notary all the powers of a judge or justice to take affidavits. The Philadelphia rule requires that the affidavit " shall be made before a magistrate of that county." The Act of May 22, 1895 (P. L., 105), permits the libel and other papers in a divorce suit to be affirmed or sworn to before a notary public, prothonotary, or clerk of the court. § 812. Subpoena. On filing libel and affidavit as above, a subpoena issues signed by one of the judges, commanding the defendant to appear at the next, or any subse- quent term. (Act of March 13, 1815, section 2 ; 6 Sm., 287.) § 813. If subpoena served. Upon due proof that the subpoena has been personally served (service cannot be accepted), or that a copy had been given to defendant fifteen days before the return, the court shall make such preparatory rules and orders that the cause may be heard and determined at that term or afterward, and the court may proceed ex parte if necessary. {Ibid.) § 814. Issues. If a matter of fact afSrmed by one be denied by the other, and either shall desire it tried by a jury, an issue shall be formed add the same tried accordingly. (Ibid.) § 815. Where no issue demanded. The court inquires and decides, by examination of witnesses, interroga- tories, exhibits, or other legal proofs, had either before or at the hearing. {Ibid) § 816. If subpoena not served. If proof shall be made that the party could not be found in said county, an alias subpoena shall issue returnable the first day of the next or of any subsequent term. If served personally, the case proceeds as directed upon the original subpoena. If proof be made that the defendant could not be found, the sheriff shall publish notices in one or more newspapers printed within or nearest to the county for four weeks successively prior to the first day of the next term to answer. At which, or at any subsequent term, the same proceedings shall be had as above directed. (Act March 13, 1815, section 3 ; 6 Sm., 287 ; Br. Pur., 686.) § 817. Bill of particulars. Respondent may at any time after the return-day enter a rule on libellant to furnish a bill of particulars, and if it be not furnished within thirty days after service of notice, a decree of non pros, shall be entered. The court may upon cause shown extend the time in which to file a bill of particulars. (Act May 25, 1878, section 1 ; P. L., 156 ; Br. Pur., 687.) This law only enforced a right which had always been recognized. DIVOECE. 425 § 818. Decree. Courts may dismiss libel, decree a divorce from bonds of matrimony, or that the marriage was null and void. After decree divorcing from bonds or declaring marriage void, all duties, rights, and claims accruing to either in pursuance of the marriage shall cease, and the parties may marry again as if they had never been married. (Act March 13, 1815, section 8 ; 6 8m., 288 ; Br. Pur., 687.) § 819. Costa May be awarded to successftil party, or an order may be made that each pay his or her costs. {Id., section 12.) § 820. Appeal. Within one year after final decree either may appeal, upon entering into recognizance with at least one good surety in double the amount of costs, conditioned to prosecute the appeal with effect. (Ibid., section 13, and Act Feb. 8, 1819, section 1 ; 7 Sm., 151 ; Br. Pur., 688.) § 821. Where wife is libellant and is a Iwnatic. The petition and affidavit may be presented by any relative or next friend. The lunacy and the circumstances sufficient to satisfy the court of the truth of the allegation shall be set forth in the petition, and upon hear- ing of the case the question of the lunacy, with every other matter denied, shall be heard. (Act April 13, 1843, section 8 ; P. L., 235 ; Br. Pur., 688.) § 822. Conviction of adultery and sentence. The record may be given in evidence on application for divorce. (Act March 13, 1815, section 4 ; 6 Sm., 288 ; Br. Pur., 688.) § 823. Second marriage wpon rumor of death. " If any husband or wife, upon any false rumor, in appearance well founded, of the death of the other (when such other has been absent for. the space of two whole years) hath married, or shall marry again, he or she shall not be liable to the pains of adultery ; but it shall be in the election of the party remaining unmarried, at his or her return, to insist to have his or her former wife or husband restored, or to have his or her own mar- riage dissolved, and the other party to remain with the second husband or wife ; aod in any suit or action instituted for this purpose within six months after such return, the court may and shall sentence and decree ac- cordingly." {Id., section 6 ; Br. Pur., 688.) § 824. Defenses in adultery. In any suit for divorce for the cause of adultery, if .the defendant shall allege and prove that plaintiff has been guilty of same crime, or has ad- mitted defendant into conjugal society or embraces after he or she knew of the criminal fact, or, if plaintiff be the husband, that he allowed of his wife's prostitution, or received hire for it, or exposed her to lewd company, whereby she became ensnared to the crime, it shall be a good defense and a perpetual bar. {Id., section 7 ; Br. Pur., 688.) Under the English Act of 1857, " wilful neglect and misconduct of libellant " may bar his right to a decree. Starbuek v. Starbuck, 59 Law Jour. Eep. (N. S.) (P. D. & A, -Div.), 20 (1889), Btjtt, J. 426 PEACTICE IN PENNSYLVANIA. § 825. No condonation save in eases of adultery. It will be observed that this law applies only to suits for divorce on the ground of adultery. If the charge be desertion, the plaintiflPs adultery is no defense ; nor can there be condonation of cruelty. § 826. Defendant guilty of adultery Cannot marry the paramour during life of the injured party. Nothing in the Act to render children born of the wife during coverture illegitimate. (Act March 13, 1815, section 9 ; Br. Pur., 688.) § 827. Divorced adulteress cohabiting openly With, paramour is declared incapable of alienating any of her lands, and all her deeds and wills are declared void. {Id., section 10 ; Br. Pur., 688.) § 828. Divorce a mensa. If any husband shall maliciously either abandon his family, or turn his wife out of doors, or by cruel and barbarous treatment endanger her life, or offer such indignities to her person as to render her condition intoler- able or life burdensome, and thereby force her to withdraw from bis house and family, it shall be lawful for the Court of Common Pleas of the respec- tive counties, upon complaint and due proof thereof, made in the manner prescribed in the Act to which this is a supplement, to grant the wife a divorce from bed and board, and also to allow her such alimony as her husband's circumstances will admit of, so as the same do not exceed the third part of the annual profits or income of his estate, or of his occupation and labor, which shall continue until a reconciliation shall take place or until the husband shall, by his petition or libel, offer to receive and co- habit with her again, and to use her as a-good husband ought to, and then, in such case, the court may either suspend the aforesaid sentence or decree, or, in case of her refusal to return and cohabit, under the protection of the court, discharge and annul the same according to their discretion, and if he fail in performing his said offers and engagements, the former sentence or decree may be revived and enforced, and the arrears of the alimony or- dered to be paid. (Act of February 26, 1817, section 1 ; 6 Sm., 405 ; Br. Pur., 688.) § 829. Final decree for alimony a lien. Upon a decree d, merna et thoro, and the allowance of alimony shall have been made by any of the Courts of Common Pleas of the respective coun- ties of this Commonwealth, or hereafter may be made, it shall be the duty of the prothonotary of said court to enter the said decree on the judgment- docket of said court, which said decree, when so entered, is hereby declared to be and shall remain a lien on the real estate of such respondent, and (until) the same is satisfied for the full amount that may be due up to the period of such satisfaction. And after such lien shall be so entered, it shall be the duty of the prothonotary of said court, upon affidavit by the libellant, that any payment under said decree, as the same has been made due and payable by the court, is due and unpaid, to issue execution on the written order of the libellant, or her attorney, setting forth the amount so due and unpaid, which shall be directed to and served by the sheriff in like manner as executions upon judgment. And if the court should be of opinion that the said lien is not sufficient for the fiill or permanent security for pay- DIVORCE. 427 ment of said decree, it shall have power and authority, on satisfactory proof being made that the respondent is possessed of sufScient estate, to order a decree and require that security, such as shall be determined and approved by said court, shall be given for the due payment of the said alimony ac- cording to the terms of said decree ; the said security to be either by a bond, with sufficient sureties, or mortgage on real estate, taken in the name of the Commonwealth, to the use of the party entitled to said alimony, or by the deposit of money, to be invested as the court may deesi proper, as may seem to the court sufficient to secure the payment of said alimony, as the same may fall due. (Act April 15, 1845, section 1 ; P. L., 455 ; Br. Pur., 689.) § 830. Attachment may issue. The said courts may enforce their decrees by attachment, on the return of which they may make such order, either to imprison or discharge the defen- dant, as the facts of the case may justify. (Ibid., section 2 ; Br. Pur., 689.) § 831. Divorce k mensa et thoro decreed for adultery. In addition to the several causes mentioned in the Act or Acts to which this is a supplement, for which a married woman may obtain a divorce from the bed and board of her husband, with allowance of alimony, shall be that of adultery ; and it shall be lawful for the Court of Common Pleas of the respective counties, upon complaint and due proof thereof made, in the manner prescribed by the said Acts to which this is a supplement, or either of them, to grant the wife a divorce from bed and board ; and in addition to the powers now conferred upon the said court by the said Acts, or either of them, to grant alimony, and the amount thereof, it shall be lawful for the said court to decree to be paid by the said husband, in addi- tion thereto, to his said wife, the one-half of the value of all money and prop- •erty, of every kind whatsoever, which the said husband may have received by, through, or from his said wife, as her individual money or property, which amount the said court shall inquire into and ascertain, by proper proof, on and at the time of the hearing of the said complaint ; which de- cree the said court shall have the power to enforce, suspend, or discharge, and annul, in the same manner as the said court may now enforce, suspend, or discharge and annul its decrees under and by virtue of the said Acts, or either of them. (Act of April 11, 1862, section 1 ; P. L., 430 ; Br. Pur., «89.) §832. The law discourages suits k mensa. They were not men- tioned in the original Act of March 13, 1815. The courts of Eng- land and of this country have denounced them. See 8ir William Scotfs opinion in Eoans v. Evans, 1 Hag. Con., 35 ; Macqueen on Husband and Wife, 206 ; 2 Kent Com., 127. § 833. The following rules have been adopted in Philadelphia : Libels shall be framed in general analogy to bills in equity by setting out the matters relied on distinctly in separate paragraphs, consecutively num- bered and containing as follows : Paeageaph 1. (a) The names of the parties and the time and place of the marriage. (b) The citizenship and domicile of the parties respectively at the time 428 PRACTICE IN PENNSYLVANIA. of marriage and since, including a positive averment that the libellant has been a citizen and resident of the State for one whole year previous to the filing of the libel. (c) Their present place of actual residence, with details of street, num- ber, etc. In case the present residence of the respondent be unknown to the libel- lant, then an explicit averment of that fact shall be made, together with a statement o* the respondent's last known residence and the time at which he or she was last known to be there. . If the marriage shall not have been contracted and the present actual residence of both parties shall not also be within the county of Philadel* phia, then a ftill statement shall be made of the time, place, and circum- stances under which the parties, or either of them, became domiciled within the jurisdiction of the court. §834. Subsequent paragraphs shall contain a succinct statement of the time, place, and circumstances of the alleged cause of divorce ; when more than one cause is alleged, each shall be set forth in a separate paragraph. The final paragraph shall contain a prayer for divorce a vinculo Tnatrimonii or & mensa et thoro, as the case may be. § 835. Affidavit. The affidavit to the libel shall be in the form as required by the Act of Assembly and shall be made before a magistrate of this county. (See J 811, § 836. Rule to answer. A rule on the respondent to appear and answer within thirty days after the return-day of the subpoena shall be entered of course by the prothono- tary at the time of filing tiie libel. § 837. Notice to respondent. A copy of the libel shall be served upon the respondent with the sub- poena. The said copy shall have indorsed upon it a notice to the respon- dent, as follows : To A. B., the within-named respondent : You are hereby notified and required, within thirty days from Monday, the day of next, to cause an appearance to be en- tered for you in the Court of Common Pleas, No. , of the County of Phila- delphia, and an answer to be filed to the libel for divorce of which the within is a copy. Note. — You are hereby warned that if you fail to enter an appearance and file an answer as above notified and required, the cause will proceed without you, and you will be liable to have a decree of divorce entered against you in your absence. CD., Attorney for Libellant. DIVORCE. 429 § 838. Service. The subpoena, copy of libel, and notice to appear and answer shall be served by the sheriff upon respondents who are within the county at the time of the service. Where the respondent is not within the county, but is within the State, the sheriff shall deputize thesheriffof the county where the respondent may be found to serve a subpoena, with a copy of the libel and notice to appear and answer ; and in such case the sheriff shall make return that the respon- dent could not be found within the county, and that he did therefore depu- tize the sheriff of such other county to make the service, and shall attach to his own return the affidavit of the officer making the service. § 839. Affidavit of service of subpcena. In all cases the officer making the service shall make an affidavit, stating the time, place, and manner of serving the subpoena, copy of libel, and notice to appear and answer, and also that the person so served by him is the respondent named in the writ, and his means of knowing such fact. § 840. Publication. Where the first subpcena is returned that the respondent cannot be found in this county or State, which return shall be made to the first day of the next term, which shall commence not less than thirty days after the filing of the libel, an alias subpoena may be issued, returnable to the next or any subsequent regular term. If the second subpoena is returned that the re- spondent cannot be found in this county or State, the prothonotary shall issue, on the application of the libellant, an order on the sheriff, direct- ing him to publish, once a week for four full weeks successively, in the Legal Intelligencer and two daily newspapers of large circulation, notice to the respondent in the following form : To A. B., late of No. Street, Philadelphia, Pennsylvania. Whereas C. B., your (husband or wife, as the case may be) has filed a libel in the Court of Common Pleas, No. , of Philadelphia County, of Term, No. , praying a divorce against you, now you are hereby notified and required to appear in said court on or before Monday, the day of next, to answer the complaint of the said 0. B., and in default of such appearance you will be liable to have a divorce granted in your absence. D. E.; Sheriff of Philadelphia. And the sheriff shall make due return of his action therein. § 841. Appearance. The counsel for the respondent shall enter his appearance by filing a written order, accompanied by a letter of attorney from the respondent, which shall be duly acknowledged before the prothonotary or judge, jus- tice of the peace, or magistrate of the county, district, or State in which the respondent may reside, or if the respondent be without the United States, then before an officer authorized by the laws of this State to take acknowledgments of deeds, etc., in a foreign country. The said letter shall be attached by the master to his report. 430 PEACTICE IN PENNSYLVANIA. § 842. Proceeding ex parte. Where service has been duly made either personally or by publication, and the respondent does not appear, or having appeared does not answer within thirty days after the return-day, the libellant may proceed ex parte. § 843. Answer. The respondent may, at any time within thirty days after the return-day, or afterward with leave of the court, upon cause shown for the delay, demur or answer to the libel, or may demur to part and answer to the rest. The answer shall be responsive to the libel, and shall be arranged in paragraphs corresponding as to subject-matters as nearly as may be with the paragraphs of the libel ; but other new matters relied upon by the re- spondent may be set forth in subsequent paragraphs. § 844. Replication. Where the answer shall not be confined to mere denial of the facts averred in the libel, but shall contain new matters, the libellant may file a replication to such new matters only. No fiirther pleadings shall be made by either party without special leave of the court. § 845. Rule for bill of particulars. The respondent may enter a rule for a bill of particulars under the Act of May 25, 1878, of course, at any time before filing his or her answer, but after answer filed no such rule shall be entered unless specially allowed by the court. § 846. Issue may he framed. Should the pleadings raise any issue of fact, relevant and material to the relief sought, which either party may desire to have tried by a jury, an issue shall be framed by the party desiring such trial and presented to the court for approval. The issue shall not be a feigned issue, but one directly framed on the facts alleged and denied in the pleadings. Such issue and trial shall be of right at any time before the taking of testimony upon the merits of the case shall have actually commenced ; but thereafter such trial by jury shall be allowed only in the discretion of the court upon motion and cause shown. § 847. Amendments. Amendments of the pleadings may be allowed in the discretion of the court ; but no amendment of the libel alleging a cause of divorce of a differ- ent nature shall be allowed. § 848. Appointment of a master. When a case is ready to be proceeded with either upon answer not de- manding a trial by jury, or ex parte, a master shall be appointed by the court, upon the motion of either party, which motion shall be made in writing and placed upon the regular current motion list of the court. No suggestion or agreement from parties or counsel as to the person to be appointed master will be received under any circumstances. DIVORCE. 431 § 849. Pr-oceedings before the master — Notice by master of meet- ings. The master shall give ten days' written notice to the counsel of both par- ties of the time and place of taking testimony. If there shall be no ap- pearance for the respondent, the notice shall be given to him or her per- sonally, if possible ; if not, then by leaving it at his place of residence or by registered letter to the address where the master shall have reason to believe it will be most likely to reach him or her. § 850. Master required to give respondent notice. In all cases where there is no return of personal service and no appear- ance is entered for the respondent, it shall be the duty of the master before proceeding to take the testimony upon the merits of the case, to inform himself, by examination of the libellant and by such other means as he shall deem conducive to the purpose, of the residence and address of the respondent ; and thereupon the master shall use every exertion, by per- sonal inquiry within the county or by registered letters outside of the county, and in case of failure by these means, then by advertisement in such newspaper or newspapers as, in the opinion of the master, will be most liiely to reach the respondent, once a week for four fall weeks, and by any other means available, to give actual notice to the respondent of the application for a divorce, the grounds thereof, the name and address of the master, and the time and place of taking testimony in the cause. Provided, That in cases in which the respondent was last known to reside and last heard of in the county of Philadelphia, it shall not be necessary to advertise such notice. Thereafter the master may proceed to take testi- mony upon the merits of the cause, but he shall not file his report until he is satisfied that all means available have been used to give actual notice to the respondent, and the efforts to that end shall be set forth in his report. § 851. Master's duties. The master shall make inquiry of the witnesses and report to the court the ages of the libellant and respondent, and the number, names, ages, and residence of their children, if they have any ; and in cases where the sub- poena has not been personally served, or, after publication, no appearance has been entered for the respondent, and the other means of giving actual notice to the respondent' shall have failed, the master shall, if possible, give written notice of the proceedings to such children of the respondent as have attained their majority, or, if there are none, then to the parents, brothers, and sisters or other near relatives of the respondent, requesting them to assist him in giving actufil notice to the respondent, and report to the court what efforts he has made to effect such notice, and the result thereof. Where the residence of either or both parties is given as within this county, the master shall, by personal inquiry, satisfy himself and re- port to the court whether the stated residence is correct and bona fide, and the length of time the libellant has resided in this State, and also whether th« respondent has ever resided in this State, and if so, when and where. In case the residence of either party is given as in another county of this State, the master shall make such inquiries by letter to the sheriff of such other county. 432 PEACTICE IN PENNSYLVANIA. § 852. Examination by master. When a case is ready to proceed to the testimony upon the merits, the master shall examine each witness specially and in detail upon all matters set forth in the libel and answer and upon such other matters as may ap- pear to be relevant and material. And it shall be his duty, whether re- quested by either of the parties or not, to summon and examine such wit- nesses as he may have reason to believe have knowledge of any matters relevant and material to the just and proper determination of the cause. Neither party shall be allowed to examine any witness called on his or her behalf until after the master shall have finished his examination of such witness, but after the master's examination of such witness the party calling him may supplement his examination-in-chief, and upon the con- clusion of such supplementary examination the opposite party may cross- examine. § 853. Powers of master. The master shall have the usual powers of a master in equity, in regard to the detention of witnesses for examination and the general course of the proceedings before him, subject to the directions of the court from time to time upon motion of either party. When objection is made to the competency or relevancy of testimony, the master shall note the objection, and proceed to take the testimony, sub- ject to the objection. § 854. Minutes of meetings. The master shall keep minutes of his meetings, noting the attendance and adjournments,, and at whose instance the adjournments are had, and annex the same to his report. If either party shall be of opinion that the other party, or the master, is unnecessarily or unjustly delaying the proceedings or increasing the expense thereof, he may notify the master of his excep- tions in that regard, and the master shall note the same in his report for such action of the court as may be adjudged just and proper. § 855. Security for costs. The master may, with leave of the court, require security for the pay- ment of his and the prothonotary's costs, and may decline to proceed further until such security shall be entered. No rule for divorce shall be made absolute until all the costs are paid. § 856. Master's report. The master shall report his proceedings and the testimony, together with his opinion of the case, and shall append thereto the libel and all sub- sequent papers filed in the case, with a copy of the docket entries, and shall file the same in the office of the prothonotary. § 857. Final decree, notice, etc. When the master's report has been approved by the court a rule may be entered of course on the respondent, to show cause why a decree of divorce should not be granted. All such final rules for divorce shall be returnable to the first Saturday of each month and the third Monday of September, and shall be then heard on a divorce list. Notices of such rules shall be DIVORCE. 433 served on the respondent personally, if possible ; but if the notice cannot be served on the respondent personally, then it shall be served on his or her counsel of record, if there be one, ten days before the time fixed for hearing the rule. If the notice cannot be personally served on the respondent, and there is no counsel of record, the libellant shall publish a notice once a week for four full weeks in the Legal Intelligencer and one daily newspaper in the city of Philadelphia, and give such other notice by advertisement or other- wise as the court may direct in the particular case in the following form : To A. B., late of No. Street, Philadelphia, Pennsylvania. You are hereby notified that a final rule for divorce has been granted against you at the suit of C. B., your , which will be heard in the Court of Common Pleas, No. , on Saturday, the day of , on which day you may appear and show cause, if any you have, why such di- vorce should not be granted^gainst you. CD., Attorney for Libellant. § 858. Affidavit of service. In all cases an affidavit of the time, place, and manner of service shall be filed, and in case of service on the counsel of the respondent, or by pub- lication, the efforts which have been made to serve the respondent person- ally shall be stated in the affidavit. § 859. Service of notices cannot he by libellant or counsel. Service of notices or rules upon the respondent shall not be made by the libellant or the next Mend, or the counsel of record. § 860. Jurisdiction exclusively in Common Fleas. Winpenny v. Winpenny, 40 Leg. Int., 232 (1883). The jurisdiction in divorce is vested exclusively in the Courts of Common Pleas, under the Act of 1815. § 861. Divorce may be brought by both parties at the same time. In Zieger^f. Zieger, 14 W. N., 122 (1883), C. P. ISo. 1, of Phila., a rule was taken to quash the libel. Respondent's affidavit in sup- port of the rule set forth that libellant left him some months before filing her libel, and had since resided in Trenton. The respondent had a suit for divorce pending when the wife filed her libel. Biddle, J. : " There is no reason why each party should not bring a separate suit in divorce against the other for different causes of action. The question of the libellant's residence being at issue can be determined on the trial of the cause." Rule discharged. § 862. Commencement of proceedings. Before preparing your libel, take the statement of your client. Write it out in detail, ascertain the place and date of marriage, the domicile, the cause of divorce, the names of witnesses, etc. If convenience permit, ex- amine the witnesses with particularity. You will thus have before you the case. Compare it carefully with the foregoing rSsumS of VOL. I.— 28 434 PRACTICE IN PENNSYLVANIA. causes, with the decisions, and with the brief of the statutes ; being sure of the jurisdiction, that your client is a resident, and that your case is in all respects within the law, proceed to draft the libel. § 863. Requisites of the libel. You must, of course, address it to the proper court. If the libellant be the wife, state her Chris- tian and her married name, and the name of her next friend. Thus, if she were Ann Jones before she married John Smith, do not call her Ann Jones by her next friend, etc., but Ann Smith by her next friend, Peter Johnson. State the date and place of the marriage, the domicile since marriage, the citizenship of libel- lant, the libellant's address, and the present address of respondent, if known. The cause of divorce should be averred with care. The words of the statute should be followed, but a f uU description of the oifense should be given. All that is required by the decisions should be stated. The prayer should be not only for a subpoena, but also for a decree a vinculo or a mensa, as required. A libel in divorce must state the county in which libellant re- sides. Johnson v. Johnson, 3 Dist. Rep., 166 (1893). § 864. Precision required in libel. Where circumstances are known, they should be set forth with reasonable precision. The mere general averment will not suffice. As already shown, a libel charging impotence should aver that it is incurable. In the able opinion delivered in that case, A. C. v. £. C, 10 W. 1^., 569 (1881), President Judge Elwell said upon the general question : " The second section of our Act of Assembly of March 13, 1815, regulating proceedings in divorce, directs ' that the libellant shall set forth particularly and specially the causes of his or her com- plaint.' It is not always safe pleading to set forth the complaint in the words of the statute. Every material allegation should be set out unequivocally ; and if a word or phrase has different meanings, it should appear either directly or by the context in what sense the pleader uses it. Adultery is a ground for divorce, but it is necessary either to specify the paramour or state that he is unknown. That the marriage was procured by ' fraud, force, and coercion ' is ground for divorce, but it is not sufficient to set forth in the libel that the marriage was so procured. The circumstances must be particularly set forth. Hoffman v. Soffman, 30 Pa. St., 417. Pleadings should be so accurate and unequivocal that when they are required to be verified by oath, a conviction for perjury might follow a false oath." In Schlider v. Schlider, 10 Phila., 11 (1873), a libel averring DIVORCE. 435 " indignities to the person," but not alleging " cruel and barbarous treatment," was stricken off for want of jurisdiction. A libel in divorce must set forth that an actual marriage had been contracted and celebrated. BrincMe v. Brinclde, 10 Phila., 1 (1873). A libel stating adultery as the ground of divorce, and that it had been committed with E. P. and other lewd women unknown, should be supplemented by written notice before trial, without demand as to the times and places and attendant circumstances. If the names of paramours be unknown, it should be so alleged. Garrat v. Gar- rat, 4 Yeates, 244 (1805). If a libel set forth generally the causes of the libellant's complaint, though unaccompanied by the particulars of time, place, etc., it is sufficient to satisfy the requirements of the Act of Assembly, and if respondent require anything more specific, he or she should de- mand of the libellant a specification of the particulars. Breinig v. Brdnig, 26 Pa. St., 161 (1856) ; Hancock's Appeal, 64 Pa. St., 470 (1870) ; Bealfv. Realf, 77 Pa. St., 31 (1874). A libel must state when the desertion began. It is not sufficient to say that there has been a desertion for more than two years. Raff V. Baff, 25 W. N., 155 (1889). § 865. Qeneral complaint sufficient — Mespondent must demand specifications — Names, dates, places, can be demanded — "Divers persons unknown " sufficient — But libellant must be confined to his specifications. The questions as to sufficiency of specifications and the evidence admissible thereunder were carefully considered in Bealf V. Bealf, 77 Pa. St., 33 (1874). The following opinion of the court was delivered by Goedon, J. : " In Hancock's Appeal, 64 Pa. St., 470, as well as in the case of Breinig v. Breinig, 26 Pa. St., 161, it was held that if the libel sets "forth generally the causes of the libellant's complaint, though unac- companied by the particulars of time, place, etc.,, it is sufficient to satisfy the requirements of the Act of Assembly, and if the respon- dent requires anything more specific, he or she should demand of the libellant a specification of the particulars intended to be proved. That which is wanting in the petition may thus be supplied, and the respondent fully informed of what he or she may be called upon to meet. This rule is so obviously just and proper that courts should not hesitate to enforce it strictly. In the case in hand, the libellant was required to file a specification setting forth, inter alia, the names of the persons with whom the alleged adultery was com- mitted, together with the dates and places. " In answer to this, the libellant specified the commission of 436 PRACTICE IN PENNSYLVANIA. adultery by the respondent with one Daniel Neil, in the months «f February, March, and April, 1872, and that on divers occasions in August and September, 1871, she visited a house of ill-fame in Virgin Alley, in the city of Pittsburgh, for the purpose of commit- ting adultery with divers persons unknown to the petitioner. " We hold these specifications to have been sufficient, and had the proof agreed with the allegations, the decree of divorce would have been well founded. Such, however, was not the case. The witness who testified to the improper intimacy between Neil and Mrs. Eealf was proved, in the language of the witnesses, to have been ' soft-witted or crazy,' and besides this, Neil denied all im- proper intimacy with the respondent. So the house alleged to have been a bawdy-house, and which Mrs. Realf frequented, was not proved to be such, or at least not with sufficient clearness to make out the complainant's cause. " The court, however, permitted the libellant to go out of his specifications, and prove intimacy with other men, and at other times than those set forth, and in this manner to carry his ease with the jury. This was a violation of the wholesome rule above referred to, and for this cause the proceedings must be reversed. § 866. Prayer for decree — Other requisites for a libel. A libd must pray for a decree of divorce. Grissom v. Grissom, 8 W. N., 484 (1880). In this case, the libel prayed that a sub- poena might issue, etc., but it did not pray for a decree for a divorce. It was not signed by the next friend and was not sworn to before a judge or justice, but before a notary. A demurrer on all these grounds was sustained. A libel averring that the mar- riage was procured by fraud, force, and coercion, without stating any particulars, is defective. Shriver v. Shriver, 8 W. N., 144 (1879). Examine the decisions noted in the preceding part of this chapter." § 867. Libel must be signed. Let libellant sign the libel and the affidavit. If libellant be the wife, the next friend must also sign. § 868. Affidavit to libel. Follow the words of the statute. See Hoffman v. Hoffman, 30 Pa. St., 417 (1858), supra. In Philadelphia, the affidavit may be taken before a magistrate or notary public, ' §869. Indorsement on libel. Follow here the rule of court already quoted. § 870. Allocatur. Indorse also on libel these words : " Subpoena in divorce a v. m. (or t mensa et thoro) allowed. Returnable sec. leg." Hand to judge for his initials. DIVOECK. 437 § 871. Defective libel may be attacked by demurrer or rule for particulars. In Shellenburger v. Shellenburger, 6 Pa. C. C. Rep., 287 (1888), the libel did not as fully set forth, as required by the rule of court, the time and circumstances of the libellant's acquiring her residence in Philadelphia County. A motion to quash was made. Thayee, p. J. : " This is no ground to quash ; the omission should be reached by a demurrer or a rule for particulars ; but as the defect is admitted, leave is granted to amend without further rule." §872. GENERAL FORM OF LIBEL. In the Court of Common Pleas, No. , for the County of Philadelphia, of Term, 18 , No. . Between •, libellant, and , respondent. To the Honorable the Judges of the said Court : The libellant complains and says : 1. That the libellant and respondent were lawftdly joined in marriage on the day of , in the year of our Lord one thousand eight hundred and , at , in the State of , and ifrom and after that time they lived together and cohabited in the relation of husband and wife. 2. That at the time said marriage was contracted the libellant was a citi- zen of the State of , and resided at , in said State ; and the respondent was a citizen of the State of , and resided at , in said State ; that immediately after their said marriage the said libellant and respondent resided together at , in the State of , and have since resided at . That the present residence of the libellant is at No. Street, in the , in the State of Pennsylvania, and that has been a citizen of the State of Pennsylvania, and hath resided therein for the period of one whole year previous to the filing of this libel ; and that the present residence of the respondent is 3. And the libellant avers that, in violation of marriage vow and of the laws of this Commonwealth, the said , the respon- dent (here describe the cause particularly, giving dates, places, and cir- cumstances). 4. Wherefore the libellant prays that a subpoena may issue, directed to the said the respondent, commanding to appear be- fore your Honorable Court, on Monday, the day of next, A.D. 18 , to answer this libel and complaint ; and also, that a decree may be made by your Honorable Court divorcing , the said libellant, fiom the bonds of matrimony between and the said respondent, as if they had never been married, or as if the said were naturally dead. (Signature of Libellant), (and of next friend where the wife is Libellant). §873. FOBM OF AFFIDAVIT, State of Pennsylvania, I County of Philadelphia, J • The above named being duly according to law, says that the statements contained in the above libel are true, to the best 438 PKACTICE IN PENNSYLVANIA. of knowledge, information, and belief; and that the said com- plaint is not made out of levity, or by collusion between and the said respondent for the mere purpose of being freed and separated from each other, but in sincerity and truth, for the causes men- tioned in the said libel. and subscribed ] (Signature of Libellant.) before me, the >- day of 18 ) §874. FOKM OF INDORSEMENT FOR LIBEL. (Indorse the libel thus :) No. 100. March Term, 1889. A. B. (By her next friend — if the case be so) 1 V. C.B. Libel in Divorce a v. m. (or h mensa et thoro, as the case may be). '' Let subpoena in divorce a v. m. (or d, mensa et thoro) issue, returnable sec. leg. (Here the judge places his initials.) To the within-named respondent : You are hereby notified and required, within thirty days from Monday, the day of next, A.D. 18 , to cause an ap- pearance to be entered for you in the Court of Com m on Pleas, No. , of the County of Philadelphia, and an answer to be filed to the libel for di- vorce, of which the within is a copy. Note. — You are hereby warned that if you fail to enter an appearance and file an answer as above notified and required, the cause will proceed without you, and you will be liable to have a decree of divorce entered against you in your absence. Attorney for Libellant. §875. form of libel for desertion. Between 1 In the Court of Common Pleas, No. Libellant ! for the County of and j of Term, 188 Eespondent. J No. To the Honorable the Judges of the said Court : The libellant complains and says : I. (a) That the libellant, , and th e respondent, were lawfully joined in marriage on the day of in the year of our Lord one thousand eight hundred and , at (here state place of marriage particularly), and from and after that time they lived together and cohabited as husband and wife until the desertion of libellant by the respondent as hereinafter stated. (6) That at the time of said marriage the libellant and respondent were both citizens of the State of Pennsylvania and were both domiciled in Phila- delphia in said State, and. they so continued their domicile until the deser- tion of libellant by respondent as hereinafter charged. After their said mar- riage the said libellant and respondent resided together at , in the city of Philadelphia, in said State of Pennsylvania, and thereafter at in said city, and that the libellant has been a citizen and DIVOECE. 439 resident of the State of Pennsylvania for one (1) whole year and for many years previous to the filing of this libel. (c) That the present place of actual residence of the libellant is at , in the city of Philadelphia and State of Pennsylvania, and that the present residence of the respondent is unknown to the libellant, but believes and avers that the said respondent is at present a resident of . Kespondent's last known residence was , and the time at which was last known to be there was during the months of II. And the libellant avers that in violation of respondent's marriage vow and of the laws of this Commonwealth the said , the respondent, in the year of our Lord one thousand eight hundred and eighty- (here state place), wilfully and maliciously and with- out a reasonable cause deserted libellant and absented from habitation, and has continued in said desertion during the term and space of two (2) years and upward, to wit, irom the date of said wilful and malicious desertion, ' , thence hitherto. Wherefore the libellant prays that a subpoena may issue directed to the said , the respondent, commanding to appear before your Honorable Court on to answer this libel and com- plaint ; and also that a decree may be given by your Honorable Court for the divorcing and separating from the said libellant's society, fellowship, and company in all time to come, and , the said libellant, from the marriage bond aforesaid, as if they had never been mar- ried, or as if , the said , were naturally dead. (Signature, and if by a woman the signature of her next friend.) State of Pennsylvania, 1 County of Philadelphia, J The above-named being duly sworn according to law, deposes and says : That the facts contained in the above libel are true to the best of knowledge and belief; and that the said complaint is not made out of levity, or by collusion between and the said respon- dent, , for the mere purpose of being freed and separated from each other, but in sincerity and truth for the causes mentioned in the said petition or libel. Sworn to and subscribed before me, ] this day of , A.D. 188 . [ (Signature of Libellant.) (Indorse as in preceding form.) A libel in divorce for desertion averring "an alleged or supposed marriage " will be dismissed. Connor v. Connor, 1 Dist. Rep., 358 (1891). § 876. FORM OF LIBEL — ABANDONMENT — CEUELTY — PEAYING DIVORCE A MENSA AND ALIMONY. (Follow the caption in preceding form.) To the Honorable the Judges of said Court : The libellant complains and says : I. (a) That the libellant, , and respondent, , were lawfully joined in marriage on the day of , in the year of our Lord one thousand eight hundred and , at (here set forth the place of marriage particularly), and from and after that 440 PRACTICE IN PENNSYLVANIA. time they lived and cohabited together until the desertion and abandon- ment wilfully, maliciously, and knowingly of libellant by respondent and of the family of said respondent as hereinafter set forth. (6) Follow the preceding form as to residences. (e) Follow the preceding form as to residences. II. And the libellant avers that in violation of respondent's marriage vow and the laws of this Commonwealth, the respondent, on the day of , in the year of our Lord one thousand eight hundred and , at the county aforesaid, did maliciously abandon said UbeUant and the family of said libellant ; and, further, that on the day of , in the year of our Lord one thousand eight hundred and , at the county aforesaid, the said respondent did by cruel and barbarous treatment endanger libellant's life. Wherefore your libellant prays your Honorable Court that a subpoena shaU issue from said court directed to the said (name of respondent), com- manding him to appear before your Honorable Court on (date or next term of court) to answer this libel, and also that a decree may be given by your Honorable Court granting this libellant a divorce from bed and board, and also allowing such alimony as the said respondent's circumstances will admit of, so the same does not exceed the third part of the annual profit or income of his estate or of his occupation and labor. And the libellant as in duty bound will ever pray, etc. (Signature of Libellant.) Following the affidavit in the preceding form. Let indorsement follow the first form, changing the words " Libel in Divorce a v. tn." to " Libel in Divorce d, mensa et thoro and alimony." §877. FOEM OF LIBEL FOK ADULTEEY. (Use the caption in the first form.) To the Honorable the Judges of the said Court : The libellant complains and says : I. (a)* That the libellant, , and respondent, , were lawfully joined in marriage on the day of , in the year of our Lord one thousand eight hundred and , at (here set forth the place of marriage particularly), and from and after that time they lived and cohabited together. Though by the laws of God, as well as by their mutual vows and faith plighted to each other, they were reciprocally bound to that constancy and uniform regard which ought to be inseparable from the marriage state, yet so it is, that the said respondent hath committed adultery as hereinafter set forth. (6) Follow the form as to residences. (c) Follow the form as to residences. n. And the libellant avers that in violation of respondent's marriage vow and of the laws of this Commonwealth, the respondent, on the day of , in the year of our Lord one thousand eight hundred and , at the county aforesaid, and on divers other days and times since, and at the county aforesaid, committed adultery with divers persons to your libellant unknown, and your libellant charges and avers that since the (above date) at the county aforesaid, the said respondent hath given herself up to adulterous practices and hath been living and still doth live a life of prosti- DIVOECE. 441 tution ; the names of the different persons, however, with whom she has had illicit intercourse being unknown to your libellant and he being by reason of his ignorance of said names wholly unable to state the same. (If names, dates, and places known, set them out.) FoUowiijg the first form as to the prayer of libel, affidavit, and indorse- ment. §878. FOKM OF LIBEL FOR BIGAMY. (Follow the caption in the form.) To the Honorable the Judges of the said Court : The libellant complains and says : I. (a) That the libellant, , and the respondent, , were joined in marriage on the day of , in the year of our Lord one thousand eight hundred and , at (here state place of marriage with particularity), and from and after that time they lived together and cohabited as husband and wife, until the discovery by your libellant that the respondent had been lawfully joined in marriage with , who is still living, as hereinafter stated. (6) Follow paragraph b in the preceding form as to residences, etc. (c) Follow paragraph c in the preceding form as to residences, etc. II. And the libellant avers that in violation of the laws of this Common- wealth the said respondent was lawfully joined in marriage with , on the day of , in the year of our Lord one thou- sand eight hundred and (the place where the marriage was cele- brated), and from that time until shortly before the said marriage with libellant lived and cohabited with the said , who is yet alive, and has never been divorced from the bonds of matrimony entered into with the said , but now is the true husband of the said . That the said respondent, in violation of her said marriage vow made to the said , her true and lawful hus- band, knowingly entered into a second marriage with your libellant on the said day of , in the year of our Lord one thousand eight hundred and , as more particularly above set forth. Follow the prayer, affidavit, and indorsement in first form. §879. FORM OF LIBEL FOR CRUELTY. In the Court of Common Pleas, No. , for the County of Philadelphia, of Term, 1889, No. . Between , by her next friend, libellant, and , respondent. To the Honorable the Judges of the said Court : The libellant complains and says : I. That the libellant and respondent were lawfully joined in marriage on the day of , in the year of our Lord one thousand eight hundred and , at Street, Philadelphia, in the State of Pennsylvania, and from and after that time they lived together and co- habited in the relation of husband and wife. II. That at the time said marriage was contracted the libellant was a citizen of the State of Pennsylvania aforesaid, and resided at Locust Street, Philadelphia, in said State ; and the respondent was a citi- zen of the State of Pennsylvania, and resided at ^ Street, Phila- 442 PRACTICE IN PENNSYLVANIA. delphia, in said State ; that immediately after said marriage tlie said libellant and respondent resided together at Street, Philadelphia, in the State of Pennsylvania, and have since resided at No. Street, Philadelphia, from , till , and at , , Pennsylvania from , till That the present residence of the libellant is at No. Street, in the city of Philadelphia, in the State of Pennsylvania, and that she has been a citizen of the State of Pennsylvania and hath resided therein for the period of one whole year previous to the filing of this libel ; and that the present residence of the respondent is , Pennsylvania. III. And the libellant avers that, in violation of his marriage vow and of the laws of this Commonwealth, the said , the respondent, hath offered such indignities to the person of libellant as to render her con- dition intolerable and life a burden, thereby compelling her to withdraw from his home and family. Such conduct began about one year after their said marriage as aforesaid, and continued until . During this time respondent contin- ually subjected libellant to gross indignities, treating her in the presence of other persons with a great deal of disrespect, using insulting, vile, indecent, and threatening language, reviling her with oaths and profanity, calling her indecent and opprobrious names, making lewd proposals to her serving- woman in her presence and hearing, and using personal violence to her. His drunkenness has been continued and habitual. He has ordered her from his house frequently, and on the day of > 18 , he ordered her from the house again and struck her in the face with his fist. By reason of which treatment she has been kept in bodily fear and trepi- dation, her condition rendered intolerable, her life made burdensome, and she has been compelled to withdraw from respondent's house and family. IV. Wherefore the libellant prays that a subpoena may issue, directed to the said , the respondent, commanding him to appear before your Honorable Court, on Monday, the day of next, A. D. , to answer this libel and complaint ; and also that a decree may be made by your Honorable Court divorcing her, the said libellant, from the bonds of matrimony between her and the said respondent. (Signatures of Libellant and of next friend.) State of Pennsylvania, 1 County of Philadelphia, J The above-named , being duly sworn according to law, says that the statements contained in the above libel are true to the best of her knowledge, information, and belief; and that the said complaint is not made out of levity, or by collusion between her and the said respondent for the mere purpose of being freed and separated from each other, but in sincerity and truth, for the causes mentioned in the said libel. (Signature of Libellant.) Bwom to and subscribed before me, the day of (Indorse as in first form.) DIVORCE. 443 § 880. The subpoena is issued by the prothonotary. FOKM OF 80BPCENA IN DIVORCE. County of Philadelphia, ss. The Commonwealth of Pennsylvania, to greeting : Whereas, did on the day of , A.D. 18 , prefer petition or libel to our judges of our Court of Common Pleas, No. , for the County of Philadelphia, praying, for the causes therein set forth, that might be divorced from the bonds of matrimony en- tered into with you ; we do therefore command you, the said , that setting aside all business and excuses whatsoever, you be and appear in your proper person, before our judges, at Philadelphia, at our said Court of Common Pleas, No. , there to be held for the County of Philadelphia, on the Monday of next to answer the said petition or libel, and show cause, if any you have, why the said your should not Be divorced from the bonds of matrimony, agree- ably to the Act of the General Assembly in such case made and provided. And hereof fail not, under the penalty of having the said petition heard and a decree of divorce granted against you in your absence. Witness the Honorable , president of our said court, at Philadel- phia, this day of , in the year of our Lord one thousand eight hundred and eighty-nine. Prothonotary. § 881. Service of subpcena. Where the rule of court requires (as in Philadelphia) a service by the sheriff, it must be obeyed. Hand to the deputy sheriff the subpoena and two copies of the libel, the affidavit, the indorsement on the libel, etc. Give the deputy par- ticular instructions as to the residence, etc. , of the defendant. Direct him to read the original subpcena, and to hand the defendant a copy of the subpoena, and a copy of the libel, affidavit, and indorsements. Let him make return under oath, indorsed upon the original sub- poena, as follows : § 882. Affidavit of service. A. B., having been duly sworn according to law, doth depose and say that he is a deputy sheriff of the county of Philadelphia, that on the day of , A.D. 1890, he personally served upon , the person known by the deponent to be the respondent within named, this original subpoena in divorce by reading the same to her and by leaving with her a true and attested copy thereof. Deponent further handed to her at the same time a true copy of the libel, the affidavit, and the indorse- ment thereon, as per the paper hereto attached. (Signature of Deputy Sheriflf.) So answers (Signature of Sheriff".) Sworn to and subscribed before me, • § 883. If respondent be not in the county, but be in the State. Service may be made by the sheriff of the county where the re- spondent may be found within the State. (See the rule of court, section 838.) 444 PRACTICE IN PENNSYLVANIA. FUlTnan' 8 Appeal, 99 Pa. St., 286 (1882). A subpoena in divorce may be served by the sheriff of another county than that in which the proceedings were instituted. No special order for such service need be made by the court of original jurisdiction. § 884. Extra-territorial service illegal. The Act of March 13, 1815, cannot be construed to give a court of Pennsylvania extra- territorial power to bring within its jurisdiction the person of a citizen and resident of another State. Italdon's Appeal, 93 Pa. St., 133 (1880). The words " wherever found " do not authorize a service outside the State. Id. See also on this point Love v. Love, 10 Phila., 453 (1873) ; Comm. V. Maize, 23 W. N., 572 (1889) ; Briggs v. Briggs, 1 Dist. Rep., 780 (1892), and the cases cited in section 802. § 885. Where couH rules do not require service by sheriff, anyone can serve the im-it. The Act of March 13, 1815 (P. L., 12), pre- scribes the mode of serving a subpoena in divorce. It requires that it shall be served personally on the said party, wherever found, or that a copy shall be given to him or her, fifteen days before the return of the same. There is nothing in the Act, either by its express terms or by a necessary implication, which requires a service by the sheriff. The subpoena is not directed to him, but to the respondent, and it may be served by anyone. Fillman's Appeal, 11 W. N., 195 (1882). In Philadelphia, the rule of court requires that service shall be made by the sheriff upon respondent, within the county at time of service. § 886. If defendant notfoimd, you get the sheriff to return " N^on est inventus " (he (or she) is not found). So answers (Signature of Sheriff.) You then file with prothonotary §887. PK^CIPE FOR ALIAS 8UBP(ENA. A. ] ». \ Court. Term, . No. B. i Sib: Issue alms subpoena in divorce, returnable sec. leg. C. D., Libellant's Attorney. (Date.) To the Prothonotary of the Court of Common Pleas of County. DIVORCE. 445 § 888. If alias subpoena returned non est inventus, you give pro- thonotary PE^CIPE FOB OEDEE OF PUBLICATION. A. I V. \ Court. Term, . No. . B. j Sie: Issue order of publication in the aUove case. C. D., Libellant's Attorney. (Date.) To the Prothonotary of the Court of Common Pleas of the county of The Act of 1815 directs that the sheriff shall publish this " in one or more newspapers printed within or nearest to the said county, for four weeks successively prior to the first day of the next term," etc. §889. FOEM OF OEDEK OF PUBLICATION. County of Philadelphia, «». [seal] The Commonwealth of Pennsylvania to the SheriflF of the County of Philadelphia, greeting : We command you that by publication, once a week for four full weeks successively, in the Legal Intelligencer and two daily newspapers of large circulation published in your bailiwick, you notify , late of your county, to be and appear in our Court of Common Pleas, No. , for the county of Philadelphia, on the first Monday of next, then and there to show cause, if any has, why should not be divorced from the bonds of matrimony entered into with , according to the prayer of petition or libel filed in said court. And have you then there this order, and make your return how you have executed the same. Witness the Honorable , president of our said court, at Phila- delphia, the day of , in the year of our Lord one thousand eight hundred and ninety-one. Prothonotary. In Philadelphia, the publication, in addition to being made in two daily newspapers of large circulation, must be inserted once a week for four full weeks successively in the Legal Intelligencer. The form of the notice is given in the rules of court (section 840). § 890. Return to order of puAlioation. The sheriff inserts the advertisements and makes his return to the order : Published as within commanded the notice whereof the following is a true copy (here insert copy of advertisement) in two daily newspapers of large circulation in the cily of Philadelphia, to wit, and , also in the Legal Intelligencer, published in said city, once a week for four full weeks successively. Ifbn est inventus as to defendant. So answers Sheriff. 446 PEACTICE ITS PENNSYLVANIA. on oath says that he is a deputy sheriff of the county of Phila- delphia, and that the above return is true. Sworn to and subscribed before 1 me, J I find nothing requiring that this order be returned on oath ; but the whole proceeding seems to be so under the ban of suspicion that I recommend the greatest particularity. § 891. Ifo aoceptance of servioe. To this end, let not the subpoena •or the alias, or any rule to answer or other notice or paper, be ac- cepted. Your client's case may be ever so just, the defendant may be ever so base, the court will be quick to grasp at the slightest circumstance as evidence of collusion. § 892. If defendant be in prison. If defendant be under sen- tence, he cannot be served without leave of the court imposing the sentence. In Finley v. Firdey, the opinion of the Court of Com- mon Pleas, Philadelphia County, was delivered by Pbiece, J. It is reported in the Legal Gazette of June 7, 1872. " The evidence in this case makes out clearly a cause for divorce on behalf of the libellant. But the trouble is that the respondent has been in prison from and before the commencement of the proceeding, and is still in prison. The libellant says, in her testimony, ' under the arrest in January last, the respondent has been convicted in the Quarter Sessions of this county of an assault and battery upon me, and was sentenced to prison for eight months.' A person who is in prison under execution or conviction can scarcely be said to be in such a condition, though served with process whilst in custody, that it can be said of him he has had his day in court. " By the English law, as stated in 1 Tidd's Practice, 306, neither the plaintiff nor a third person can charge a prisoner with a civil action, when he is in custody of the marshal, or in any other cus- tody on a criminal account, without leave of the court or judge. " In Crackall v. Thompson, 1 Salkeld's Keports, 354, the defen- dant, pending an action against him in B. R., was taken upon a warrant in a criminal matter and committed to the compter, and afterward was there charged with an extent for the Queen. And he was brought up at the suit of the plaintiff in the action in order to be declared against in custody of the marshal. It was held that one so arrested cannot be charged at the suit of a subject in any action without leave of the court, yet the Queen may charge him ; and the defendant was remanded. " That it may be done with leave of the court, seems to be that process being served under the sanction of the court, the court will see that no injustice is suffered by the prisoner by reason of his being in prison. DIVORCE. 447 " In this case, no leave of the' court was asked to charge the re- spondent with this proceeding, and for this reason it might be avoided by him. But of this we give no opinion. We cannot, however, suffer the matter to be further proceeded with until the respondent is out of prison, and personal notice is given to him of any further proceeding in the case ; or until he is proceeded against with leave of the court. The proper practice in such a case is to apply to the court for leave to proceed against the party in cus- tody, and then the court will make such orders in the case as will protect the rights of the prisoner ; and if necessary will bring him into court on a writ of habeas corpus for that purpose. Further proceeding in this case is suspended until the respondent is out of prison and personal notice served on him ; or until he is further proceeded against with leave of the court." § 893. Appearance. In Philadelphia, thirty days are allowed after the return-day (if the writ be served) for entering an appear- ance. If the writ be returned non est invenius, the same time (thirty days) is allowed after the advertisement. The appearance must be by written order accompanied by a letter of attorney duly acknowl- edged. The following forms may be used : ■ ■ ' In the Court of Common Pleas of C^B i County, of Term, 189 . No. . To the Prothonotary of said Court : SiK : Enter my appearance for tie defendant in the above case. E. F., Defendant's Attorney. (Date.) 'In the Court of Common Pleas of Q^g j County, of Term, 189 . No. . Know all men that I, C. B., the defendant in the above case, have con stituted and appointed, and hereby do constitute and appoint E. F. as my attorney, to appear for me in the above case, and to do all things which an attorney may lawfdlly do in the premises. Witness my hand and seal, at this day of A.D. 1890. [seal] Before me (the prothonotary, judge, justice of the peace, or magistrate of the county, district, or State in which the respondent may reside, or, if the respondent be without the United States, then before an ambassador, min- ister plenipotentiary, charge d'affaires, consul or vice-consul of the United States, commissioner in chancery of the foreign country, notary public of the foreign country), personally appeared the above-named defendant, C. B., and in due form of law acknowledged the foregoing power of attorney to be (his or her) act and deed. Witness my hand and seal of oflSce, at this day of A. D. 1891. 448 PRACTICE IN PENNSYLVANIA. § 894. Appearanoe on a power of attorney good, though writ not served. If appearance be entered on a power of attorney, it is good although the writ was not served. This does not furnish presump- tion of collusion as when service is accepted. Rem v. Rem, 22 W. N., 226 (1888). § 895. If no appearance be entered within the time required, the libellant can proceed ex parte. The manner of doing this is prescribed in Philadelphia by the rule of court. A motion is made in the following form : ■ ■ ( In the Court of Common Pleas of tie County of , Q--Q r of Term, 1891. No. . And now , 1891, the libellant's attorney moves the court to appoint a master in the above case, the defendant not having appeared, as required by law. This motion might be made by the libellant or the defendant if the case had proceeded to the filing of an answer, and neither party had demanded an issue. In that case it would read : And now , 1891, an answer having been filed, and neither party having demanded a jury trial, the moves the court to appoint a master. The motion must be handed to the court clerk, and he places it on the current-motion list, which is called the next Saturday. If there be an appearance, notice should be given to the opposite coun- sel of the motion, and that it will be called on the day named. If the party moving is entitled to the appointment, it follows as a matter of course, and the court names some person as master, thus : And now , 1891, Esq., is appointed master in the above case. § 896. If appearance, but no answer. In this connection it may be proper to add that the same forms are observed where an ap- pearance has been regularly entered, but the defendant is in default for not filing an answer. § 897. No decree pro confesso can be entered. It is clear, from the statute already quoted, that the only remedy against a party in default is to proceed ex parte. You cannot take judgment for want of an appearance or answer. Kilborn v. Fidd, 78 Pa. St., 194 (1875), Sharswood, J. There can be no decree pro confesso upon a libel for divorce. If either party will not attend, the court shall inquire and decide ex parte by the examination of witnesses or interrogatories, exhibits, or other legal proof had either before or at the hearing. DIVORCE. 449 § 898. If appearance be entered, the Philadelphia rules require a demurrer or answer to be filed within thirty days after the re- turn-day. They are silent as to any rule to answer. The in- dorsement required on the libel is a rule to answer. In counties where no such indorsement is directed, a rule to answer might be necessary. Where required, the following may be used : §899. EULE TO ANSWER. A B 1 ■ ■ (In the Court of Common Pleas, of County, Q g j Term, 1891. No. . To the Prothonotary of said Court : Sir : Enter rule on respcaident to demur, or answer sec. reg. (Signature of Libellant's Attorney.) (Date.) Indorse : A. B. ] V. y C. p. No. , Term, 1891. C. B. ] Rule to answer. (Name of counsel.) (Date.) § 900. NOTICE OP RULE TO ANSWER. A. B. V. V Common Pleas of County, Term, 1891. No. C. B. To , Esq., Attorney for Eespondent. Dear Sir : Please notice a rule In the above case on respondent to demur, or answer sec. reg. Very respectfliUy yours, (Signature of Libellant's Attorney.) (Date.) Keep a copy. If no answer filed, write to your opponent, re- minding him that the rule has expired. If defendant continue in default, proceed as above indicated, first filing affidavit of service of notice, etc. § 901. If a demiirrer be filed, it will, of course, be grounded upon some real or supposed defect in the libel. If the precautions given in this chapter as to the framing of the libel, etc., have been observed, the demurrer will simply delay the case. Either party can order the demurrer on the next appropriate list. The party pressing the case should always have paper-books ready. Usually both parties prepare a paper-book. It should contain a copy of the libel and of the demurrer. Then follow the points stated and the authorities. Counsel ordering the demurrer on the list VOL. I.— 29 450 PKACTICB IN PENNSYLVANIA. should notify his adversary. If the demurrer appear to be well taken — § 902. Libellant can amend if no new cause of action set up. If the libel by a husband on the ground of cruelty omit the words " cruel and barbarous treatment/' it may be amended, because no new cause of action is introduced. Hancock v. Hancock, 13 W. N., 29 (1882). Amendment may be allowed if it does not set up a cause of a different nature. In this case amendment was allowed of other acts tending to prove adultery. Perkins v. Perkins, 16 W. N., 48 (1885). § 903. In Philadelphia, not allowed if new cause assigned. But an amendment cannot be allowed which sets up an entirely new cause of action. Matthews v. Matthews, 6 W. JST., 147 (1878). Allowed elsewhere. The cases in which an amendment setting up a new cause of action was refused have been, with few excep- tions, those originating in Philadelphia County, where the rule of court expressly forbids such amendment. There is no reason why, under certain restrictions, a proper amendment should not be al- lowed, particularly where the respondent has not filed an answer. The Supreme Court, in Pow^s' Appeal, 120 Pa. St., 820 (1888), intimated that an amendment of this nature might be made in the lower court, although refusing it in the Supreme Court for other reasons. The subject is elaborately and ably discussed in the opinion of EwiNG, P. J., Court of Common Pleas, No. 2, of Allegheny County, in the case of Qlayburgh v. Olayburgh, 15 W. N., 365 (1884). " The original libel filed in this case alleges ' cruel and barbarous treatment, rendering the condition of libellant intoler- able and life burdensome.' The respondent was served personally and filed an answer. He demands a jury trial. The libellant now asks leave to amend her libel by adding, as an additional ground for divorce, a charge of adultery. Respondent by his counsel ob- jects to the allowance of the amendment, arguing that the court has no power to permit an amendment adding a new cause of action, and cites Matthews v. Matthews 6 W. N., 147. Libellant's coun- sel cites, contra, loone v. Toone, 10 Phila., 174. Has the court power to allow the amendment ? " In Matthews v. Matthews, supra, President Judge Thayer, of Common Pleas, No. 4, of Philadelphia, decides the question in the negative, saying the case ' is too plain for argument,' and then he goes on to show that such a case is not covered by our statutes of amendment. If a proceeding in divorce is an action at common law, the reasoning would be satisfactory and the conclusion correct. DIVORCE. 451 In Groves Appeal, 37 Pa. St., 446, in sustaining an amendment to a libel, the learned Judge, in delivering the opinion, says : ' It presents no new cause of action,' inferentially intimating that in such a case the decision might be different. But no such question was before the court. It is but a remark currente calamo, without considering whether the case was at common law or in equity. " In Toone v. Toone, supra, Judge Paxsok, then of the Common Pleas, decides the question in favor of allowing such amendment, saying that ' the power of the court to permit amendments in a divorce case does not depend on the statutes of amendment ; that they refer to common law actions, not to a proceeding in equity ; and that divorce is in the nature of a proceeding in equity.' " In this position we find on examination that he is fully sus- tained by the history of the action and by the authorities. Chan- cellor Kent, in speaking of divorce proceedings, calls it ' this newly created branch of equity jurisprudence.' The jurisdiction is con- ferred by statute ; but in this and other States where not otherwise regulated by statute, the proceeding is regulated by equity practice, and by the rules and practice prevailing in the ecclesiastical courts. It adopts largely in its practice as its common law the law of the English ecclesiastical courts. * * * So far as we have been able to examine the cases, the ecclesiastical courts, by their inherent power as courts of equity, exercised the power of permitting amend- ments in such cases. The courts of probate and divorce, their suc- cessors, exercise the same power. In Cartledge v. Qartledge, re- ported in the Jurist, of June 7, 1862, page 493, a wife filed her petition for divorce on account of cruelty. She subsequently ap- plied to amend by adding a charge of adultery, and by altering the prayer from that of a 'judicial separation ' to that of a ' dissolu- tion of marriage.' She was allowed to amend. * * * jjj Parkinson v. Parkinson, 2 Law Eep., P. & D., 27, the wife had petitioned for a dissolution of marriage on the ground of the hus- band's adultery, coupled with a charge of desertion. On hearing, the court held adultery not to be proven. Subsequently, it ap- pearing to the satisfaction of the court that she had not understood that the acts committed amounted to a legal cruelty, she was per- mitted to amend by adding a charge of cruelty. In both these cases the libellant was required to serve the respondent with the amended bill. In Errissman v. Errissman, 25 111., 136, a supple- mental bill charging adultery was allowed. " There is no good reason why an amendment charging an ad- ditional cause of action should not be allowable in the discretion of the court. It does not seek a new result or decree. It may save 452 PEACTICE IN PENNSYLVANIA. time and expense. If it cannot be allowed, there is no good reason why a second libel should not be filed, and the two cases proceed at the same time. If this were an ordinary equity suit, there would be no question as to the^ power of the court to allow the amend- ment." Amendment allowed, a copy of the amended bill to be served on respondent, who was to have thirty days thereafter to answer. See A. V. -B., 2 Dist. Eep., 394 (1892). In Hdlbron v. Heilbron, 3.3 W. N., 240; 158 Pa. St., 297 (1893), where the libel was formally defective in averring too much, yet showed a good cause of action, an amendment striking out the surplusage was allowed. § 904. Amendment allowed after examiner appointed. A libel may be amended even after it is referred to an examiner, if he has not entered upon the performance of his duties, and no hardship will be imposed upon respondent. Toone v. Toone, 10 Phila., 174 (1874). § 905. Amendment allowed ajte/r testimony commenced before com- missioner. Where a rule of court required that the answer con- tain a demand for an issue in a divorce suit, an amendment will be allowed even after testimony haa been taken before a commis- sioner. Magiffs Appeal, 69 Pa. St., 430 (1868). § 906. When amendment cannot be allowed. After filing of ex- aminer's report. Fierie v. Pierie, 7 Phila., 405 (1870). § 907. An amendnhent refused in Supreme Cowrt. An amendment changing the cause of action, requiring a different line of proof for its support, might be allowed below, but will be reftised in the Su- preme Court. Powers' Appeal, 120 Pa. St., 320 (1888). § 908. Amendment allowed adding affidavit before justice. In Oumpston v. Cumpston, 4 W. N., 184 (1877), after answer filed, the libel was amended by adding an affidavit before a justice of the peace, nun/i pro tunc. § 909. Amendment of writ allowed. In Long v. Long, 1 Pa. C. C. Rep., 572 (1886), the libel prayed for a divorce d, mensa et thoro. By mistake of the prothonotary, the subpoena read as if the prayer had been for a divorce a v, m. On motion, after service of the subpoena and an appearance for respondent, the subpoena was amended. (C. P. No. 2, of Phila- delphia.) § 910. Demand for bill of particulars. The Act of May 26, 1878, allowing this has been already cited, section 817. If the libel do not give, full information, the defendant may demand a bill of par- ticulars. This is done in Philadelphia by entering a rule for a bill, DIVORCE. 453 and the rule of court declares that " it shall be of course at any time before filing answer ; but after answer no such rule shall be entered unless specially allowed by the court." The Act of May 25, 1878, already cited, allows the entry of the rule at any time after the return-day. §911. FORM OF BULE FOE PARTICULARS. A B 1 ■ ■ I In the Court of Common Pleas of Comity. Q_ B^ f Term, 1891. No. . And now , 1891, the respondent enters a rule on libellant to furnish a bill of particulars within thirty days after service of notice, or non pros. see. leg. E. F., Kespondent's Attorney. (Date.) Serve notice of this, keep copy, and if the bill be not furnished or time be not extended a decree of non pros, can be entered. § 912. Bill of particulars should be full. In Butler v. Butler, 1 Pars. Select Equity Cases, 329 (1849), Judge King stated that the respondent, who had filed an answer to the libel, defending her desertion because of the libellant's cruelty, should have been required to furnish to libellant a specification of "the times, places, and circumstances " of the alleged cruelties. The Divorce Statute exacts that the libel set forth the causes of complaint, " particularly and specially." § 913. Names of witnesses required. In BrinoMe v. BrincMe, 10 Phila., 144 (1874), already cited, the libellant was ordered " to fur- nish the names, residences, and occupations of her witnesses." She alleged a marriage which the defendant denied. He could not possibly meet her case without knowing the names of the pro- posed witnesses. Under the old rules, if a proceeding were in de- fault of an answer, the libellant was compelled to serve a notice on the respondent of the time and place of taking the testimony, and of the names, etc., of the witnesses. § 914. Names of witnesses not required. In Mullison v. Mul- lison, 13 W. N., 314 (1883) (C. P. No. 3, of Philadelphia), a rule on respondent to show cause why she should not furnish a list of her witnesses to libellant was discharged. § 915. Bill of particulars ordered in action for ' orim. con. In TiUon V. Beecher, 59 N. Y., 177 (1874) (opinion by Rapallo, J.), an action was brought for criminal conversation. The complaint set forth that the alleged offenses were committed " on the 10th of October, 1868, and on divers other days and times after that day 454 PBACTICE IN PENNSYLVANIA. and before the commencement of this action " — thus covering a period of very nearly six years. A motion was made for a bill of particulars, which was denied in the City Court of Brooklyn, but this was reversed on appeal, and the bill of particulars granted. § 916. Time for asking particulars. It was said in Bartol v, Bartol, 18 W. N., 8 (1886), that the proper time to ask for par- ticulars is after issue is framed. But it is very clear that no man can be required to answer without a specification and upon a loose general charge. § 917. Particularity required. The specification should state time and place. Lord v. Lord, 16 W. N., 496 (1885). § 918. On application of liAellant, a bill of particulars ma/y be ordered as to cruelty charged in defendants answer. In Butler v. Butler, 1 Pars. Select Eq. Cas. , 329 (1849), the answer of respondent set forth that by reason of the cruel and barbarous treatment of the libellant she was forced to absent herself from cohabitation, and thus sought to justify her desertion. The court held that the libel- lant might demand from respondent a written specification of the charges by which the general allegations were to be supported, with the times, places, and circumstances of their occurrence, as far as these could be reasonably and practically given. Judge King said : " When it is clearly shown that the withdrawal of a wife or husband from mutual cohabitation has been the result of an agree- ment, or has received the subsequent approbation of the other, the continuity of absence under such circumstances is not a wilful and malicious desertion." § 919. Form for bill of particulars. A. B. by her next friend E. F. ] C. P. No. 1. June Term, C. B. I No. In Divorce. BILL OF PARTICULARS. Libellant applies for a divorce on the ground that the respondent has offered such indignities to her person as to render her condition intoler- able and life a burden, thereby compelling her to withdraw from his home and family. Such conduct began about the end of the year , and continued until . During this time respondent continually subjected libel- lant to gross indignities, treating her in the presence of other persons with ■great disrespect, using insulting, vile, indecent, and threatening language, reviling her with oaths and profanity, calling her indecent and opprobrious names, making lewd proposals to her serving-woman in her presence and hearing, and using personal violence to her. His drunkenness has been continued and habitual. He has ordered her from his house frequently, DIVOECB. 455 and on the day of , he ordered her from his house again, and struck her in the face with his fist and attempted to shoot , a servant, who came to her assistance. (Signature of Counsel.) Attorney for Libellant. This was sent by very able counsel. It seems, however, to be very general. It would be safer to be more precise. § 920. Costs, counsel fees, alimony. Before treating of the an- swer in divorce, it may be proper to notice certain preliminary questions as to security for costs, order for alimony, counsel fees, etc. § 921. Security for costs may be ordered on affidavit of re- spondent that he has a, defense to the libel, that libellant and her next friend are both non-residents, and have no property in the State. MeElUnney v. McElhirmey, 13 W. N., 194 (1883). § 922, Mespondent need not give secwrity in Philadelphia for certain costs. A respondent will not, in the first instance, be re- quired to give security for costs of master and prothonotary. Cal- hmm V. Calhoun, 18 W. N., 428 (1886). § 923. Alimony and expenses allowed to vnfe in discretion of court. A wife, in a divorce proceeding, is entitled to necessary expenses where she has no separate support. Melizet v. Mdizet, 1 Pars. Eq. Cas., 77 (1843) ; araves v. Cole, 19 Pa. St., 171 (1852). Even though evidence be offered of a previously subsisting marriage. Kline v. Kline, 1 Phila., 383 (1852), This is a matter, however, within the discretion of the court, both as to amount and duration, and is not subject to review. Waldron V. Waldron, 55 Pa. St., 231 (1866). § 924. General principle on which alimony is allowed. On the question of alimony, the law makes a plain difference between a husband and a wife plaintiff. The court shall, on granting a divorce, allow such support or alimony to the wife as her hus- band's circumstances will admit. The duty of maintenance, once assumed by him, is not to be released and thrown upon the public without a good reason. Miles v. Miles, 76 Pa. St., 357 (1874). Alimony will be granted whether the wife be petitioner or re- spondent. Smith V. Smith, 1 Dist. Rep., 550 (1892). If libellant is a minor and the libel is filed by the father as next friend, the libellant is liable for counsel fee and alimony. Failure to pay will be enforced by attachment. West v. West, 1 Dist. Rep,, 699 (1890). In a proper case, where a decree of divorce has been set aside because of want of notice to the respondent, the court will grant 456 PEACTICE ITS PENNSYLVANIA. alimony, counsel fee, and expenses to the wife, the respondent. Qudin V. Qudin, 1 Dist. Rep., 677 (1889). After a libel is dismissed, order for alimony is no longer of force. Heilhron v. Hdlbron, 158 Pa. St., 297 (1893). An order of the Quarter Sessions requiring a husband to pay for support does not prevent the Common Pleas from decreeing ali- mony. Id. § 925. Alimony cannot be ordered until after retwrn-day. No order can be made until return of the writ and appearance. Jones V. Jones, 16 W. N., 259 (1885). § 926. Alimony and counsdfees mil be refused to a respondent leading an immoral life. In Thompson v. Thompson, 10 Phila., 135 (1874), Allison, P. J., said : " A rule for alimony and counsel fees was heard more than a year ago. It was resisted upon the ground that respondent was living with a man other than her husband ; that they kept house together, and that she thus had means of support which rendered an order such as she prayed the court to make unnecessary. The depositions taken in resistance of the application established the allegations of the libellant, and the order was refused. There has been nothing shown since that hearing to change the case as it then stood before the court. The defense of the respondent rests upon technical grounds alone ; her standing before the court is wholly void of merit, and her conduct in every respect is such as to take from her all claim to a favorable consideration." § 927. Alimony not allowed where wife has income. Where the income of the wife is sufficient for her support, the necessity upon which arose the practice of giving the wife alimony does not exist. Toole V. Toole, 1 W. N., 96 (1874). § 928. Alimony allowed though charge of adultery not denied. In Broohs v. Broohs, 18 W. N., 115 (1886), the Court of Com- mon Pleas, No. 3, of Philadelphia, granted alimony and counsel fees to the wife, although it was sworn by her husband and uncon- tradicted by the wife, that she was living in adultery. Alimony refused where the respondent is guilty of adultery. Ali- mony will not be granted where respondent is shown to be guilty of adultery. Kratz v. Kratz, 1 Dist. Rep., 699 (1892). § 929. Counsel fees allowed though charge was conviction of a Jelowy, etc. Miller v. MUler, 5 Pa. C. C. Rep., 592 (1887). In Sutton v. Sutton, 26 W. N., 398 (1890), the answer denied the charge of adultery averred in the libel ; the court refused to go into the merits on a rule for alimony, and made the rule abso- lute. DIVORCE. 457 § 930. Alimony and counsel fees refused to a wife supported by husband. Counsel fees and alimony will be refused to a wife living in her husband's house. Gleason v. Gleason, 12 W. N., 408 (1882). Refused where she declines to live in a suitable home provided by him. Where the depositions on a rule for alimony show that the respondent has refused to live in a suitable and proper home pro- vided for her by her husband, alimony will be refused. O'Hojra V. (JHara, 2 Dist. Rep., 452 (1893). § 981. Order for comisdfees suspends rule for bill of particulars. If an order be made for the payment of counsel fees, the respon- dent cannot, whilst the order is not complied with, nonpros, the libellant for not sending bill of particulars. Jones v. Jones, 23 W. N., 370 (1888). § 932. Master's fee nA)t allowed vrntil report filed. Counsel fees may be allowed, but an order will not be made to pay master's fee and costs until the report be filed. Davidson v. Davidson, 18 W. N., 63 (1886). § 933. Counsel fees allowed to destitute wife. " It has been the uniform practice to allow a wife destitute of a separate estate, who is either suing or defending a cause of divorce, such reasonable sum as will enable her to carry it on." JBreinig v. Breinig, 26 Pa. St., 165 (1856) ; Powers' Appeal, 120 Pa. St., 328 (1888). § 934. Certified order for fees must be personally served. An attachment cannot issue for non-payment of counsel fees unless a certified copy of the order of court be personally served on respon- dent. Waltram v. Waltram, 19 W. K, 181 (1886). Mow decree for alimony enforced. To enforce a decree of ali- mony afi,.fa. may be issued, and if that is not sufficient the decree may then be enforced by attachment. Elmer v. Elmer, 30 W. N., 383 (1892). See § 939. §935. FORM OF AFFIDAVIT FOE ALIMONY AND COUNSEL FEES. A. B. 1 V. )■ Common Pleas, Term, 1890. No. . C. B. J C. B., having been duly sworn according to law, doth depose and say that she is the wife of the libellant above named and the respondent in this case, and that she has a just, true, and fiill defense to the same. That she has never given herself up to adulterous practices, as the said libellant has in his said libel alleged, nor has she ever committed adultery. Deponent further saith that she is by reason of the conduct of libellant in poor and destitute circumstances, and that she will be compelled, on account of her situation, to lay out large sums of money in defending this suit, in pro- curing her counsel and securing her testimony. That libellant is worth (here state libellant's circumstances). And she therefore prays your honors 458 PRACTICE IN PENNSYLVANIA. to make such order for the payment of a sum to her by the libellant as will support and maintain her properly pending these proceedings and allow her to pay her counsel and defend herself from the said suit. Sworn to and subscribed before me, this ) day of , A. D. 18 . J (Signature of Respondent.) § 936. Indorse this : A. B. ] V. y Common Pleas, Term, 1890. No. . C. B. J AFFIDAVIT OF RESPONDENT. And now , 1890, on motion of E. F., respondent's attorney, the court grant a rule on libellant to show cause why an order should not be made for alimony pendente lite and for counsel fees. Eule returnable Send notice of this rule to libell^nt's attorney. Sometimes counsel can agree upon the proper order. When this is impossible the libellant should present his affidavit denying the respondent's averments as to libellant's circumstances and as to respondent's poverty. §937. FOKM OF ANSWER TO EULE FOR ALIMONY AND COUNSEL FEES. A. B. I V. > Common Pleas, Term, 1890. No. . 0. B. j A. B., the libellant, in answer to the rule granted in this case, to show cause why an order should not be made for payment of aHmonj pendente lite and for counsel fees, saith : 1. That he is prepared to prove the charges in his said libel contained. 2. That it is not true as in respondent's affidavit stated that respondent is poor or destitute ; on the contrary, the truth is (here set out the facts as they may be, for example, that respondent has been for some time past and now is the owner of the premises , that she is receiving a rent therefrom of at least $ per annum, or that respondent has received from libellant the following sums, etc.). It may be that the libellant can add : 3. The respondent has been since and now is living with another man, who supports her. State all facts which constitute an answer. (Signature of Libellant.) Sworn to and subscribed before me. Generally depositions are taken on both sides. This is done under a rule. §938. FORM OF RULE TO TAKE DEPOSITIONS. A B ) ^ ■ ( In the Court of Common Pleas 0. B. ] °^ County, Term, 1890. No. . And now, , on motion of , attorney for , the court grant a rule to take depositions, sur rule for alimony and counsel DIVORCE. 459 fees, on behalf of , before any alderman, justice of the peace, or notary (sometimes commissioner is added), on , notice to This is cheaper and simpler than to refer to an examiner. The officer to take the depositions is consulted, a time fixed, and a notice served. It is more courteous to see the opposite counsel and agree upon the time. Then send him formal notice, that he may advise his client. When depositions have been closed on both sides, the rule is ordered upon the next list, and notice given to the opposite attorney. Paper-books should be prepared for the court, stating the case, the rule, the points in favor of or against it, an abstract of the testimony relied on, the "authorities to be cited, etc. If alimony is allowed, it is gauged by the social position, cir- cumstances, etc., of the parties, from five dollars to twenty dollars per week. The counsel fee is generally thirty-five dollars. In troublesome cases much higher. § 939. Attachment may issue to enforce payment of alimony and counsel fees. An attachment will issue where the rule for alimony and counsel fees has not been obeyed. Ormsby v. Ormsby, 1 Phila., 678 (1855) ; Mann v. Mawn, 7 W. N., 607 (1879) ; Groves' Ap- peal, 68 Pa. St., 143 (1871). Where libellant fails to pay alimony awarded to the respondent, an attachment will be granted to enforce payment. Wallen v. Wallen, 1 Dist. Eep., 684 (1891). See § 934. §940. FOEM OF PETITION FOB ATTACHMENT. To the Honorable the Judges of the Court of Common Pleas for the County of : The petition of , wife of , of the county afore- said, respectfully showeth : That she filed in this Honorable Court, on the day of , A. D. 18 , a petition praying that the be ordered to pay your peti- tioner alimony pendente lite and her counsel fees. And your petitioner further showeth that this Honorable Court did, on the day of , in the year of our Lord one thousand eight hundred and , order and decree that the Said should pay to your petitioner the sum of dollars for each and every week from the day of , in the year aforesaid, and so con- tinue to pay said sum for each and every week thereafter until otherwise decreed by this Honorable Court, and that he should also pay the sum of dollars for counsel fees. And your petitioner further showeth that said has not paid to your petitioner the sum of dollars for each and every week since the day of aforesaid, but owes, and is indebted to your 460 PEACTICE IN PENNSYLVANIA. petitioner in the sum of dollars, being in arrear to said amount of the alimony allowed as aforesaid, on the day of , A. D. 18 , and that he has not paid said counsel fees, thereby holding the order of this Honorable Court in contempt. Your petitioner therefore prays that an attachment may issue out of this Honorable Court to compel obedience to said order and decree. And your petitioner will ever pray, etc. (Signature of Petitioner.) , being duly according to law, doth depose and say that the facts set forth in the above petition are true. (Signature of Petitioner.) and subscribed before me, this day of , A.D. 1889. Indorsement : No. . Term, 18 . A. B. ) V. [ C. P. C. B. j Petition of for Attachment. (Name of Attorney.) Pro Petitioner. 1890, March . Petition filed and the court grant a rule on , to show cause why an attachment should not issue against him to enforce the order made by the court , A. D. 18 . Rule returnable Care should be taken to serve a certified copy of this rule person- ally. A copy should be kept and affidavit of personal service be made. If no answer be filed or excuse be made, the rule will be made absolute. The prothonotary will issue the attachment. Give it to the sheriff with defendant's address. § 941. If answer be filed to libel, it must be responsive to the libel and must follow it in paragraphic numbers as nearly as may be. New matters relied on may be set forth in subsequent para- graphs. Hferein the pleader should carefully consult the forms, the decisions heretofore noted in this chapter, and all the authori- ties. The following may serve as a guide : §942. POEM OF ANSWER DENYING THE MARRIAGE. The answer of , respondent, to the libel of , libellant, as amended by amendment thereto, filed on the twelfth day of March, A. D. 1874. This respondent, saving and reserving to himself all and all manner of benefit and advantage of exception to the many untruths, uncertainties, and imperfections in the said amended libel and the said amendments con- tained, for answer thereto, or to so much thereof as this respondent is ad- vised is necessary or material for him to make answer unto, answereth and saith : (1) That it is not true as in said amendment to libel alleged, that in the month of January, A. D. 1857, a marriage was contracted and celebrated DIVORCE. 461 between the said libellant and this respondent, and this respondent avers that no such marriage was contracted and celebrated, as falsely therein al- leged, and that the said libellant is not his wife. (2) And this respon- dent, farther answering, says that it is not true that from and after the last- mentioned date until the date of the pretended grievances as in the said amended libel mentioned, he lived and cohabited with the said libellant as his wife ; and he denies that she was so known and reputed by all of the said libeUant's or this respondent's neighbors and acquaintances. (3) And this respondent, further answering, says that the pretended narrative in said amended libel contained, as far as the libellant seeks thereby to establish the existence of a marriage between herself and the respondent, is wholly untrue ; but, inasmuch as the said libellant is not this respondent's wife, he is advised that it is not necessary or material for him to make a particu- lar and detailed answer thereto ; and further answering, he says that inas- much as the said libellant is nqt his wife, he could not and did not desert her. All which matters and things this respondent is ready to aver, maintain, and prove as this Honorable Court may direct, and prays to be hence dismissed with costs. (Signature of Respondent.) on oath says that the facts set forth in the above answer are true and correct. Sworn to and subscribed before me, 1 1891. J §943. FORM OP ANSWER (BY WIFE DENYING DESERTION). In the Court of Common Pleas, for the County of To the Honorable the Judges of the said Court : The answer of to the libel of , No. , Term, 18 . This respondent, saving to herself all manner of benefit and advantage of exception to the manifold untruths, uncertainties, and imperfections in the libel contained, for answer thereto, or to so much thereof as this respon- dent is advised it is in any manner material for her to make answer to, answers and says : I. (a) That true it is that the said (name of libellant) was lawfiilly joined in marriage with the respondent on the day , in the year of our Lord one thousand eight hundred and , at , and that from and after that time they lived together and cohabited as husband and wife. Yet this respondent doth expressly deny the charge of having maliciously and wilfully deserted and absented herself from the said , as is stated in the libel of the said . But this respondent doth avei;that she at all times has been ready and willing to discharge all her marital duties with love and tenderness and continues so at this time. (6) The respondent admits the allegations contained in paragraph b of the libel. (This is when the residences, etc., have been truly set out. If the libel be not correct, the answer should state the truth.) (c) The respondent admits the allegations contained in paragraph c of the libel. (The same remark applies here as noted above.) II. The respondent further avers from the date of the marriage this re- spondent was compelled to remain at the home of her parents and was sup- ported entirely by them, the said libellant never paying one cent toward 462 PRACTICE IN PENNSYLVANIA. the support and maintenance of respondent. That finding she could ob- tain fi:om him no support she was compelled on the day of , A. D. 18 , to apply to the Guardians of the Poor, who issued a warrant for his arrest ; that he then wanted this respondent to accompany him to the home of his mother, where he resided. To this she assented, and on the day of , A. D. 18 , went to live with him. That the mother of the libellant immediately commenced to treat re- spondent with rudeness, and insulted her time and time again. When re- spondent appealed to libellant to save her from insult his reply was that she might expect to be insulted as long as she remained in the house. Finding this would not drive respondent away, the libellant refused even to speak to her, passing her by at all times without, the least notice, though she was unconscious of having even in the slightest particular ofiended him. Finally, by the cruelty of libellant, this respondent was compelled to re- turn to the home of her parents, where she still resides. On the day of , A.D. 18 , the libellant, making no provision for her sup- port, this respondent applied to the Guardians of the Poor, a prosecution was commenced against him, which was settled by the libellant giving a bond to the city of Philadelphia conditioned for her support and mainte- nance. All of which this respondent is willing to maintain, and she prays that this may be inquired of by the county, eto. (Signature of Eespondent.) , the above-named respondent, being duly according to law, deposes and says the facts set forth in the foregoing answer are true. and subscribed before me, ] this day of , A. D. 18 . V (Signature of Eespondent.) Indorsement : No. Term, 18 . A. B. 1 V. y c. p. C. B. J Answer. Attorney pro Eespondent. § 944. Answer nunc pro tunc cannot be filed where examiner has held meetings. In Schneider v. Schneider, 9 W. N., 253 (1880) (C. P. No. 3, of Philadelphia), the court refused to allow an answer to be filed Tvunc pro tunc, notwithstanding the respondent swore that he could not afford to employ counsel until after the examiner had held a meeting, and that he now desired to oppose the libel. § 945. Answer cannot be filed after examiner's report is in. In Newbold's Appeal, 2 W. N., 472 (1876), a rule demanding an issue and a rule to allow respondent to file a substituted answer were deemed too late after filing of examiner's report and a rule for divorce. Leave to file au answer nunc pro tunc will not be granted where DIVORCE. 463 the divorce proceedings have been regular. Such relief can be obtained only where the party can show : 1. That the application is made without unreasonable delay. 2. That it is based upon surprise, haste, ignorance, or mistake. 3. That unless relief be given, positive injury and injustice would be done. 4. That no right has accrued to the other side which it would be inequitable or unjust to disturb. Shay v. Shay, 9 Phila., 521 (1872), FlNLETTEE, J. § 946. If plea and demurrer filed together, the demurrer is over- ruled. In equity a plea and demurrer cannot be put in at the same time to the same matter, hence where a plea and demurrer were filed to a libel in divorce the plea overruled the demurrer. Ewing v, Ewing, 2 Phila., 371 (1857). § 947. Beplication. Where the answer sets up new matter, a replication as to it may be filed. § 948. Either party can demand a jury trial. The demand for issue must be made in reasonable time. Cfillardon v. GiUardon, 16 W. K, 457 (1885). § 949. Demand fm- jury trial too late after report fled. In Alli- son V. Allison, 46 Pa. St., 321 (1863), a libel was filed for divorce from bed and board with alimony. The answer was filed con- cluding with a verification and not to the country, and without asking an issue. An application for an issue was made, but not until after the report of the commissioners, and when the final decree was about to be made. The issue was refused by the court. Thompson J.: " The party had a right to an issue to try dis- puted facts, but he was bound to exercise his right reasonably and with vigilance." § 950. After examiner appointed a prompt demand ma/y secure jv/ry trial. In Derringer v. Derringer, 8 Phila., 269 (1871), the answer contained no demand for issue. On June 19, 1871, the master was appointed, and on June 30, 1871, a petition and demand for a jury trial was filed. The court held that under the ruling in Allison v. Allison the demand was not too late. In Fougeray v. Fougeray, 5 W. N., 38 (1877) (C. P. No. 2, Philada.), a rule to withdraw the case from an examiner and to allow an issue to be framed was made absolute upon payment of examiner's costs. § 951. If no jury trial dema/nded. If neither party demand a jury trial, the case goes to a master on application of either side. § 952. Framing issues. If a jwy trial be demanded, the party so desiring should frame the issue, present it to the opposite side, 464 PRACTICE IN PENNSYLVANIA. and then to the court. In Philadelphia the rule directs that it shall not be in the form of a feigned issue, but directly on the facts. Winpenny v. Winpenny, 40 Leg. Int., 232 (1883). A jury trial is of right at any time before taking of testimony has been commenced, but thereafter only in the discretion of the court upon motion and cause shown. in counties where a different rule prevails the feigned issue may still be preferred. The following may serve as a § 953. Form of feignedissue. fobm of declaration. County of Philadelphia, ss. (Name of defendant), late of the said county, was summoned to answer (name of libellant) of a plea of trespass on the case, etc., whereupon the said (name of libellant), by her attorney, complains that heretofore, to wit, on the day of , A. D. 1888, at the county aforesaid, a cer- tain discourse was had and moved by and between the said (name of libel- lant) and the said (name of defendant), wherein a certain question then and there arose, to wit : whether the said (name of defendant) has from the month of , A. D. , wilfully and maliciously deserted and abandoned his family, and in that discourse the said (name of libellant) then and there asserted and afiirmed that from the month of , A. D. , the said (name of defendant) has wilfully and maliciously deserted his family, which said assertion and affirmation the said (name of defendant) then and there denied and then and there asserted the contrary thereof, and thereupon, afterward, to wit, on the day and year first above mentioned, as aforesaid, at the county aforesaid, in consideration that the said (name of libellant), at the special instance and request of the siid (name of defendant), had then and there paid him the sum of $600, lawful money, he, the said (name of defendant), undertook and then and there faithfiiUy promised the said (name df plaintiff) to pay her the sum of $1000, like lawful money, if from the month of , A. D. 18 , he, the said (name of defendant), had wilfully and maliciously deserted and abandoned his family. And the said (name of plaintiff), in fact, says that from the month of , A. D. 18 , he, the said (name of defendant), has wilfully and maliciously deserted and abandoned his family. Whereof, the said (name of defendant), afterward, to wit, on the day and year first above men- tioned, at the county aforesaid, had notice ; whereby the said (name of de- fendant), then and there became liable to pay and ought to have paid to the said (name of plaintiff) the sum of $1000. And whereas, also, heretofore, to wit, on the day and year first above men- tioned, as aforesaid, at the coimty aforesaid, a certain other discourse was had and moved between the said (name of plaintiff) and the said (name of defendant), wherein a certain other question then and there arose, to wit, whether the said (name of defendant) did on or about the first day of , A. D. 18 , wilfully and maliciously turn her, the said (name of plaintiff) out of doors ; and in that discourse the said (name of plaintiff) then and there asserted and affirmed that on or about the first day of , A. D. , the said (name of defendant) did wilfully and mali- ciously turn her, the said (name of plaintiff), out of doors ; which said DIVOECB. 465 affirmation and assertion the said (name of defendant) then and there de- nied, and then and there asserted the contrary thereof, and thereupon, after- ward, to wit, on the day and year first above mentioned, at the county aforesaid, in consideration that the said (name of plaintiff), at the special instance and request of the said (name of defendant), had then and there paid him the sum of $500 in lawful money, he, the said (name of de- fendant), undertook, and then and there faithfully promised the said (name of plaintiff) to pay her $1000 if on or about the day of , A. D. , he, the said (name of defendant) did wilfully and maliciously turn her, the said (name of plaintiff), out of doors ; whereof, he, the said (name of defendant), afterward, to wit, on the day and year first above mentioned, at the county aforesaid, had notice, whereby the said (name of defendant) then and there became liable to pay and ought to have paid to her, the said (name of plaintiff), $1000. Nevertheless the said (name of defendant), not regarding his said personal promises, has not paid to the said (name of plaintiff) the said several sums of money or any part thereof, but the same to pay has hitherto wholly refused and still doth refuse to the damage of the said (name of plaintiff) $10,000. (Signature of Counsel) for plaintiff. §954. FOEM OF PLEAS. And the said defendant, protesting that he is not bound to plead to the said declaration in feigned issue, and reserving to himself all, and all man- ner of objections thereto, and to the orders made on this respondent for pleas in this behalf, comes and saith that the said plaintiff ought not to have and maintain her aforesaid action against him, because he saith : I. That firom the month of , A. D. he, the said defendant, has not wilfully and maliciously deserted and abandoned his family in manner and form as in the plaintiff's first count mentioned, and of this he puts himself upon the country. II. And for a further plea in this behalf, the said defendant comes and saith that on or about the day of , A. D. , the said defendant did not wilfully and maliciously turn the said plaintiff out of doors, in manner and form as in the plaintiff's second count men- tioned, and of this he puts himself upon the country. (Signature of Counsel) for defendant. §955. FORM OF SIMILITER. And the said plaintiff, as to the pleas of the said defendant by him above pleaded, and whereof he hath put himself upon the country, doth the like. (Signature of Counsel) for plaintiff. This form can readily be accommodated to any issue, marriage or no marriage, charges and denials of desertion, adultery, cruelty, etc. § 956. Where no feigned issues be filed, because the rule of court (as in Philadelphia) forbids that practice, the order is framed directly upon the traverses. VOL. I. — 30 466 PRACTICE IN PENNSYLVANIA. § 957. Form of order for issues. The following in such cases could be adopted : I In the Court of Common Pleas, of Philadelphia County, Q^g r of March Term, 1891. No. 200. And now , 1891, it appearing to the court that a jury trial has been demanded by (respondent or by libellant, or by both parties) upon the matters hereinafter stated which have been alleged and denied in the pleadings: It is ordered, that the following issues be tried, to wit (here state the issues as, (I.) were the parties married, or (II.) did the defendant wilfully and maliciously desert the libellant, etc., or (III.) did the defen- dant commit adultery, etc.), as charged in the libel and denied in the answer. And it is farther ordered that in said issues the libellant be the plaintiff, and the respondent be defendant. § 958. If the issue be upon an independent matter, set up in the answer (as condonation, recrimination, etc.), the respondent would have the affirmative and be the plaintiff in ^uch special issues. § 959. Who to prepare the feigned issues or the order. The party most anxious to dispose of the case prepares the draft of the feigned issues or the order, and sends it to opposite counsel. If agreed to, they go before a judge, who approves, and the paper is filed. If the counsel differ as to form, they must fix a time to appear before a judge, who settles the question. If argument be desired, of course the case is ordered on the appropriate list and notice given. When an issue to try the facts is prayed, it is proper for the court to direct the form of the issue or issues, and to require the other party to join therein. Thompson, J., in Waldron v. Waldron, 55 Pa. St. ,^234 (1866). § 960. When issues settled, the case is ordered on the trial-list and takes its course. If the jury find for the libellant and no motion be made for a new trial, or if made the motion be overruled, pay the jury fee and enter judgment. Take a rule for a final decree, serve notice, etc., as in cases where no issue was entered. See § 976, changing the averment as to the Master's Report to "Judgment having been entered for libellant on the verdict," and see §§ 977-981. § 961. Master — Appointment of — Proceedings before master. A master (formerly called an examiner, sometimes a commissioner) is needed where the defendant has failed to appear, or where having appeared the defendant fails-to answer, or where an answer has been filed and no jury trial has been demanded by either party. Counsel must see that the record justifies the reference to a master. If de- fendant has not appeared, let the subpoena, the alias, the order of publication, be all returned, — the subpoenas non est inventus, — the DIVOKCE. 467 order of publication, advertised as directed, see section 889 of this chapter. The motion for appointment should recite the record as justifying the reference. §962. . ORDER FOR APPOINTMENT OF MASTER. A B ) ■ ■ (In the Court of Common Pleas, of Philadelphia County, of Q g I Term, 1890. No. . And now, , 1890, it appearing to the court (here recite from the record that the original and alias suhpoenas have heen duly returned 7um est inventus, that the order of publication has been duly obeyed, and that the defendant has not appeared as required by law, or that defendant is in default for not filing an answer see. reg., or that an answer and replica- tion have been filed, that neither party has demanded a jury trial), the case is on motion of ' ,, attorney for the , referred to , Esq., as master, to take testimony and to report sec. reg. et sec. leg. This motion is by the Philadelphia rules left with the court clerk and it is placed on the regular current list. The court fills in the name of the master. The attorney notifies the master. § 963. Notice by the master. The master and counsel should be very particular in proceedings ex parte. Where there has been no personal service of the subpoena and no appearance has been entered, the master should inform himself by examining the libellant and by such other means as he shall deem conducive to the purpose, of the residence and address of the respondent ; and the master must use every exertion by personal inquiry within the county or by registered letters outside of the county, and in case of failure by these means then by advertisement in such newspaper or newspapers as in the opinion of the master will be most liljely to reach the re- spondent, once a week for four full weeks, and by any other means available to give actual notice to the respondent of the application for a divorce, the grounds thereof, the name and the address of the master, and the time and place of taking the testimony. The Phil- adelphia rules add that where the respondent was last known to reside and was last heard of in the county of Philadelphia, it shall not be necessary to advertise such notice. Thereafter the master may proceed to take testimony, but must not file his report until satisfied that all available means have been used to give actual notice to the respondent. The efforts to this' end must be set forth in the report. The object of all these directions is to guard against a de- cree without notice. They do not apply where there has been a personal service or an appearance. Where there has been a personal service of the subpoena, it is 468 PRACTICE IN PENNSYLVANIA. probable that a notice from the master can be served in like man- ner. Personal service should be made if possible ; if not, then the notice should be left at the respondent's residence or sent by registered letter to the address where the master shall have reason to believe it will be most likely to reach the respondent. If an appearance has been entered, written notice must be given to the counsel appearing. Libellant's attorney should be notified in like manner. §964. FORM OF NOTICE WHEKE PKOCEEDING IS EX PARTE. 'In the Court of Common Pleas of Philadelphia County, of LB. ■» IB. J Q -g 1 Term, 1890. No. . To , the respondent above-named : Please take notice that an application for a divorce has been made in the above case, upon the allegation that you (recite the libel, as, have wilfully and maliciously deserted the libellant and absented yourself from habitation without a reasonable cause for and during the term and space of two years, or that you have committed adultery, etc., as the case may be). By reason of your default in not (entering an appearance, or, in not filing an answer), the case has been referred to me as master. I have fixed the day of , 1890, at o'clock m., as the time and my office, No. Street, in the city of Philadelphia, as the place for taking testimony in the cause, when and where you may attend. (Name of Master.) ;■; (Address.) § 965. Where no appearance has been entered this notice (as already noted) must be served personally if possible, and if all available means are exhausted and no service can be made, then it is sent by registered letter, and it is to be advertised, except where the respondent was last known to reside, or was last heard of in the county of Philadelphia. § 966. If an appearance has been entered. Service upon counsel is sufficient. In such cases the notice need not recite the libel. § 967. Copies of all notices, advertisements, should be kept, and memorandum made, so that affidavits can be filed. § 968. Before the Master. The master must (1) preserve and file proofs of inquiry, of service, or of mailing, advertising, etc. (2) He must inquire of witnesses and report to the court (a) the ages of the parties ; (6) number, names, ages, and residences of their children, if any. Where respondent has not been served and has not appeared, the master must give notice to such children as may have attained their majority ; if none, then to the parents, brothers, sisters, or other near relatives of respondent, requesting them to assist in giving actual notice. DIVORCE. 469 (3) The master must report his efforts to effect such notice and the result. (4) Where the residence of either party or of both parties is given, as within the county of Philadelphia, the master must make personal inquiry and report whether this is correct and bona fide, and the length of the residence, and whether respondent has ever resided in this State, and when and where. In case a residence of either party is given as in another county, the master shall make such inquiries by letter to the sheriff of such county. § 969. Exammaiion of vritnesses, etc., by master. After all these directions have been complied with, the master is required to exam- ine each witness specially and in detail upon all material matters. And whether requested or not he is to summon and examine such witnesses as he believes have any knowledge of relevant matters. Neither party can examine until the master is through with the witness. § 970. If objeetions made, the master notes them, but takes the testimony subject to the objections. § 971. Minutes of all meetings, adjournments, exceptions to the master's delay, etc., must be kept. § 972. Secwrity for costs may with leave of the court be required by the master for payment of costs of master and of prothonotary. Proceedings may be stayed until it is entered. No divorce shall be decreed until all costs are paid. § 973. Master's report. He reports all his proceedings, the tes- timony and his opinion, he appends docket entries, and all the papers, and files report with the prothonotary. §974. FOKM OF master's REPORT. To the Honorable the Judges of the Court of Common Pleas, No. , for the County of Philadelphia. In the matter of the petition of by her next friend, etc., for a divorce a v. m. from (of June Term, . No. ). The master appointed to take the testimony respectfully reports : That the docket entries and original papers in the case show the respon- dent was not served personally with the subpcena and no appearance has been entered for him. There were two subpoenas issued, returnable respect- ively to the Monday of and Monday of , both of which were returned by the sheriff non est inventus. An order of publication was procured, returnable to the Monday in , which was duly returned by the sheriff, indorsing on the same his obedi- ence to the same by publishing a notice to the respondent once a week for four weeks in two daily newspapers published in the dty of Philadelphia and in the Legal Intelligencer, and non est inventiis as to said respondent. The subpcenas and order were sued out in proper time, and the proceedings 470 PRACTICE IN PENNSYLVANIA. were in strict accordance with and fulfillment of the Acts of Assembly and rules of court in such case made and provided. The reason alleged for the divorce as stated in the libel is the continuous desertion of libellant by the respondent, wilfully and maliciously and with- out reasonable cause, and the absenting of himself from her habitation from the early part of the month of , A. D. , until the date of filing libel, to wit. Upon receiving notice of his appointment the master held a preliminary meeting on , at the office of , for the purpose of ascertaining, if possible, the residence of the respondent. The libellant was examined and testified that she did not know where the respondent could be found ; that his last known residence to her was , but that she had heard that he had moved to . She directed the master to correspond with , a brother-in-law of the respondent, who resides on , Philadelphia ; Mrs. , N. J., a sister of respondent ; ., , and . The master thereupon sent registered letters to all the above parties and also three registered letters to the respondent himself; one in care of , one in care of , and one in care of . A copy of the letters sent the above-named parties (other than the respondent) is hereto annexed, marked " Exhibit C," and a copy of the notice sent ^to the respondent is hereto annexed, marked " Exhibit D." The notice to the respondent was in accordance with the rule of court, giving him information of the application for divorce, the grounds thereof, the name and address of the master, and the time and place of taking testimony in the cause. All the above letters and notices were mailed irom the Philadelphia postoffice on . Answers were received from all the parties (other than the respondent), who, with the ex- ception of , denied knowledge of the residence or address of the respondent. The answer of (hereto annexed, marked " Exhibit E"), dated , was as follows : " I gave Mr. 's address to the postmaster here who had a registered letter for him. He is with , this city." Thereupon, on December 30, 1887, the master sent a registered letter of request to , similar to exhibit " C," and a registered notice, similar to exhibit " D," to the respondent in care of , with directions on the envelope to the postmaster not to deliver the latter to anyone except personally. Before this notice could have been delivered to respondent the return postal from the registered letter sent him in care of , was received with the signature of affixed. Subsequently, the re- turn postal to the notice sent respondent on , in care of , but with directions on the envelope as aforesaid, was re- ceived with the signature affixed. These postals, marked " Exhibit A " and " Exhibit B," are hereto annexed. The signatures on the postals were subsequently identified by , son of respondent, as of the handwriting of his father, the respondent. (Vide testimony.) The master therefore reports that personal notice was given to respondent by two registered letters of the application of divorce, the grounds thereof, the name and address of the master, and the time and place of taking testimony in the cause. The first of these notices ought to have been delivered by due course of mail ten days beforie the first meeting for taking testimony ; and both were delivered in ample time for respondent to have replied before the date of last meeting, but no reply or communi- » DIVOECB. 471 cation from him (save the return postal as aforesaid) has been received by the master. The master is satisfied, by personal inquiry, and so reports that the resi- dence of libellant as stated in the libel is correct and bona fide, and that the libellant has resided in this county and State since her marriage to the present time. The master is also satisfied and so reports, that from the time of his marriage until , 18 , the respondent was a bona fide resident of this county and State. In pursuance of the notice sent respondent, and of written notice given to counsel for libellant, a meeting for the purpose of taking testimony was held at the office of , Philadelphia, on the day of , A. D. 18 , at o'clock in the afternoon, which, after testimony taken, was, on accoimt of the lateness of the hour, adjourned to j 18 , at o'clock in the afternoon. On account of indisposition the master was unable to attend on , and at his request an adjournment was had until ,18 , at o'clock, at which time the final meeting was held at the same place as the first. The first meeting was attended by and , of coun- sel for libellant, who also attended in person, and , witnesses for libellant. The last meeting was attended by the same per- sons, with the exception of . The libellant was examined as to the fact of marriage, residence, and age of herself and husband, the re- spondent. and , testified as to the desertion and other matters stated in the libel. The entire examination of the witnesses, with the ex- ception of that of libellant, which educed the testimony given by her and recorded after the letter (a) in her written testimony hereto annexed, was made by the master. The testimony so given by her after the letter (a) was so marked because the master doubted her competency to testify to the matters therein contained. His report, however, is made without reference to that testimony, and, therefore, for the purpose of this report, it is imma- terial whether or not she was a competent witness to testify to such matters. The master therefore reports that the evidence shows : I. That a marriage was solemnized by the Friends' ceremony between the libellant and respondent, on the day of , A. D. , at No. , in the city of Philadelphia, Pennsylvania, and that from and immediately thereafter the libellant and respondent cohabited together as husband and wife in the city of Philadelphia, until , 18 . . II. That at the time of said marriage the libellant and respondent were both citizens of the State of Pennsylvania, and resided in the city of Phila- delphia ; that the libellant has ever since resided in Philadelphia ; and that the respondent also resided in said city until , 18 . III. That the present residence of libellant is No. Street, Philadelphia. IV. That the libellant was years of age on the day of , A. D. , and the respondent is forty-six years of age this , V. That children were bom to libellant and respondent, of whom died in infancy. The names of the two living, with their ages and resi- dences, are as follows : , born , now residing at No. , Philadelphia ; , born , now residing at No. , Philadelphia. 472 PEACTICB IN PENNSYLVANIA. VI. The master also reports that from inquiries made he is satisfied that the present residence of respondent is , and that his address there is, care of VII. From the evidence in the case, hereto annexed, the master also reports that in his opinion the grounds alleged for the application for di- vorce are well founded. The two witnesses who were examined (other than libellant) both testified that for many years prior to , the respondent would periodically neglect his family, go off on drinking sprees, and re- main absent from home for weeks at a time, no one knowing where he was. That he was frequently losing situations by such conduct, and that the fur- niture was levied on for rent and seized for board on several occasions, the libellant or her friends having to redesm the same. During this time the libellant conducted herself properly and 'acted toward her husband in a dutiful and afieotionate manner, continually living with him and cohabit- ing with him, when he had a place provided for her, until , At that time respondent, with his family, were living at , Philadelphia, when he left on one of his sprees. The goods were levied on for rent ; one of the relatives paid the rent, taking the furniture as security ; the housekeeping was broken up ; and libellant and her son worked for the money with which they subsequently redeemed the furniture. Respondent lived in Philadelphia until , but neither supported his family nor lived with libellant. In of that year he obtained some money from his son, on his promise to send money toward the support of his family as soon as he got a position. He went West and has not con- tributed anything for the support of his family since that date. He occa- sionally wrote to his son, but never expressed a single desire to return or support his family. For the past years, however, he has not com- municated with his family. The master, therefore, is of opinion that respondent has wilftiUy, mali- ciously, and without a reasonable cause deserted libellant and absented him- self from her habitation continuously since , and recommends that the prayer of the libel be granted, and that a decree be made divorcing and separating him, the said , respondent, from the society, fel- lowship, and company of the libellant in all time to come, and her, the said , from the marriage bond contracted with the said respondent, as if they had never been married, or as if he, the said , were natu- rally dead. Exceptions to master's report. Where the rules of court are sileut upon this subject, the equity rules as to masters' reports might be followed. § 975. Rule for divorce. When master's report has been filed it should be handed to a judge. If he mark it !' approved," the libellant enters a rule for divorce, thus : §976. FORM OF RULE FOR DIVORCE. A B ) ■ ■ (In the Court of Common Pleas of Philadelphia County, Q -^ j of March Term, 1890. No. . And now, , 1890, the master's report in the above case having been approved by the court, on motion of , libellant's attorney, a rule is granted on respondent to show cause why a divorce a v. m. should DIVORCE, 473 not be decreed. Eule returnable (in Philadelphia the first Saturday of each month and the third Monday of September). § 977. Service of notice. The same old formula is here to be repeated. Serve personally, where possible ; otherwise on counsel if an appearance has been entered. Ten days' service before the return-day is required in Philadelphia. If no appearance, and notice cannot be served personally, then it must be published once a week for four weeks in the Legal Intelligencer and one daily paper of Philadelphia (and additional notice as directed), in the following §978. rOKM OF NOTICE OF FINAL ETJLB. To C. B., late of No. ' Street, Philadelphia, Pennsylvania. You are hereby notified that a final rule for divorce has been granted against you at the suit of A. B., your , which will be heajd in the Court of Common Pleas, No. , on Saturday, the day of , on which day you may appear and show cause, if any you have, why such divorce should not be granted against you. CD., Attorney for Libellant. § 979. Affidavit of service. In all cases an affidavit of the time, place, and manner of service shall be filed, and in case of service on the counsel of the respondent, or by publi- cation, the efforts which have been made to serve the respondent personally shall be stated in the affidavit. § 980. Service. Service of notices or rules upon the respondent shall not be made by the libellant or the next friend or the counsel of record. § 981. Notice of rule where respondent is out of the State. Where respondent has had notice of proceedings, and he resides in a foreign country, it is not necessary under the rules of court to make eflfbrt to serve him personally with notice of the last rule. Baldtoin v. Biddwin, 17 W. K, 222 (1886). It only remains to note a few general matters. § 982. Testimony. Parties may testify where personal service made, or appearance etdered. A husband and wife shall not be competent or permitted to testify against each other, except in those proceedings for divorce in which personal ser- vice of the subpoena or of a rule to take depositions has been made upon the opposite party, or in which the opposite party appears and defends, in which case, either may testify fully against the other, and except, also, that in any proceeding for divorce either party may be called merely to prove the fact of marriage. (Act of May 23, 1887, section 5 ; P. L., 159.) 474 PRACTICE IN PENNSYLVANIA. Where notice of the master's meeting had reached the respon- dent by registered letter, it was held that the libellant might testify to all facts alleged in her libel, although the subpoena had not been served and the respondent had not appeared. Kolp v. Kolp, 3 Dist. Eep., 1 (1893). § 983. Commissions and rules to take depositions. Ancient, in- firm, and going witnesses may be examined under the rules of court. A rule is granted by a judge, fixing the notice to be given. This order is complied with and the deposition taken. In like manner the court will grant a rule for a commission outside of the State. A commission may issue, but if the case is before a master inter- rogatories are to be framed by him after notice of the names of the witnesses and the offers of testimony as to each, both parties having right to file supplemental and cross-interrogatories. Snowden v. Snowden, 18 W. N., 347 (1886). In Gilbert y. GH,lbert, 18 W. N., 535 (1886), it was ruled that the parties should prepare the interrogatories. It is difficult to understand how a master could prepare any but the general interrogatories. § 984. Discontinuance. It is settled law in Pennsylvania that a discontinuance must be founded on the express or implied leave of the court. In ordinary cases it has been a long-established practice that a plaintiff may, on payment of costs, discontinue his action without formal leave, but in divorce proceedings the discon- tinuance must be by express leave of court, otherwise it will be stricken off. Murphy v. Murphy, 8 Phila., 357 (1871). § 985. Discontinuance may be entered, notwithstanding a pending rule for alimony. In Clymery. Clymer, 45 Leg. Int., 379 (1888), leave was given libellant to discontinue, notwithstanding a pending rule for alimony, which had not been diligently prosecuted. § 986. Condonation. Reconciliation and subsequent cohabitation are not a bar to a divorce for acts of cruelty, violence, and outrage committed before the reconciliation. HoUister v. JSollister, 6 Pa. St., 449 (1847) ; Steele v. Steele, 11 W. K, 21 (1881). Acts of condonation in a divorce for adultery are a bar to a decree ; subsequent acts of adultery will not avoid its effect. Bran- son V. Branson, 7 Phila., 405 (1870). § 987. l>eoree vacated. A decree may be vacated where a divorce was obtained by fraud, though a marriage subsequently took place on the strength of that decree, and issue born. AUen v. Maclellan, 12 Pa. St., 328 (1849). In Smith v. Smith, 3 Phila., 492 (1859), the evidence showed that the respondent at libellant's instigation and with his consent DIVOECE. 475 had visited her father's family in Kentucky. That subsequently she had received a letter from him urging separation, and the first knowledge of the divorce proceeding against her was when a certi- ficate of the decree was forwarded to her by libellant. The decree was vacated by the court on the ground of fraud. After libellant's death a decree was vacated, where the divorce was obtained in respondent's absence and without notice to her* Boyd's Appeal, 38 Pa. St., 241 (1861). A decree will be vacated which was obtained by fraud or imposi- tion and without proper notice to the other party. Wanamaher V. Wanamaker, 10 Phila., 466 (1873). A decree in divorce may be vacated if good grounds be shown therefor, though twelve' years have passed since it was obtained and libellant is dead. Fidelity Ins. Oo.'s Appeal, 93 Pa. St., 242 (1880). A final decree may be vacated where it has been obtained by fraud. Nicleerson v. Nickerson, 13 "W. N., 210 (1883). The fraud practised in this case was the obtaining by libellant of a colorable citizenship in this State, hiring a room in a lodging- house, occupying it very rarely (thirteen nights in fourteen months), false statement in the libel as to residence in the State, being in correspondence with his wife, omitting all reference to the proceed- ing in divorce, false and peijured testimony that respondent had deserted, etc. §988. FORM OF PETITION BY A HUSBAND TO ANNUL DECEEE OF DIVORCE FE.OM BED AND BOARD. (State the names of the parties, court, term, No., etc.) To the Honorable the Judges of the said Court : The petition of , the above named respondent, respectfiilly showeth : That he is informed that on , the day of , in the year of our Lord one thousand eight hundred and , this Honorable Court made a sentence or decree conformably to the prayer of the libellant above named, that your petitioner and the said libellant should be, and they accordingly were, divorced fi:om bed and board. Your petitioner does not deem it proper for him, at this stage of the pro- ceeding, to deny the allegations contained in the libel, nor to dispute the justice of the sentence pronounced by this Honorable Court, grounded upon the ex parte evidence produced to them ; he is informed and advised that the said sentence is absolute, and precludes contradiction on matters of feet. Your petitioner is well convinced that he and the libellant can live hap- pily together hereafter, and that their doing so will be essential to the com- fort, education, and morals of their young children, and he anxiously avails 476 PBACTICB IN PENNSYLVANIA. himself of an indulgent provision of tie law, and now oflfers to this Honor- able Court to receive and cohabit with the said libellant again, and to use her as a good husband ought to do. Your petitioner, therefore, prays this Honorable CJourt to suspend the aforesaid decree, and that in case the said libellant reflises to return and co- habit with your petitioner under the protection of this court, your Honors may discharge and annul the aforesaid sentence or decree. And for the faithful performance of this offer and engagement on his part your petitioner will, if necessary, give to this Honorable Court such security as in their discretion they may consider the case to require. (Attach usual affidavit.) § 989. The action on such an application rests purely in the sound discretion of the court. The petitioner is already convicted upon the record of the charge named in the libel. If he were never served, if any fraud were practised upon him or upon the court, and if he can deny the charges, he ought not to file this peti- tion ; but he should present a very different application, to wit, a motion to vacate the decree. If he proceed for a suspension under the form just given, and his petition be resisted, the court may require some proofs of his good faith. These he should be ready to show by depositions taken under a rule or reference, and upon notice to the libellant and her attorney, § 990. Appeal. See chapter on Appeals, § 3393. When a divorce is decreed, depositions taken by respondent after the decree are no part of the record on appeal. Elmes v. Elmes, 9 Pa. St., 166 (1848). A writ of error, will not lie to the final decree of the Common Pleas in divorce proceedings. An appeal is the proper remedy. Miller v. Miller, 3 Binn., 30 (1810), Tilghman, C. J. On appeal the matters of fact will not be re-tried which have been decided by the jury in a lower court. Andrews v. Andrews, 6 S. & R., 374 (1819). An appeal will be dismissed if appellant shall not enter a recog- nizance with at least one good surety conditioned to prosecute the appeal with effect. Brom v. Brom, 2 "Whar., 94 (1837). On appeal, an affidavit that it is not intended for delay must be filed. BrenUinger v. Brentlinger, 4 Rawle, 241 (1833). § 991. Costs on final decree. In Shoop's Appeal, 34 Pa. St., 233 (1859), the libellant obtained a divorce a v. m., on the ground of cruel and barbarous treatment by his wife, and alimony was decreed but costs refused. BrinokUw. BrincklS (C. P. Phila., March Term, 1871, No. 32 ; Supreme Court, January Term, 1879, No. 65). The answer denied DIVOKCE. 477 the averment of marriage. The jury found for respondent. He filed his bill of costs. It was taxed. A decree was entered " that the libel be dismissed with costs." The libellant appealed, and assigned for error this decree. Her counsel argued that " the court will not ordinarily, if it has any discretion in the premises, decree costs against a defeated wife." He cited 2 Bishop on Marriage and Divorce, 365, The Supreme Court affirmed the decree. CHAPTER XVIII. DOWER. § 992. Definition, Dower 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. Coke Littleton, 30 a; 4 Kent Comm., 35; Washburn Real Property, 146. The legal proceeding by which she enforces her right to such provision is called with us an action of dower, being the Eng- lish action of dower, wnde nihil habet. § 993. English Statutes. The following Acts of Parliament have been found to be in force in this State. Report of the Judges, Roberts' Digest, 179 (2d. ed.). Widow shaU have dower. A widow, after the death of her husband,, incontinent, and without any difficulty, shall have her marriage and her inheritance which her husband and she held the day of the death of her husband, and she shall tarry in the chief house of her husband by forty days after the death of her hus- band, within which days her dower shall be assigned her (if it were not assigned her before) or that the house be a castle ; or if she depart from the castle, then a competent house shall forthwith be proTided for her, in the which she may honestly dwell until her dower be to her assigned, as it is aforesaid ; and she shall have, in the meantime, her reasonable estovers of the common ; and for her dower shall be assigned unto her the third part of all the lands of her husband which were his during coverture, ex- cept she were endowed of less at the church door. No widow shall be dis- trained to marry herself, nevertheless she shall find surety that she shall not marry without our license and assent (if she held of us), nor without the' assent of the lord if she held of another. 9 Henry III., eh. VII. (1225); Magna Charta. That part only of this statute is in force which provides that a widow shall tarry in the chief house of her husband forty days after her husband's death, within which days her dower shall be assigned her. Eeport of the Judges. § 994. Damages to be recovered. By Statute 20 Henry III., ch. I., Statute of Merton (1235), it is provided that when Widows are deforced of their dowers " and cannot have their dowers or quarantine without plea" * * * "they that be convict of such wrongful deforcement shall yield damages to the same widows ;" that is to say, the value of the dower from the time of the husband's death until DOWER. 479 judgment in favor of the widow ;" " and the deforcers nevertheless shall he amerced at the king's pleasure." (Eoherts' Digest, 182.) § 995. Dower ande nihil habet maintainable though widow have received part of her dower from another. In a writ of dower called unde nihil habet the writ shall not ahate by the exception of the tenant because she hath received her dower of another man before her writ purchased, unless he can show that she hath received part of her dower of himself, and in the same town before the writ purchased. (3 Edw. I., ch. XLIX. (1275), Roberts' Dig., 184.) § 996. Dispossession of the husband by covin or default. By 13 Ed. I., Stat. 1, ch. IV. (1285), it is provided that if a hus- band suffer judgment against him by covin, and give up the land to his adversary, the widow shall not thereby be barred of her dower. If the judgment be by default, the defendant (tenant) shall be required to show " that he had right, and hath in the foresaid land, according to the form of the writ that the tenant be- fore purchased against the husband." This Act further provides that in the foregoing and other enumerated cases the reversioner of the land may be vouched to warranty by the defepdant, in order that the widow may not be put to several actions for the recovery of her dower, but that it may be awarded her by virtue of a single judgment. It is also enacted by the same statute that if the widow recover her dower against the guardian of the heir, the heir, upon reaching full age, " shall have an action to demand the seisin of his ancestor against such woman." " In like manner the woman shall be aided if the heir or any other do implead her for her dower, or if she lose her dower, by default, in which case the default shall not be so prejudicial to her, but that she shall recover her dower if she have right thereto." The forms of writs for recovery of dower by the widow, and for recovery of land lost by default, were regulated by the Act, and it was provided that the demandant in such case should not be compelled to resort to a writ of right. See the text of the Act, Eoberts' Digest, 185. § 997. Admeasurement of dower. Statute 13 Edw. I., st.l, ch. VTI. (1285), provided the writ of admeasurement of dower for the guardian of minor heirs, but to the heirs is reserved the right to admeasure the dower again when they reach full age, upon alle- gation that the guardian acted collusively. Roberts' Digest, 187. § 998. Dower barred by elopement and adultery. If a wife willingly leave her husband, and go away and continue with her avouterer, she shall be barred forever of action to demand her dower that she ought to have of her husband's lands, if she be convict thereupon, ex- cept that her husband willingly, and without coercion of the chureh, reconcile 480 PRACTICE IN PENNSYLVANIA. her, and suifer her to dwell with him ; in which case she shall be restored to action. (13 Edw. I., stat. I., ch. XXXIV. (1285), Eoberts' Dig. (2d. ed.), 188.) § 999. Widow may bequeath emblements of dower land. Widows may bequeath the crop of their ground, as well as their dowers, as of other lands and tenements, saving to the lords of the fee, all such ser- vices as be due for their dowers and other tenements. (20 Henry III., ch. II. (1235), Roberts' Digest (2d. ed.), 208.) § 1000. Execution shaM not be stayed. By Statute 16 and 17 Chas. II., ch. VIII. (1664), it is provided that in writs of error brought after verdict in actions of dower or ejectment, execution shall not be stayed unless plaintilf in error be bound that if judg- ment be affirmed, or the writ of error be non-suit, or discontinued for default, he will pay to the demandant the costs and damages awarded him by the verdict. Roberts' Dig., 40. §1001. Pennsylvania Statutes. Widow's portion. The real and personal estate of a decedent, whether male or female, re- maining after payment of all just debts and legal charges, which shall not have been sold or disposed of by will, or otherwise limited by marriage settlement, shali be divided and enjoined (enjoyed) as follows, viz. : I. Where such intestate shall leave a widow and issue, the widow shall be entitled to one-third part of the real estate for the term of her life, and to one-third part of the personal estate absolutely. n. Where such intestate shall leave a widow and collateral heirs, or other kindred but no issue, the widow shall be entitled to one-half part of the real estate, including the mansion-house and buildings appurcenant thereto, for the term of her life, and to one-half part of the personal estate absolutely. (Act 8 April, 1833, section 1 ; P. L., 315.) § 1002. Upon failure of heirs or kindred competent to take, the real estate of the intestate shall vest in his widow. Section 10, Id. § 1003. To be in lieu of dower. The shares of the estate directed by this Act to be allotted to thfe widow, shall be in lieu and full satisfaction of her dower at common law. (Id., section 15.) § 1004. Bequest or devise to be in lieu of dower. A devise or bequest by a husband to his wife of any portion of his estate or property shall be deemed and taken to be in lieu and bar of her dower in the estate of such testator, in like manner as if it were so expressed in the will, unless such testator shall in his will declare otherwise : Provided, That nothing herein contained shall deprive the widow of her choice either of dower or of the estate or property so devised or bequeathed. (Act 8 April, 1883, section 11 ; P. L., 319.) § 1005. Widow not taking under the wiU to have her share of personalty. DOWBE. 481 The eleventh section of the Act of 8 April, 1833, entitled " An Act re- lating to last wills and testaments," shall not be construed to deprive the widow of the testator, in case she elects not to take under the last will and testament of her husband, of her share of the personal estate of her husband under the intestate laws of this Commonwealth, but that the said widow may take her choice, either of the bequest or devise made to her under any- last will or testament, or of her share of the personal estate under the in- testate laws aforesaid. (Act 11 April, 1848, section 11 ; P. L., 637.) § 1006. Widow not taking under will to have interest in realty as if her husband had died intestate. In case any person has died, or shall hereafter die, leaving a widow and last will and testament, and such widow shall elect not to take under the will, in lieu of dower at the common law, as heretofore, she shall be enti- tled 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. (Act 20 April, 1869, section 1 ; P. L., 77.) § 1007. Jurisdiction of Orphans' Court. The Orphans' Court of the several counties of this Commonwealth, in which the real estate of such decedent is situated, shall have power, on the application of the widow or anyone interested, to award an inquest to make partition of the same, and to decree the allotments thereof made, or in case of refusal to accept to order a sale thereof and secure the interest of the widow and all others interested, in the same manner and with like force and effect as is now provided by law in the partition of the real estate of persons dying intestate. (/ d., section 2.) § 1008. The widow may be cited to make election. In every case of a devise or bequest to a widow, which, by force of any last will and testament, or by operation of law, will bar such widow of dower, subject to her right of election of dower, or of the property devised or bequeathed, it shall be lawful for the Orphans' Court, on the application of any person interested in the estate of the decedent, to issue a citation at any time after twelve months from the death of the testator, to any such widow, to appear at a certain time, not less than one month thereafter, in the said court, to make her election either to accept such devise or bequest in lieu of dower, or to waive such devise or bequest, and to take her dower of which election a record shall be made, which shall be conclusive on all parties. If the widow shall neglect or refuse to appear upon such citation, then upon due proof to the court of the service thereof, the said neglect or refusal shall be deemed an acceptance of the devise or bequest, and a bar of dower of which a record shall be made, which shall be conclusive on all parties concerned. (Act 29 March, 1832, section 35 ; P; L., 200.) § 1009. How dower to be secured upon partition. Should the widow of the decedent be living at the time of the partition she shall not be entitled to payment of the sum at which her purpart or share of the estate shall be valued, but the same, together with interest thereof, shall be and remain charged upon the premises, if the whole be taken by one child or other descendant] of the deceased, or upon the re- spective shares, if divided as hereinbefore mentioned, and the legal interest VOL. I. — 31 482 PEACTICE IN PENNSYLVANIA. ■thereof shall be annually and regularly paid by the persons to whom such real estate shall be adjudged, their heirs or assigns, holding the. same, according to their respective portions, to the said widow during her natural life, in lieu and fall satisfaction of her dower at common law, and the same may be re- covered by the widow by distress or otherwise, as rents in this Common- wealth are recoverable. On the death of the widow, the said principal sum shall be paid by the children, or other lineal descendants to whom the said real estate shall have been adjudged, their heirs or assigns, holding the premises to the persons thereunto legally entitled. {Id., section 41 ; P. L., 202.) § 1010. In case the property be sold. By section 43 it is pro- vided that in case the property be sold, the widow's share of the purchase-money shall remain in the hands of the purchaser during her natural life, the interest to be payable to her regularly and an- nually, and to be recoverable by distress or otherwise, as rents are recoverable, this to be accepted in satisfaction of dower. Upon the death of the widow, the principal sum so retained is to be paid to those legally entitled thereto. § 1011. If the land consist of several parcels, the court is given authority, by Act of 7 January, 1867, section 1 (P. L., 1367), to charge the widow's share upon one or more of the tracts, the re- maining tracts to be discharged, provided that the tract or tracts upon which her share is charged shall, in the opinion of the court, be fully sufficient to secure payment of principal and interest, and provided that the widow and those entitled at her death shall have the same remedies as they had previously to the passage of this law. § 1012. In York and Fayette Counties. By Act of 13 Febru- ary, 1867, section 1 (P. L., 160), the Orphans' Courts of York and Fayette Counties are empowered to appoint commissioners or to award an inquest to make partition or valuation of the widow's dower, and to make the necessary decree therein, upon application of the widow, or of her personal representatives after her death. § 1013. Dower of the widow of an intestate co-tenant. The Act of 24 April, 1843, section 8 (P. L., 360), makes provision and regulates the practice for securing her dower to the widow of one seized of land as co-tenant or in common with others, she being entitled under the intestate law. § 1014. Jurisdiction where lands lie in several counties. All the courts of this Commonwealth now having jurisdiction in matters of partition shall have power to entertain suits and proceedings, whether at law or in equity or otherwise, for the partition of real estate, or the re- covery of dower or the widow's third or other part, although the lands to be divided or recovered may lie in one or more counties of this Common- wealth. Provided, That such proceeding intended to embrace lands in more than one county shall be brought only in the county where a de- DOWER, 483 cedent, whose land is to be divided, had his domicile, or where the home- stead, or larger part of the estate in value, shall be situated ; and service of process may be made by any sheriff, where real estate to be divided shall be situated, or any defendant may be found ; and exemplifications of the record may be filed in every county where such real estate may be situated, in such court thereof as shall correspond in character to that of the court in which such proceeding may have taken place, and be received in evi- dence with the like eflfect as the records of the court where filed ; except that any exemplification of the proceedings in the Supreme Court shall be filed in the District Court, or Court of Common Pleas of the proper county. (Act 20 February, 1854, section 1 ; P. L., 89.) § 1015. Equitable jurisdiction in Philadelphia. 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 parti- tion within the city and cbunty of Philadelphia. (Act ,17 March, 1845, sections; P.'^L., 160.) § 1016. Exemption. The widow or the children of any decedent dying within this Common- wealth, testate or intestate, may retain either real or personal property be- longing to said estate to the value of three hundred dollars, and the same shall not be sold, but sufiered to remain for the use of the widow and family, and it shall be the duty of the executor or administrator of such decedent to have the said property appraised in the same manner as is provided in the Act passed the ninth day of April, in the year 1849, entitled " An Act to exempt property to the value of three hundred dollars fi-om levy and sale on execution and distress for rent." Provided, That this section shall not afiect or impair any liens for the purchase-money of such real estate. And the said appraisement, upon being signed and certified by the ap- praisers and approved by the Orphans' Court, shall be filed among the records thereof. (Act 14 April, 1851, section 5 ; P. L., 613.) By Act of 8 April, 1859, section 1 (P. L., 425), it is provided that the above exemption may be retained out of any bank-notes, money, stocks, judgments, or other indebtedness to the decedent, to be appraised and set apart by the appraisers of the other personal estate. Act of 27 November, 1865, section 1 (P. L., 1227), provided that real estate may be retained. If the same consist of a single tenement or messuage, and cannot be divided, and the appraisers may have valued it at not more than six hundred dollars, it shall be set apart for the use of the widow or children, conditioned that the person to whom it shall be set apart shall pay the excess of the valuation over three hundred dollars, within one year from the date of confirmation. Provided that if the real estate be refused by the widow and children at the appraisement, the court, on application, may grant an order to sell the same. By section- 2 of this Act it is provided that the real estate, if 484 PKACTICB IN PENNSYLVANIA. taken by the widow or children, shall vest absolutely upon pay- ment of the surplus to those entitled. If it be not taken at the appraisement, but be sold, the sum of three hundted dollars of the purchase-money shall be paid to the widow or children entitled thereto, and the balance, after payment of costs and expenses, shall be distributed. § 1017. Action not to abate. No action of dower unde nihil habet hereafter brought or now pending and undetermined in the courts of this Commonwealth shall abate by reason of the death of the plaintiff therein ; but the same may be prosecuted by the executors or administrators of said plaintiff, who shall be substituted as plaintiffs therein on the record, or 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 hus- band until the date of the death of the original plaintiff in such action. (Act 14 March, 1865, section 1 ; P. L., 345.) § 1018. Wife of lAmaiie may release dower. In all cases where deeds conveying titles to real estate, situated within this Commonwealth, have been or shall hereafter be executed by a com- mittee in lunacy, under an order of any court having jurisdiction of the same, it shall be competent for the wife of such lunatic to release or divest her dower right or claim in the nature thereof in such real estate, in the same manner as if she were a widow and not under coverture : Provided, That such release shall have been executed prior to a decree declaring that such lunatic had been restored to his reason or sanity. (Act 28 March, 1879, section 1 ; P. L., 13.) § 1019. Equitable Jurisdiction. 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 7 July, 1885, section 1 ; P. L., 257.) § 1020. Process in real actions. The Act of 13 June, 1836, sec- tions 79-88, relative to institution, process, and proceedings in real actions generally, is adverted to in the chapter upon Partition in this book. The provisions of those sections will, therefore, not be inserted here. § 1021. Dower at common law. At common law, the widow's right of dower is an estate for life, to be assigned her 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 issue of the widow. Litt., sections 36, 53; 2 Bl. Comm., 129, 131. A widow is not entitled at common law to dower in an estate of remainder vested in her husband and aliened by him during cov- erture. Shoemaker v. Walker, 2 S. & R., 554 (1814). Nor where DOWER. 485 he has a bare equitable title in land so aliened. Pritts v. Richey, 29 Pa. St., 71 (1857). A release of " dower at common law " will bar a claim to dower in land aliened by the husband alone during coverture. Gray v. McCtune, 23 Pa. St., 447 (1854). § 1022. At common law, the widow does not share in person- alty. The Act of 8 April, 1833, section 11 (sw[n-a, section 1004), is construed to vest in a widow declining to take, under her husband's will, the right of dower only at common law. She is excluded thereunder from participation in his personal estate. Hinnershitz V. Bemhard, 13 Pa. St., 518 (1850). The subsequent Act (11 April, 1848, section 11 ; .supra, section 1005), entitling her to her share in the personalty, is not applicable where the husband died before its passage. Id. See also Act of 20 April, 1869, section 1, P. L., 77 (swpra, section 1006), substituting her share in the realty under the intestate law for the common law dower thereto- fore recoverable by a widow not taking under the will. § 1023. Not divested. Neither sale upon execution against the husband, nor common recovery suffered by him alone, served to divest the wife's dower in a fee tail at common law. Sharp v. PetU, 1 Yeates, 389 (1794). § 1024. Statutory dower. The nature and attributes of dower in Pennsylvania have been considerably modified by our statutes. See supra. The widow no longer has a right to several possession of the land out of which her dower is secured. Her share in her husband's estate includes a proportion of his personalty. The dower interest varies from a third to a half in quantity, and neither the seisin of the husband nor possibility of inheritance by issue of the widow, in the strict sense of the common law, is a prerequisite of her claim. " Her interest in his lands is in no respect like dower at common law, except that it is only for life." Gourley v. Kin- ley, 66 Pa. St., 274 (1870). The right of statutory dower does not extend to land aliened by the husband in his lifetime. The widow's claim to dower therein is at common law. Borland v. Nichols, 12 Pa. St., 38 (1849). After a sale of an intestate's land in partition in the Orphans' Court, the widow's interest charged upon it is not properly "dower," but is a money charge upon the land. Yen- ad's Appeal, 77 Pa. St., 71 (1874). It is a lien, though not ex- pressly charged on the premises. Kline v. Bowman, 19 Pa. St., 24 (1852). § 1025. Dower is an estate in the land. In Kurtz's Appeal, 26 Pa, St., 465 (1856), it is held that purchase-money charged upon land to secure dower is a lien, and that a mortgage subsequent to 486 PKACTICB IN PENNSYLVANIA. it will therefore be discharged by a judicial sale of the land. But in later cases this doctrine is repudiated, and dower by statute or at common law is recognized to be an interest or estate in the land, and not a mere lien upon it. As such it cannot be discharged by a sheriff's sale. Ziegler'a Appeal, 35 Pa. St., 173 (I860) ; SchalPs Appeal, 40 Pa. St., 170 (1861); Omrley v. Kinky, 66 Pa. St., 270 (1870); Dkfenderfer v. EsUeman, 113 Pa. St., 305 (1886). In the last-cited case it was held that dower is not discharged by a sale of the land in partition by decree omitting to direct that it shall be secured, in spite of the widow's acceptance of service of a rule to show cause why the land should not be sold. In Gourley V. KiTiley (supra), the preceding cases upon this subject are re- viewed, and their conflicting doctrines noticed. In Watterson'a Appeal, 95 Pa. St., 312 (1880), statutory dower is declared to be an estate of freehold in the land vesting in the widow at the in- stant of her husband's death. § 1026. Widow is a purchaser. The widow's dower right, either by statute or at common law, is an estate of purchase, and as such is paramount to the title of the heirs. Bradfords v. Kerd, 43 Pa. St., 474 (1862). General legacies must therefore abate to make up a deficiency caused by a widow's election not to take under the will. Bard's Estate, 58 Pa. St., 393 (1868) ; Hdneman's Appeal, 92 Pa. St., 95 (1879). An annuity in lieu of dower is chargeable on the residuary real estate in case of a deficiency of personal assets. If it be charged upon a redeemable ground-rent, which is afterward paid, the an- nuity should be secured upon the proceeds in the hands of the heirs or devisees. Conrad's Appeal, 33 Pa. St., 47 (1859). § 1027. Widow's interest subject to seizure for her debt. In Thomas v. Simpson, 3 Pa. St., 60 (1846), it is held that the in- terest of a widow in her husband's land, either by devise or intes- tacy, is an estate which is subject to levy and sale under proceed- ings against her. It passes to the widow's assignee in bankruptcy, and it cannot be divested as against creditors by her parol declarations without con- sideration. Watterson's Appeal, 95 Pa. St., 312 (1880). § 1028. Subject to lien of decedent's debts. She is dowable only of what remains after payment of the decedent's debts, whether of record or not. Directors of the Poor v. Boyer, 43 Pa. St., 146 (1862). § 1029. Dower apportionable as to time. Dower or annuity in lieu thereof is apportionable, and runs to the last day of the widow's life. Blight v. Blight, 51 Pa. St., 420 (1866). DOWEE. 487 § 1030. Cannot be compelled to apportion. If the land be ami- cably apportioned among the heirs, and the widow afterward pro- ceed against the vendee of a tract from one of them, she is entitled to her share of the value of rents and profits thereof, without re- gard to the valuation of the other land of which her husband died seized. Heller's Appeal, 116 Pa. St., 534 (1887). § 1031. Dower does not merge. In Fink's Appeal, 130 Pa. St., 256 (1889), the fee simple of land in which a widow was entitled to dower vested in her, subject to an intermediate dower in the widow of her son. Held, that the right of the former as widow was paramount, and that it did not merge in her fee simple ; that therefore she was entitled to possession in her character as fee ten- ant, subject during her lifetime to dower right in the son's widow upon the proportion of the valuation not covered by her own dower. § 1032. Not a rent charge. A widow's interest charged upon land is not a rent charge, though perhaps in the nature of one. A release by her of part of the land is therefore not a release of all. Rdgerl v. Ellmaker, 14 S. & R., 121 (1826); Jones' Appeal, 41 Leg. Int., 314 (1884). See Shavpe v. Shaupe, 12 S. & R., 9 (1824) ; McFarland's Estate, 28 P. L. J., 49 (1880). § 1033. Possession of the husband not requisite. The widow of one owning a vested remainder of freehold limited after a life-estate is entitled to dower upon the death of the husband, while the life- estate is still unexpired. Legal seisin in the husband is not essen- tial to our statutory right of dower. Cot^s Appeal, 79 Pa. St. , 235 (1875) ; Starr's Estate, 40 Leg. Int., 5 (1882) ; Lynch v. Lynch, 25 W. N., 424 (1890) ; Bloodgood's Estate, 47 Leg. Int., 298 (1890). In Oot^s Appeal it was pointed out that Shoemaker v. Walker (mipra, section 1021) dealt with an expectancy which the husband had aliened. The action, therefore, being for common law dower, want of seisin in the husband was a fatal impediment. § 1034. Does not embrace personalty. The word "dower" does not include the widow's right in the personal estate of her deceased husband. Ellmaker v. Ellmaker, 4 Watts, 89 (1835). § 1036. Of what a widow is dowable. At an early date it was decided that a widow was not entitled to dower in land held by her husband under a warrant, and aliened by him during coverture; such holding being then (1755) regarded as a mere chattel interest. Dodson V. Davis, 2 Yeates, 168 (1796). But it was held in 1799 that the widow was dowable of land held by improvement right alone. Kelly v. Mohan, Id., 515. Property transferred to a man by one bona fide believing herself 488 PRACTICE IN PENNSYLVANIA. to be his wife is not subject after his death to dower in favor of his real widow. Heslop v. Heslop, 82 Pa. St., 537 (1876). Husband's right to dispose of personalty absolute as to wife. While alive, though upon his death-bed, one can dispose of his property as he pleases, even if the result is to deprive the wife of her dower. Perry v. Perry (C. P. Lacisawanna Co.), 3 Common Pleas Eeports, 163 (1886). Where the decedent had assigned securities to himself as trustee on the books of the corporation with which the securities were de- posited and registered, and enclosed the securities in an envelope on which he had indorsed that they belonged to him as trustee for his children eo nomine, purchased with funds set apart from time to time for their benefit, in which condition they remain till his death ; hdd, that, without actual delivery, this amounted to a gift itder vivos, and constituted a valid trust for the children, and that the securities were not part of the decedent's estate which his widow could elect to share under the intestate laws. Diokerson's Estate, 48 Leg. Int., 76 (1886). Where a husband gave his bond for $3500 to his children, pay- able in five years, and died before that time had expired ; held, that the gift was good against the widow. Schwartz's Estate, 42 Leg. Int., 16 (1885). The power of the husband over his personal property by gift inter vivos is absolute. Pringh v. Pringle, 59 Pa. St., 281 (1868). A man's wife and children have no legal right to any part of his goods, and no fraud can be predicated of any act of his to de- prive them of the succession. Ellmaker v. Ellmaker, 4 Watts, 89 (1835). A release of dower will not exclude a widow from a share in the personalty. Gibson, C. J. : " Who so ignorant as not to know that a husband may dispose of his chattels during the coverture, without his wife's con- sent, and freed of every post-mortem claim by her ?" § 1036. Language of the Act of April 8, 1833, is general. The language of the statute is general, and extends to all of the real and personal estate of a decedent " remaining after payment of all just debts and legal charges, which shall not have been sold or disposed of by will, or otherwise limited by marriage settlement." {Supra, section 1002.) § 1037. Partial intestacy. If the husband die intestate as to part of his estate, the widow is entitled to her share in such part, in addition to what is left her in the will. Carman's Appeal, 2 Penny., 332 (1882). § 1038. Entitled to dower in an estate in fee determinable by DOWEE. 489 executory devise. Land was devised to A. and B. equally in fee- simple, with survivorship upon the death of either without issue ; A. having died without issue, it was held that his widow was en- titled to dower in his part of the land. Evans v. Evans, 9 Pa. St., 190 (1848). So of a similar devise, construed to be a fee-tail with vested remainders over. Smith's Appeal, 23 Pa. St., 9 (1854). A devise in fee, terminable at the death of the tenant without issue, is subject to dower in favor of his widow. Lovett v. Lovett, 10 Phila., 537 (1875). § 1039. In equitable estates. A widow is dowable in an estate held in trust for her husband, Shoemaker v. Walker, 2 S. & R., 554 (1814) ; and in an equity ,of redemption, Meed v. Morrison, 12 S. & E,., 18 (1824) ; and in an estate, the legal title of which is in another under agreement to convey to the husband, Evans v. Evans, 29 Pa. St., 277 (1857). But the execution of a deed and delivery to the grantor's agent, with instructions to deliver it to the grantee upon payment of the purchase-money, followed by delivery to the alienee of the grantee after the death of the latter, upon payment of the consideration by the alienee, will not vest such title in the grantee as to give his widow a right of dower in the land. Jimk V. Canon, 34 Pa. St., 286 (1859). § 1040. Jurisdiction. If the decedent die in possession, the legal action of dower will not lie. In such case jurisdiction is in the Orphans' Court exclusively. Thomas v. Simpson, 3 Pa. St., 60 (1846); Taylor v. Birmingham, 29 Pa. St., 306 (1857); Mussle- man's Appeal, 65 Pa. St., 480 (1870) ; Gourley v. Kinley, 66 Pa. St., 270 (1870) ; Tatham v. Barney, 82 Pa. St., 130 (1876). The action at law lies if the land be in possession of another claiming adversely, or of one not amenable to Orphan,s' Court pro- cess. Galbraith v. Chreen, 13 S. & R., 85 (1824) ; Evans v. Evams, 29 Pa. St., 277 (1857) ; Gourley v. Kinley (supra). Statutory dower may be recovered in the common-law action. Evans v. Evans, 29 Pa. St., 277 (1857). §1041. Widow taking against husband's will. A widow electing not to take under her husband's will was formerly held entitled to dower at common law, and therefore she could not recover the same in the Orphans' Court, but was remitted to her legal action. Brad- fords V. Kent, 43 Pa. St., 474 (1862) ; Shaffer v. Shaff&r, 50 Pa. St., 394 (1865). But by Act of 20 April, 1869 (P. L., 77), supra, the Orphans' Courts are given jurisdiction in such cases, and this Act has been held to oust the jurisdiction of the courts of law. Robin's Appeal, 1 W. K, 238 (1875); lAppinoott's Estate, 7 Phila., 504 (1870). The statute expressly enacts that a widow 490 PRACTICE IN PENNSYLVANIA. refusing to take under the will " in lieu of dower at common law as heretofore, shall be entitled to such interest in the real estate of her deceased husband as the widows of decedents dying in- testate are entitled to under the existing laws of this Common- wealth." § 1042. Widow of tenant in common. The widow of one seized of land in common with others, independently of statute, is remitted to her action at law. Brown v. Adams, 2 Whart., 188 (1836) ; Eoans v. Eoans, 9 Pa. St., 190 (1848) ; Eoans v. JEhcms, 1 Phila., 113 (1847). But the power in the premises is conferred upon the Orphans' Court in the cases therein provided by Acts of 24 April, 1843, section 8 (P. L., 360), and 13 March, 1847, section 1 (P. L., 319). § 1043. Equitable jurisdiction. By Act of 7 July, 1885 (P. L., 257, supra, section 1019), equitable power is vested in the Courts of Common Pleas "in all cases of dower and partition within their respective counties." Such jurisdiction had theretofore existed in Philadelphia. See Act 17 March, 1845, section 3 (P. L., 160; supra, section 1015). The remarks upon the preferability of the equitable form of action in partition are equally applicable here. The personal representative of a widow may maintain an action in equity for an account of rents and profits of her dower interest, though dower was not assigned nor proceedings instituted therefor in her lifetime ; she having, however, filed in the Orphans' Court her election not to take under the will of her husband. Paul v. Paul, 36 Pa. St., 270 (I860). The courts have jurisdiction in equity to award an annuity in lieu of dower, and to charge the same upon particular real estate. Borland v. Murphy, 4 W. N., 472 (1877) ; Murphy v. Borland, 92 Pa. St., 86 (1879). Under such award, the widow may dis- train for arrears. Id. The executor of an estate is not a proper party to the bill. Drum v. Wartman, 6 Phila., 45 (1865). If the bill allege that defendant holds the land as trustee for plaintiff's former husband, upon denial of such trusteeship an ac- count will not be decreed until plaintiff establish her right. Hey- lin V. Ashton, 7 Phila., 464 (1870). In Kelso's Appeal, 102 Pa. St., 7 (1882), equitable jurisdiction was sustained in the case of a widow who filed her bill against the purchaser of her husband's land at the sale thereof by his assignee in bankruptcy. Equity jurisdiction is upheld in the case of a widow electing to DOWEE. 491 take against the will of her husband in Merrill's Appeal, 16 W. IS., 491 (1885) ; Hdler's Appeal, 116 Pa. St., 534 (1887). As to the limits of equitable jurisdiction to decree statutory dower to a widow refusing to take under the will, see McNioMe v. Henry, 28 Leg. Int., 44 (1871), and see also later cases cited above. Equity has jurisdiction of a bill for the cancellation of a post- nuptial deed of settlement at the suit of a widow electing to take against her husband's will. OampbelPs Appeal, 80 Pa. St., 298 (1876). If the widow first proceed in the Orphan's Court for dis- tribution and the deed be set up by way of defense, the latter court will, however, take jurisdiction of the entire controversy. Id. § 1044. Bar of Dowei-^Sale under Mortgage. Dower is barred by a sheriff's sale of the land upon a mortgage executed in good faith by the husband alone. Scott v. CroasdaU, 1 Yeates, 75 (1791) ; Bryar'8 Appeal, 111 Pa. St., 81 (1885). Even if the mortgage be created by the husband after his wilful desertion of his wife. Duquesne Saving Bank's Appeal, 96 Pa. St., 298 (1880). If the husband alien alone, and the title afterward return to him, subject to the wife's inchoate right of dower, such right will be divested by a sale under a mortgage subsequently executed by the husband. AuU v. BonneU, 11 W. N., 376 (1882). By Waiver. By waiver which may be inferred from the widow's conduct. Deahler v. Beery, 4 Dall., 300 (1804) ; Beed v. Morri- son, 12 S. &E., 18 (1824). § 1045. By lapse of time. And by lapse of more than twenty- one years before making claim. Allen v. Getz, 2 P. & W., 310 (1831). See infra, section 1076. § 1046. By a release. Gray v. McCune, 23 Pa. St. , 447 (1854). § 1047. By sheriff's sale of husband's title after alienation. By a sale of his title under a judgment against the husband, though he has previously aliened. Directors of the Poor v. Royer, 43 Pa. St., 146 (1862). In this case the husband conveyed the land by an absolute deed, the grantee, however, executing a defeasance thereto. The latter afterward conveyed to a third party ; and the title of the husband was subsequently sold by the sheriff under execution against him, and was bought by such third party. After the death of the husband his widow brought an action of dower. Held, first, that the deed and defeasance constituting only a mortgage, the husband was still seised at the time of the sheriff's sale ; but, second, if he be considered to have aliened, a sale of his title under execution against him, after such alienation, would bar his widow's dower. 492 PEACTICE IN PENNSYLVANIA- In Thomas v. Harris, 43 Pa. St., 231 (1862), a decedent having contracted to sell land, and the vendee in turn agreeing to sell to C, a third party, upon application of the latter the court decreed the administrators of the decedent, one of whom was his widow, to complete the conveyance. They did so, passing their individual rights as well as those of the decedent. Afterward a judgment obtained against the decedent in his lifetime was revived against his administrators and at sheriff's sale his title was purchased by C. ffeld, that the widow was not entitled to dower in the land, both because she had conveyed her dower right by the terms of her deed, and because the sheriff's sale of decedent's title was a sufficient bar ; reversing the earlier case of Shuriz v. Thomas, 8 Pa. St., 359 (1848), in which, under the same facts, the widow had been declared en- titled to her dower. § 1048. Sale under order of court. By a sale of the land by the husband's assignee, for the benefit of creditors, under order of court, by virtue of the Act of 17 February, 1876 (P. L., 4). Yovmgs v. Hannas, 1 Pa. C. C. Eep., 579 (1886). § 1049. Sheriff's sale of estate tail. Sheriff's sale of an estate tail will bar the dower of the tenant's widow, though it will not pass the title of the heirs. Eliott v. Pearsall, 4 Clark, 157 (1846). § 1050. Divorce. By a decree of divorce, A V. M., though irregular ; the wife having been the libeUant, was held to be estopped from setting up such irregularity. MiUimore v. Milti- more, 40 Pa. St., 151 (1861). § 1051. Deed of separation. By provision in a deed of separation between husband and wife, founded upon consideration of property transferred to her use, in spite of occasional subsequent visits to the wife and of cohabitation between them in a single instance. lEt- net's Appeal, 54 Pa. St., 110 (1867). By contract of separation, whereby each for a valuable consider- ation, relinquished whatever marital rights either might have in the estate of the other. Speidel's Appeal, 107 Pa. St., 18 (1884). See Ludmg's Appeal, 101 Pa. St., 535 (1882). § 1052. Mortgage vnll not merge in oionership to prevent dower being barred. If the purchaser of land from an assignee in bank- ruptcy become the owner of a mortgage against it, given by the bankrupt, and procure the sale of the land under the mortgage, himself buying it at the sheriff 'e sale, the dower right of the bank- rupt's widow is thereby divested. In such case the mortgage will not merge in the ownership of the land against the wish and inten- tion of such purchaser. Bryar's Appeal, 111 Pa. St., 81 (1885). § 1053. Arrears discharged by sheriff's sale. A sheriff's sale of DOWER, 493 land, subject to a recognizance to secure the dower of a widow, dis- charges arrears already accrued, but not those afterward arising. Luther v. Wagner, 107 Pa. St., 343 (1884). See Mentzer v. Menor, 8 Watts, 296 (1839) ; Reed v. Reed, 1 W. & S., 235 (1841) ; Dich- inson v. Beyer, 87 Pa. St., 274 (1878) ; Davison's Appeal, 95 Pa. St., 394 (1880). § 1054. Ratification of infant's release. By a release in a deed of antenuptial settlement executed by an infant, if it be ratified by her successor in estate after her death. Whiehcote v. Lyle, 28 Pa. St., 73 (1857). § 1055. Sale wnder testamentary power. Dower is divested by sale of the land under a testamentary power for the payment of debts. Mitchell v. Mitchell, 8 Pa. St., 126 (1848). § 1056. Widow's deed as administratrix. By the widow's deed as administratrix of her husband, under his agreement to sell and order of court, conveying her own right, title, and estate in the land, as well as those of the decedent. Thomas v. Harris, 43 Pa. St., 231 (1862). § 1057. Dower is not barred — Assignmerd for creditors. By an assignment made individually by an insolvent debtor for the ben- efit of his creditors, either voluntary or compulsory. Keller v. Michael, 2 Yeates, 300 (1798) ; Merle v. Fisher, 13 Pa. St., 526 (1850) ; Hdfrich v. Ohermyer, 15 Pa. St., 113 (1850) ; Blackman's Estate, 6 Phila., 160 (1866). § 1058. Sale by assignee, Nor by a sale made by his assignee in bankruptcy. Worcester v. Clarice, 2 Gr., 84 (1853); Lazeor, v. Porter, 87 Pa. St., 513 (1878) ; Kelso's Appeal, 102 Pa. St., 7 (1882). In the last-cited case the assignee in bankruptcy purported to sell the land "free of all liens and incumbrances," and on the day of sale the wife of the bankrupt disclaimed having any interest therein and promised to assert no claim of title, but it was held, in spite of these circumstances, that her dower was not barred by the sale, § 1059. By the widow's taking her own property. She is not barred of her dower by taking property belonging to herself which her husband had treated in his will as if it were his own, bequeath- ing it to her. Watterson's Appeal, 95 Pa. St., 312 (1880). Only her own act of acceptance under the will, or her deed or writing as required by the Statute of Frauds, will divest her dower. Id. § 1060, Vague declarations. Vague declarations by the widow to an intending purchaser from an heir, as that she " wanted noth- ing" and "there would be no lawsuit," etc., will not work an 494 PRACTICE IN PENNSYLVANIA. €stoppel which will bar her claim to dower. Heller's Appeal, 116 Pa. St., 534 (1887). See Watterson's Appeal, 95 Pa. St., 312 (1880). § 1061. Arrears anterior to first lien not discharged by sheriff's sale. A sheriff's sale of a tract under the second of several mort- gages given by an heir of the decedent, or his vendee, will not divest arrears of dower accrued at the time of such sale, the land being sold subject to the first mortgage. Heller's Appeal, supra; SchaU's Appeal, 40 Pa. St., 170 (1861) ; Helfrich v. Weaver, 61 Pa. St., 385 (1869). See Vandever v. Baker, 13 Pa. St., 121 (1850) ; Bailey v. Comm., 41 Pa. St., 473 (1862) ; Wertz's Appeal, 65 Pa. St., 306(1870). § 1062. Judgment to secure dower not divested. A purchaser of land subject to an annuity, in lieu of dower, gave to the widow and heirs a confessed judgment to secure the same, the lien of which was preserved by successive revivals. Dower interest being in arrear the land was sold under process upon the judgment. At the sheriff's sale notice was given that the land was sold subject to the widow's dower. Interest again being in arrear, upon sci. fa., to revive the judgment against the sheriff's vendee ; held, that the lien of the judgment was not discharged by the sheriff's sale. Top- son v.Sipe, 116 Pa. St., 588 (1887). § 1063. Accrued arrears not discharged by private sale. Arrears of dower already accrued are not discharged by the private sale of the land, by the husband's assignee, for the benefit of creditors. AUeman's Appeal, 15 W. K, 213 (1884). § 1064. Conveyance not properly acknowledged. Dower is not barred by a conveyance of husband and wife not acknowledged in accordance with statutory requirements. Kirk v. Dean, 2 Binney, 341 (1810) ; Thompson v. Morrow, 5 S. & E., 289 (1819) ; Barnet v. Barnet, 15 Id., 72 (1826). Nor by an agreement of separation in vague and uncertain terms (proven by parol) not sealed or separately acknowledged. Walsh V. KeUy, 34 Pa. St., 84 (1859). § 1065. Infant's antenuptial release. In Shaw v. Boyd, 5 S. & R., 309 (1819), it was decided that a bond executed by an infant engaging to release her dower does not bind her, although she re- ceived the consideration after her husband's death from his execu- tors and her second husband used it. When she received the consideration she was still a minor. Gibson, J., said : The fact of the feme having been an infant at the time of the marriage is altogether inoperative, for a jointure derives its efficacy as a bar, not DOWEE. 495 from any supposed contract or assent of the feme, but by tbe positive pro- visions of the Stat. 27 H. 8, 0. 10, 8. 6, which makes no distinction as to age. A jointure will, therefore, be available in the case of an infant wherever it would be so in the case of an adult. An infant's release of dower by way of antenuptial settlement will not bar the claim unless it be properly ratified. Whichcote v. lA/le, 28 Pa. St., 73 (1856). § 1066. Ainienuptial contracts after engagements to marry require good faith. Kline v. Kline, 57 Pa. St., 120 ; Kline's Estate, 64 Id., 122 ; Tiernan v. Binns, 92 Id., 248 ; Bierer's Appeal, Id., 265 ; Neebfs Appeal, 23 W. N., 336. Where the provision for the wife is not so out of proportion to the husband's means as to raise a presumption of fraud or conceal- ment, and there is no proof of fraud or concealment, the contract will be enforced, although no disclosure be made of the extent of the husband's estate. Smith's Appeal, 115 Pa. St., 319 (1887) ; approved in Neely's Appeal, 124 Pa. St., 426 (1889). If the contract be merely a pretense executed for the purpose of quieting the husband's children, and with a promise to the intended wife that it shall be destroyed ; and if the husband after marriage obtain the contract for the purpose of destroying it and declare it to be null and void ; this may be equivalent to its actual destruc- tion, though it be kept for years. Destruction of the contract by the husband will bind him, and if assented to by the wife after dis- coverture will conclude her also. Gangwere's Estate, 14 Pa. St., 417(1850). An antenuptial contract in which the intended wife relinquishes her " claim to all right of dower to, in, or out of the estate " of the husband, will not bar her right in the personalty left by him at his decease. Ellmaker v. Ellmaker, 4 Watts, 89 (1835). If the woman be told that the husband has " a large property," and the antenuptial agreement be thereafter executed voluntarily and in good faith, the non-disclosure of the amount of property owned by him will not affect the validity of the contract, though such property be considerable, and though the consideration mov- ing to the woman be but " one dollar and * * * a comfortable support during life, and at her death a decent Christian burial." Ludwig's Appeal, 101 Pa. St., 535 (1882); approved in Neely's Appeal, 124 Pa. St., 425 (1889). It is now clearly established that an antenuptial release of dower does not require a consideration to support it. The marriage itself is a sufficient consideration. Shea's Appeal, 121 Pa. St., 302 (1888) ; Tiernan v. Binns, 92 Pa. St., 248 (1879). 496 PRACTICE IN PENNSYLVANIA. Duress cannot be set up because of rudeness on the part of the man or because of mortification experienced by. the bride. In De La Ouesta v. Ins. Co., 136 Pa. St., 78 (1890), Paxson, C. J., said : "In Neely's Appeal, 124 Pa. 406, there was an attempt to set aside an antenuptial contract on the ground of duress. After the marriage-day had been fixed, the guests invited and the caterer engaged, the husband produced an antenuptial contract which he required his intended wife to sign. She protested by her tears ; his reply was, 'No contract, no wedding.' We held there was no duress." A party to the contract is not a competent witness after death of the other party. Per Waddell, J. Neely's Appeal, 124 Pa. St., 411 (1889). The widow's petition in the case last cited, in addition to the matters above quoted, charged that the husband "at no time gave her any information as to the value or character of his estate, nor had she any knowledge on the subject * * * that she was greatly disconcerted and distressed, was unable to read the deed understandingly and to realize its full import and efifect " (408). The proof was that after signing she became distressed and was frequently found in tears. The change was so marked as to attract the attention of her dressmaker and housekeeper. The court below rejected the testimony of the wife's trustee as incom- petent — the husband being deceased — and dismissed the petition. The Supreme Court aflSrmed, but did not pass upon the question of the competency of the witness. An intended wife in consideration of an antenuptial agreement released her interest in her husband's estate. It was held that in order to avoid the contract she must show by two witnesses or the equivalent that a fraud was practised upon her in the execution of the paper. Kesler's Estate, 29 W. N., 15 (1891). A wife left her husband and brought suit to cancel her release of dower, alleging fraud. The husband agreed that if she would return and would withdraw the suit he would give her one-third of the estate. She did return and did abandon the suit. After his death she claimed her one-third. JECeld (reversing the court below), that she had no valid cause of action to abandon ; and that an agree- ment to allow her one-third if she would return was void because she was bound to live with him. {Ibid.) §1067. Post-nuptial rdease improperly executed. A post-nuptial release executed during coverture and not joined in by the husband is no bar to the wife's dower. Ulp v. Campbell, 19 Pa. St., 361 (1852) ; Kreiser's Appeal, 69 Pa. St., 194 (1871) ; Campbell's Appeal, 80 Pa. St., 298 (1876). A post-nuptial settlement which is without definite considera- DOWER. 497 tion or is much to the disadvantage of the wife, will be set aside upon slight evidence of fraud, coercion, or concealment on the part of the husband. CampbeWs Appeal, swpra. § 1068. Fraudulent mortgage. By a mortgage fraudulently- given and knowingly accepted for the purpose of defeating dower. Klllinger v. Beidenhauer, 6 S. & R., 531 (1821). In such case, however, the wife's remedy is strictly equitable. At law dower is discharged by a sale under the mortgage. If the title be trans- ferred to an innocent third party for value, he will, it seems, hold free from the dower. McClwrg v. Schwartz, 87 Pa. St. , 521 (1878). § 1069. Administrator's deed under order of oowrt. By deed of decedent's administrator under order of court in fulfillment of his agreement to sell. Riddlasberger v. Mentzer, 7 Watts, 141 (1838) ; Covert V. Hertzog, 4 Pa. St., 145 (1846). § 1070. Dower at common law not barred by acceptance of de/oise or share under intestate laws. The acceptance of her share under the intestate law will not bar a widow's claim to dower in land aliened by the husband alone during the coverture. lAneaweaver V. Stoeoer, 1 W. & S., 160 (1841). Nor will the acceptance of a devise under his will, though he have conveyed with general war- ranty. Borland v. Nichols, 12 Pa. St., 38 (1849). § 1071. AduUery after husband's desertion. By a decree of divorce obtained by the husband in a foreign court having no jurisdiction, though the wife commit adultery and declared herself married to another man after the husband's desertion of her. Reel V. -BWer, 62 Pa. St., 308 (1869). By a wife's omission to follow her husband who has deserted her and by her subsequent adultery. Heslop V. Heslop, 82 Pa. St., 537 (1876). § 1072. Desertion by the wife. By a wife's unjustified desertion of her husband ; though her claim to the exemption of $300 allowed by law is thereby barred. Nye's Appeal, 126 Pa. St., 341 (1889). § 1073. By judicial sale. It has been seen that the right of dower is an estate which is not divested by judicial sale of the land except for the debt of the husband or his predecessor in title. § 1074. Election. At common law a bequest or devise to a wife was held to be cumulative, and not a bar to her claim of dower ; she could take both. Kennedy v. Nedrow, 1 Dall., 415 (1789). See, however, the Act of 8 April, 1833 {supra, section 1004), re- placing earlier legislation. But if the devise were absolutely inconsistent with her right of dower, she was limited to one claim, and in such case was put to her election. Duncan v, Duncan, 2 Yeates, 302 (1798). A de- vise of lands during widowhood was held a bar to dower, if the VOL. I. — 32 498 PEACTICE IN PENNSYLVANIA. widow elected to take under the will. Hamilton v. Buckwalter, Id., 389 (1798). § 1075. Proof of deotion. The burden of proof is with him who alleges an election upon the part of the. widow to take under the will. Cox V. Hogers (infra). But if the widow impeach for fraud, a release of dower duly executed by her several months after her husband's death for a consideration, and in settlement of contested rights, with Ml knowledge of the facts, the burden of proof is upon her. Mere inadequacy of consideration under such circumstances does not con- stitute fraud. Bierer's Appeal, 92 Pa. St., 265 (1879). § 1076. JEleotion mpais. The election may be indicated by acts m pais, as by acceptance of legacies bequeathed, and agreement in- consistent with the widow's declared intention to take her dower, Caufftnan v. Cauffman, 17 S. & E., 16 (1827) ; or by acceptance of a legacy, and great lapse of time, AUen \. Getz, 2 P. & W., 310 (1831); Bradfords v. Kent, 43 Pa. St., 474 (1862); Heron v. Hoffer, 3 Eawle, 393 (1832); Cox v. Eogers, 77 Pa. St., 160 (1874). The election need not be filed in the Orphans' Court, under provision of the Act of Assembly (supra, section 1008). lAgM V. Light, 21 Pa. St., 407 (1853), § 1077. Knowledge of material facts. And it will be binding if she knew the material facts and circumstances at the time, though she was not apprised of her legal rights, in the absence of imposi- tion or unfair advantage, and the choice not being grossly disad- vantageous to her. lAgkt v. lAght (supra). § 1078. Must be clearly indicated. But an election in pais to take under the will alleged against a widow must be proven by clear and positive testimony, showing plain and unequivocal acts of renunciation on her part, under a full knowledge of all the cir- cumstances, and of her rights. See Idght v. Light (supra), to the contrary. If she make her election without such knowledge, she is not bound thereby. Anderson's Appeal, 36 Pa, St., 476 (1860); Diekinsonw. Dickinson, 61 Pa. St., 401 (1869) ; Cox v. Rogers, 77 Pa. St., 160 (1874); Toomey's Appeal, 2 W. N., 682 (1876); Bhod^s Kstate, Id., 188 (1875) ; Bierer's Appeal, 92 Pa. St., 265 (1879) ; ElbeH v. aNdl, 102 Pa. St., 303 (1883). Taking posses- sion of her own property which her husband had bequeathed her, as if it belonged to him, does not constitute a widow's election to take under the will. Watterson's Appeal, 95 Pa. St., 312 (1880), § 1079. Estoppd. Acceptance and use for four years, with a knowledge of her rights, of property bequeathed a widow, will DOWER. 499 create an election by way of estoppel. Norri^ Estate, 27 P. L. J., 234 (1875). § 1080. EUetion will not cause intestacy as to property devised to the widow. A widow's election not to take under the will does not cause intestacy as to a share devised her for life, the executors being directed to sell the real estate. Sullivan v. Kdffer, 122 Pa. St., 135 (1888). In this case the testator devised a portion of his real estate to his widow for life, with remainder over. He directed his executor to convert his estate into money. The widow refused to take under the will. The executor sold the real estate as directed. After the death of the widow the remainder-man, who was testator's heir at law, brought suit against the purchaser of the land for the principal sum charged as dower upon it. Hdd, that the statutory dower accepted by the widow ceased at her death, and her election did not work an intestacy in regard thereto or to the portion devised to her in the will, and that the executor's deed passed a fee-simple to the purchaser, subject only to the widow's dower during her life- time, no charge remaining upon the land after her decease. § 1081. Bovmd by election. Having elected and taken under the will, a widow may not remit herself to her dower rights by her subsequent voluntary breach of the condition of her devise, as by her marriage if she hold during widowhood. Taylor v. JBirming- ham, 29 Pa. St., 306 (1857). § 1082. Election not to take v/nder the wUl is a demand for dower rights. An election not to take under the will, duly filed in the Orphans' Court, is a sufficient demand of her dower rights to en- able her executor after her death to proceed in equity for an ac- count of rents and profits. Paul v. Paul, 36 Pa. St., 270 (1860). § 1083. Notice to Executors. Written notice given to the hus- band's executor three months after his death will have the like effect. Greiner's Appeal, 103 Pa. St., 89 (1883). The widow's rights vest at once by virtue of such election. Id. § 1084. Marshalling. A devisee or legatee disappointed by the widow's election to take her dower is entitled to have the assets of the estate marshalled for his benefit. Gallagher's Appeal, 87 Pa. St., 200 (1878) ; Yowng's Appeal, 108 Pa. St., 17 (1884). § 1085. Abatement. If there be not sufficient, after the widow's election, to pay legacies, they must abate. Heineman's Appeal, 92 Pa. St., 95 (1879) ; Bard's Estate, 58 Pa. St., 893 (1868). But the bequests under the will to the widow will be sequestered for the benefit of those whose legacies are so diminished. Id.; Young's Appeal (supra); see Stewari^s Appeal, 110 Pa. St., 410 (1885). 500 PRACTICE IN PENNSYLVANIA. § 1086. Bighi to deet is personal. The committee of a lunatic widow may not, without the court's sanction, elect not to take under the will. The discretion should be judiciously exercised by the court in view of the circumstances. In the absence of election, the law leans toward the will. Kermedy v. Johnson, 65 Pa. St., 451 (1870). The right to elect is purely personal. After the widow's death without having exercised it, her representatives cannot make the election. Orozier's Appeal, 90 Pa. St., 384 (1879). § 1087. Carmot elect during coverture. The wife's written assent to the terms of the will at the time of its making, sealed and exe- cuted by her, and duly witnessed, being an election during cover- ture, is void as against her in law and in equity. She is not bound thereby. Kreisei's Appeal, 69 Pa. St., 194 (1871). She cannot elect during coverture. CampbelFs Appeal, 80 Pa. St., 298 (1876). § 1088. May elect at amy time within twelve months. The widow cannot be required to make her election until twelve months after her husband's death. Anderson's Appeal, 36 Pa. St., 476 (1860) ; Bierer's Appeal, 92 Pa. St., 265 (1879). § 1089. Election 'may be revoked. It is within the discretion of the auditing judge to allow a widow to withdraw her election to take against the will. Barry's Estate, 37 Leg. Int., 62 (1880); WessePs Estate, 26 P. L. J., 45 (1878). § 1090. Form of election not to take under the will. The follow- ing may serve as a form of election in case the widow intends to take in opposition to the will : , the widow of , deceased, declares that she claims her share of the real and personal property of said decedent against the will of the said , deceased, and she notifies the executor and all parties interested, of this her claim to said real and personal estate of said de- cedent. (Signed) (Date.) Notice in the above form may be served upon the executor of the decedent's estate and other interested parties, or in accordance with the terms of the Act (29 March, 1832, supra, section 1008), may be filed in the Orphans' Court. It would be best to pursue both courses in most cases. If the widow make no election, she may be cited to do so after twelve months from the death of the testator. Her neglect to make choice will imply acceptance under the will. § 1091. Assignment of dower. The widow is entitled to dower at once from the time of her husband's death. She may retain temporary possession even if there be a deficiency of assets to pay DOWER. 501 debts and her dower interest must therefore finally abate. Price V. Johnson, 4 Teates, 526 (1808). § 1092. Widow and heirs can/not maintain ejectment against each other before assignment. The heirs cannot maintain ejectment against her before assignment of her dower. Gourley v. Kinley, 66 Pa. St., 270 (1870). On the other hand, she will not be permitted to enforce her right of dower by ejectment against the heirs. Bratton v. Mitchell, 7 "Watts, 113 (1838). § 1093. Widow cannot be joined, l^or can she join with the heirs in ejectment against others holding the decedent's lands. Even at common law she is not seised of an undivided third until assignment. Pringle \'. G-aw, 5 S. & E., 536 (1820). § 1094. By metes and bownds. At common law, however, she is entitled to assignment by metes and bounds. If the husband in his lifetime alien, therefore, upon her recovery in an action of dower, she should be put in possession of her proportionate share of the land in severalty. In such case the finding by the jury of the annual value of the premises is surplusage, but it will not affect the validity of the verdict and judgment. Shirtz v. Shirtz, 5 Watts, 255 (1836) ; Benner v. Euans, 3 P. & W., 454 (1882) ; Barneit V. Bamett, 16 S. & R., 51 (1827) j Lemeaweaver v. Stoever, 17 Id., 297 (1828). § 1095. Improvements. In assigning her dower in severalty to a widow, she is not entitled to advantage by reason of improvements placed upon the land by her husband's vendee. Otherwise as to increase in its value from other causes after alienation. Thompson V. Morrow, 5 S. & R., 289 (1819). Improvements by the vendee may not be set up by way of defense to the action ; they respect only the amount., Warner v. Macknett, 3 Phila., 325 (1859). § 1096. Income may be impminded. Pending a claim to dower in a trust estate, a proportionate share of the income will be im- pounded. Sharp's Estate, 6 Phila., 389 (1867). § 1097. Parties. The action should be brought by the widow against the tenant of the freehold. By Act of 8 June, 1893 (P. L., 344), a married woman is empowered to sue in all respects and in any form of action with the sams effect as an unmarried person. If she be married again, therefore, it is no longer necessary to join the new husband as a party to the action. If the widow be an in- fant, she should sue by next friend ; if defendant be within age, suit should be brought against his guardian. If he have none, a guardian ad litem must be appointed. The laws upon this subject are applicable alike to all real actions, and they are sufficiently 502 PRACTICE IN PENNSYLVANIA. considered in the chapter upon Partition. The widow of an in- testate tenant in common is entitled to her action at common law against her late husband's co-tenants. Brown v. Adams, 2 Whart., 188 (1837). The plaintiff in this and other real actions is known as the de- mandant. § 1098. PiEBcipe. This action, like all others, is begun by prce- dpe to the prothonotary. rOEM OF PRECIPE. A. B. V. CD. Sib: Issue writ of dower unde nihil habet commanding C. D. that justly and without delay he render to A. B., widow, who was the wife of J. B., her reasonable dower which falleth to her out of the freehold which was of the said J. B., late her husband, in the city of Philadelphia, whereof she has nothing as she says. Eeturnable the first Monday of next. G. H., Attorney pro Demandant. (Date.) To Prothonotary C. P., Philadelphia County. § J099. FORM OF WKIT. The Commonwealth of Pennsylvania, to the Sheriff of Philadelphia County, Greeting : Command C. D. that justly and without delay he ren- der unto A. B., widow, who was the wife of J. B., now deceased, the reason- able dower which felleth to her of the freehold which was of the said J. B., her late husband, in the city of Philadelphia, whereof she has nothing as she says, and whereof she complains that the said C. D. deforces her ; and unless he shall do so, and if the said A. B. shall give you security for prose- cuting her claim with effect, then summon, by good summoners, the afore- said C. D. that he be and appear before our judges at Philadelphia, at our county Court of Common Pleas, No. 1, there to be held the first Monday of next, to show wherefore he will not. And have you then there the names of these summoners, and this writ. Witness the Honorable, etc. [seal] § 1100. Service and return are treated in the chapter on Par- tition. By statute (13 June, 1836, section 79 d seq., P. L., 587), the same rules and statutes govern those subjects in all real actions. § 1101. Declaration or Count. The statement of demandant's cause of action in dower is technically called a count. It is in sub- stance and form a declaration, and the two terms are applied to it indifferently by most writers. It should be filed before return-day in order to take advantage of the default if defendant do not appear. If he have appeared, it may be accompanied by a rule to plead, and a copy thereof and of the count should be served on his attorney. DOWEE. 503 If it be not sufficiently specific, defendant may require a bill of particulars as in other cases. The premises should be described with enough particularity to enable the sheriff to deliver seisin. " Tenement " is therefore too vague a word. It is not necessary to lay damages. The proportionate part demanded should be specified, as " a third part of" the premises described. If the land lie in several places, a share of those in each may be claimed. § 1102. FORM OF COUNT OR DECLARATION. A. B. CD. In the Court of Common Pleas, No. 1, of PMladelphia County. To December Term, 1890. No. 200. County of Philadelphia, ss. A. B., widow, who was the wife of J. B., deceased, by G. H., her attor- ney, demands against 0. D. the third part (or as the case may be) of {here enumerate and describe the properties) with the appurtenances, in the city of Philadelphia, in the county of Philadelphia, as the dower of the said A. B. of the endowment of J. B., deceased, heretofore her husband, whereof she has nothing, etc. G. H., Attorney for Demandant. (Date.) § 1103. Judgment by default. If defendant do not appear, or if he omit to plead in response to the rule upon him to do so, judg- ment may be taken for the demandant by default (see sections 23, 26). Such judgment is followed by writ of inquiry of damages, or of haheri fadas seisinam,' obtained by prcedpe ; the latter where demandant is entitled to possession, the writ of inquiry if she may claim only in damages. If she have right to both, she may take out the two writs, in which case they are commonly united in one. § 1104. View. After count filed, in the English practice in dower, defendant may ask for a view. A view is not of course, however, and is to be granted only upon cause shown by affidavit. The heir was not entitled to a view at common law if the husband died seised ; and by Statute of Westminster II. (not reported by the judges to be in force in this State), it is provided that view shall not be granted to the tenant if the land demanded was aliened by the husband to him or his ancestors " where the tenant ought not to be ignorant what land the husband did alien to him or her or to his or her ancestors." If view be demanded in either case, demandant may counterplead, and issue may be taken thereon. If upon issue of law judgment go for demandant, it will be final. While the doctrine of view has been imported into some of the 504 PRACTICE IN PENNSYLVANIA. United States, it has found no lodgement in Pennsylvania. No ad- judication upon the subject is to be met with in our reports. § 1105. Fleas. Certain pleas in abatement are admissible which are peculiar to this action, in addition to those usually recognized. To an action brought against two or more defendants, entire ten- ancy may be pleaded by one ; defendants proceeded against as ten- ants in common may plead several tenure, as may persons holding distinct parcels. Joint tenure may be pleaded by one sued sepa- rately. Tenancy for years may also be pleaded, as the proper de- fendant is the tenant of freehold. The usual effect of these pleas, if well founded, is that the demandant conforms her demand to the true facts. Non-tenure is of the nature of a plea in abatement. It is dilatory in character, and must be accompanied by affidavit that it is not for delay, and should be put in at the earliest moment. -It will not be entertained after a plea in bar, though it is sometimes considered such, and it may be joined with others in bar. See, upon this plea, Oosporus v. Jones, 7 Pa. St., 120 (1847) ; Jones V. Patterson, 12 Pa. St., 149 (1849) ; Beaton v. Jamison, 7 Watts, 533 (1838). ^e vnques seise que dower, that the husband was never seised of such an estate in the land as to give to his widow the right of dower, is sometimes spoken of as the general issue, but it is not strictly so, and there is, in fact, no general issue plea in dower. One claiming under the husband cannot properly defend under this plea. It may be put in to part with other pleas as to the residue. Only the fact of seisin by the husband during cover- ture is put in issue by this plea. Defendant may plead that the husband of the demandant is alive, but not if he claim under the heir. Ne unques aoeouple en loyal matrimonie (that the deman- dant and her alleged husband were never joined in lawful wed- lock), the wife's elopement and adultery, divorce a vmeulis, ante- nuptial settlement, or post-nuptial agreement assented to after the husband's death, the acceptance of a testamentary substitute for dower, release, judicial sale barring dower, the Statute of Limita- tions, or any matter or thing which serves to bar or divest the widow's dower may be put in issue as a defense to the action- How far these pleas may be joined, especially if they be inconsisr .tent, has not been determined in this State. Defendant would probably in analogy to the personal actions be alloweid great lati- tude in that respect. Tout temps prist, that the defendant has always been and still is ready to render dower, is like a tender in personal action. If that plea be entered promptly, defendant will be discharged from lia- bility for mesne profits unless dower were previously demanded by DOWEK. 505 the widow. If she admit the plea, she may take judgment upon it, and issue the appropriate writ of execution, recovering profits only from the commencement of suit, but she may take issue upon the plea by replication, and will be entitled to her profits from the death of her husband if it prove to be ill-founded in fact. The forms in extenso for many of these pleas will be found in Chitty's Pleading, vol. 3, 1316 et seq. (12 Am. ed.). It would uselessly burden this work to insert them here. Those of them which are technically known by a few of their salient words are often briefly pleaded with us by writing those words only, as " Ne vmques ac- couple," do. § 1106. Notice of special matter. It is customary in this State to try issues in dower updn plea of ne vmques seisie que dower, with notice to demandant of special matter of defense. This course is open to some objections, but it has the sanction of long usage in its favor. §1107. Beplication and Issue. Defendant's plea, if not demur- rable, should be replied to according to its tenor, with a view to producing an issue. If the replication allege new matter, defendant will rejoin, and so on until a distinct question of fact is raised. When the case is at issue, it should be ordered on the list for trial, or upon the argument list if an issue of law be raised by demurrer at any stage of the pleadings. §1108. Trial. At the trial of the cause demandant should prove the facts necessary to support the issue as raised by the pleadings. If the husband did not die seised, she cannot give evidence as to the annual value of the land, as she is not concerned therewith. Burnett v. Barnett, 15 S. & R., 72 (1826). If ne vmques seisie que dower be pleaded without special matter, she need not prove mar- riage or death of the husband, nor need she show seisin by produc- tion of the title papers. Nor in dower need the demandant go further back in title than a fee-simple deed to her husband. Evans V. Evans, 29 Pa. St., 277 (1857). Defendant simply denying de- mandant's right may not set up title in a stranger. Id. But de- fendant may upon this issue prove want of seisin in the husband. The usual evidences of marriage are admissible under the plea of ne unques aceouple; and so seisin of the husband may be shown by the customary incidents thereof, as by receipt of rent or actual possession by him. The land may be identified as that of the hus- band by parol. Defendant should be shown to be tenant of the free- hold. § 1109. Verdict and damages. In more recent cases it is held that the action at common law will not lie if the husband die seised and 506 PRACTICE IN PENNSYLVANIA. in possession. Oourley v. Kinky, 66 Pa. St., 270 (1870) ; Sdder V. Seider, 5 Whart., 208 (1839) ; see section 1040. But under the older practice, the jury, in finding for the demandant, if the husband died seised, were required also to find the date of his death, of what estate he died seised, the annual value of the land, and damages for detention of dower ; and they should award deman- dant her costs. But omissions therein may be supplied by writ of inquiry. Benner v. Mans, 3 P. & W., 454 (1832). If the hus- band have not died seised, neither damages nor costs should be awarded. Id.; Sharp v. Pettit, 3 Yeates, 38 (1800). Nor should the annual value of the land be found in that case. Leineweaver V. Stoever, 17 S. & E., 297 (1828) ; Shirtz v. Shirtz, 5 Watts, 255 (1836). But these findings, though erroneous, will not vitiate the verdict ; they are mere surplusage. Id. , and may be remitted by the demandant. BarneU v. Barnett, 16 S. & R., 51 (1827). Dam- ages for the detention, where he died seised, ran from the time of the husband's death, and consist of net profits, less taxes, improve- ments, etc. If tout temps prist be pleaded, damages run only from date of demand. Winder v. Little, 1 Yeates, 152 (1792). Tenant of the freehold is liable for the entire damages, though he may have been in possession but a part of the time. Seaton v. Jamison, 7 Watts, 533 (1838) ; LyU v. Richards, 9 S. & R., 322 (1823). But in a proper case such construction would be given to the Stat- ute of Merton, under which damages are so recoverable, as to avoid injustice. Joines v. Patterson, 12 Pa. St., 149 (1849). § 1110. Execution. Having entered judgment upon the verdict for demandant, execution by writ of haberi facias seisinam is ob- tained by prcecipe. Damages are to be levied by writ of fi. fa. or capias, which may be joined with the writ of seisin ; under the latter the sheriff should proceed to assign her dower to the widow by metes and bounds, by proceedings of inquisition. For the details of the proper steps to be taken by him under this writ, see the opinions of Judge Kennedy in Seaton v. Jamison, 7 Watts, 533 (1838), and in Benner v. Evans, 3 P. & W., 454 (1832). On the return of the writ either party may apply to the court to inquire into the facts involved ; the courts will grant relief necessary to a legal and proper execution, but will not inquire into matters dehors the record upon writ of error. Benner v. JEvans, supra. The de- mandant is entitled to be endowed as of the value of the land at the time of assignment, leaving out the value of improvements made after alienation by the husband. Shirtz v. Shirtz, 5 Watts, 255 (1836). § 1111. Remedies to enforce payment of arrears of dower. Ar- rears and principal of statutory dower may be recovered by action of DOWER. 507 debt (assumpsit). Kline v. Bovmum, 19 Pa. St., 24 (1852) ; Borough V. Wdsh, 117 Pa. St., 174 (1887) ; Be Maven v. Bartholomew, 57 Pa. St., 126 (1868). Arrears of dower either at common law or by statute may be recovered by distress, even upon the goods of a stranger upon the land. Mwrphy v. Borlamd, 92 Pa. St., 86 (1879) ; Baker v. Ld- bert, 125 Pa. St., 106 (1889). But the representative of the widow may not distrain for arrears accrued after her death. Henderson V. Boyer, 44 Pa. St., 220 (1863). If the dower be secured by recognizance, arrears may be collected by sd. fa. thereon, or by distress or assumpsit. If the widow bring action on the sd.fa., judgment should be for the arrears due. If it be entered for the principal of the recognizance also, that part of the judgment will be stricken off as surplusage. Euans v. Rosa, 107 Pa. St., 231 (1884); Good v. Good, 7 Watts, 195 (1838); Stewart v. Martin, 2 Watts, 200 (1834). If the arrears be not paid when due, they bear interest ; Stewart v. Martin, supra. The action for arrears of the widow's interest is local, and must be brought in the county where the land lies. Rodney v. Washington, 42 Leg. Int., 160 (1885). The widow may not distrain separately upon several parcels of land taken by the heir at the valuation subject to her dower interest, and by him divided. She must distrain at once for the whole amount. Shouffler v. Coover, 1 W. & S., 400 (1841). She may proceed for her arrears against the alienee of the land by mesne conveyances, and she is not barred by lapse of time (i. e., six years). Judgment in such cases is de terris, not personal. Kor- stdn V. Bauer, 4 Penny., 366 (1884) ; Dillebaxigh' s Estate, 4 Watts, 177 (1835) ; De Haven v. Bartholomew, 57 Pa. St., 126 (1868) ; Pidcock v. Bye, 3 Rawle, 183 (1831) ; Shelley v. Shelley, 8 W. & S., 153 (1844). A recognizance or mortgage for the purchase-money taken by order of court under the Act of 29 March, 1832, is but collateral to the lien. De Haven v. Bartholomew (svpra) ; Medlor v. Aukn^ bach, 2 P. &W., 355 (1831). It will not be discharged by payment of the principal to the obligee in the recognizance, being the administrator of the deced- ent's estate. Upon the death of the widow the principal should be paid to the heirs. Hise v. Gdger, 7 W. & S., 273 (1844). See TJnangst v. Kraemer, 8 W. & S., 391 (1845). § 1112. Limitations. The period of limitation for a claim of dower is twenty-one years. AUen v. Getz, 2 P. & W., 310 (1831) ; Care v. Keller, 77 Pa. St., 487 (1875). 508 PRACTICE IN PENNSYLVANIA. Omission to claim her rights for six years will not operate as a bar either at law or in equity. MerriWs Appeal, 16 W. N., 491 (1885). If the husband alien in his lifetime, the statute does not begin to run against demandant until his death. Wmters v. Be Turk, 25 W. N., 511 (1890) ; Oullerv. Motzer, 13 S. & K, 356 (1825) ; Care V. Kdler, 77 Pa. St., 487 (1875). But if the husband be disseised in his lifetime, the statute begins to run at once in favor of the adverse holder, and against both husband and wife. Wmters v. De Twrk {supra). See Brews. Equity. Prac, Chapter XIII. CHAPTEE XIX. ESCHEATS. The law under which escheats are now regulated is the Act of May 2, 1889. § 1113. What property shall escheat. That from and after the publication of this Act, if any person, who at the time of his death was seised or possessed of any 'real estate or personal estate within this Commonwealth, has died or shall die intestate, without heirs or known kindred, a widow or surviving | husband, such estate, of whatsoever kind the same may be, whether legal or equitable, or whether the same was held by the said person in severalty or as tenant in common, co-tenant, joint tenant, or in partnership with any other person or persons, shall escheat to the Commonwealth, subject to all legal demands on the same. (Act of May 2, 1889, section 1 ; P. L., 66.) § 1114. Property on deposit. That whensoever any money, estate, or effects shall have been, or shall hereafter be paid into, or deposited in the custody of any court of this Com- monwealth, or shall be in the custody of any depository, or of any receiver or other officer of said court, and the rightful owner or owners thereof shall have been or shall be unknown for the space of seven years, the same shall escheat to the Commonwealth, subject to all legal demands on the same. (Ibid., section 2.) § 1115. Trust property. That whensoever any trustee or other person is or shall be seised of any property or estate, real or personal, in a fiduciary capacity, and shall file an account of the same in any court of this Commonwealth, and whenso- ever it shall appear that the cestui que trust or beneficial owner of said prop- erty or effects, or any part thereof, has been unknown for a period of seven years, and still remains unknown, then and in such case so much of said property or effects as belonged to said unknown ceMi que trust or beneficial owner shall escheat to the Commonwealth, subject to all legal demands on the same. (Ibid., section 3.) § 1116. Escheator to be appointed by the anditor-gfeneral. That whensoever, by 'information or otherwise, the auditor- general of the Commonwealth shall become aware of the fact that any property, real or personal, hath escheated or is supposed to have escheated to the Com- monwealth under the provisions of this Act, he shall appoint, by commis- 510 PRACTICE IN PENNSYLVANIA. sion under his hand and the seal of his office, some suitable person, resident in the county where he shall have reason to suppose that the escheated property or the greater part thereof is situate, to act as escheator of said property ; which said escheator shall have the powers and duties and shall be entitled to the fees and rewards hereafter nominated and specified in this Act. (Ibid., section 4.) § 1117. Jurisdiction. That the jurisdiction in all cases of escheat under the provisions of this Act shall be vested in the courts of this Commonwealth, as follows, namely : Whenever an escheat shall occur or be supposed to occur by reason of any person dying intestate, without heirs or known kindred, a widow or surviving husband, the Orphans' Court of the county wherein said decedent was resident at the time of his death, or in case said decedent was not at the time of his death resident within this Commonwealth, then the Or- phans' Court of the county in which the greater part of his property, real and personal, shall be situate, shall have jurisdiction. Whenever an escheat shall occur, or be supposed to occur, of any property, estate, or effects deposited in the custody of any court, or with any depository, receiver, or other officer thereof, the owner whereof shall be unknown, and whenever any escheat shall occur, or be supposed to occur, of any property, estate, or effects held by any trustee or other person in a fiduciary capacity, who shall have filed an account thereof in any court of this Commonwealth, by reason of the fact that the cestui que trust or beneficial owner thereof shall be unknown, then and in such case the court in which, or in the custody of any depository, receiver, or other officer of which, said property, estate, or effects may have been or shall be deposited, whether the same be real or personal, or in which said account has been or may be duly filed, shall have jurisdiction. {Ibid., section 5.) § 1118. When escheator may apply for letters of administration. That whensoever any escheator shall be duly commissioned by the audi- tor-general of and concerning any property, real or personal, escheated or supposed to have escheated by reason of the fact that the person who was last seised or possessed of the same has died intestate, without heirs or known kindred, a widow or surviving husband, and no letters of adminis- tration have been granted upon the estate of the said decedent, it shall be the duty of the said escheator to apply to the register of wills of the county wherein the said decedent was resident at the time of his death, or in case the said decedent was at the time of his death [not] resident within this Commonwealth, then to the register of wills of the county in which the greater part of the property escheated or supposed to have escheated is or may be situate, for a grant of letters of administration to him, the said escheator, upon the estate of the said decedent. And the said register of wills shall, if no next of kin or creditor of said decedent entitled under ex- isting laws to letters of administration shall appear and demand such letters, forthwith grant the same to said escheator, in like manner and form as letters' of administration are now granted by existing laws, and said es- cheator shall be entitled in such case to letters of administration, even though said decedent was not at the time of his death possessed of any personal property, but was seised of real estate only, situate within this Commonwealth. {Ibid., section 6.) ESCHEATS. 511 § 1119. Escheator may petition for citation to party in posses- sion of property — Account to be filed, etc. That whensoever any escheator shall be duly commissioned by the audi- tor-general of and concerning any property, real or personal, escheated or supposed to have escheated to the Commonwealth under the provisions of this Act, he shall apply, by petition, to the court having jurisdiction in the premises, to hear and determine whether an escheat has occurred or not, and shall, in his petition, set forth the facts of his appointment and the nature and character of the alleged escheat, and shall also state, as far as he conveniently can, the location, character, and amount of the property, real and personal, alleged to have escheated, together with the name and address of the person or persons having the same in his or their possession ; whereupon the said court shall have power to issue a summons or citation, directed to any administrator or executor, depository of the court, receiver, or other officer of the court, to show cause, if any they have, why they should not file a true and accurate account of all and singular the said prop- erty alleged to have escheated, as aforesaid ; and if upon sufficient proof, by oath or affirmation, of the service of said summons or citation, no good and valid cause be shown to the contrary, the said court shall proceed to direct said administrator or executor, depository of the court, receiver, or other officer of the court, to file his said account. And in all cases where any real estate has escheated, or is supposed to have escheated, by reason of the death of the person last seised thereof, without heirs or known kin- dred, the said court shall have power to order the administrator or execu- tor of said person to file a tru5 and accurate statement of all the real estate whereof said decedent died seised, describing the same by metes and bounds, together with the buildings and improvements thereon erected, as far as he has been able to ascertain the same. And whensoever it shall appear by the account of any executor or administrator, or any receiver or other officer of the court, or of any trustee or other person in a fiduciary capacity, or upon the audit of any such account, that the said receiver or other officer, trus- tee, or other person has in his possession, or has any knowledge of the ex- istence of any real estate which shall have escheated, or is supposed to have escheated to the Commonwealth, the said court shall have power to order and direct the said administrator or executor, receiver, or other officer, trus- tee, or other person filing an account as aforesaid, to file a true and accu- rate statement of all said real estate, describing the same as aforesaid, so fer as he has been or shall be able to ascertain the same ; and any and all accounts and statements filed under [the provisions of this Act shall be verified by oath or affirmation in the customary manner. (Ibid., sec- tion 7.) § 1120. Proceedings upon audit of account. That whensoever any proceedings in escheat have been instituted as aforesaid, the court having jurisdiction in the premises shall, upon the filing of any' account or statement by any administrator, executor, deposi- tory of the court, receiver, or other officer of the court, or of any trustee or other person in a fiduciary capacity of any property or estate, real or per- sonal, escheated or supposed to be escheated, proceed to the audit and adju- dication of said account or statement in the same manner as the said court commonly proceeds upon the audit and adjudication of the accounts of ex- ecutors, administrators, and trustees ; and shall upon said audit proceed to 512 PBACTICB IN PENNSYLVANIA. inquire and determine whether there has been any escheat or not, and if so, in what manner and for what cause said escheat has occurred, and also what estate, real or personal, has escheated, and what is the value thereof. And the said court shall, in all cases where any real estate has escheated or is alleged to have escheated, before proceeding finally to hear and deter- mine the question of escheat, order and direct notice of said proceedings to be served upon the person or persons in possession of said real estate, in such form as the court shall direct, and the said court shall have full power and authority to summon any person or persons who shall be at any time alleged to have any knowledge touching any escheat or any interest therein, to appear before it, and said court shall have full power and authority to examine any and all of said persons upon their oaths or affirmations as to any fact or facts, matter or thing touching said escheat, and shall suffer and per- iait the escheator and all parties claiming to have any interest in said pro- ceedings to appear therein by counsel or otherwise, and to produce and ex- amine such witnesses under oath or affirmation, as they may see fit, touching said escheat, and the said court shall have full power at any stage of said proceedings, when they may think it wise so to do, to make such orders relative to advertisements and notices of the proceedings as shall best serve to inform and advise all parties having an interest, or who may have an in- terest,'in said proceedings of the pendency thei'eof. {Ibid., section 8.) § 1121. Feigned issue may be framed. That whenever any proceedings in escheat shall have been instituted, or shall be pending in any court of this Commonwealth, and there shall be any disputed fact or facts touching said escheat, then and in that case the said court shall, upon application of the escheator, or any other person interested, or claiming to be interested, in the said proceedings prior to the filing of a finding or adjudication therein, frame an issue or issues to determine said disputed question or questions of facts, which said issue or issues shall be tried in the Court of Common Pleas of the same county in which the pro- ceedings in escheat 'shall have been instituted, and shall, if necessary, be certified to said court for that purpose. In cases where escheat proceedings are instituted in the Supreme Court, such issue or issues shall be certified to, and shall be tried by, the Court of Common Pleas of such county as the Supreme Court shall designate. Any party to said issue may, upon the trial thereof, except to the ruling of the court upon any point of evidence or of law, which exception shall be noted by the court and filed of record in the cause, and a writ of error to the Supreme Court may thereupon be taken by any party to said issue, with the usual force and effect. And after the determination of such issue, the Court of Common Pleas in which the same shall have been tried shall certify the result thereof to the court in which the said proceedings in escheat have been instituted. {Ibid., sec- tion 9.) § 1122. Bequisites of adjudication. That every court having jurisdiction in cases of escheat shall, after the determination of each and every case, file of record a finding or adjudica- tion which shall set forth : I. Whether an escheat hath occurred or not. II. In what manner and for what cause the said escheat hath occurred, with the full name of the intestate, if any there be, or of the person who was last seised or possessed of the property in question. ESCHEATS. 513 III. What estate, real or personal, liath escheated, and what is the value thereof. IV. Where said estate, real or personal, is situated, and in whose posses- sion the same then is. And in case the said court shall find that any property, real or personal, hath escheated, the same shall be awarded to the escheator for and on be- half of the Commonwealth. {Ibid., section 10.) § 1123. Exceptions to the adjudication or finding. That whensoever any adjudication or iinding in escheat shall have been filed by any court, exceptions may be filed thereto by the escheator or any other party or parties interested in said proceedings, within the same time, and in the same manner, as exceptions are commonly filed in cases of ac- counts of administrators, executors, and trustees in the court having juris- diction in the premises. And the court shall proceed to the hearing and determination of said excep|ions in like manner as in the cases of excep- tions to the accounts of administrators, executors, and trustees, as aforesaid ; and if said exceptions are, after hearing, sustained in whole or in part, the court shall forthwith proceed to file an amended adjudication or iinding, in -accordance with its determination upon such exceptions. But if no such exceptions are filed within the time limited as aforesaid, then the adjudica- tion or finding of escheat shall be deemed to be confirmed absolutely. {Ibid., section 11.) § 1124. Appeal to the Supreme Court. That the Commonwealth, or any person aggrieved or claiming to be aggrieved by a final adjudication or finding in escheat, may appeal from the same to the Supreme Court, provided that any party other than the Com- monwealth so appealing shall give bond, with sufficient security to be ap- proved by the court, conditioned to prosecute the appeal with efiect, and to pay all costs that may be adjudged against him, and shall make oath or affirmation that the appeal is not intended for delay. No appeal shall be allowed unless the same shall be entered and security given within thirty days after the filing of the amended adjudication or finding, or the absolute confirmation of the original adjudication or finding by the court having jur- isdiction in the premises. And in cases where said appeal shall be duly en- tered and security given within the time above limited, no further proceed- ing shall be had touching the said escheat until the same be determined by the Supreme Court, and the record be remitted therefrom. (Ibid., section 12.) § 1125. Adjudication to be amended, if required, by Supreme Court. That if, upon any appeal to the Supreme Court, any portion or the whole of any finding or adjudication of escheat shall be reversed or modified, the court in which said escheat proceedings have been instituted shall, imme- diately upon the remission of the record thereof by the Supreme Court, pre- pare and file a corrected adjudication or finding in accordance with the der termination of the Supreme Court upon said appeal. (Ibid., section 13.) § 1126. Bond of escheator. That from and immediately after the final determination of any escheat proceedings as aforesaid, the escheator shall file, in the court wherein said proceedings in escheat have been instituted, a bond to the^Commonwealth, •with sufficient security to be approved by the court, conditioned for the VOL. I. — 33 514 PEACTICE IN PENNSYLVANIA. faithful performance by him of his duties as escheator, and also that he will faithfully accoimt for and pay over to the State treasury the proceeds of all property, real or personal, found to have escheated, which shall come into his possession as escheator. {Ibid., section 14.) § 1127. Certified copies of final adjudication to be filed. That from and immediately after the final determination of any escheat proceedings as aforesaid, the escheator shall cause a duly certified copy of the final adjudication or finding in escheat, under the seal of the court filing the same, to be transmitted to the auditor-general, and shall also cause a copy thereof, duly certified in like manner, to be filed in the Court of Common Pleas of every county in which any of the real estate escheated is situate, other than the county in which the proceedings in escheat have been instituted. (Ibid., section 15.) § 1128. Sale of personal property. That at the expiration of thirty days fi-om and after the filing of the final finding or adjudication in escheat, or the absolute confirmation of the same, the person or persons having in their possession any moneys found to have escheated shall forthwith pay the same to the escheator, upon re- 'ceiving from him an acquittance and discharge thereof. And if any per- son or persons shall have in their possession any personal property found to have escheated, other than moneys, the escheator may forthwith apply by petition to the court for an order directed to the person or persons having the same in his possession to sell and dispose of the same, in such manner and form and upon such advertisements as the court shall direct ; and the court shall thereupon, if no valid cause be shown to the contrary, order and direct such sale to be made as aforesaid, and shall ftirther order an account thereof to be duly returned to the court. And upon return of iaid sale the court may order and direct such compensation as it may deem proper to be paid to the person or persons effecting the same ; and shall also order and direct all the expenses of said sale to be deducted from said proceeds, and shall thereupon further order and direct the residue of said proceeds to be paid to the escheator, upon the receipt from him of an acquittance and a discharge therefor. {Ibid., section 16.) § 1129. Sale of real estate. That at the expiration of thirty days from and after the filing of the final finding or adjudication in escheat, or the absolute confirmation of the same, the escheator may apply by petition to the court having jurisdiction of the proceedings in escheat for an order directing the sale of all real estate found to have escheated, situate in the county where the escheat proceed- ings have been instituted ; and the said court shall thereupon, if no valid cause be shown to the contrary, order and direct the administrator or ex- ecutor of the person who has died last seised or possessed of said real estate, or the receiver or other officer or trustee or person acting in a fiduciary capacity, having possession of the same, or if for any reason they cannot act, then some other proper person or persons to sell said real estate in such manner and form and upon such advertisement as the court shall direct, and to execute and deliver a good and sufficient deed or deeds to the pur- chaser thereof: Provided, however, that no sale or sales shall be ordered or made under the provisions of this Act in any case until security, to be approved by the court, shall be duly entered by the person or persons ESCHEATS. 51 5 ordered and directed to make such sale, in at least double the value of the real estate proposed to be sold, conditioned for the faithful application of the purchase-money according to the decree of the court ; which security shall inure to the benefit of all parties interested, and such security being so given, no purchaser of said real estate shall be bound to see to the ap- plication of said purchase-money. {Ibid., section 17.) §1130. Of the purehaser's title. That the title acquired by all purchasers of real estate, sold under and by virtue of the provisions of this Act, shall be absolute and indefeasible for all such estate or estates as shall have been found to have escheated to the Commonwealth. And the sales shall have like effect as to the dis- charge of mortgages, judgments, liens, or other incumbrances upon the said real estate as sales niade by decree of any of the several Orphans' Courts of this Commonwealth for the discharge of the debts of decedents now have, or may hereafter have, in the several counties of this Common- wealth under existing laws. And it shall be the duty of the court to decree the proper application of the purchase-money of said property, with the aid of an auditor, when deemed necessary, to the discharge of the various mortgages, judgments, liens, or other incumbrances upon said real estate. And the said court shall further order and decree that the residue of the proceeds of the said real estate, after the payment of all expenses of sale, and the payment and discharge of said mortgages, judgments, liens, and incumbrances thereon, shall be forthwith paid to the escheator, upon the receipt from him of an acquittance and discharge therefor. {Ibid., sec- tion 18.) § 1131. Where real estate in another county. That whenever any real estate, found to have escheated, shall or may be situate in any other county than that in which the proceedings in escheat have been instituted, the escheator may apply by petition to the Court of Common Pleas of said county for an order directing the sale of the prop- erty aforesaid, and the said court shall thereupon proceed in the premises in like manner and form as is hereinbefore provided relative to sales of real estate by order of the court having original jurisdiction in escheat proceedings, and said sales shall be made by the same person or persons upon the entry of like security, in like manner and form, and with the same force and effect, and the like proceedings shall be had touching the distribution of the proceeds of said sales : Provided, nevertheless, that no court other than that in which the proceedings in escheat have been originally instituted shall have power to make any order touching the sale of escheated real estate, until a duly certified copy of the final finding or adjudication of escheat is filed therein. {Ibid., section 19.) § 1182. Prior sales for unpaid taxes not to be invalidated. That no sale of escheated real estate under the provisions of this Act shall be deemed or taken to invalidate any title previously acquired thereto under a sale thereof for unpaid taxes, or to authorize the purchaser to re- deem said real estate in such case. {Ibid., section 20.) § 1133. Escheator to account to Commonwealth. That the escheator shall, immediately after the receipt by him of any moneys escheated to the Commonwealth, or the proceeds of any property, 516 PEACTICE IN PENNSYLVANIA. real or personal, escheated to the Commonwealth, account for and pay over into the State treasury the full amount received by him as aforesaid. {Ibid., section 21.) § 1134. Traverse by party who has received no notice. That any person or persons interested, or claiming to be interested, in any property, real or personal, which shall be found to have escheated to the Commonwealth, who have had no actual notice by citation, advertise- ment, or otherwise of the pendency of any proceedings in escheat, prior to the conclusion of the audit of the account of the person having the escheated property in his possession, and who shall not have subsequently appeared, either in person or by attorney, in said escheat proceedings, may at any time within three years next after the filing of the final adjudication or finding in escheat, or the absolute confirmation thereof, traverse the same under oath or affirmation, by writing filed in the court finding the same, setting forth his, her, or their interest in said property, and in what par- ticular said finding or adjudication is not true and correct, which said trar verse shall be tried in the Court of Common Pleas of the same county in which the original proceedings have been instituted, or where the proceed- ings have been instituted in the Supreme Court, in the Court of Common Pleas of such county as said Supreme Court may designate. And where said escheat proceedings have not been instituted in the Court of Common Pleas, the courts wherein they have been instituted shall certify the finding or adjudication of escheat and the traverse thereof to the proper Court of Common Pleas for trial. And said traverse shall be tried in lite manner and form, and with like effect, as traverses of inquisitions in escheat have been heretofore commonly tried under existing laws. And a writ of error shall lie in such case to the Supreme Court at the suit of any traverser or of the Commonwealth. And upon the determination of such traverse, the court trying the same shall, if necessary, certify the final result thereof to the court in which the original proceedings have been instituted, and in case upon the trial of said traverse it shall be found that the property in question, or any part thereof, had not escheated, and that the person or per- sons filing said traverse are entitled to the same, or any part thereof, then and in such case said person or persons shall be entitled to receive and to have delivered to them possession of all such property, real or personal, as shall not have been sold or paid into the treasury of the Commonwealth, and in case the same has been sold or paid into the treasury of the Com- monwealth, to receive back again from the Commonwealth such sum or sums of money as may have been realized from the sale or payment thereof, after deducting all expenses, or a proportionable part of said sum or sums, according as his or their interest shall be made [to appear : Provided, nevertheless, that if at the time of the institution of the proceedings in escheat as aforesaid any person having any claim to any of the property, real or personal, found to have escheated, shall be insane or a minor, then and^in such case said person, whether he has had actual notice of the pen- dency of the proceedings in escheat or not, may, if he has not appeared in said proceedings by his committee or guardian, or by the attorney of such committee or guardian, at any time within three years after recovering his sound mind and memoty, or attaining full age, as the case may be, tra- verse the said finding or adjudication of escheat in like manner and form, and with like force and eflfect, as is hereinbefore provided. (Ibid., sec- tion 22.) ESCHEATS. 517 § 1135. Courts may enforce all orders, etc. That the various courts of this Commonwealth having jurisdiction in escheat proceedings shall have full power and authority to enforce all orders and decrees made by them therein, by attachment or other proper process as the case may require. (Ibid., section 23.) § 1136. The informer — His compensation. That any person who shall first inform the auditor-general by writing, signed by such person, in the presence of two subscribing witnesses, that any escheat hath occurred by reason of the fact that any person hath died intestate without heirs or known kindred, a widow, or surviving husband, and who shall procure necessary evidence to substantiate the fact of said escheat, and shall prosecute the right of the Commonwealth to the property escheated with efiect, shall be entitled to one-third part of the price which such property, real or personal, shall produce, after all costs of prosecution and charges of sale are deducted therefrom : Provided, nevertheless, that before such third part be paid to said person or his representative, he, she, or they shall give bonds to the Commonwealth, with sufficient security, to be approved by the auditor-general, conditioned to refund the same, or any part thereof, as may be, if any claimant to the estate upon which such one- third shall become payable appear within the time hereinbefore limited, touching said estate and traverse the finding or adjudication of escheat, and establish the title to the property, real or personal, found to have escheated as aforesaid. (Ibid., section 24.) § 1137. Feigned issue may be framed where conflicting claims to informer's compensation. That in all cases of dispute where two or more persons shall claim the re- ward allowed by the preceding section of this Act, in consequence of in- formation given to the auditor-general of an escheat, it shall and may be lawftil for such person or persons, or either of them, to petition the court having jurisdiction of the escheat proceedings stating the facts, whereupon the said court may proceed to determine the matter of dispute, and if the case reqmre, it may direct an issue to be framed between the parties to try their right to the reward aforesaid, which shall be paid according to the final determination of said court, or of said issue, as the case may be. (Ibid., section 25.) § 1138. Commonwealth barred after twenty-one years. That whensoever any property hath escheated or shall escheat to the Commonwealth by reason of the death of the owner last seised or possessed thereof, intestate without heirs or known kindred, a widow, or surviving husband, and there have been no proceedings had, as and for an escheat, for the period of twenty-one years after the decease of the said owner, the Commonwealth shall thereafter forever be debarred from claiming the same as escheated, and that whether such period hath already elapsed, or whensoever hereafter it shall have fully elapsed. (Ibid., section 26.) § 1139. Fees. That the fees in cases of escheat shall be as follows : To the escheator, five per centum on all moneys paid into the State treasury from the sales of escheated property, together with all expenses incurred by him for, in 518 PEACTICE IN PENNSYLVANIA. and about the prosecution of the escheat and the performance of the duties imposed upon him by this Act. And the fees of the prothonotaries, and the clerks of the several courts, and the sheriffs and witnesses, shall be the same which they are entitled to receive for similar services in the same court. The above fees and expenses shall be paid out of the State treasury by a warrant from the auditor-general in the customary manner. (Ibid., section 27.) § 1140. Repeal, That all Acts, or parts thereof, or supplements thereto relative to escheats, inconsistent with or supplied by the provisions of this Act, be and the same are hereby repealed. {Ibid., section 28.) § 1141. Conveyances by aliens or foreign corporations to citizens of United States or to corporations of Pennsylvania, authorized to hold real estate before any inquisition taken, shall pass the title free of escheat. Act May 8, 1876, section 1 (P. L., 127). See also Acts of April 8, 1881 (P. L., 9); June 6, 1887 (P. L., 350); May 29, 1889 (P. L., 395). § 1142. Attaint, holding by corporations, etc. Other statutes provide for cases of attaint — purchases by corporations not author- ized to hold, etc. See Acts of September 29, 1787 (2 Sm. L., 431) ; April 6, 1833 (P. L,, 167); April 19, 1844 (P. L., 313); April 26, 1855, sec- tions 5, 9, 14 (P. L., 328) ; January 9, 1861 (P. L., 2) ; May 1, 1861 (P. L., 433) ; June 2, 1887 (P. L., 302). § 1143. As to return of escheated deposits, see Act of June 4. 1885 (P. L., 73), and § 1148 infra. § 1144. Procedure modified by Act of 1889. Of the following decisions, those made before the passage of the Act of 1889 must be read with the recollection that procedure in escheat is thereby radically modified. They may, however, aid in making clear the law as so altered, and the new methods of practice which will pre- vail under proceedings in the Orphans' Courts and elsewhere as established by that statute. They are inserted here in the hope that they will at least throw some light upon the subject. § 1145. Land held by alien. Upon the death of an alien seised of land it escheats to the State without office found ; but the legis- lature may vest it in the decedent's widow. Rvheck v. Gardner, 7 Watts, 455 (1838) ; see Act of May 1, 1861 (P. L., 433). § 1146. Bargain and sale by lunatic will not bar escheat. A deed of bargain and sale made by a lunatic, who afterward dies without heirs or kindred, will not prevent the escheat of .the land to the Commonwealth. Feoffment and livery of seisin by the luna- tic would, however, so far divest his seisin as to avoid the escheat at his death. Estate of Besilver, 5 Eawle, 111 (1835). ESCHEATS. 519 § 1147. Partnership property. Under Act of June 27, 1864, (P. L., 951), if all the members of a partnership die intestate and without known heirs or kindred, the firm property escheats to the Commonwealth. Comm. v. Land Co., 57 Pa. St., 102 (1868). § 1148. TTnclaimed funds on deposit. Unclaimed funds in a saving fund society or deposit company are not subject to escheat under the Act of April 17, 1869 (P. L., 71). That Act contains no provisions by which it can be carried into effect, and the methods provided by Act of September 29, 1787 (2 Sm. L., 425), are not applicable to the escheat of moneys held in trust. Under Act of April 26, 1855, section 9 (P. L., 331), the proceedings must be by quo warrardo. West's Appeal, 64 Pa. St., 186 (1870) ; West V. Penna. Co., Id., 195 (1870). The Act of June 4, 1885, section 1, as amended by the Act of June 25, 1895 (P. L., 283), is as follows : Section 1. That whenever any bank, savings institution, or loan com- pany, and each and every saving fund society, insurance or trust company, or other company, institution, association, or corporation' shall have es- cheated any dividend or profit, balance or deposit, or interest thereon to the Commonwealth, under the Act of Assembly, approved the sixth day of March, one thousand eight hundred and forty-seven, entitled " An Act requiring banks and other corporations to give notice of unclaimed divi- dends, deposits, and balances in certain cases," and the proceeds thereof are in the State treasury in money, the came shall be -refunded to such person or persons, or his, her, or their legal representatives upon his, her, or their producing to the Governor or Auditor-General, State Treasurer, and Attor- ney-General satisfectory proof that he, she, or they are the person or per- sons, or the legal representative or representatives of the person or persons whose money has been so escheated. § 1149. Estate in remainder. An interest in remainder cannot be escheated until the expiration of the preceding life-estate ; and the Statute of Limitations does not begin to run against the Com- monwealth until then. Cmnm. v. Naile, 88 Pa. St., 429 (1879). § 1150. Property held in trust. A jjassive trust will not pre- vent the estate of a decedent from escheating for want of heirs. Id. § 1151. Unlawful holding by corporations. Under the Act for- bidding corporations to hold land in this State, unless expressly authorized (26th April, 1855, P. L., 329), such a corporation is not precluded from owning the chief and controlling interest in another corporation which is empowered to hold land. The latter may, in such case, purchase and hold the land free from liability to escheat. Commonwealth v. E. R. Co., 132 Pa. St., 591 (1890). In this case the Supreme Court recedes from the view taken by it in 1886, 520 PRACTICE IN PENNSYLVANIA. in Commonwealth v. B. R. Co., 114 Pa. St., 340, in which it ruled that the question whether the arrangement was a mere device to avoid the escheat should have been left to the jury. Opinion in the later case by Paxson, C. J.; Steeeett and Claek, JJ., dis- senting. Only the Commonwealth is empowered to proceed against a cor- poration to escheat land which it is incompetent to hold. Such incompetency cannot be set up by a private person as a defense in an action of ejectment. Bone v.D. and H. Canal Co., 18 W. N., 125 (1886). §1152. Administrator may claim against escheator. An admin- istrator holding assets formerly belonging to the decedent may claim that they are his property and no part of the estate. He may tra- verse the inquisition. The Orphans' Court will stay its adjudica- tion pending the trial of the traverse in the Common Pleas. Comm. v. Crompton, 26 W. N., 475 (1890) ; Murray's Estate, 13 W. N., 552 (1883). § 1153. Commonwealth not bound by partition. If the estate of a tenant in common escheat, the Commonwealth is not bound by a partition of the land among the surviving tenants. It retains its right to its undivided proportion of the land. Holmes v. Patter- son, 25 Pa. St., 484 (1854). § 1154. Limitation. Upon the subject of the bar of the Statute of Limitations, see section 26 of the Act of May 2, 1889, supra, sec- tion 1138. § 1155. Escheated land cannot be granted by warrant and survey. After escheat and forfeiture, the Commonwealth cannot grant the escheated land again by warranty and survey. If it do so, such grant is a nullity, and confers no title. Straub v. Dimm, 27 Pa. St., 36 (1856). § 1156. Trial and evidence. In regard to practice upon trial of the traverse, and as to admissibility of evidence, see Comm. v. Hoe, 26 Leg. Int., 124 (1869). The Commonwealth is not entitled to a second trial after verdict for the traverser. Id. § 1157. Equity will not interfere. The proceedings in escheat should not be enjoined in equity where the questions involved may properly be decided upon a traverse. Olmsted's Appeal, 86 Pa. St., 284 (1878). § 1158 Execution set aside. After finding of decease without heirs or kindred, execution should not issue against the adminis- trator during the year following the grant of letters to him. Comm. v. Weart, 6 W. N., 237 (1878). Nor after adjudication in the Orphans' Court and award of the balance in his hands, such award ESCHEATS. 621 being unappealed from. Comm. v. Palmer, Id., 486 (1879). In each of the above cases a writ of fi.fa. was set aside. § 1159. Claim of the informer is not directly against the escheator for his share of the commission. It is a claim against the State upon the fund coming into its treasury. Ayre's Estate, 1 Pearson, 413 (1859). § 1159 a. Compensation allowed deputy escheator where pro- ceedings fail by discovery of next of kin. Where escheat proceed- ings fail by the discovery of next of kin, reasonable compensation will be allowed deputy escheator and his counsel. Bryant's Estate, 4 Dist. Eep., 192 (1895). CHAPTER XX. HABEAS COEPrrS — PEOCEEDINGS BEFORE JUSTICES OF THE PEACE AND MAGISTEATES. § 1160. Of&ce of Alderman abolished. By the Constitution of 1874, Article V., section 12, the office of alderman was abolished as to the city of Philadelphia, and in place thereof the office of magistrate, with jurisdiction not exceeding $100, was created for each thirty thousand inhabitants. The Act of June 1, 1891 (P. L., 143), provides that justices of the peace may secure and use a seal to be affixed to official papers. § 1161. Jurisdiction of magistrates in criminal cases — Constitu- tional safeguards. The Constitution of 1874, Article I., section 8, provides : " The people shall be secure in their persons, houses, papers, and posses- sions, from unreasonable searches and seizures ; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation, subscribed to by the affiant." Article I. , section 9 : " In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor ; and in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage ; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty, or property unless by the judgment of his peers or the law of the land." Article I., section 13 : Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted. § 1162. As to recognizances. It is the duty of every justice in Philadelphia before whom any recog- nizance of bail or surety in any criminal or supposed criminal case shall be taken, to set down accurately and at large, in a docket or record for that purpose, the name, place of abode, particularly describing the same, and the occupation or business of such recognizor or surety ; and if he shall not be a housekeeper, the name and place of abode, particularly describing the same, and the occupation or business of the person or persons with whom he resides. Such justices shall make a full and complete return of JUSTICES OF THE PEACE. 523 said recognizance or surety to the proper court, and all and every the sure- ties so made on his docket or record relating to such recognizance, together ■with the proceedings of such justice relating to the case. (Act March 30, 1821, section 1 ; 7 Sm., 426.) If the justice neglect or refuse to comply with the provisions of this Act, such neglect or refusal shall be deemed a misdemeanor in office. (,Id., section 4.) § 1163. Recognizances to be returned. The justices shall be required to return to the clerk of the Quarter Ses- sions all the recognizances entered into before them by any persons charged with the commission of crime, excepting such cases as may be ended at least ten days before the commencement of the session of the court to which they are made returnable. In cases where recognizances are entered into less than ten days before the commencement of the session to which they are made returnable, the sa!d justices are required to return the same in the same manner as if this Act had not been passed. (Act May 8, 1854, section 1 ; P. L., 678.) § 1164. Justices may take bail. When anyone is arrested on a warrant or bail-piece in any criminal case in which a justice of the peace would be allowed to take recognizance of bail for his appearance to answer the offense or crime, the officer making the arrest may take the accused before a justice and have him released on requisite security, and his return, when properly made, shall exonerate him from further liability. (Act February 23, 1870, section 1 ; P. L., 227.) § 1165. Criminal complaint to be entered on docket and returned to court. The Act of June 11, 1885 (P. L., 110), provides that it shall be the duty of justices and committing magistrates, upon complaint being made in criminal cases upon oath or affirmation of any person, to enter such com- plaint upon their docket, with the name, residence, and occupation, if any, of all defendants, bail, and witnesses, and return to the clerk of the Quar- ter Sessions a true transcript within five days after the binding over or com- mittal, and any wilful violation of these requirements shall be declared to be a misdemeanor in office. The elaboration of the criminal jurisdiction of justices has no place in this work. It may be proper, however, to give a few directions upon this subject. § 1166. Isisuing a warrant. Never advise the commencement of a criminal proceeding except in a clear case. If satisfied of this, prepare your client's information. Where the magistrate keeps a book for the purpose (the only proper, but oft-neglected practice), write the complaint or get it written in the book. Tour client or the witness signs and swears to it ; the warrant is given to the constable with directions as to the service. You, of course, under- stand : (1) That the complaint must be made by one cognizant of the fects, and that it must charge a violation of the criminal law. 524 PKACTICE IN PENNSYLVANIA. (2) That it must give the defendant's name, if known, and, if this be unknown, it must state the fact and describe the person, (3) That the complaint must be under oath or afBrmation. Disregard of these directions may involve serious consequences. § 1167. A warrant issued on suspicion is void. In Connor v. Comm., 3 Binn., 43 (1810), the warrant was set forth at large in the indictment. It was issued without any previous oath or aifirmation, because " it appeared to the judge, from common re- port, that there was strong reason to suspect the said Langs of having knowingly uttered, as true and genuine, certain false and forged notes, purporting to be notes of the Farmers' and Mechanics' Bank of Philadelphia, and that he was likely to depart from and quit the county and retreat to parts unknown, before the witnesses could be summoned before the said judge to enable him to issue a warrant on their testimony on oath." It was held that the warrant was illegal, and that the constable was not bound to exe- cute it. § 1168. But a oriminal may be arrested without warrant. In Wakely v. Hart, 6 Binn., 318 (1814), the plaintiff had been ar- rested by the constable, assisted by others, upon information that he had stolen a watch. He was taken to jail without a warrant ; the watch was found in his possession, and there were other cir- cumstances raising a presumption of guilt. The defendant sued for false imprisonment, complaining that no warrant had been issued. Chief Justice Tilghman said : " The provision that no warrant shall issue without describing any person or thing as nearly as may be, nor without probable cause, supported by oath or affirmation, only guards against abuse. " But it is nowhere said that there shall be no arrest without warrant. To have said so would have endangered the safety of society. The felon who is seen to commit murder or robbery must be arrested on the spot or suffered to escape. So, although not seen, yet if known to have committed a felony, and pursued with or without warrant, he may be arrested by any person. These are principles of the common law essential to the welfare of society, and not intended to be altered or impaired by the Constitution." § 1169. Search warrant. Where your client is pursuing prop- erty stolen from him, you can obtain a search warrant if he can swear to the larceny, and that the goods stolen are in a certain place, describing it and the property. You should here be careful to follow the Constitution and the statute. § 1170. Description required in search warrant. In Moore v. JUSTICES OF THE PEACE. 525 Cloxe, 10 W. N., 135 (1881), the search warrant described the goods as " a quantity of jewelry and other personal effects, etc. " The description was considered sufficient, as it indicated the gen- eral character of the goods sought for. But it is recommended to give a full description of the property where practicable to do so. § 1171. Duty of magistrate at hearing. When the defendant is arrested, the prosecutor and his witnesses are examined. If a case of probable cause is made out, it is the duty of the magistrate to bind over, and if the case be not bailable, to commit. § 1172. Magistrate cannot inquire into credibility of witnesses — That question is for a jury. In a preliminary hearing before a com- mitting magistrate on a criminal charge, where the offenses charged have been positively sworn to, the credibility of a witness cannot be inquired into. A grand or petit jury must ascertain whether the witness is worthy of belief. Comm. v. Roop, 15 W. N., 419 (1885). If the offense be bailable and security be tendered, he should be examined under oath and his answers recorded. If bound over, and especially if committed, it is the defendant's privilege to apply for a writ of habeas corpus. An abstract of the legislation and of decisions on this subject may assist the practi- tioner. § 1173. Habeas corpus Act. If any person shall be committed or detained for any criminal or supposed criminal matter, unless for treason or felony, the species whereof is set forth in the warrant of commitment, in vacation time and out of term, it shall be lawful for the person so comjnitted or detained, or anyone on his or her behalf, to appeal or complain to any judge of the Supreme Court or to the president or associate judge of the Court of Common Pleas for the county within which the person is so committed or detained ; and such judge or justice, upon a view of the copy or copies of the warrant or war- rants of commitment or detainer, or otherwise, upon oath or affirmation legally made that such copy or copies were denied to be given by the per- son or persons in whose custody the prisoner is detained, is hereby authorized and required, upon request made in writing by such prisoner, or any person in his or her behalf, attested and subscribed by two witnesses, who were present at the delivery of the same, to award and grant a habeas corpus, under the seal of the court, to be directed to the person or persons in whose custody the prisoner is detained, returnable immediately before the said judge or justices ; and to the intent, and that no officer, sheriff, jailer, keeper, or other person to whom such writ shall be directed may pretend ignorance of the import thereof, every such writ shall be made in this manner : " By Act of Assembly, one thousand seven hundred and eighty-five," and shall be signed by the judge or justice who awards the same. (Act of February 18, 1785, section 1 ; 2 Sm., 275 ; Act of April 13, 1791, section 9 ; 3 Sm., 30.) 526 PKACTICE IN PENNSYLVANIA. § 1174. Duty of person receiving the writ of the jndge, etc. Whenever the writ shall be served upon the officer, sheriff, jailer, keeper, or other persons whatsoever to whom the same shall be directed, by being brought to him, or by being left with any of his under officers or deputies, at the jail or place where the prisoner is detained, he or some of his under officers or deputies shall within three days after the service thereof, upon payment or tender of the charges of bringing the said prisoner, to be ascertained by the judge or justice who awarded the writ, and thereon in- dorsed, not exceeding twelve pence per mile, and upon security given, by his own bond, to pay the charges of carrying him back, if he shall be re- manded, and not to escape by the way, make return of such writ and bring or cause to be brought the body of the prisoner unto or before the judge or justice before whom the said writ is made returnable ; and in case of his absence, before any other of the judges or justices ; and shall certify spe- cifically and fiiUy the true cause or causes of commitment and detainer of the prisoner, and when he was committed, unless the commitment be in any place beyond the distance of twenty miles, and not above one hundred miles, then within ten days, and if beyond the distance of one hundred miles, then within twenty days. The judge or justice before whom the prisoner shall be brought shall within two days discharge the prisoner from imprisonment, taking his or her recognizance, with one or more surety or sureties, in any sum according to his discretion, having regard to the circumstances of the prisoner and nature of the offense, for his or her appearance at the next Quarter Ses- sions of the cotmty where the offense was committed, or in such other court where it may be properly cognizable, as the case shall require, and then shall certify the said writ, with the return thereof, and the said recog- nizances into the court where such appearance is to be made, unless it shall appear to the said judge or justice that the party so committed is detained upon legal process, order, or warrant for such matter or offenses for which by the law the said prisoner is not bailable. And that the judge or justice may, according to the intent and meaning of this Act, be enabled, by in- vestigating the truth of the circumstances of the case, to determine whether according to law the said prisoner ought to be bailed, remanded, or dis- charged, the return may, before or after it is filed, by leave of the said judge or justice, be amended, and also suggestions made against it, so that thereby material facts may be ascertained. (Act February 18, 1785, section 1 ; 2 Sm., 275.) § 1175. Kight to writ in term time. In term time it shall be lawful for any prisoner in proper manner to move and obtain his or her habeas corpus out of the Supreme Court or the Court of Common Pleas for the county in which he or she is imprisoned, whereupon proceedings shall be had as aforesaid. {Id., section 2.) § 1176. The two-term law. If any person shall be committed for treason or felony, and shall not be indicted and tried in the next term after such commitment, it shall be law- ful for the judges or justices, and they are required upon the last day of the term, to set at liberty the said prisoner upon bail ; unless it shall appear, upon oath or affirmation, that the witnesses for the Commonwealth, men- tioning their names, could not then be produced ; if such prisoner shall not JUSTICES OF THE PEACE. 527 be indicted and tried the second term after his or her commitment, unless the delay happen on the application or with the assent of the defendant, or upon trial shall be acquitted, he or she shall be discharged from imprison- ment. {Id., section 3.) Provided, that this shall not be construed to discharge from prison any person guilty of or charged with treason, felony, or other high misdemeanor in any other State, and who by the confederation, ought to be delivered up to the executive power of such State, nor any person guilty of, or charged with, a breach or violation of the laws ofriations. (Id., section 4.) Provided, also, that nothing in this Act shall extend to discharge from prison any person charged with debt or other action, or with process in any civil cause, but that after discharge for such criminal or supposed criminal matter, he or she shall be kept in custody, according to law, for such other suit. {Id., section 5.) § 1177. The fifteen-day section. In order that no person shall avoid a trial by procuring a removal, so that he or she cannot be brought back in time, it is enacted that — No person shall be removed upon habeas corpus within fifteen days next preceding the term of the court, but upon such habeas corpus shall be brought before the judges, who are thereupon to do what to justice shall appertain. {Id., section 6.) Provided, that after such court the person detained may have his or her habeas corpus. {Id., section 7.) § 1178. Penalty if judge refuse the writ. If any judge, being appealed to, upon view of the copy or copies of the warrant or warrants of commitment, or upon oath or affirmation made that such copy or copies were denied, shall refuse or neglect to award any writ of habeas corpus by this Act to be granted, he shall forfeit to the prisoner or party grieved £300. {Id., section 8.) § 1179. Penalty for failing to return writ. If any officer, sherifif, jailer, keeper, or other person to whom such writ shall be directed, or any of the under officers or deputies, shall refuse or neglect to make lie returns, or to bring the body of the prisoner, according to the command of the writ, within the respective times, all and every such officer, sheriflT, jailer, keeper, or other person, under officer, or deputy shall be guilty of a contempt of the court under the seal of which the said writ shall have issued, and shall also forfeit to the party aggrieved £100 for the first offense, and £200 for the second offense, and shall be incapable of holding or executing his office. {Id., section 9.) § 1180. Penalty for refusing copy of warrant. If any officer, sheriff, jailer, keeper, or other person to whom such writ shall be directed, or any of his under officers or deputies, upon demand by the prisoner, or some person in his or her behalf, shall refuse to de- liver, or within six hours after demand shall not deliver to the prisoner or person so demanding a true copy or copies of the warrant or warrants of commitment or detainer of such prisoner, which are required to be deliv- ered, all and every such officer, sheriff, jailer, keeper, or other person, under 528 PRACTICE IN PENNSYLVANIA. officer, or deputy so offending shall for the first offense forfeit to the pris- oner or party grieved £100, and for the second offense £200, and shall also be and is hereby made incapable to hold or execute his said office. {Id., section 10.) § 1181. Penalty for re-arrest. And for preventing unjust vexation by reiterated commitments for the same offense : Be it enacted, that no person who shall be delivered or set at large upon a habeas corpus shall, at any time thereafter, be again com- mitted or imprisoned for the same offense by any person or persons whatso- ever other than by the legal order and process of such court wherein he or she shall be bound by recognizance to appear, or other court having juris- diction of the cause ; and if any other person or persons shall knowingly, contrary to this Act, recommit or imprison, or knowingly procure or cause to be recommitted or imprisoned for the same offense, or supposed offense, any person delivered or set at large as aforesaid, or be knowingly aiding or assisting therein, then he or they shall forfeit to the prisoner or party grieved, any pretense of variation in the warrant or warrants of commit- ment notwithstanding, the sum of £500, to be recovered by the prisoner or party grieved. {Id., section 11.) § 1182. Prisoners not to be removed except by writ. Any person being committed to any prison, or in custody of any officer, sheriff, jailer, keeper, or other person, or his under officer or deputy for any criminal or supposed criminal matter, shall not be removed from the prison or custody into any other prison or custody unless it be by habeas corpus or some other legal writ, or where the prisoner is delivered to the constable or other inferior officer to be carried to some common jail, or where any person is sent by any judge or justice having proper authority to some com- mon workhouse or house of correction, or where the prisoner is removed from one place to another within the same county, in order to his or her trial or discharge in due course of law, or in case of sudden fire or infection or other necessity ; and if any person or persons shall, after such commit- ment as aforesaid, make out, sign, countersign, and issue any warrant or warrants for such removal, except as before excepted, then he or they shall forfeit to the prisoner or party grieved £200, to be recovered by the pris- oner or party grieved, in manner aforesaid. {Id., section 12.) § 1183. Habeas corpus lies in all cases of restraint. All provisions made for awarding and granting writs of habeas corpus and proceeding thereon, in case of commitment or detainer for any criminal or supposed criminal matter, shall extend to all cases where any person, not being committed or detained for any criminal or supposed criminal matter, shall be confined or restrained of his or her liberty under any color or pre- tense whatsoever ; and upon oath or affirmation made by such person so con- fined or restrained, or by any other person in his or her behalf of any actual confinement or restraint which is not, to the best of the knowledge and belief of the person so applying, by virtue of any commitment or detainer for any criminal or supposed criminal matter, a habeas corpus directed to the person or persons so confining or restraining the party shall be awarded and granted, in the same manner as hereinbefore provided, and the court, judge, or justice before whom the party so confined or restrained shall he brought, shall, after the return made, proceed to examine into the facts re- JUSTICES OF THE PEACE. 529 lating to the case, and into the cause of such confinement or restraint ; and thereupon either bail, remand, or discharge the party so brought, as to jus- tice shall appertain. {Id., section 13.) § 1184. Duty of party served with writ — Penalty for refasal. Wherever any writ of habeas corpus awarded and granted, either in term time or vacation, for any person so confined or restrained, and without a commitment for any criminal or supposed criminal matter, shall be served upon the person or persons so confining or restraining such party, by being brought to such person or persons, or by being left at the place where the party shall be so confined or restrained, the person or persons so confining or restraining such party shall make return of such writ, and bring, or cause to be brought, the body of such party according to the command thereof, within the respective times limited, and under the provisions of this Act. Every person refusing or neglecting to make return of such writ, or to bring, or cause to be brotight, the body of the party according to the command thereof, within the times respectively limited, shall be guilty of a contempt of the court under the seal of which the said writ shall have issued, and shall forfeit for the first offense to the party aggrieved £100, and for the second ofiense £200. {Id., section 14.) § 1185. Limitation of actions. No person shall be sued, impleaded, molested, or troubled for any offense against this Act unless such person be sued or impleaded for the same within two years after the time wherein the said offense shall have been committed, in case the party grieved shall not then be in prison, or con- fined or restrained. If so, then within two years after such release. {Id., section 15.) In or upon any action for any offense against this Act, the defendant or defendants may plead the general issue, and give the special matter in evi- dence. [Id., section 16.) § 1186. Associate judges may issue writ — It may be issued in vacation — Judge may issue subpoenas, etc. The president and associate judges shall severally have the powers to issue writs of habeas corpus in vacation time and out of term, and to give relief as fully as the president of any Court of Common Pleas at present may or can do. (Act April 13, 1791, section 9 ; 3 Sm., 30.) This Act was extended to the judges of the Court of Quarter Sessions of the Peace of Philadelphia County by Act April 4, 1837, section 2 (P. L., 378). The judge or court before whom any writ of habeas corpus shall be return- able shall have the power to issue subpoenas and all other process necessary to compel the attendance of witnesses. (Act April 17, 1866, section 1 ; P. L., 112.) § 1187. Costs. The officer making service and the witnesses are allowed the costs and fees as for similar service and attendance be- fore magistrates. Costs of service and attendance on the part of the Commonwealth shall be paid by the proper county and taxed as costs in the case. {Id., section 2.) VOL. I. — 34 530 PRACTICE IN PENNSYLVANIA. The Court of Common Pleas or any judge before whom any writ of habeas corpus shall be heard shall make an order for the payment by the proper county or by the prosecutors in the case of the costs and fees of witnesses. (Act April 14, 1868, section 1 ; P. L., 98.) § 1188. Who may have the writ, A writ oi habeas carpus may issue upon the petition and affidavit of any person who claims the right of custody over the person restrained. Hohey v. TreviUo, 6 Watts, 402 (1837). But if issued without the authority of the relator, the writ will be dismissed. Comm. v. Killaoky, 3 Brews., 565 (1869). A writ of habeas corpus will not be allowed where the relator has given bail. Comm. v. GiU, 27 W. JST., 311 (1890) ; Comm. v. 8herif, 2 Dist. Kep., 321 (1893). § 1189. How the writ is procured. The party applying is called the petitioner. When the writ has issued he is termed the relator. If detained upon any process, he must secure a copy of it or be able to swear that he has demanded it, and that the copy has been refused. As already noted, the writ lies in all cases of illegal re- straint. A parent may use it to obtain the custody of a child. A husband may issue it for his wife. The wife has been allowed to petition as the attorney of her husband. To touch upon all these cases, still more to treat of them, would expand a book on practice into a dissertation upon the writ and require a volume. § 1190. Petition for the writ of habeas corpus — Instructions. Like all other petitions, these vary according to the facts. The following is perhaps the most common form : Commonwealth ex. rel. V. The Keeper of the Philadelphia County Prison. To the Honorable , Judge of the Court of Oyer and Terminer and Quarter Sessions of the Peace of the county of The petition of humbly showeth that he is illegally in the custody of the keeper of the Philadelphia County Prison, and is unlaw- fully restrained of his liberty upon a charge which will appear upon refer- ence to the subjoined paper and certificate. He therefore humbly prays your Honor to issue a writ of habeas corpus for'his relief, agreeably to the Act of Assembly of the 18th of February, one thousand seven hundred and eighty-five. And as in duty bound he will ever pray, etc. Witnesses, 1 J (Signature and date.) Sometimes the petitioner is in the custody of the sheriff, some- times of his bail. Where the petition is by a parent for the custody of a child, it is usual to set out the facts. The petition is presented to a judge,, indorsed writ allowed, returnable . The judge fills in the blank for the return-day and signs the allowance. You take this to the clerk, who gives you the writ. Keep a. copy. JUSTICES OF THE PEACE. 531 Serve the original on the respondent. On the day named the re- spondent must produce the body or show good reason for his omis- sion to do so, and he must attach the commitment, etc. In a crim- inal case, if you are counsel for the relator, you should notify the district attorney, the magistrate, the prosecutor, and all the wil^ nesses of the issuing of the writ and of the time fixed for the hearing. § 1190 a. Where application made for writ of habeas corpus to discharge inmate of penitentiary, notice to he given authorities (hat may have committed relator. That hereafter when application shall be made to any court of this Com- monwealth, or a judge thereof, by an inmate of either of the penitentiaries of the State for a writ of habeas corpus for the discharge of such inmate, the court or judge directing such writ to issue and before whom the application shall be heard shall, before the hearing of such application and the dis- charge of any such inmate, have submitted to it or him proof of notice of the intended application to the authority or authorities that may have com- mitted such inmate to the said penitentiary, and it shall not be lawful for such court or judge to order the discharge of such inmate without proof of notice as aforesaid to the authority or authorities. Act of June 6, 1893 (P. L., 328). § 1191. Petition for habeas corpus — case of an infant. The fol- lowing form was used as a petition for habeas corpus by a father against the mother for the custody of an infant child : To the Honorable , one of the Judges of the Court of Quarter Sessions of the Peace for the city and county of Philadelphia : The petition of and of by his father and next fiiend , humbly showeth : That the said is the son of the petitioner and his wife. That on the day of , A. D. 18 , the said • unlawfully deserted the home of her said husband , and at the time of said desertion took away with her the said , who was at that time upward of years. That the taking away of the said was not only without the consent of his father, but against his known wish and in spite of his ex- press prohibition. That the said has since requested his wife, the said , to return to his home and to her duty, and thereby restore to him the lawful custody of his said infant son, but the said has neverthless refused so to do. Your petitioners therefore show that the said is now illegally restrained of his liberty in this city by the said , and humbly pray your Honor that a writ of habeas corpus may be issued, directed to the said , commanding her forthwith to bring before your Honor the body of the said , and show cause, if any she hath, why the said should not be relieved of the said illegal restraint, and why he should not be delivered into the custody of his said father. And as in duty bound, etc. (Signature of son) by his father and next friend. (Signature of father.) 532 PEAOTICE IN PENNSYLVANIA. (Name of father), one of the petitioners, having been duly sworn accord- ing to law, doth depose and say that the facts set forth in the foregoing petition are true and correct. Sworn to and subscribed before me, ] (Signed.) this day of , A. D. 18 .1 Notary Public. J § 1192. Return claiming right to custody of a child. The fol- lowing may serve as outlining the return in such a case. To the Honorable the Judges in the annexed writ, named : (Name of respondent), therein named, in obedience thereto, doth certify that she has the body of (name of infant), therein named, before the said judge, at the time and place therein commanded. That the said (name of infent) is her son and only child ; that he was bom on the day of , A. D. 18 , and that he will not be years old until the of , A. D. 18 ; that he was bom at Philadel- phia, in the State of Pennsylvania ; that from his birth to the present day he has never been separated from her, that she is his guardian by nature and for nurture, and that her care of him is indispensably necessary for his present and future welfare ; that he is now in her custody for the proper a,nd necessary purposes of such care and guardianship, and for no other purpose, and in no other manner, and is in no respect restrained of his liberty or detained illegally ; that in her care and guardianship the moral and religious education of her said child is, and will be, suitably attended to, and his and her associations are, and will be, exclusively with per- sons of upright character and moral and religious habits ; that her father (name), residing at No. , in this city, is possessed of ample means to support and educate the said child in a manner befitting his station and suitable to his expectations, and Till do so, provided his father (name), shall refuse to do so, or fail to do so when he shall be required so to do by due process of law hereafter to be had. That the present age of her said child does not admit of his separation from her without the greatest danger to his health, which requires especial care and attention from her ; he needs, and for some years to come will need, a mother's nursing care, which no one else can supply. That the respondent was married to , the relator, the father of the said child, at Philadelphia, in the State of Pennsylvania, in the month of , in the year (date). That from that time until about (date) she lived and cohabited with the said (name), her husband, in the .said city of Philadelphia, when on or about the (date), when her child was but old, she was obliged to take her child and leave her hus- band, and go to the residence of her father, in this city (name), because of the cruel and barbarous treatment of her said husband to her, he commit- ting acts of violence upon her person, and otherwise physically abusing and maltreating her, to which he added a variety of other circumstances, such as abusive and insulting names and opprobrious epithets, which ren- dered her life burthensome and condition intolerable, and so at that time obliged her to withdraw herself and her child from the house and society of her husband ; that this absence continued for about the period of one week, when, because of the intercession and intervention of the friends of her said husband in his behalf, and because of his solemn promise made to JUSTICES OF THE PEACE. 533 herself, and to her father and to her mother, to amend his life, and to treat her with affection, gentleness, and decorum, as a wife should be treated by her husband, she consented to return with her child to him, and she did so return, and from that time to the (date) she lived and resided with him with her child. That during that time the said relator abstained from acts of actual vio- lence, but he continued repeating and renewing his former course of con- duct, toward her ; he was abusive, insulting, violent, and subject to parox- ysms and gusts of temper that bordered on insanity. In a variety of ways, both by his manner and his general and unbroken course of deportment, conduct, and language toward her, he disappointed all the expectations of sympathy and affection which he promised to her father, her mother, and herself, to bestow upon her and to display toward her when she had consented to return, and did return in (date) ; that he refused during all this time to cohabit with her, and excluded himself from her company, and constantly treated her with personal indignity in the presence of their ser- vant by many silent and inexpressible acts of slight and affront ; that when the servant was gone, and late at night, he would assail her, abuse her, and rail at her, and apply insulting names to her, and boastfully told her at those times that she had no witnesses ; and this conduct continued and became worse and worse from day to day, when (date), she made a personal application to a gentleman with whom is concerned in busi- ness, and who had been the interceding friend for (name), when she was prevailed upon to return to him (date), as before stated. She recited to this gentleman the misery of her life, and asked him to interfere, and prevent and correct, if possible, the conduct of her husband, notwithstanding which her husband continued and repeated his former course of violent, abusive, insulting, and cruel and barbarous treatment toward her in an aggravated degree, and offered indignities to the person of your respondent, until finally she became inexpressibly wretched by the conviction that there was to be ho mitigation of her sufferings while she continued in his society and under his control, and her condition was intolerable and her life burthen- some, when, on the (date), she was compelled and thereby forced to with- draw from his house and family. She emphatically denies, as is asserted by the relator in his petition, that she unlawfully deserted the home of her said husband (name), and she hereby avers and aflirms that her with- drawal was lawful and necessary, and that it was not a desertion, and that it was and is her intention to apply to the courts for protection and support by a proceeding in divorce, and that she has withheld those proceedings from a desire to avoid litigation and exposure, and pending an application made by her counsel for her in her behalf, to have her said husband adjust some suitable terms of separation in an amicable way, and to arrange how and when, and as often as he should name, at such reasonable times and places as he should select, he could^^enjoy the society of their child (name), all of which her counsel in her behalf proposed and submitted to the said relator in writing, and all of which the said relator has refused in writing to entertain or consider. That the said respondent would long before the (date) have withdrawn from the house and family of the relator by reason of his said conduct, but she was restrained and submitted to all his cruel- ties because of womanly and wifely and motherly reluctance to involve her family, her husband, her child, and herself, and a public exposure of the distressing life she had led and the scenes she had endured. But by 534 PRACTICE IN PENNSYLVANIA. force of the ill treatment she has received, and has before this set forth, and by force of all the considerations herein expressed, she is now living separate and apart from her said husband and under the protection of her parents (names of parents), in this city, and with them, and in their house she has resided with her child since the day she left her said husband, and she feels compelled to continue in this state of separation, and to retain the custody of her child. Her said parents have, at her request, considered the causes of this separation, and given it their entire sanction and approval. Under these circumstances, the respondent is advised that she is not re- quired by law, for the purpose of a hearing involving merely the present custody of her infant child, to enter upon the most painful task of detailing the particular causes which have led to this melancholy result of her mar- riage, but she begs to reserve the privilege of stating and proving them in case of need, with such explanations as may be deemed necessary for her entire justification in the premises. That she firmly believes that the interests of the said child in every respect in which an impartial person can regard them would be seriously prejudiced by removal from her custody at this time, or for some years to come. She is advised that in consequence of the tender age of her child at this time that the laws and usages of this Commonwealth will not permit her child to be taken from her until his age shall be much more advanced than it is now. The respondent concludes by again throwing herself upon the judgment of the court, upon that part of the return which particularly adverts to the age and circumstances of her child. Sworn to and subscribed before me, this day of A. D. 18 . (Signature of Eespondent.) Notary Public. § 1193. FORM OF TKAVEESE. In the matter of \ ^ *^® Court of Quarter Sessions of the Commonwealth ex rel. 1 Peace of Philadelphia County, V. ( J Sessions, 18 . No. . And now (date), the return to the writ of habeas corpus in this case having been read and filed, the petitioner traverses the same and says : 1. That the said defendant is not the guardian by nature and nurture of the said infant child, and is not entitled to the exclusive possession and custody of the said child. 2. That the said defendant did not lawfully and with sufficient cause, but on the contrary thereof did unlawfully and without sufficient cause, and now does unlawfully and without sufficient cause, absent herself and remain away from the house of the petitioner. 3. That it is untrue that the relator has done and committed the acts al- leged by the defendant in the said return to the writ. 4. That the said defendant unlawfully and without sufficient cause has detained, and now detains, the body of the infant child of the relator. (Signature of Kelator.) (Usual affidavit.) JCSTICES OF THE PEACE. 535 § 1194. Father's right to custody of child. In the following cases the right of the father to the custody of a minor child was recognized : Rex V. Johnson, 2 Lord Raymond, 1333 (1723) ; Ex parte Hop- kins, 3 P. Williams, 152 (1732) ; Blissdt's Case, Loft's Rep., 748 (1774) ; King v. DeManneviUe, 5 East R., 221 (1804) ; Ex parte McCMUin, 1 Dowling, K. B. P. C. R., 81 (1831) ; BaU v. BaM, 2 Simons R. (Ch.), 35 (1827) ; Rfc v. GreenhUl, 4 Ad. & Ellis, 624 (1836) ; Begina v. Smith, 16 Eng. L. & Eq. R., 221 (1852) ; In re Hcdliday's Estate, 17 Eng. L. & Eq. R., 77 (1853) ; In re Hakewdl, 22 Id., 395 (1853); In re Andrews, 21 Weekly Re- porter, 480 (1873) ; In re Edwards, 42 L. J. Q. B., 99 (1873) ; In re Agar-EUis v. Lasedles, 39 L. T. (N. S.), 380 ; Peopk v. Chegary, 18 Wendell (N. y.)^ 637 (1836) ; People v. , 19 Id., 16 (1837) ; Mercein v. People, 25 Id., 65 (1840) ; Id. v. Id., 8 Paige (N. Y.), 47 (1839) ; Id. v. Id., 3 Hill (N. Y.), 399 (1842) ; Idndsey v. Lindsey, 14 Georgia, 657 (1854) ; Ex parte lZe!OT<<, 11 Richardson (S. C), 326 ; Niohols v. Nichols, 3 Duer (N. Y.), 642 (1854) ; PeopU v. Humphreys, 24 Barb. [IS. Y.), 521 (1857) ; Ex parte ^oaz, 31 Ala., 425 (1858); People v. Olmstead, 27 Barb. (N. Y.)., 9 (1857); PeopU v. Brooks, 35 Id., 85 (1861); State V. Richardson, 40 K H., 272 (1860) ; Comm. v. Briggs, 16 Pick., 203 ; Johnson v. Terry, 34 Conn., 259 (1867) ; Carr v. Carr, 22 Grattan (Va.), 168 (1872) ; Comm. v. Potter, 3 Luz. Leg. Reg., 209 (1874) ; FiMer v. Filler, 2 Phila., 348 (1858). On a habeas corpus proceeding where the wife has arbitrarily deserted her husband, the children will be awarded the husband. Comm. V. Davison, 4 Dist. Rep., 103 (1895). § 1195. Mother's right to custody of child. In the following cases the mother successfully maintained her claim to the custody of the minor : Comm. V. Addicks, 5 Binney, 520 (1813) ; HaH v. HaH, 8 W. N., 156 (1880). In the former case the decree was changed three years later. Comm. V. Addicks, 2 S. & R., 174. § 1196. True rule as to custody of child claimed by father and mother. The rule seems to recognize no arbitrary standard of sex or age, but to refer the whole question to this inquiry : What is best for the true interest of the child ? Brown's Estate, 166 Pa. St., 249 (1895). The court will use its discretion in awarding the custody of a minor child. Comm. v. Wise, 3 Dist. Rep., 290 (1893). In cases of dispute as to which parent shall be entitled to the 636 PRACTICE IN PENNSYLVANIA. custody and services of the child, the court in its discretion shall decide — regard first being had to the fitness of the parent and the best interest and permanent welfare of the child. Comm. v. Du- gan, 2 Dist. Rep., 772 (1893). The Act of June 26, 1895 (P. L., 316), provides that a married, woman who is the mother of a minor child and contributes toward its support, maintenance, and education, shall have equal power, control, and authority over her. child, and shall have equal right to its custody and services as now by law possessed by the hus- band, the father of the child, provided the mother is a fit and proper person. § 1197. The return must be fall and explicit. Where the body is produced with the original commitment or writ or paper under which the relator is detained, this is a compliance. But if the body be not produced, the respondent must be careful to make a satisfactory return. See Fassmore Williamson's Case, 26 Pa. St., 9 (1855). To say that the relator is not now in respondent's custody is clearly insufficient, for if the relator were in respondent's custody when the writ was served, the fact that he has been placed in some other person's hands after the service of the writ is no excuse for not producing the body. If it be the fact that the relator " n^ver was in the custody or power or possession of the respondent, and never was by him confined or restrained," it is easy so to return. But if the party had at any time been in the power, etc., of the respondent, such a return would be false. It was upon this finding that Mr. Williamson was committed in the above case. The decision in The Queen v. Barnardo (Gossage's Case), Law Jour. Reports (N. S.), vol. 59, p. 345 (Chancery Division, Jan- uary 24, 27, 1890 ; Court of Appeal), presented some peculiar facts. Harry Gossage, a boy of ten years of age, was abandoned by his mother, his father being dead, in September, 1888, and was received into one of Dr. Barnardo's homes for destitute children. November 10, 1888, a proper person applied for a boy to be adopted and taken to Canada. Gossage was selected, to be taken November 16, 1888. November 11, a letter was received at the institute expressing a desire to remove the boy to a Catholic home. November 16, 1888, the boy was delivered to the Canadian. As he was not handed over to the mother, she obtained a rule nisi for a habeas corpus. The return to the rule set out the facts at length, averred that the Canadian " was a fit and proper person," " that since November 16, 1888, the said Gossage has not been and is not now in my possession, custody, or power," etc. Matthew, JUSTICES OP THE PEACE. 537 J. , at Chambers, made absolute the rule nisi for the habeas corpus. The Divisional Court, Lord Coleridge, C. J., and Bowbn, L, J., affirmed, and on hearing in the higher court the appeal was dis- missed. Lord EsHBR, M. R., said: " All the arguments in the present case were urged in the case of Queen V. Barnardo, 58 Law J. Eep., Q. B., 553 (1889) ; Law Rep., 23 Q. B. D., 305 (1889), and the Lrish decision. In re Matthews, 12 Irish Com. Law Rep., N. S., 233 (1859), was referred to. We came to the conclusion that where a person having the custody of a child parts with the custody of the child to someone else wrongfully — that is to say, without legal authority — so that he cannot give the child back when he is asked for it, the child being then out of his custody, power, and control, a return to that effect is no answer to proceedings to compel the production of the child. It was not necessary for us in that case to determine whether, if it were shown to be absolutely impossible to produce the child — as, for instance, where the child had died — ^the court would allow a writ of habeas corpus to go merely for the purpose of punishment, nor is it necessary to determine that question now. I have, however, no hesitation in saying that if the case could be brought up to that pitch, and it could be shown that however wrongful had been the conduct of the person against whom the proceedings were being taken, it was impossible for him ever to produce the child, then the writ ought not to go. Nevertheless, we came to the conclusion that if the writ issued it would be no answer to the writ for Dr. Barnardo to say, " I have rendered it almost impossible for me to produce the child ; the child is out of my custody, power, or control, and I do not know where it is." We thought that if Dr. Barnardo had produced that state of things by his own illegal act he must take the consequences. We said that he was bound to use every possible effort to get the child back ; that it was not enough for him to merely write letters for that purpose, but that he must advertise abroad, and, if need be, must himself go abroad ; that he must do everything that mortal man can do in order to obey the writ. All this shows that the court will accept nothing as an excuse but an absolutely clear impossibility of obeying the writ. No such impossibility was made out in that case, nor is it made out here. I think, therefore, that if the writ issues, and if the only answer Dr. Barnardo can make to it is that which he has put before us now, his return to the writ will be bad. He must make further and fuller efforts to obey the writ. If he does not produce the child, he does not obey the writ, and if an application is made to the court, the court will have to consider what the consequences are to be." This decree was affirmed by the House of Lords, July 25, 1892. Law Jour, Eeports (N. S.), vol. 61 (Queen's Bench Div.), 728. The Lord Chancellor (Halsbury) and Lords Herschell and Watson suggested that the writ should not be used to punish a party who had even unlawfully parted with the custody before notice of the writ, and that it was a good return to say that the person named was not at the time of issue in the custody or control of the person served. 538 PKACTICE IN PENNSYLVANIA. § 1198. Ij body not produced and return false or insufficient, re- spondent may be committed. See Williamson's Case, 26 Pa. St., 9 (1855). § 1199. A return to a habeas corpus in a criminal case should show a lawful warrant or commitment — In time of peace, no suspen- sion of the writ is recognized by the courts. Commonwealth ex rel. Oozzens v. FrinJc, 13 Amer. Law. Eeg. (O. S.), 700 (1865), Haieas Corpus before Thompson, J. In this ease the relator, W. B. N. Cozzens, was tried by court- martial for fraud in furnishing supplies by contract to the War Department. The Department, upon being advised of a conviction, ordered the arrest of the relator by the provost marshal. Daniel Dough- erty and F. Carroll Brewster, for the relator ; John C. Knox, Judge Advocate-General, for the Provost Marshal. The return was : To the Hon. James Thompson, Judge of the Supreme Court of Pennsyl- vania : The undersigned, one of the respondents in the within writ, respectfully makes return thereto, that the relator, W. B. N. Cozzens, was on the 29th June inst. arrested by order of the respondent, and is now detained by him as a prisoner under the authority of the President of the United States, and that the other respondents mentioned in said writ are officers and clerks under the command of this respondent ; and further saith not. H. A. Frdstk, Colonel and Provost Marshal of Philadelphia. Thompson, J. ; " This return is partly in accordance with the Act of Congress of the 3d of March, 1863, section 1, that whenever the privilege of the writ of habeas corpus shall be suspended by the President under the authority of the Act, no military or other officer shall be compelled, in answer to any writ of habeas corpus, to return the body of any person detained by him by authority of the President, but upon the certificate under oath of the officer that the prisoner is detained under and by authority of the President, further pro- ceedings under the writ shall be suspended by the judge or court having issued it. This section authorizes the President during the present rebellion, whenever and wherever in his judgment the public safety may require it, to suspend the privilege of the writ of habeas corpus, and it is provided that said suspension by the President shall remain in force so long as said rebellion shall continue. " On this return the important question is, whether on the 29th of June last the rebellion continued or not. This is a fact to be judicially deter- mined like any other fact. It is not for the President only by proclama- tion to determine this. He is not authorized to fix the status of the country on this point by the Act of Congress. The power of suspension depends on the fact of rebellion and its continuance. It ceases with the rebellion, and that fact is as much within judicial cognizance as is any fact under JUSTICES OF THE PEACE. 539 ■which rights exist and are held. As the privilege of the writ of habeas corpus is a constitutional right of every citizen, we are bound to observe a strict construction of every Act which threatens to deprive him of it. " We have here an expression of legislative intent, which is plain that the suspension of the writ is only to continue during the rebellion. When that ceases the right of the President to continue the suspension ceases, and the courts are bound to give to the citizen his rights under the privi- lege. There is nothing prescribed as to what shall be the evidence of it. It is, therefore, to be ascertained, like any other fact, by evidence appro- priate to such a fact. " There is abundant evidence in the current history of the times that the rebellion no longer continues. We know its organization is entirely de- stroyed, its armies captured or surrendered, its officers imprisoned or paroled. In addition, we know that our own armies are being as rapidly mustered as possible. The returning soldiers crowd our streets daily, and we cease to look for battles and victories as events as little to be expected as before the rebellion commenced. There is not a single known body of men in arms anywhere under the once well-known organization called the ' Confederate States of America.' It is completely obliterated with all its forces. Civil government has been set up in all the rebellious States but one, and trade opened by the proclamation of the President, with scarcely any restriction. Every fort, navy yard, and port is again under the govern- ment and entire control of the United States, and war has ceased every- where in the land. The time has arrived, therefore, when a return to the enjoyment of civil rights, under civil government, must take place, and when by express limitation the suspension of the habeas corpus should cease. " This being so, the authority of the President, waiving all other consid- erations at this time, without more, is not a sufficient warrant for the ar- rest of a citizen. " ' No warrant shall issue' for the arrest of any person ' but upon probable cause, supported by oath or affirmation.' Constitution of the United States. " ' No warrant to search places or to seize any person or thing shall issue without probable cause, supported by oath or affirmation.' Constitution of Pennsylvania. " There being no oath here charging a crime or offense and a warrant to authorize an arrest, the arrest is therefore unauthorized and the prisoner is entitled to be discharged. " In this decision no conflict ought to be felt to exist between the civil and military authority. " It is an important clause of our Bill of Eights ' that the military shall in all cases and at all times be in strict subordination to the civil power ;' and it will doubtless be as agreeable to the military authorities that there should be a return to the normal condition of the country, since happily peace reigns, as it is to the civil authority ; no other legal condition can possibly exist now. On this return, therefore, I must discharge the pris- oner. I can base nothing on the argument that the prisoner is arrested because there has been a trial before a military tribunal about something, of the nature of which I am not informed, and that the presumption of this conviction occasions his arrest. All this is ultra the return, and need not be noticed. " Prisoner discharged." 540 PEACTICB IN PENNSYLVANIA. In Ex parte MiUigan, 4 Wallace (U. S.), 2 (1866), this Act of Congress was further interpreted by the Supreme Court of the United States, and it was decided that neither the President, nor Congress, nor the judiciary, can disturb one of the safeguards of civil liberty contained in the Constitution, except to suspend the writ of habeas eorpus in certain prescribed cases. The suspension of the privilege of the writ does not suspend the writ itself. The writ issues as a matter of course, and on its return it is the duty of the court to decide if the applicant is denied the right of proceeding further. § 1200. Decisions applicable to the statutes as to the first and second terms — Supreme Court will not relieve on habeas corpus fifteen days before the first term, nor during the term. If the re- lator has been bound over by the Court of Quarter Sessions during its session to answer a charge of misdemeanor, the Supreme Court will not assume jurisdiction or grant relief on habeas eorpus. The Quarter Sessions alone have jurisdiction until the end of the term. Comm. V. Sheriff, 7 W. & S., 108 (1844). In this case it was con- tended that the habeas corpus should issue within fifteen days preced- ing the term of the Quarter Sessions, in order to give such court jurisdiction, but it was decided that the meaning of the -Act was that fifteen days before the commencement of the sessions, and during the sessions, the habeas eorpus shall be heard and determined be- fore the judges of thai court. The same ruling was made in Clark V. Comm., 123 Pa. St., 555 (1889). If persons indicted keep State witnesses from testifying, they are not entitled to be discharged under the two-term rule. Mespublica V. Arnold, 3 Yeates, 263 (1801). § 1201. Discharge under two-term law refused where trial was impossible. A person indicted for abetting in a murder, and Twt tried at second term, cannot be discharged on habeas corpus if the principal has absconded, and proceedings to outlawry against the principal commenced without delay, but not finished for lack of time. Comm. v. Shaiff, 16 S. & K, 304 (1827), Tod, J. Where a prisoner indicted for a misdemeanor moved to quash the indict- ment at the second term, and the judges held it under advisement, such postponement is equivalent to the prisoner's consent to delay. Ex parte Walton, 2 Whart., 501 (1837). The provision for the discharge of prisoners by the third section of the Habeas Corpus Act does not empower the court to discharge a prisoner charged with murder when there has been no session of the Oyer and Ter- miner at which he could have been tried. Comm. v. Brown, 11 JUSTICES OF THE PEACE. 541 Phila., 370 (1875), Mitchell, J. ; Clarh v. Comm., 29 Pa. St., 129 (1858), WooDWAED, J. In Cmnm. v. Jailer, 7 Watts, 366 (1838), a habeas corpus was brought for a man committed for horse- stealing. The prisoner was indicted, but at the first term, and ob- tained a continuance. The case was brought up at the next ses- sions, but he was found to be laboring under smallpox. Though convalescent, his aspect was so loathsome that he was remanded. Not having been tried in the second term, he claimed to be dis- charged under the Habeas Corpus Act. The Supreme Court de- cided that necessity created an exception to the letter of the Act, and his discharge was refused. The statute cannot avail where there has been no Ixiches on the part of the prosecuting officer. In this case the array of jurors had been quashed at two successive terms. Clarh v. Comm., 29 Pa. St., 129 (1858), Woodwaed, J. If a prisoner become a fugitive from justice, he cannot claim the advantage of the two-term rule. Comm. v. Hale, 36 Leg. Int., 285 (1879) ; Comm. v. Pulte, 37 Leg. Int., 493 (1880). . In Cmrnn. V. Jailer, 7 Watts, 366 (1838), the court said : "The legislature intended to prevent wilful and oppressive delay, and it is sufficient that there is no color for an imputation of it." Comm. v. Brown, 11 Phila., 370 (1875), Mitchell, J.: The word "term" in the Act of February 18, 1785, does not mean a mere period of time in which the court might have sat, but an actual session, available in law and in fact for the trial ; and all circumstances of physical, moral, or legal necessity which prevent trial are exceptions which take a case out of the statute. In Clarh v. Oomm., 29 Pa. St., 129 (1858), Judge Woodwaed said : " The term, session, or court intended by the Act is a legally constituted and competent term, session, or court. It meant that a prosecutor should not allow two such terms or sessions of the court, at each of which the defendant might be lawfully indicted or tried, to elapse without bringing on the prosecution. * * * The statute was made to restrain the malice and oppression of prose- cutors and to relieve wrongful imprisonment." § 1202. Cases in which the writ may be maintained. A habeas corpus proceeding may be had where it clearly appears that the wrong person has been arrested. In doubtful cases it is for a jury to decide. Respublica v. Gaoler, 2 Yeates, 258 (1797). It may be brought by a parent for the custody of a child when the appli- cation is for the best interests of the child. Comm v. Addichs, 5 Binn., 520 (1813), Tilghman, C. J.; Comm. v. Lee, 2 S. & E., 174 (1815), Tilghman, C. J.; Comm. v. Fee, 6 S. & E., 255 (1820); Comm. v. Demot, 7 Phila., 624 (1870), Agnew, J.; or 542 PRACTICE IN PENNSYLVANIA. by an apprentice whose indenture has been assigned without the consent of his parents; Comm. v. Jones, 3 S. & R., 158 (1817) ; or when a ward is detained from his legal guardian. Comm. v. Beed, 59 Pa. St., 425 (1868), Thompson, C. J. Comm. v. Du- gan, 2 Dist. Eep., 772 (1893). The writ lies where a person is restrained by relatives without lawful authority. Comm. v. Carby, 8 Phila., 372 (1871), Finlet- TEE, J. § 1203. Where writ not maintained. If record show no juris- diction, a defendant is entitled to discharge. "Where, prior to the Act of 1842, it appeared the justice of the peace had exceeded his jurisdiction in giving judgment in debt and issuing a warrant, the defendant was discharged on a habeas corpus. Geyger v. Stoy, 1 Dall., 135 (1785). § 1204. Discharged from State arrest where crime was against United States. In Comm. v. Ketner, 92 Pa. St., 372 (1880), Pax- son, J., a man was discharged on haieas corpus because he was prosecuted in the courts of Pennsylvnaia. for embezzling the funds of a bank organized under the laws of the United States, which offense was neither indictable under the common law nor the law of Pennsylvania. § 1205. A prisoner illegally discharged from workhouse can be re-committed, but cannot be sent to county jaii. Where a prisoner was discharged from the county workhouse, though illegally, it was held that he could not be re-arrested and committed to the county jail upon a warrant to take and hold him to answer the same in- dictment, upon which, after trial, conviction, and sentence, he was serving a term of imprisonment at the time of such discharge. It was held, however, that he might have been taken on a bench warrant and returned to the workhouse. Comm. v. Smith, 11 W. N., 34 (1881), Mitchell, J. § 1206. Married woman discharged from capias. A married woman was discharged on habeas corpus because a capias could not properly issue against her in case of a conversion by herself and husband of personal property during coverture. Comm. v. Keeper, 9 W. N., 314-(1880) ; or in case of her breach of contract to invest moneys received by her from plaintiff. McDowell v. Keeper, 11 W. K, 341 (1882). § 1207. A person kidnapped in New York and brought into Pennsylvania to answer was discharged on request of Governor of New York. In Norton's Case, 15 W. N., 395 (1884) (C. P. of Clearfield County), Krbbs, P. J., one Norton, of New York, charged with larceny, embezzlement, and conspiracy in Pennsyl- JUSTICES OP THE PEACE 543 vauia, fled to New York. By artifice he was brought back into Pennsylvania, arrested, and on a habeas corpus was remanded to the sheriff. The Governor of New York then requested his release. The prisoner was released on a writ of habeas corpus upon the grounds of comity, and that the manner of his arrest and the means em- ployed to bring him out of the State of New York were in express violation of the statutes of New York punishing the crime of kid- napping. § 1208. A commitment for contempt must show the nature of the contempt. If, on the return to a writ of habeas corpus issued from the Supreme Court, it be shown that the relator is held under a commitment for contempt, from the lower court which does not show the nature of the contempt, the relator will be discharged on the ground of insufficiency of the commitment. Comm. v. Per- kins, 124 Pa. St., 36 (1889), Paxson, C. J. § 1209. Cases in which the writ may be refused or will not avail. The Supreme Court, in Comm. v. Lecky, 1 Watts, 66 (1832), Gib- son, C. J., decided that they would not discharge a prisoner on a habeas corpus from commitment upon a capias ad satisfaciendum issued out of the Court of Common Pleas. This followed the ruling in Respublica v. Keeper, 2 Yeates, 349 (1798). The Act of Assembly of 1785 does not oblige a court to grant a habeas corpus where the case has been already heard upon the same evidence by another court. The party has a remedy by homine replegiando. Ex parte Lawrence, 5 Binn., 304 (1812). Nor where a person is imprisoned under the sentence of a competent court. Comm. v. Keeper, 26 Pa. St., 279 (1856). A writ of habeas corpus was taken out where defendant, a police- man, fatally wounded a person engaged in an attempt to rescue. The court refused to discharge the prisoner, because where death is the result " of even justifiable violence, a jury should pass upon the case." Comm. v. Megary, 8 Phila., 607 (1871). If one be arrested for perjury alleged to have been committed in a civil suit to which he was a party, he will be discharged pend- ing its determination. Comm. v. Davis, 29 W. N., 500 (1892). § 1210. Habeas corpus not a substitute for writ of error. The defendant's remedy upon an erroneous judgment is a writ of error. A habeas corpus cannot be naade a substitute for such writ. Comm. v. Deacon, 8 S. & E., 72 (1822) ; Comm. v. Keeper, 26 Pa. St., 279 (1856). § 1211. A man will not be discharged if guilty of another offense. In Comm. v. Rickey, 2 Pars., 317, Paesons, J. (1843), a man 544 PRACTICE IJir PENNSYLVASriA. was bound over by an alderman to appear before the Quarter Ses- sions, charged with having obtained goods under false pretenses. He was surrendered by his bail, when he sued out a habeas corpus, and had a full hearing upon all the facts. The evidence was insufficient to charge the man with the crime, and he was discharged. f The principle was here enunciated that if a man be committed for one offense, and it appear he is guilty of another offense, the court will not discharge him on a habeas corpus. § 1212. Habeas corpus may be granted by Supreme Court with a certiorari, in warrant of arrest cases, but relator will be remanded if commUmerd regular. Oosline v. Place, 32-Pa. St., 520 (1859), LowEiB, C. J. The defendant had been taken into custody under a warrant of arrest issued in an action of assumpsit. Having been committed, he sued out a certiorari to the Supreme Court, alleging that the commitment was irregular. Subsequently he applied to the Supreme Court for a habeas corpus to admit him to bail, pending the proceedings upon the certiorari. Held, that the court could, during the pendency of the certiorari, grant the writ of habeas corpus aud admit the defendant to bail. Held, also, that the commitment, reciting the allegations of the affi- davit, the arrest, and the hearing, and that after such hearing the judge was satisfied that the plaintiff's demand was on contract and his allegations substantiated, was sufficient. § 1213. A court will not discharge for a contempt in another tri- bunal hxiving jurisdiction. A petition for a habeas corpus will be denied where a party was convicted of contempt in the District Court of the United States and brought his petition before the Supreme Court of Pennsylvania. Williamson's Case, 26 Pa. St., 9 (1855), Black, J. § 1214. Habeas corpus may be refused by State judge if relator committed by United States judge or judge of another countyi In Williamson v. Lends, 39 Pa. St., 9 (1861), Lowrie, C. J., it was decided that a single judge of a State Court who refuses to issue a habeas corpus in favor of one who stands committed for contempt by a Federal court is not liable to the penalty of the statute, which does not require its issue in such case. In Doyle v.Gomm., 107 Pa. St., 20 (1884), it appeared that one Davis had been adjudged guilty of a contempt by the Court of Common Pleas No. 1, of Allegheny County; he was arrested, es- caped, and was re-arrested in "Warren County ; a habeas corpus was awarded by the Court of Common Pleas of Warren County. It was shown that said Davis was committed for contempt, consist- JUSTICES OP THE PEACE. 545 ing of acts committed in Forest County in his official capacity as receiver appointed by the Common Pleas of said county. He was discharged. The order was reversed on appeal, because one court caunot disregard or set aside the judgment of another court of co- ordinate jurisdiction. § 1215. Where prisoner arrested to be taken to another county or Stale. In Cmrnn. v. Taylor, 11 Pbila., 386 (1875), Judge Beiggs issued a warrant commanding the sheriff to take a person charged with a felony back to the county where the offense was alleged to be committed. On an application for a habeas corpus before the same judge, it was held that he had no power to inquire into the merits of the charge alleged — he was only to be satisfied that the prisoner was the identical person and the process regular. The Court has no authority in a habeas corpus proceeding to compel a resident of Pennsylvania to go into another State and submit himself to the jurisdiction of such foreign tribunal. Comm. V. Sage, 34 W. N., 225 (1894), reversing 2 Dist. Eep., 553 (1893). § 1216. Jf probable cause shown, relator must be remanded — He cannot call witnesses. In GerdemannY.Comtn., 11 Phila., 374(1875), a priest had been indicted for embezzlement as agent for a church. Upon the hearing of the application for a habeas corpus, Judge FiN- LETTEK decided that if the Commonwealth made out a sufficient case to warrant the court in sustaining a verdict founded thereon, no further proof was necessary ; that the defense could not, upon such hearing, introduce his witnesses, and that such indictment as agent was lawful. § 1217. A sentenced convict fled to Canada, was brought back under extradition treaty, upon other charges was acquitted, but held for first offense. In re Miller, 15 W. N., 551 (1885) (United States Circuit Court, Acheson, C. J.), one Miller was sentenced for bur- glary in Pennsylvania. He escaped from imprisonment and fled to Canada. Burglary not being an extradition crime, informations were made in Pennsylvania charging him with robbery and assault with intent to commit murder. He was brought back under ex- tradition proceedings, but the bills of indictment on such crimes were ignored by the grand jury. Upon a habeas corpus he was remanded upon the ground that there was no provision in the extradition treaty guaranteeing to the extradited person the right to leave the demanding country after his acquittal of the offense for which he was surrendered or after his endurance of the punishment therefor. § 1218. As to the penal sections. The penalty imposed by the VOL. I. — 85 546 PKACTICE IN PENNSYLVANIA. eleventh section of the Habeas Corpus Act is limited to recommit- ments for the same criminal offense, and it is not applicable where the defendant was arrested upon civil process. Heoker v. Jarrett, 1 Binn., 374 (1808), Tilghman, C. J., affirmed in 3 Binu., 404 (1811). In Sohofield v. Root, 12 Phila., 333 (1878), an action was brought for a second arrest of plaintiff on the charge of larceny as bailee after being discharged upon a habeas corpus from commitment for the same offense. Upon a motion for judgment for the defendant upon a point reserved, Mitchell, J., said : "Our Habeas Corpus Act of 1785 is modelled upon the famous Act of 31 Charles II. The history of the law demonstrates clearly that that Act did not originate the writ of habeas corpus, but enlarged its scope and efficiency for the special purpose of speedy relief against arbitrary and illegal commitments to prison. There was an older writ of habeas corpus ad subjiciendum at common law, which is still in use for the purpose of rehearing the testimony taken before magistrates or courts of inferior jurisdiction, with a view to the reduction of bail or the discharge of the petitioner, should the evidence fail to disclose a prima facie case against him. The Act of 1785 is a highly penal statute which maizes no allowance for mistakes or mitigating circumstances. Its object was to provide a speedy and efficient remedy against commitments not under due authority of law ; it does not contemplate an examination by the judge or court issuing it of the merits of the case, or of anything beyond the legal regularity of the commitment upon its face." Judgment for the defendant, upon the ground that the writ under which plaintiff had obtained his discharge was the common law writ, and not the writ under the Act of 1785. § 1219. Costs, when case dismissed, fall on the county. Where a justice dismisses a criminal charge, whether a felony or a misde- meanor, his fees are imposed on the county. County v. Schock, 18 W. N., 326 (1886), Tkunkey, J. § 1220. Proceedings before justices in civil cases. When you have satisfied yourself, from examination of statutes and decisions, that the justice has jurisdiction, you must issue a summons except in cases of trespass or for the recovery of money collected by a public officer or for official misconduct. Act of March 20, 1810, section 2 (5Sm., 162). In these you have your choice of summons or capias. § 1221. Service of summons. The summons must be made re- turnable not more than eight nor less than five days after the date of the summons, if the defendant be resident in the county, and if JUSTICES OF THE PEACE. 547 non-resident, then it is returnable not less than two nor more than four days from the date thereof. Act of March 20, I&IO, section 2 (5 Sm., 162); Act of July 12, 1842, section 26 (P. L., 345); and must be served by producing the original summons, and in- forming the defendant of the coutents thereof, or leaving a copy of it at his dwelling-house, in the presence of one or more of his family or neighbors, at least four days before the time of hearing. Act of March 20, 1810, section 2 (5 Sm., 162). § 1222. Hearing. On the return-day the plaintiff should be present in person, or by his attorney, prepared to prove his claim. When the case is called, the character and amount of the claim are stated. The defendant generally says "the claim is disputed." The plaintiff proves his *case. The pleadings are all ore tenus. Sometimes continuances take place. The defendant is, of course, at liberty to call witnesses and to contest the case. The magistrate gives judgment, and the dissatisfied party may appeal. The fol- lowing statutes and decisions apply to the various steps of the pro- ceeding. § 1223. Jurisdiction in civil cases. §§ 1224^1269. The question of jurisdiction of a justice of the peace may be raised at any time even in the Supreme Court on appeal. Gates V. Blocm, 30 W. N., 127 (1892). § 1224. Contracts. Justices of the peace shall have jurisdiction of all causes of action arising on contract, express or implied, in all cases where the sum demanded is not over one hundred dollars, except in case of real contract where the title to lands or tenements may come in question, or an action upon a promise of marriage. (Act March 20, 1810, section 1 ; 5 Sm., 161.) The jurisdiction was extended to $300 by the Act of July 7, 1879 (infra). § 1225. Amicable judgments or reference. Justices of the peace shall have cognizance of any matter under the above Act for any sum exceeding (one) hundred dollars, if the parties vol- untarily appear before them for that purpose and confess judgment or sub- mit to a reference. (Act March 20, 1810, section 14.) A justice of the peace has no jurisdiction over $300 unless the parties voluntarily appear before him. McDonnell v. Hodgins, 4 Dist. Eep., 305 (1894). § 1226. Magistrates' courts, Philadelphia. The Act of February 5, 1875, section 1 (P. L., 66), provided for courts not of record of police and civil causes in Philadelphia, with jurisdiction not exceeding one hundred dollars. These are known as " magistrates' courts. A similar provision was made by the Act of February 1, 1887, section 1 548 PKACTICE IN PENNSYLVANIA. (P. L., 3), increasing the number of magistrate courts in Philadelphia from twenty-four, to twenty-eight. § 1227. Jwrisdiction extended to $300. Magistrates and justices of the peace shall have concurrent jurisdiction with the Courts of Common Pleas in actions on contract, either express or implied, of trespass (trover and conversion), where the sum demanded does not exceed three hundred dollars, except in cases of real contract, where the title to lands or tenements may come in question, or action upon promise of marriage. (Act July 7, 1879, section 1 ; P. L., 194.) This Act does not refer to Philadelphia County, since the jurisdiction of magistrates in that county is controlled by the Constitution of 1874. § 1228. Trover and trespass. Justices of the peace have jurisdiction of actions of trover and conver- sion, and trespass for the recovery of damages for injury committed on real and personal estate in cases where the value of property claimed or the damages sustained shall not exceed one hundred dollars. (Act March 22, 1814, section 1 ; 6 Sm., 182.) The process, return, notices, awards, judgments, and appeals, and the pro- ceedings of justices, constables, referees, and courts, and everything neces- sary to carry this Act into efifect, shall be subject to the general law regu- lating the recovery of debt not exceeding one hundred dollars, which is not specially provided for. (Act March 22, 1814, section 4 ; 6 Sm., 182.) Justices of the peace shall have concurrent jurisdiction with the Courts of Common Pleas of all actions of trespass and of trover and conversion wherein the sum demanded does not exceed three hundred dollars, except in cases of real contract where the title to lands or tenements may come in question, or action upon promise of marriage. (Act July 7, 1879, section 1 ; P. L., 194.) This latter Act does not apply to proceedings before magistrates in Phila- delphia County. A justice of the peace has no jurisdiction of an action of trespass on the case for maintaining a nuisance. Helsey v. Witmer, 4 Dist. Rep., 290 (1895) ; nor of an action for an injury committed by a dog in the absence of its owner. Henry v. Mulherrin, 1 Dist. Rep., 607 (1891) ; nor of actions of trespass on the case for consequential damages, under which head are classed negligence cases. Thilow v. Traction Co., 4 Dist. Rep., 83 (1895). A magistrate has jurisdiction of a suit for injuries to personal property to the amount of $100. Porter v. Ice Co., 1 Dist. Rep., 725 (1891). A justice of the peace has jurisdiction of a claim for damages against an employer for a trespass done by an employ^ of defen- dant. Carle v. Ice Co., 4 Dist. Rep., 289 (1894). § 1229. In cases of rent landlord may be compelled to defalk. The powers of justices of the peace shall extend to all cases of rent not exceeding one hundred dollars, so far as to compel the landlord to defalcate JUSTICES OP THE PEACE. 549 or set off the just account of the tenant out of the same, but the landlord may waive further proceedings before the justice and pursue the method of distress in the usual manner for the balance so settled ; but if any landlord shall be convicted, after such waiver, in any court of record of distraining for and selling more than to the amount of such balance, and of detaining the surplus in his hands, he shall forfeit to the tenant four times the amount of the sum detained : Provided, that no appeal shall lie in the case of rent,- but the remedy by replevin shall remain as heretofore. (Act of March 20, 1810, section 20 ; 5 Sm., 170.) § 1230. Amicable actions. Justices shall take cognizance by amicable suit of all causes of action within their jurisdiction. (Act March 22, 1814, section 7 ; 6 Sm., 183.) § 1231. For penalties, etc. The justices of the peace shall have power to hear and determine all actions of debt for penalty, for breach of any ordinance, by-law, or regula- tion in the same manner and subject to the right of appeal as in case of debts under one hundred dollars, and such action shall be instituted in the corporate name. (Act April 16, 1835, section 7 ; P. L., 292.) § 1232. When justice may act as coroner. Where there is no lawftilly appointed coroner, or he is absent from the county, unable to attend, or his office is held more than ten miles distant from the place where the death occurred or the body found, and an inquest over such dead body is required by law to be held, the justice of the peace of the proper county shall have power to select, summon, and compel the attendance of jurors and witnesses, and the inquest shall have force and effect in law. The proceedings, before fees or costs are allowed, shall be submitted to the Court of Quarter Sessions, which shall adjudge there was reasonable cause for holding said inquest and approve the same. (Act May 27, 1841, section 15 ; P. L., 404.) § 1233. Debt sur judgment of justice of another State. The justices of the peace shall have jurisdiction in action of debt not exceeding one hundred dollars, founded on the judgment or judgments of justices of the peace of an adjoining State having similar jurisdiction. It must appear by a copy of the record or docket entry of the proceedings, certified and authenticated, that the original cause of action was such as would have been within the jurisdiction of a justice of the peace by the laws of this Commonwealth. (Act February 27, 1845, section 3 ; P. L., 73.) § 1234. Defendant may make same defense as to onginal claim. In actions of debt founded on foreign judgments, the plaintiff shall pro- duce on the trial a copy of the record or docket entry of the previous pro- ceedings before a justice, with his affidavit annexed, certifying the same to be a true and fiill copy of the record, and that the judgment remains in force, and has not, to his knowledge, been vacated, annulled, or satisfied ; also the certificate of the clerk of the Court of Common Pleas or clerk of the county where such justice keeps his office, under the hand or seal of the court or county, that the person before whom the proceedings purport 550 PRACTICE IN PENNSYLVANIA. to have been had was at the time an acting justice of the peace of such county, duly appointed or elected, and qualified according to law. Defendant may make the same defense as he originally was entitled to make to the claim or demand. (Jd., section 4.) § 1235. Fines. Jurisdiction has been conferred on justices of the peace to hear cases for breach of any by-law of a city, borough, town, or corporate body subjecting the dflfender to a penalty or fine. Suits for their recovery may be main- tained, as in case of debts under the sum of one hundred dollars with right of appeal. (Act April 6, 1849, section 7 ; P. L., 410.) § 1236. Jurisdiction against insurance companies. Justices of the peace shall have jurisdiction of cases where any person or persons, body politic or corporate, may have a cause of action against any insurance company incorporated by the legislature of this Commonwealth, or any such company having an agency in this Commonwealth, where the property insured may be located, or in cases of live-stock insurance where the owner may reside. The service and process and all proceedings shall be the same as in other cases. (Act May 13, 1889, section 1 ; P. L., 199.) § 1237. A justice has jurisdiction of a claim by an officer for his fees ; but no action can be maintained until the end of the first suit. In Lyon v. MoManus, 4 Binn., 167 (1811), an action was brought against the defendant to recover certain official fees under $100. TiLGHMAN, C. J., decided the justice had jurisdiction, on the ground that the officer performs the services under an implied con- tract to receive payment at the end of the suit ; but inasmuch as the suit wherein the services had been performed was still pending, the action of the lower court in rendering judgment for the defen- dant was affirmed. § 1238. Justice may decide in trespass unless reference demanded. In an action of trespass before a justice, unless the parties request the intervention of referees, the justice may give judgment. Shoe- maker V. Barry, 1 S. & R., 234 (1814). § 1239. Justice has jurisdiction of action against constable for a false return, although the judgment over $100. In Delaney v. Brin- dle, 15 S. & R., 75 (1826), judgment was obtained before a justice for a sum greater than $100, under the Act of March 20, 1810, authorizing judgments to be entered by justices for more than $100, where the parties voluntarily appear. Execution having been issued, the constable made a false return. Seld, that the justice had jurisdiction of an action against the constable. § 1240. Justice has jurisdiction of a suit upon an insolvent bond. In Jones v. Smith, 2 P. & W., 462 (1831), a suit was brought JUSTICES OF THE PEACE. 551 before a justice upon an insolvent bond.' The question was raised as to jurisdiction, but it was decided that such suit was properly brought. § 1241. Contract of bailment. A justice has jurisdiction of a suit arising from a contract of bailment. McCahan v. Hirst, 7 Watts, 175 (1838). § 1242. Aboard. A justice of the peace has jurisdiction of an action of debt on an award. Scott v. Barnes, 7 Pa. St., 134 (1847). § 1243. Justice has jurisdiction of claim, under agreement to buy a judgment, although the judgment was a lien on land. In Self en- stein V. Hirst, 15 Pa. St., 358 (1850), an action was brought before a justice to recover seventy dollars alleged to be due under an agi'eement to purchase a judgment against a lot of ground. It was contended that such agreement was within the first sec- tion of the Act of March 20, 1810, excluding from the jurisdiction of a justice cases of real contract where the title to lands or tene- ments may come in question. The Supreme Court decided that the agreement was not a real contract, but an agreement to buy and sell a judgment, without regard to or stipulation about title, and that the justice had juris- diction. §1244. Damages for breach of contract. A justice has jurisdic- tion of an action to recover damages under $100 for breach of con- tract. Shannon v. Madden, 1 Phila., 254 (1851) j Conn v. Stumm, 31 Pa. St., 14 (1854). § 1245. Justice has jurisdiction of two or more claims though they aggregate more than $100 if each suit be for less than $100. In Boyle V. Grant, 18 Pa. St., 162 (1851), a payee of six promissory notes brought suit on each note before a justice. The cases, on ap- peal to the Common Pleas, were consolidated so as to make one suit and thus diminish the costs. On appeal from the decision of the Common Pleas, the Supreme Court approved of the course adopted. The justice had jurisdic- tion though the aggregate amount represented by the notes was more than $100. § 1246. Justice has jurisdiction of action for trespass to land un- less defendant make affidavit that title to land comes in question. Lauchner v. Rex, 20 Pa. St., 464 (1853), was an action of tres- pass for injury to real property. The proceedings having been commenced before a justice, the defendant failed to make an affi- davit that the title to land actually came in question. It was de- cided that the justice had jurisdiction. Black, C. J. : " By the Act of 1814, jurisdiction is given to jus- 552 PEACTICE IN PENNSYLVANIA. tices ill all actions of trespass for injury to real estate, excluding only those cases in which the title to lands actually does come in ques- tion, and in order to determine whether the fijct be so, the defen- dant may interpose his oath and stop the proceeding at any time before the trial. The statute giving jurisdiction in trespass would have been utterly nugatory if it had been clogged with the excep- tion of eases in which the title to land may come in question, for it may be so in every case of trespass to land, as much as in every ac- tion on real contract. The justice has authority to determine the cause unless the defendant makes the fact which ousts his jurisdic- tion appear in the mode pointed out by the Act. It is too late to make the objection after the case comes into the Common Pleas by appeal." See § 1268. § 1247. Jurisdiction is not exceeded if judgment be confessed for mwe than $100. JButla- v. Urch, 2 Grant, 247 (1858). A justice of the peace can exercise no jurisdiction in deciding a controversy wherein the claim in dispute exceeds $100. But if the parties appear before him, with or without summons, and agree upon the state of the accounts between them, and one confesses judgment in favor of the other for a sum exceeding $100, he does not exceed his jurisdiction in entering and enforcing it. § 1248. Ajudice has jurisdiction of an action against executors to compel reimbursement of amount paid by devisee of a debt which should have been paid out of the residue. In Bell v. Bell, 32 Pa. St., 309 (1858), an action was brought in the Common Pleas against executors for reimbursement of a sum paid by the plaintiff in ex- oneration of lands devised to him, which sum was properly charge- able on the residuary estate. He obtained a verdict for sixty-seven dollars and seventy-five cents. The costs were imposed on him. The Supreme Court, per LowEiE, C. J., decided that the suit was within the jurisdiction of a justice, and that the plaintiff could not recover costs. § 1249. Justice has jurisdiction of trespass against a constable for unlawfully selling goods. If a constable unlawfully sell goods exempt from sale, an action of trespass will lie against him whereof the justice has jurisdiction. Stamer v. Nass, 3 Grant, 240 (1858). § 1250. If plaintiff only claim the principal of his debt, and it be under $100, the justice has jurisdiction, although the interest, if claimed, would swell the demand abcme $100. Evans v. Hall, 45 Pa. St., 235 (1863). A justice has jurisdiction where the demand itself or principal of the claim does not exceed $100. The plain- tiff need not include any or all the interest, but may remit part or all and sue for the balance. This was followed in Quigley v. JtrSTICES OP THE PEACE. 553 Qmgley, 10 W. N., 388 (1881) ; Wood v. Lovett, 1 Penny., 51 (1881). § 1251. Justice has jurisdiction on sci. fa. to revive a judgment of f 100, although the interest swells the claim above $100. A judgment was obtained before a justice in 1862 for $100 and costs. In 1867 a sci. fa. to revive was brought before his successor in office, and the amount, with interest and costs on revival, was $132.84. The Common Pleas, on a certiorati, held the justice had jurisdiction. McQarry v. Bouredoure, 6 Phila., 332 (1867); Huston v. JDon- nelly, 8 Phila., 337 (1871). § 1252. If claim has been reduced by payments to less than $100, the justice has jurisdiction, but plaintiff cannot confer jurisdiction simply by remitting part of claim. In Bower v. McCormick, 73 Pa. St., 427 (1873), Agnew, J., an action was brought before a justice in trover, and in order to bring the amount alleged to be due plain- tiff within the jurisdiction of the justice, twenty-two dollars was re- mitted. It was decided that jurisdiction could not be conferred in this way. This was followed in Moore v. White, 1 1 W. N., 206 (1881). The same ruling was made in Peter v. Schlosser, 81 Pa. St., 439 (1876), and Meecur, J., said : " A creditor who has a claim on his debtor exceeding $100 cannot give jurisdiction to a justice by allowing a credit to defendant of a distinct and independent debt, so as to reduce his demand below $100. However large the claim may have been, yet if it has been reduced by direct payments to a sum not exceeding $100, the justice has jurisdiction." Collins v. ColHns, 37 Pa. St., 387 (I860). A justice has jurisdiction of a claim which is reduced below the statutory limit by direct payment, by dealings amounting to pay- ments and by allowing credits for matters, payment for which has been demanded by defendant. McFarland v. O'Neil, 155 Pa. St., 260 (1893). § 1253. Act enlarging jurisdiction of justices, constitutional. The Act of July 7, 1879 (P. L., 194), enlarging the jurisdiction of jus- tices, is constitutional. Oity v. Meyers, 18 W. N., 329 (1886). § 1254. No jurisdiction in ^ectment, replevin, slander — Real con- tracts, assault, false imprisonment. Justices of the peace have no jurisdiction in actions of ejectment, replevin, or slander, actions on real contracts for the sale or conveyance of lands and tenements, actions for damages in personal assault and battery, wounding and maiming, or actions for false imprisonment. (Act March 22, 1814, section 5 ; 6 8m., 182.) § 1255. If the judgment exceed the jurisdiction of the justice, this is fatal, and judgment can be arrested even after trial on merits. In 554 PRACTICE IN PENNSYLVANIA. Moore v. Wait, 1 Binn., 219 (1807), a justice gave judgment for $104.26. The defendant appealed, pleaded the general issue, and went to trial. A verdict was found for the plaintiff. The judg- ment was arrested on the ground that the transcript showed the justice had no jurisdiction, and the subsequent proceedings were void. The Supreme Court affirmed, opinion by Tilghman, C. J. Judge Beaokeneidge, although not dissenting, said his " mind was not perfectly satisfied that it was not the defendant's duty to plead to the jurisdiction, either before the justice or in the Common Pleas." § 1256. If the amount in controversy exceed the jurisdiction, this is fatal, although the judgment be for less than $100. In CoUins v. , Collins, 37 Pa. St., 387 (1860), an appeal from the judgment of a .Justice having been taken, the case was dismissed, after trial and verdict, in the Common Pleas, it appearing that the amount in controversy exceeded the jurisdiction of the justice, although the amount of the judgment was less than $100. § 1257. No jurisdiction of suit on judgment in Common Pleas. A justice has no jurisdiction of a suit brought upon a judgment rendered in the Common Pleas. No contract arises on a judgment of a court of record. Wilson v. Long, 12 S. & E., 58 (1824). § 1258. Nor of debt against sheriff for an escape. A justice has not jurisdiction where suit in debt is brought against the sheriff for allowing the escape of a prisoner who was imprisoned for a debt less than $100. Schaffer v. McNamee, 13 S. & E., 44 (1825). § 1259. Nor for penalty for not satisfying a judgment. A jus- tice of the peace has no jurisdiction in an action of debt for the re- covery of a penalty imposed by statute for not entering satisfaction of a judgment. Zeigler v. Gram, 13 S. & E., 102 (1825). § 1260. Nor of suit on bail-bond of $15,000, although less than $100 claimed. A justice of the peace has no jurisdiction of a suit on a sheriff's bail-bond in $15,000 where the plaintiff claims less than $100. Comm. v. Reynolds, 17 S. & E., 367 (1828). § 1261. A justice has no jurisdiction of a suit for balance of pur- chase-money of land. In Sechrist v. Connellee, 3 P. & "W"., 388 (1832), suit was brought before a justice for the balance of the con- sideration-money on the sale of a lot of ground. The Supreme Court held the justice had no jurisdiction. Followed in Packer V. Taylor, 2 Dist. Eep., 443 (1892). § 1262. No jurisdiction for damages for deficU of land conveyed. A suit was instituted before a justice to recover damages where the quantity of land conveyed was less than the agreement of sale called JUSTICES OF THE PEACE. 555 for. Held, that the justice had no jurisdiction. Lee v. Dean, 3 Rawle, 325 (1832). § 1263. Nor 07i a constable's bond. A justice of the peace has no jurisdiction where a suit is brought upon a constable's bond. Mue V. Oomm., 4 Watts, 215 (1835). § 1264. Nor of action against another justice for money collected. A justice has no jurisdiction where suit is brought against another justice for moneys collected by the defendant in his official capacity. The party aggrieved has a remedy by petition to the Common Pleas. Montgomery v. Poorman, 6 Watts, 384 (1837). § 1265. Nor of suit by one of two joint ovjners of notes against the other ovmer for not suing the notes. A justice has no jurisdic- tion where suit was brought by the joint owner of promissory notes against another to recover damages for refusing to collect the notes or allow said joint owner to collect them, whereby the claim was lost. There is no color of contract between them, Mann v. Bower, S- Watts, 179 (1839). § 1266. Nor of accovmi render. A justice of the peace has no jurisdiction in account render. Wright v. Ouy, 10 S. & E.., 227 <1823) ; Steffen v. HartzeU, 5 Whar., 448 (1840). § 1267. Nor of action against constable for not paying out of proceeds of execution the rent in arrears. In Seitzinger v. Stem- berger, 12 Pa. St., 379 (1849), an action was brought against a constable for not paying out of the proceeds of an execution the year's rent in arrear, under Act of June 16, 1836. The single question presented by the record was, whether the justice had jurisdiction. The Supreme Court decided he had not. § 1268. No jurisdiction in trespass where affidavit sets forth that title to land mil arise. Lauehner v. Bex, 20 Pa. St., 464 (1853), Black, C. J.: "The Act of 1810 expressly excepts from the juris- diction of justices all cases of real contract where the title to lands may come in question. This excludes from their cognizance every suit on a contract concerning or in any way connected with realty, whether it be to enforce payment of purchase-money or to recover back what has been paid by the vendee after rescission of the agree- ment, or though it be on a uote given in consideration of an ease- ment. In all these cases the title to land may come in question, and they can no more be tried by a justice than ejectment, slan- der, or battery. " But, by the Act of 1814, jurisdiction is given to justices in all actions of trespass for injury to real estate, excluding only those cases in which the title to lands actually does come in question, and in order to determine whether the fact be so the defendant may 556 PEACTICE IN PENNSYLVANIA. interpose his oath and stop the proceedings at any time before trial." Stevens v. Sarver, 29 Leg. Int. , 46 (1872). In an action of trover before a justice, if an affidavit be made " that in the above suit the title to land must come in question positively," and one-half of the cost be tendered or paid, the justice must refuse to entertain juris- diction of the case, or his proceedings will be reversed ou certiorari. In a suit before a magistrate, an affidavit setting forth that the title to real estate may come in question filed before the hearing, is a bar to the jurisdiction. Shober v. Henry, 4 Dist. Rep., 506 (1895). § 1269. Nor of action for deceit. In Canan v. McGamy, 1 Penny- packer, 397 (1881), the Supreme Court decided an action on the case for deceit could not be brought before a justice.^ N]^t. Rep., 64 (1892). § 1348. A plaintiff cannot give jurisdiction by allowing a set-off. Stroh V. Uhrieh, 1 W. & S., 57 (1841), Rogers, J. One having a demand over f 100 cannot give jurisdiction to a justice by allow- ing a set-off so as to reduce the claim below $100. § 1349. Set-off must be within the jurisdiction. A set-off cannot be allowed before a justice which is greater than the amount of his jurisdiction. Holden v. Wiggins, 3 P. & W., 469 (1832) ; Mil- liken V. Gardner, 37 Pa. St., 456 (1860). § 1350. If set-off exceed jurisdiction, it may reduce or destroy plaintiff's claim. In Mills v. David, 22 W. N., 515 (1888), it was decided that, in a suit before a justice, a defendant is not al- lowed to set up a claim as a set-off which exceeds the jurisdiction of the justice, but it may be admitted to reduce or destroy the plaintiff's cause of action. § 1351. After judgment for plaintiff by default, defendant cannot sue for claim he could have used as offset. Where suit is brought before a justice for a specific amount under a contract and judgment given by default, the defendant cannot bring a subsequent suit for an alleged breach of the contract which he might have set-off in the former suit. Shoup v. Shoup, 15 Pa. St., 361 (1850). § 1352. The set-off may be upon an independent contract. Suit was begun before a justice to recover the price of goods sold and delivered. The defendant gave in evidence as a set-off a special contract between him and the plaintiff, by which plaintiff promised to do certain work for the defendant, and did not. The set-off was properly admitted. Nickle v. Baldwin, 4 W. & S., 290 (1842). § 1353. A judgment may be set-off. Where A. brings a suit against B., and B. brings an action against A., which separate suits are not forbidden by the Act of March 20, 1810, and judg- ment is rendered for the respective plaintiffs, on an appeal by one VOL. I.— 37 678 PRACTICE IN PENNSYLVANIA. of the parties, the other may, under the plea of set-off, interpose his judgment against the plaintiff's claim, and in such case, though the verdict be for the defendant, plaintiff is entitled to his costs, aroff V. Besshr, 27 Pa. St., 71 (1856). § 1354. Might to appeal secured by setr-off. The plaintiff sued for four dollars and forty-three cents wages. The defendant claimed, a set-off of nineteen dollars as damages arising from plain- tiff's negligence. Judgment was entered for the amount of plain- tiff's claim and costs. Defendant appealed. A rule to strike off his appeal was discharged. Rafferty v. Clark, 18 W. N., 378 (1886). § 1355. On appeal, defendant not confined to original set-off. On an appeal from the judgment of a justice, the defendant is not con- fined to the matters of set-off relied on before the justice. Tate v. Taie, 2 Gr., 150 (1858). § 1356. A set-off cannot be made on appeal, of a claim whereof the justice had no jurisdiction. In Deihm v. Snell, 21 W. N., 177 (1888), suit was brought before a justice for the balance due upon a note, and judgment entered for fifty-six dollars and eighty-seven cents in favor of the plaintiff. An appeal was taken. On the trial in the Common Pleas, the defendant offered by way of set-off a contract, under seal, relating to real estate. The justice having no jurisdiction of the contract used as a set-off, it was hetd that the Common Pleas could not assume jurisdiction. § 1357. Jury Trials. In certain cou/rdies, a jury trial viay be demanded where claim over fifty dollars. In actions before justices where the sum demanded by the plaintiff shall exceed fifty dollars, either the plaintiff .or defendant may demand a jury trial. The justice shall impanel a jury of six, and the mode of procedure shall be the same as provided in Act of May 1, 1861, so far as the latter applies to civil procedure, and the successful party shall be entitled to full coste. If the defendant demand a jury triail, he shall make and file an affidavit with said justice that he has a just and legal defense to the whole or a part of the plaintiff 's claim ; and if to a part, he shall state how much the plaintiff is justly entitled to recover ; and if the plaintiff shall not accept the offer of the defendant, he shall not recover costs if the judgment is for no larger sum than the amount admitted by defendant. (Act February 18, 1869, section 3 ; P. L., 209.) This Act originally applied only to Erie County, but was extended by the Aat February 18, 1870 (P. L., 188), to Venango Comity ; by the Act Feb- ruary 25, 1870 (P. L., 254), to Lawrence County ; by the Act March 28, 1870 (P. L., 586), to Crawford County; and by Act February 29, 1872 (P. L., 190), to Warren County. The Act April 6, 1870 (P. L., 987), applies to jury trials in Mercer County. JUSTICES OP THE PEACE. 579 § 1358. Jury trial may be demanded in Erie and Warren Coun- ties if defendant claim set-off or payment beyond fifty dollars. In actions on contracts in Erie Coimty, if the defendant claim a set-off or payment exceeding fifty dollars, either party may demand a trial by jury of six. (Act March 28, 1870, section 1 ; P. L., 596.) This Act was extended to Warren County by Act February 29, 1872 (P. L., 190). § 1359. Selection of jurors in above cases. The jurors may be selected from the township, borough, or ward where the justice holds office, or from the adjoining townships, boroughs, and wards, in the discretion of the justice, and either party shall have the right to challenge any of the jury for cause before they are sworn. (Act March 28, 1870, section 4.) § 1360. Vacancies in panel (in above special cases). Vacancies occurring in the number of jurors by absence, challenge, or other cause shall be supplied by the justice writing down three names for each vacancy, and the parties shall proceed to strike out until the requisite number to fill the vacancies are left. (Id., section 5.) § 1361. Justice shall strike for the party refusing — Jwry may be discharged (applies only to above special cases). Where either party shall refuse or neglect to strike out the names, the justice shall act for such party. If the jury be unable to agree upon a verdict and the justice be satisfied of that fact, he shall discharge them after giving notice to the parties, their agents or attorney. The justice shall fix a time within three days for another jury, which, when chosen, shall be summoned by the constable upon a new venire to be issued by the justice, and the new trial shall proceed. (Id., section 6.) § 1362. Appeal in the special oases above noted. Prior to 1893 either party had the right of appeal within twenty days, and if the defendant proved to the satisfaction of a judge of the Court of Common Pleas that he had no knowledge of the proceedings before the justice until the time for appeal had expired, and no summons were legally served upon him, the said judge might order a writ of certiorari to be issued. All proceedings were stayed until the determination of the court on the writ of certiorari, upon defendant entering into a recognizance with suffi- cient surety to pay the debt and costs. This section of the Act of March 28, 1870, was repealed by the Act of May 29, 1893 (P. L., 176). § 1363. In Erie County, jury to be judges of law and fact. The jury shall be judges of both the law and the facts of the case : Fro- vided, the justice shall have power to exclude evidence. The jury may ask the opinion of the justice upon the law in the presence of the parties or their counsel before verdict rendered. (Id., section 8.) 580 PRACTICE IN PENNSYLVANIA. § 1364. Evidence outside the county or State — Depositions. Upon affidavit of either party or his agent that a material witness whose testimony is wanted resides out of the county, or is infirm, or for other causes cannot be obtained personally, the cause shall be postponed to obtain the deposition of such witness. If such cause be postponed at the instance of the defendant, he shall enter into a recognizance with one sufficient surety, covering the amount in demand and costs, conditioned for his appearance on the day fixed. When the rule for taking depositions is applied for, the party shall file a copy of the interrogatories to be asked the witnesses. Such copy must be served on the other side, who may file additional questions within four days after the receipt of such copy. The rule and interrogatories shall be certified by the justice before whom the cause is pending, and shall be sufficient authority for the justice named in the rule to take such depositions. Where the witnesses reside in the county, or in cases where the parties or their agents agree to enter a rule to take depositions, it may be done without filing interrogatories, upon notice given agreeably to the rule, of the time and place appointed for the examination of the witnesses, and testimony so taken shall be read in evidence on the trial before the justice or referees. (Act March 20, 1810, section 8 ; 5 Sm., 166.) This was extended by the Act March 30, 1829, section 1 (10 Sm., 312), which provided that testimony out of the State shall be obtained in the same manner. So much of the above section as requires interrogatories to be filed in taking depositions on rules issued by justices is repealed, except so far as it relates to depositions taken without the State. (Act April 11, 1863, section 1 ; P. L., 346.) § 1365. Commissions. Where it is not convenient to take testimony before a justice a commis- sioner may be named. The justice shall send him a certificate of his appointment with a certified copy of the rule and interrogatories, and he shall have power to administer oaths and affirmations and take the answers of the witnesses. (Act March 30, 1829, section 2 ; 10 Sm., 312.) § 1366. Subpoenas wider commissions. Subpoenas may be issued by the justice or commissioner to witnesses requiring their attendance at a certain day, hour, and place, under a penalty not exceeding one hundred dollars. (Act February 26, 1831, sec- tion 1 ; P. L., 92.) § 1367. Attachment. The commissioner or persons duly authorized may, on proof by oath or affirmation of due service of the subpoena, issue an attachment. (Id., sec- tion 2.) § 1368. Remedies against recusant witness. The party injured by such non-attendance shall be entitled to the same remedies at law as are provided when a subpoena is issued from a court of record. (Id., section 3.) JUSTICES OF THE PEACE. 581 § 1369. Witness refusing to testify. K the person subpoenaed shall attend hut refuse to testify, he shall be liable to the same proceedings as if he had appeared and refused to testify in a court of record. {Id., section 4.) § 1370. Amendments of names. Justices shall have power in any stage of proceedings before final judg- ment, on reasonable notice, to grant a hearing and peimit amendments by- changing or altering the Christian or surname of any party plaintiflf or defendant, where it is shown upon due proof that a mistake or omission has been made in the Christian or surname of such party. If the adverse party be taken by surprise by such amendment, and shall verify the same by oath or affirmation, the justice shall grant a continuance to such future time as he may deem proper, not exceeding five days. (Act May 12, 1887 ; P. L., 96.) § 1371. Judgments. Justice cannot enter judgment on warrant of attorney. A judgment cannot be entered upon a warrant of attorney. The proceedings must be by summons or capias. Alberty V. Dawson, 1 Binn., 105 (1804). § 1372. When justice may enter judgment before return-day. A justice may render judgment before the return of his writ, if the parties voluntarily appear and the ease be heard. Buckmyer v. Dvhbs, 5 Binn., 29 (1812). § 1373. Judgment to be entered within ten days after hearing. It shall be the duty of justices of the peace to render judgment within ten days after all the evidence shall have been heard. (Act March 22, 1877, section 1 ; P. L., 13.) § 1374. Judgments before justices for want of affidavit of defense in cases outside of Philadelphia. On any contract for the payment of money, either express or implied, if the plaintiff shall file before the summons issues an affidavit, stating the amount he verily believes due from the defendant, together with a copy of the book-entries or instrument of writing upon which the action is brought, or if the claims are not in writing, if the plaintiff shall file an affidavit setting forth a full and detailed statement of the same, it shall be the duty of the justice to make a copy and duly certify such affidavit and deliver it to the constable. Which certified copy shall be served at the time and in the manner that service of summons is made, and judgment shall be rendered in favor of the plaintiff, unless the defendant at or before the time at which the summons is made returnable shall have filed an affidavit of defense setting forth fully the nature and character of the same. Such affidavit may be made by an agent cognizant of the facts consti- tuting the cause of action or defense or other matters set forth. This Act in no way impairs or abridges the right of appeal or proceed- ings by certiorari. This Act shall not apply to magistrates in cities of the first class. (Act July 7, 1879, section 2 ; P. L., 194.) 582 PEACTICE IN PENNSYLVANIA. § 1375. Judgment by default — If defendant do not appear, if he be freeholder, no execution for twenty days. Where defendant does not appear upon summons on the day appointed, the justice may, on due proof, by oath or affirmation of the service of the summons, give judgment by default against the defendant, allowing twenty days for an appeal, if defendant be a freeholder ; if defendant be not a free- holder, the justice may issue execution. If defendant within twenty days after such judgment shall enter bail and pay costs on execution, he shall be entitled to an appeal or stay of execution, as though bail had been entered at the time of rendering such judgment. (Act March 20, 1810, section 6 ; 5 8m., 165.) Where a defendant has appeared and a case is adjourned, a judg- ment subsequently entered in the absence of defendant is not a judg- ment by default within the meaning of the sixth section of the Act of March 20, 1810. Bakery. Bichart, 2 Dist. Eep., 195 (1892). A magistrate in Philadelphia County cannot enter judgment for plaintiff upon a sworn statement of account of goods sold and de- livered. The proof of a claim must be given by oral testimony under oath — otherwise the judgment will be reversed on certiorari. Sauter v. Carroll, 1 Dist. Eep., 122 (1892). § 1376. Judgment final if not over five dollars, and thirty-three cents. If the parties appear before the justice either in person or by agents, the justice shall proceed to hear their proofs and allegations ; and if the demand shall not exceed five dollars and thirty-three cents, shall give judgment, which shall be final. (Act March 20, 1810, section 3 ; 5 Sm., 162.) § 1377. Confession of Judgment. Amicable reference or confes- sion of judgment. A justice may take cognizance of any matter for a sum exceeding one hundred dollars if the parties voluntarily appear before him to confess judgment or submit it to him as referee, but no execution shall issue before the expiration of one year from the date of such judgment if the party de- fendant be a freeholder or shall have entered special bail. (Act March 20, 1810, section 14; 5 Sm., 161.) § 1378. A confession of judgment tnust be at office of justice. A justice must have an office or court for administering justice. If judgment be confessed in an amicable action before him, in order to give it validity upon his docket it must be before him at his office. King v. King, 1 P. & W., 15 (1829). § 1379. Where judgment over $100 is confessed, record must show personal appearance of defendant. Where judgment is confessed in an amicable action for a sum exceeding $100, it must appear upon the record that the parties appeared in person before the justice and confessed the judgment. Camp v. Wood, 10 W., 118 (1840). JUSTICES OF THE PEACE. 583 § 1380. Judgment over $100 good if confessed by defendant in person. A judgment confessed before a justice of the peace volun- tarily in an amicable action for more than $100 is good. The plaintiff need not appear in person if represented by an agent or attorney, and the defendant appear personally. Truitt Bros. V. Ludvng, 25 Pa. St., 145 (1855). § 1381. Justice is judge of avihority of agent of defendant. Where judgment is confessed before a justice by an agent of the defendant, the justice is the judge of the authority of the agent. Barber v. Chandler, 17 Pa. St., 48 (1851). § 1382. If an agent confess judgment against a defendant, the de- fendant can appeal. In Rowen v. King, 25 Pa. St., 410 (1855), judgment was confessed by* an agent of the defendant, from which judgment the defendant appealed. His appeal was struck off, but was reinstated by the Supreme Court. Black, J. : " Every per- son against whom a justice of the peace renders judgment is entitled to an appeal. When the judgment is confessed by the defendant in person, it is evidence that the debt is just. But no admission of a debt by another can be strong enough to preclude the party from showing that it was made in ignorance of his rights." § 1383. Decision of Common Pleas on certiorari is final. Where judgment has been confessed in an amicable action before a justice for a sum exceeding $100, and the case is affirmed on certiorari to the Common Pleas, the Supreme Court cannot review their deci- sion, on writ of error. Borland v. Ealy, 43 Pa. St., Ill (1862). § 1384. Where just cause to believe a confessed judgment fraudu- lent, justice to send transcript to prothonotary. Where judgment has been confessed before a justice and it afterward appear by due proof on oath or affirmation that there is just cause to believe such judgment was confessed to defraud creditors, it shall be the duty of the justice to transmit a certified transcript of his proceedings to the prothonotary, who shall file the same for adjudication of the Court of Common Pleas, whose judgment thereon shall be final. (Act March 20, 1810, section 14 ; 6 8m., 161.) § 1385. Where justice sends transcript to C. P. of a confessed judgment upon allegation of fraud, the court orders a feigned issue or opens the judgment. Under the fourteenth section of Act March 20, 1810, a justice has the power to enter judgment by confession for a sum exceeding $100. If, however, the creditors of the defendant shall make oath that there is just cause to believe such judgment was confessed with in- tent to defraud creditors, the justice shall transmit a transcript of his judgment to the prothonotary, and the adjudication of the Com- mon Pleas thereon shall be final. 684 PKACTICE IN PENNSYLVANIA. The practice under this Act has been either to order a feigned issue or to present a proper affidavit to open the judgment and permit the creditor or creditors to plead, whereon the verdict and judgment are final. Huston, J., in Coaies v. Roberts, 4 Eawle, 110 (1833). ■ § 1386. A judgment confessed bars a subsequent action for same debt. In Powell v. Shank, 3 W., 235 (1834), an award of arbitra- tors was for $300, but, in lieu of the award, judgment was entered by the justice by mutual consent for $240. This being a judg- ment by confession, the Supreme Court held, that it was a bar to a subsequent action for the same debt. § 1387. Opening Judgments. Justice may, mth consent of par- ties, open judgment. Before an appeal is made the justice may, with the consent of both parties or their agents, open his judgment and give them another hearing, (Act March 20, 1810, section 4 ; 5 Sm., 163.) § 1388. When judgment may be opened. A judgment may be opened at the instance of the appellant. The justice must notify the adverse party to appear before him on some day certain within twenty days from the rendition of the judgment; and if such ad- verse party appear and consent thereto, it shall be in the power of the justice to open the judgment and give them another hearing. Act of March 20, 1810, section 4 ; or where a defendant, within thirty days, on proof made, shows that he was absent when the process was served, and did not return before the return-day of such process, or that he was prevented by sickness or other un- avoidable cause. Nippes v. Kirk, 8 Phila., 299 (1871) ; Long v. Cafrey, Id., 548 (1871); Stockdale v. Campbell, 1 Phila., 520 (1860). Where a judgment is opened before a justice and new judgment for a larger amount is entered, without notice to defendant, the proceedings are void. Oarlin v. SoUand, 1 Dist. Rep., 174 (1892). Any defendant against whom a judgment shall have been rendered where the attachment or summons shall not have been personally served, may, within thirty days after judgment, apply to the justice for a hearing of the matter, and such defendant, or some one in his behalf, shall make affidavit setting forth that he has a just defense to the whole or part of the plaintiff's demand ; it shall be the duty of the justice to open judgment and give notice to the plaintiff of the time when he will hear the parties within four to eight days. (Act July 12, 1842, section 31; P. L., 345.) § 1389. When it is duty of justice to open judgment. The Act of July 12, 1842, section 31, makes it the duty of an alderman who has entered judgment by default to open the judgment and rehear JUSTICES OF THE PEACE. 585 the case upon affidavit of defense, in part or in whole, made by de- fendant or some person for him. This Act has exclusive reference to attachments and summonses issued under the several provisions of the Act, and does not apply to suits instituted under the Act of 1810. Whitehead v. Oillespy, 1 Phila., 515 (1854). § 1390. A judgment confessed should not be opened on mere alle- gation of mistake. In Oreen v. Leymer, 3 Watts, 381 (1834), judg- ment was confessed before a justice for a sum exceeding $100. Subsequently the defendant represented to the justice that there had been a mistake, and upon notice being given to the other side, and no appearance, the justice opened the judgment and reduced its amount. This practice was condemned by the Supreme Court as not within the province of the justice. § 1391. If defendant do not appeal, the Common Pleas cannot open the judgment entered on the transcript. In Lacock v. White, 19 Pa. St., 495 (1852), an action was brought before a justice and judgment given in favor of plaintiff. No appeal was taken. In due course the transcript was filed in the Common Pleas. Upon affidavit and on application the judgment was opened by the Com- mon Pleas, and defendant let into a defense. Black, C. J. : " This was originally & judgment before a justice from which there never was an appeal. * * * The plaintiff entered and filed a trans- cript * * * as a lien on defendant's lands. The point was made whether the Common Pleas had jurisdiction. * * * The sum of our opinion is, that the re-trial of a case like this is anom- alous and illegal. The whole matter being conclusively settled by another tribunal, the court had no authority to hear it again." § 1392. Satisfaction to be entered under penalty. Any person who shall not in thirty days after written notice of the pay- ment of any judgment with costs in his favor, either by himself or his agents, enter satisfaction on the docket, shall be subject to a penalty of one-fourth the amount of the debt paid for the use of the party aggrieved, except where one of the defendants shall, by writing filed within fifteen days after payment, forbid the plaintiff to do so. (Act March 20, 1810, sec- tion 16 ; 5 Sm., 169.) This penalty shall be sued and recovered before any justice as debts of similar amount are sued for and recovered. (Act April 4, 1831, section 1; P. L., 468.) In Oimningham v. McOue, 31 Pa. St., 470 (1858), an action of debt was brought to recover a penalty for neglecting to enter satis- faction on a judgment. The question arose as to service of notice to enter satisfaction 586 PEACTICE IN PENNSYLVANIA. which had been served on defendant by leaving a copy with his wife, at his residence. This was held to be a good service. § 1393. Summary Convictions. Records of summary convictions are scrutinized by the courts, as this mode of proceeding is in derogation of the common law, and operates to the exclusion of trial by jury. In many cases the manner of proceeding is pointed out in the Act of Assembly or ordinance. Where proceedings are instituted for the recovery of fines for the violation of an ordinance, they are not technically summary convic- tions, but in the nature of civil suits, and the record need not set forth the evidence at length. § 1394. Jurisdiction. Justices have power to hear and determine all actions of debt for penalty, breach of auy ordinance, by-law, or regulation of such city, township, or borough in the same manner and subject to the right of appeal as debts under $100, and such actions shall be instituted in the corporate name of such city, bor- ough, or township. Act of April 15, 1835, section 7 (P. L., 292) ; Act of April 5, 1849, section 7 (P. L., 410). § 1395. Directions as to proceedings. A learned opinion was de- livered by Harding, P. J., Luzerne County, in Oomm. v. Bav- enger, 30 Leg. Int. , 321 (1873) : "Justices of the peace are clothed with summary powers in proceedings to recover forfeitures under penal Acts of Assembly ; and also with powers partaking some- what of a summary character for the recovery of penalties or fines for violations of municipal ordinances. * * * ' ' Where a statute creating an offense provides that the person so offending, on conviction thereof before a justice * * * shall pay a fine, to be recovered as debts of like amount are by law re- coverable by any person who may sue for the same, the proceeding should be by summons in debt, in the name of the Commonwealth for the use of the party suing, followed by a judgment for the pen- alty, if the evidence establishes the guilt of the accused. " But where a statute imposes a penalty, and gives authority to justices of the peace to take cognizance of its violation, without pre- scribing a method or form for the prosecution, the proceeding may be instituted either by summons in debt, in the name of the Com- monwealth, for such uses as the particular statute may direct, for the penalty, or by a warrant of arrest, at the discretion of the jus- tice. " This doctrine does not apply where the statute creating au of- fense provides at the same time a specific mode of prosecution ; and JUSTICES OF THE PEACE. 587 where the alleged offender is a citizen or well-known inhabitant, the use of a summons is all that would be necessary ; but where he is an irresponsible or transient person, resort may properly be had to a warrant of arrest. "Actions of this character must be founded on an information containing the day of the taking of it, the place where it was taken, the name of the informer, the name and official designation of the magistrate before whom it is taken, the name of the offender, to- gether with an exact description of the offense, and also the time of its alleged commission — not the exact day, perhaps, but a point of time should be indicated so that the prosecution shall appear to have been instituted within the limitation of the particular statute. " Strictly speaking, such proceedings are criminal prosecutions, being nothing less than methods of punishmeut for a public crime or offense. They are summary convictions. Again, proceedings for the recovery of fines for the violation of borough or city ordi- nances are not summary proceedings. On the contrary, ' they are of a civil nature, and must be regulated and decided by rules appli- cable to civil suits ; though being penal in their character, some of the] principles relative to summary proceedings are applicable to them.' They should not be instituted/in the name of the Com- monwealth, but where the whole penalty goes to the city or bor- ough, the coi-porate name of such city or borough should be used as plaintiff. If, however, the whole penalty be given to any per- son who may sue for it, then the corporate name of the city or bor- ough, as the case may be, to the use of the informer, namiug him, should appear as plaintiff ; but where the action is qui tarn, one portion of the penalty going to the informer and the other to the city or borough, the informer should be named as plaintiff, suing for himself as well as for the city or borough. Further, it is vitally essential in these cases that the record of a conviction or judgment against a defendant should exhibit jurisdiction of the subject-matter on the part of the magistrate, a specification of the ordinance vio- lated, and the imposition of a penalty conforming exactly to the fine covered by the ordinance. It must also show either that the defen- dant confessed the charge or that evidence was adduced to support it ; that witnesses were sworn or affirmed ; that the commission of the offense was within the city or borough enacting the ordinance ; and that judgment was duly entered." A suit to recover a fine for violation of a borough ordinance should be brought in the corporate name. Speahnan v. Speahnan, 1 Dist. Kep., 119 (1892). 688 PRACTICE IN PENNSYLVANIA. § 1396. FORM OF INFOEMATION OR COMPLAINT. County of , ss. The information and complaint of A. B., of (place), made and exhibited before E. F., Esq., justice of the peace of , and the said A. B., being duly sworn according to law, deposes and says (here state the offense , specially, following the statute or ordinance and the facts as to time, place, etc.), contrary to the statute (or ordinance) in such case made and provided, whereby C. D. according to said statute forfeits the sum of $ Whereupon A. B. prays that the said 0. D. may be summoned to answer the premises before the said justice. Sworn to and subscribed before me. (date). Justice of the Peace for A. B. The complaint or information must be definite as to substance, time, and place of offense charged. If the defendant appear and go to trial without objection, the irregularity is waived. Cbmm. V. Burhhart, 23 Pa. St., 521 (1854). § 1397. How proceedings commenced. The proceedings may be commenced by summons or capias. Where a person is a freeholder or well-known inhabitant not likely to flee, the better course is to proceed by summons, unless otherwise directed by statute. The directions as to summons in a civil case are given § 1270 et seq. § 1398. In whose name proceeding to be brought. Where a cer- tiorari in summary proceedings was directed to a burgess, the pro- ceedings having been commenced in the name of the Common- wealth, the Supreme Court held that the certiorari might be amended. Reid v. Wood, 102 Pa. St., 312 (1883). If an ordi- nance prescribe that penalties for the breach of its terms shall be recovered at the suit of the city, an action cannot be maintained by a private person without the city's authorization. ™C?fy ^• 8trawbridge, 4 W. N., 215 (1877). Where an Act [of Assembly directs a penalty to be recovered by any person suing for'the^same, a common informer may sue in his own name. Megargell v. Coal Co., 8 W. & S., 342 (1845). See also § 1395. § 1399. FORM OF RECORD OF CONVICTION. County of . ss. Be it remembered, that on the (date), in said county, A. B. personally appeared before me, a justice in and for , and made complaint and information before me that (here set forth the complaint) contrary to the form of the in such case made and provided, which is as follows (here set forth ordinance or statute). JUSTICES OF THE PEACE. 589 Whereupon the said C. D. was duly summoned to appear and answer said complaint, and on (date) he appeared before me and declared (here state what C. D. declared), and G. H., of (place), under oath did say (here state the evidence of any witness or witnesses who appeared). Therefore, it manifestly appearing to me, upon careful examination of the truth of the charges contained in said complaint, that C. D. is guilty of the offense charged against him in said complaint, I, the aforesaid and sub- scribing justice, do adjudge the said C. I), to forfeit and pay for the same the sum of , with costs of suit to be distributed (here set forth the manner of division) according to law, and in default of such payment, or of goods to satisfy said fine, the said C. D. shall be committed to the county prison, to wit (place) for (time as prescribed by statute, ordinance, etc.). Given under my hand and official seal (date). IQffice] [seal] Magistrate. § 1400. Appeal in summary conviction. In all cases of summary conviction in this Commonwealth, or of judg- ment in suit for a penalty, before a magistrate or court not of record, either party may appeal to such court of record as may be prescribed by law, upon allowance of the appellate court or judge thereof, upon cause shown. (Con- stitution of 1874, Art. V., section" 14.) In all cases of summary conviction in this Commonwealth before a magistrate or court not of record, either party may, within five days after such conviction, appeal to the Court of Quarter Sessions of the county in which such magistrate shall reside or court not of record shall be held, upon allowance of the said Court of Quarter Sessions or any judge thereof, upon cause shown ; and either party may also appeal from the judgment of a magistrate or a court not of record, in a suit for a penalty, to the Court of Common Pleas of the county in which said judgment shall be rendered, upon allowance of said court or any judge thereof, upon cause shown : Provided, that all appeals from summary conviction and judgment for penalties shall be upon such terms as to payment of costs and entering bail as the court or judge allowing the appeal shall direct. (Act of April 17, 1876, section 1 ; P. L., 29.) The Act of February 5, 1875, section 13 ; P. L., 56, allowed appeals in cases of summary convictions before magistrates in Phila- delphia. Its provisions are supplied by the Act of 1876 {svpra). In suits for penalties before a magistrate, an appeal may be had on special allowance upon cause shown, though the amount involved is less than $5.33. Borough v. Lifter, 4 Dist. Eep., 230 (1895). § 1401. In civil cases. FOBM OF AFFIDAVIT ON APPEAL. Commonwealth of Pennsylvania I ggfjjjg , Magistrate of Court No. . ex rei. hi.tf. I judgment obtained (date) for a penalty ab. J °^* • County of , ««• C. D., the above-named defendant, being duly sworn according to law, doth depose and say that the appeal taken in the above case is not for the 590 PEACTICB IN PENNSYLVANIA. purpose of delay, but that if the proceedings appealed from are not re- moved, he will be required to pay more money than is justly due. Sworn to and subscribed before me, this day of , 18 . Witness my hand and official seal of said court, the day and year )■ C. D. above written. Magistrate of Court, No. . [seal] § 1402. FOEM OF BAIL ON APPEAL. I hold myself indebted to the plaintiff in the sum of fifty dollars, condi- tioned for all costs that have accrued or may accrue in this case up to the final determination of this suit, and that the defendant will prosecute his appeal with effect. G. H., (Residence.) § 1403. FORM OF TBANSCRIPT. Transcript from the Docket of L. M., Magistrate of Court No. For a Penalty. Summons issued (date). Returnable between the hours of 3 o'clock P.M. and 3.30 o'clock p.m. W. R., Constable. Returned on oath (date). Served on defendant by leav- ing the copy of the original summons at the defendant's dwelling-house with an adult member of the family and made known the contents thereof. And now (date), 3 o'clock p.m., parties appear. Messrs. D. and C. appear for the plaintiff, and F. O. appears for the defendant. Plaintiff claims $100 as a penalty for a violation of sections 1 and 3 of an Act of Assembly ap- proved the day of , A. D. 18 , entitled " An Act (here set forth title), which are as follows (here set forth sections). Defendant pleads not guilty, and also that the Act under which this suit is brought is unconstitu- tional, being contrary to the Constitution of the State of Pennsylvania and the United States. C. W. sworn and examined for the plaintiff (here set forth the evidence at length). After hearing the parties, their proofs and allegations, judgment publicly rendered for plaintiff for a penalty of $100 and costs (date). Defendant files his affidavit and appeals. City of Philadelphia, ««. I hereby certify the above to be a correct transcript from my docket. Witness my hand and official seal of said court, the day of , 18 . [seal] Magistrate of Court No. . To this transcript add the affidavit and bail entered for appeal. The appellant then obtains this from the justice and indorses the transcript : Commonwealth of Pennsylvania ex rel. E. S. Residence, Business, V, J. M. JUSTICES OP THE PEACE. 591 No. . Term, 1890. A. B. ] V. ^ C. P. , No. CD. 1 Ji-anscript and Appeal from Magistrate. And now (date), on motion of F. C, attorney ^ro defendant, and on cause being shown, the court allow an appeal in the case on the costs already paid and on the bond already given. (Initials of Judge.) Take this to a judge and have approved, then file with the pro- thonotary. In summary convictions for a fine, an appeal can only be taken upon allowance by the court upon cause shown. Board V. Becker, 3 Dist. Rep., 362 (1893) ; Board v. Dairy Co., 3 Dist. Sep., 363 (1893) ; Comm. h. Elehenherg, 140 Pa. St., 158 (1891). An appeal from the judgment of a magistrate for a penalty may be allowed nunc pro tvnc in the discretion of the court. Comm. V. Riser, 147 Pa. St., 342 (1892). For further instructions see § 1481 et seq. § 1404. Exquisites of record or transcript. The record should set forth : a. The jurisdiction. b. Information or charge against the defendant. c. A summons or notice of the information, in order that defen- dant may appear and make his defense, or an arrest. , d. The appearance or non-appearance of defendant. e. The section of the Act or ordinance violated, quoting its lan- guage or the substance thereof, showing that the offense is within such Act or ordinance, and unlawful. /. The confession or defense of defendant. g. The evidence, which in civil cases need not be set forth in extenso. When the proceeding is according to the common law, the substance of the evidence only need be stated, and that the wit- nesses were sworn or affirmed. h. That the offense was committed within the city enacting the ordinance, if such be the case. i. The judgment or conviction, and that the fine conforms to the ordinance or Act. Everything requisite to support the conviction must appear on the record. (See Form of Record, section 1399.) In a suit for a penalty under an ordinance which forbids a rail- road company from running trains across streets without erecting gates and providing watchman, the record must show across what streets the trains ran, without complying with the ordinance. Bor- mgh V. Canal Co., 1 Dist. Rep., 701 (1892). 592 PRACTICE IN PENNSYLVANIA. In a suit for a penalty, under an ordinance, the record must set forth the ordinance, and the penalty imposed. Comm. v. Sill, 3 Dist. Eep., 216 (1893) ; PUtsburg v. Madden, 3 Dist. Eep., 771 (1893). § 1405. Certiorari. The party convicted has the right to remove the record in a summary conviction into the proper court. The conviction is either affirmed or quashed in the superior court. The notes of testimony are not a part of the record on certiorari. Comm. V. Oipner, 118 Pa. St., 379 (1888). In a suit for a penalty, the particular offense with which defen- dant is charged and the cause of action must be distinctly set forth. In such case it is not necessary that the evidence should be returned as a part of the record on certiorari. Hess v. Monier, 1 Dist. Rep., 606 (1892). If defendant convicted before a magistrate and sentenced, volun- tarily pays fine and costs, the Common Pleas on certiorari cannot, on reversing, order restitution. Comm. v. Oipner, 118 Pa. St., 379 (1888). See Certiorari, § 1407 et seq. § 1406. No appeal to the Supreme Court. No writ of error lies to the judgment of the Common Pleas on a certiorari to a justice of the peace in a suit by a borough to recover a penalty for breach of an ordinance. Borough v. Wadlinger, 48 Leg. Int. , 384 (1891). The judgment of the Common Pleas reversing the proceedings before a justice, on a certiorari in an action to recover a penalty, cannot be reviewed by the Supreme Court. City v. Wadlinger, 142 Pa. St., 308 (1891) ; Foster v. Erie, Id., 407 (1891) ; see Comm. V. Burkhart, 23 Pa. St., 521 (1854). All appellate proceedings in the Supreme Court are now taken by an appeal. (See Chapter XLVI.) § 1407. Certiorari. Affidavit required before certiorari issues — Writ and service. No judge of any court within this Commonwealth shall allow any writ of certiorari to remove the proceedings had in any trial before a justice of the peace until the party applying for such writ shall declare, on oath or affirma- tion before such judge, that it is not for the purpose of delay, but that in the opinion of the party applying for the same the cause of acticm was not cognizable before a justice, or that the proceedings proposed to be removed are, to the best of his knowledge, unjust and illegal, and if not removed will oblige the said applicant to pay more money, or to receive less from his opponent than is justly due ; a copy of which affidavit shall be filed in the prothonotary's office : Provided, that no judgment shall be set aside in pursuance of a writ of certiorari unless the same is issued within twenty days after judgment was rendered, and served within five days thereafter ; and- no execution shall be set aside in pursuance of the writ aforesaid unless the JUSTICES OF THE PEACE. 593 said writ is issued and served within twenty days after the execution issued. (Act of March 20, 1810, section 21 ; 5 Sm., 172.) § 1408. OATH OR ATFIEMATION TO BE ADMIiaSTERED BY PROTHONOTAEY. The prothonotaries of the several Courts of Common Pleas are hereby re- spectively authorized and empowered to administer the oath or affirmation required by the twenty-first section of the Act to which this is a supple- ment, to be taken on the issuing of any writ of certiorari. Which oath or affirmation so administered shall have the same force and effect as if admin- istered by a judge of any of the said courts. (Act February 3, 1817, section 1 ; 6 Sm., 398.) § 1409. Bail upon issuijig writ. In Clarh v. MoGormack, 2 Phila., 68 (1857), the question arose as to the taking of bail upon issuing writs of certiorari. Allison, J.: "It certainly has the authority of a long and uniform practice to support it, * * * The Act of March 21, 1810, is silent upon the subject of bail ; the only prerequisites to the allowance of the writ is an oath or affirmation that it is not for the purpose of delay, etc. * * * ■ If the writ of certiorari is in substance a writ of error, * * * we think it follows, by neces- sary implication, that the legislature in granting the writ confers, at the same time, all the powers necessary to make the writ effective as a writ of error, and that as the issuing of the certiorari is a min- isterial act to be performed by the prothonotary or clerk of the court, he has the authority * * * to take the recognizance which must be entered to make the writ of value to the purchaser. The right to take bail in such cases might, perhaps, be fairly in- ferred from the second section of the Act of the 27th of March, 1853, * * * which says, ' whenever an appeal is entered in the Supreme Court, or a certiorari is sued out to remove the pro- ceedings of a justice * * * to the Court of Common Pleas, the party» his agent or attorney, may take and enter into the re- quired af&davit and recognizance." The Act of May 22, 1895 (P. L., 100), provides that on taking a certiorari from the judgment of a justice of the peace, the affi- davit may be filed and recognizance entered into before the justice or prothonotary. § 1410. Bail on certiorari in landlord and tenamt proceedings. Under the Act of 1865, a landlord and tenant proceeding under the Act of December 14, 1863, is subject to removal by certiorari, but a recognizance for debt, interest, and costs is defective — it should be for rent then due, as well as rent to become due between vol/. I. — 38 594 PRACTICE IN PENNSYLVANIA. the issuing of the certiorari and the final decision of the court. Hutchinson v. Vanscriver, 6 Phila., 39 (1865). A similar ruling was made in Clapp v. Senneff, 7 Phila., 214 (1869). § 1411. Justice shall prepare transcript — Judgment not to be re- versed for want of formality. In all cases either party shall have the privilege of removing the cause by writ of certiorari from before any justice, whose duty it shall be to cer- tify the whole proceeding had before him by sending the original precepts, a copy of the judgment, and execution or executions, if any be issued : Provided, always, that the proceedings of a justice of the peace shall not be set aside or reversed on certiorari for want of formality in the same, if it shall appear on the face thereof that the defendant confessed a judgment for any sum within the jurisdiction of a justice, or that a precept issued in the name of the Commonwealth of Pennsylvania, requiring the defen- dant to appear before the justice on some day certain, or directing the con- stable to bring the defendant or defendants forthwith before him, * * * and that the said constable having served the said precept, judgment was rendered on the day fixed in the precept or on some other day, to which the cause was postponed by the justice with the knowledge of the parties. And no execution issued by a justice shall be set aside for informality, if it shall appear on the face of the same that it issued in the name of the Commonwealth of Pennsylvania, after the expiration of the proper period of time, and for the sum for which judgment had been rendered, together with interest thereon, and costs, and a day mentioned on which return is to be made by the constable, and that the cause of action shall have been cognizable before a justice of the peace ; and the judgment of the Court of Common Pleas shall be final on all proceedings removed as aforesaid by the said court, and no writ of error shall issue thereon. (Act of March 20, 1810, section 22 ; 5 Sm., 172.) § 1412. Ifo allocatur required. No special allowance of a writ of certiorari to a justice of the peace shall be held requisite to the maintenance of such writ. (Act April 26, 1855, section 2 ; P. L., 304.) In McGinnis v. Vernon, 67 Pa. St., 152 (1870), Thompson, C. J., said : " There is no constitutional requirement that judges of the Common Pleas must allow writs of certiorari to justices of the peace. Section 8 of Article V. of the Constitution gives them the power to do so, but the Act of 26 April, 1855, dispenses with the necessity for doing it, and this Act, operating as a remedy merely, is beyond doubt constitutional." § 1413. When judgment will be reversed. Where there is a de- fect in the record as, e. g., that judgment was rendered by default before a justice without process being properly served, then tlie judgment will be reversed on certiorari. Fraily v. Sparks, 2 Pars., 232 (1848). JUSTICES OP THE PEACE. 595 If judgment has been recovered before a justice and transferred to the docket of a justice of another county, certiorari is the proper proceeding to set aside the proceedings of the latter if the record of the original judgment exhibits a want of jurisdiction. It is never too late to attack a judgment void for want of jurisdiction. Adams V. HiU, 29 Leg. Int., 126 (1872). Where the record of a justice does not show the appearance of plaintiff or his agent, or that any evidence was offered in support of his demand, a judgment for plaintiff will be reversed. This does not apply to judgments bv default. Yowng v. Abbey, 1 Dist. Rep., 43 (1891). The judgment of a justice will not be reversed on eeritorari where no evidence is shown on tlje record in support of plaintiff's claim, if it appears that letters of the defendant, duly proved, were offered and admitted in evidence. Bupp v. Lahows, 2 Dist. Rep., 340 (1893). § 1414. Certiorari a supersedeas in landlord and tenamt proceed- ings. In every proceeding or suit brougit in the city of Philadelphia * * * by landlords to recover possession of property leased for a term of years, or from year to year, in which a certiorari is now allowed, the said certiorari shall be a supersedeas and the execution upon the judgment * * * shall be suspended until the final determination of the certiorari by the court out of which the same issues ; and the said court, if the said determination shall be made adversely to the party at whose instance the writ of certiorari has issued, shall proceed to issue a writ of possession directed to the sheriff of Philadelphia County, directing him to deliver actual possession of the premises to ,the lessor, and also to levy the costs on the defendant in the same manner that costs are now by law levied and collected on other writs of execution : Provided, that the said certiorari shall be issued within ten days from the date of the judgment rendered in said proceedings, and upon oath of the party applying for the same, to be administered by the pro- thonotary of the Court of Common Pleas, that it is not for the purpose of delay, but that the proceedings proposed to be removed are, to the best of his knowledge and belief, unjust and illegal, and will oblige him to pay more money than is justly due, a copy of which affidavit shall be filed in the prothonotary's office : And provided further, that the party applying for the same shall give security for payment of all costs that have accrued or may accrue, and of the rent which has already or may become due up to the time of the final determination of said certiorari, in event of the same being determined against him. (Act of March 24, 1865, section 1 ; P. L., 750.) § 1415. Certiorari cannot be issued out of Supreme Court. No writ of certiorari issued by or out of the Supreme Court, to any justice in any civil suit or action, shall be available to remove the proceedings had before such justice. (Act March 20, 1810, section 24 ; 5 Sm., 172.) 596 PEACTICE IN PENNSYLVANIA. A certiorari will not lie from the Supreme Court to a justice to remove proceedings relating to stray cattle, under the Act of April 13, 1807. Friok v. FaUon, 2 Eawle, 20 (1829). § 1416. Except in proceedings under a sheriff's sale to recover possession. The Supreme Court has jurisdiction, both before and since the Constitution of 1874, to issue wi'its oi certiorari to jus- tices in proceedings by the purchaser at a sheriff's sale to recover possession of property purchased. Baiter v. Angeny, 100 Pa. St., 429 (1882). § 1417. Certiorari will not issue to review a case settled. If a defendant voluntarily pay the fine and costs imposed upon him by a justice, the case is at an end, and the Common Pleas cannot re- view the judgment on a certiorari subsequently issued. Oomm. v. Gipner, 20 AV. N., 500 (1887). § 1418. When writ will issue. though twenty days have expired. As a rule, a writ of certiorari must be moved within twenty days after judgment rendered, and served within five days thereafter; but if the record fail to exhibit on its face that the justice acted within the scope of his authority, his whole proceedings will be held to be coram nonjudice. Where the jurisdiction does not ap- pear from the record itself, or where the record shows the entry of a judgment by default preceded by a failure of service of summons, or a service not in substantial conformity with the Act, the court will review and reverse the proceedings of the justice, though more than twenty days had elapsed before the certiorari was taken. Paine v. Godshall, 29 Leg. Int., 12 (1872) (C. P. of Luzerne County). In Stedman v. Bradford, 3 Phila., 258 (1858), Judge Allison said : " Where judgment is given against a defendant without ser- vice of a summons, and without notice to him of any kind, a certio- rari will be allowed if applied for within a reasonable time, which we have held to be, as a general rule, within twenty days after he first had knowledge of a judgment being entered against him, thus making our practice conform to the twenty days allowed by law for an appeal or certiorari. In Kelly v. March, 15 W. N., 30 (1884), the record showed no appearance by the defendant, and the summons was not served in accordance with the Act of Assembly. On a sci. fa. to revive the judgment, a certiorari issued from the Common Pleas, and although ten years had elapsed, as the record failed to show jurisdiction, the judgment was reversed. On certiorari, if the summons was improperly served, the judg- ment will be reversed. Mfg. Co. v. Lewis, 2 Dist. Rep., 34 (1892). JUSTICES OP THE PEACE, 597 § 141 9. Certiorari in cases of penalty may issite after twenty days. If a proceeding be brought to recover a penalty imposed by ordi- nance, the certiorari need not be issued within twenty days, as in civil actions. Caughey v. Mayor, 12 S. & E., 53 (1824) ; Pitts- burg V. Madden, 3 Dist. Eep., 771 (1893). § 1420. Entering appeal bars subsequent issue of certiorari, and vice versa. In City v. Kendrick, 1 Brews., 406 (1867), the prac- tice as to bringing both an appeal and certiorari was well defined by the court : "If both remedies were allowed and both prose- cuted to final judgment, there might be a judgment for plaintiff in the one and for the defendant in the other proceeding. "A condition of contradictions would thus be presented 'well calculated to bring the law* into reproach. " To preserve its symmetry and the congruity of its results, we have concluded, where an appeal is not a mere nullity, that the en- try thereof shall be ground for quashing a certiorari subsequently issued, and that a certiorari regularly issued and served shall in like manner bar an appeal." A similar ruling was made in Ward v. Harligan, 1 W. N., 72 (1874). A party cannot take both an appeal and certiorari concurrently from the judgment of a justice of the peace. Wilcox v. Borough, 2 Dist. Rep., 721 (1892). § 1421. Ineffectual appeal will not quash certiorari. An inef- fectual attempt to take an appeal is no bar to taking a certiorari. Comm. V. Fdgle, 2 Phila., 215 (1856). § 1422. If defendant take certiorari, no notice to plaintiff required. Where a defendant takes a certiorari to the judgment of a magis- trate, he need not notify the plaintiff. Walker v. Hopple, 16 W. N., 495 (1885). § 1423. Common Pleas cannot direct feigned issue on disputed facts. Where there are disputed facts arising on a certiorari, the Common Pleas cannot direct a feigned issue. The better practice is, that the parties shall agree on an amicable action before the justice, subject to an appeal, or that the mattei shall be heard on a sci. fa., or that it shall be determined as to the facts on affidavits. Pool v. Morgan, 10 W., 53 (1840). § 1424. Parol evidence in the Common Pleas on certiorari. On certiorari from the Common Pleas, the court can inquire into mat- ters not appearing on the record, but on writ of error no parol evi- dence can be received. Buckmeyer v. Dubs, 5 Binn., 29 (1812). Parol evidence is admissible in the Common Pleas to establish want of jurisdiction, partiality, corruption, extortion, refusal to 598 PEACTICE IN PENNSYIiVAKIA. hear testimony, or the fact that judgment was given on the oath of the party alone. These exceptions to the rule, that on certiorari nothing but the record is brought up, relate to the conduct of the magistrate ; none extend so far as to admit evidence of the conduct of the party. Hoad Commissioners v. Fiokniger, 51 Pa. St., 51 (1865) ; Msher V. Nyoe, 60 Pa. St., 109 (1869) ; MoMuUin v. Orr, 8 Phila., 342 (1871). On a certiorari to the judgment of a justice, parol evidence is in- admissible to establish coverture of defendant where the record of the justice is silent. Myers v. Stauffer, 22 W. N., 412 (1888) (C. P. of Beaver County). Contra, Graham v. James, 13 W. N., 279 (1883) (C. P. of Schuylkill County). On a certiorari to determine whether a justice has exceeded his jurisdiction, the aid of affidavits may be invoked. Burginhofen v. Martin, 3 Yeates, 479 (1803). Where matters are not shown by the record, the court will re- ceive depositions as to them. Jones v. Pettit, 4 W. N., 14 (1877). § 1425. On writ of error, depositions not a part of the record. Where a landlord and tenant proceeding is brought by certiorari into the Common Pleas and a writ of error is taken to the judgment, the Supreme Court cannot notice matters not appearing on the record, although proved by depositions in the Common Pleas to have occurred before the justice. McMillan v. Graham, 4 Pa. St., 140 (1846) ; Bedford w. Kelly, 61 Pa. St., 491 (1869) ; Wistar v. OUis, 11 Pa. St., 291 (1875). § 1426. Decision of the Common Pleas final. The judgment of the Common Pleas on certiorari in a suit under the $100 law of March 20, 1810, is final ; the Supreme Court cannot I'eview the decision. Borland v. Ealy, 43 Pa. St., Ill (1862) ; Castor v. Cloud, 2 W. N., 252 (1875) ; Jacobs v. Mis, 156 Pa. St., 253 (1893). This includes proceedings in trespass. Cozens v. Dewees, 2 S. & R., 112 (1815). If the proceedings of a justice under the Act of July 7, 1879, have been reviewed on certiorari in the Com- mon Pleas, no writ of error lies therefrom. The Act of 1879 simply enlarges the jurisdiction of a justice. Penna. Co. v. Stoughton, 106 Pa. St., 458 (1884) ; Palmer v. La- cock, 107 Pa. St., 346 (1884). See also § 1406. § 1427. Decision of a mayor's court final. A certiorari does not lie to the Supreme Court from the judgment of a mayor of Phila- delphia who has jurisdiction conferred upon him by ordinance co- extensive with the powers of a justice. Spicer v. Bees, 5 Rawle, 119 (1835). JUSTICES OF THE PEACE. 599 § 1428. Writ of error in certain cases. Cases which do not come within the provisions of the |100 law, but are brought into the Common Pleas on certiorari according to the common law, may be reviewed on writ of error. Oomm. v. Burhhart, 23 Pa. St., 522 (1854). Proceedings under the Landlord and Tenant Act reviewed on certiorari in the Common Pleas may be further reviewed on writ of error. Clark v. Yeat, 4 Binn., 185 (1811). Where proceedings are brought under the Act of April 6, 1802, to obtain possession of land purchased at a sheriff's sale, and the suit is taken by certiorari to the Common Pleas, the proper remedy for the correction of errors is by writ of error ; a certiorari to the Supreme Court may be quashed. Cooke v. Reinhart, 1 Eawle, 321 (1829). The Act of 1810, which makes the decision of the Common Pleas final on a certiorari, does not apply to cases which arise under a spe- cial statute giving justices extraordinary jurisdiction. Zimmerly v. Road Commissioners, 25 Pa. St., 134 (1855). A certiorari will lie from the Supreme Court to remove a pro- ceeding under the Road Laws brought into the Common Pleas on certiorari to a justice. Comm. v. Belts, 76 Pa. St., 465 (1874). § 1429. When record is to be remitted and when not remitted to the justice. When a case is removed to the Common Pleas on cer- tiorari, and the plaintiff suffers a non-suit, the record must be re- mitted to the justice before defendant can have execution. Welher V. Wdker, 3 P. & W., 21 (1831). If the judgment is affirmed in a landlord and tenant proceeding, a writ of habere facias possessionem may issue from the Common Pleas. Essler v. Johnson, 25 Pa. St., 350 (1885). If the judgment be reversed, the record should not be remitted. Elton V. Stokes, 39 Leg. Int., 159 (1882). § 1430. Costs. In all cases where the proceedings of a justice of the peace shall be re- moved by certiorari at the instance of the plaintiff, and the same be set aside by the court, and on the second trial being had before the same, or any other justice, if judgment shall not be obtained for a sum equal to or greater than the original judgment which was set aside by the court, he shall pay all costs accrued on the second trial before the justice of the peace, as well as those which accrued at the court before whom the pro- ceedings have been set aside, including any fees which the defendant may have given any attorney, not exceeding four dollars, in such trial, together with fifty cents per day to the said defendant while attending on the said court in defense of the proceedings of the said justice. Where the pro- ceedings of any justice shall be removed at the instance of the defendant, and be set aside by the court, and it shall appear that he attended the trial 600 PEACTICE IN PENNSYLVANIA. before the justice, or had legal notice to attend the same, and on a final trial being had as aforesaid, the plaintiff shall obtain judgment for a sum equal to or greater than the original judgment which was set aside by the court, he shall pay all costs accrued on the second trial before the justice, as well as those which accrued at the court before whom the proceedings hare been set aside, including any fees which the plaintiff may have given to any attorney, not exceeding four dollars, to defend the proceedings of the justice, together with fifty cents per day while attending at court on the same, which costs shall be recovered before any justice of the peace in the same manner as sums of similar amount are recoverable ; and in such cases the legal stay of execution shall be counted from the date of the original judgment rendered by the justice. And the court shall, at the term to which the proceedings of the justices are retumable,in pursuance of writs of certiorari determine and decide thereon. (Act of March 20, 1810, section 25 ; 5 Sm., 172.) The right to costs on a proceeding by certiorari depends on the relative amount recovered or abated by the subsequent judgment. Atkinson v. Orosslamd, 4l Watts, 451 (1835). The judgment of the Common Pleas on certiorari is final as to costs. Silvergood v. Storrick, 1 Watts, 532 (1833). Where the Common Pleas reverses the judgment of a justice of the peace on certiorari, no judgment for costs can be entered. Al- exander v. Figley, 2 Dist. Rep., 167 (1892) ; Metz v. Ebersole, 3 Dist. Rep., 672 (1894). § 1431. Praecipe and affidavit for certiorari to a magistrate or justice. A. B. ) V. y Common Pleas, Term, 1890. No. . CD. Sib: Issue writ of certiorari in the above case to , Esq., Magistrate of Court No. , or (justice of the peace, as the case may be). Returnable sec. kg. To , Prothonotary of Common Pleas. Attorney for Defendant. (Date.) City and County of Philadelphia, ss. , the defendant in the above case and applicant for the above writ of certiorari, having been duly sworn according to law, deposes and says that said writ is not for the purpose of delay, but that in the defendant's opinion the cause of action was not cognizable before a magistrate (or that the pro- ceedings proposed to be removed are, to the best of his knowledge, unjust and illegal, and if not removed, will oblige the said applicant to pay more money than is justly due). Sworn to and subscribed before 1 (Signature.) me, this day of , 1890. J § 1432. FOBM OF CERTIOKABI TO A MAGISTRATE OR JUSTICE. City and County of Philadelphia, ss. The Commonwealth of Pennsylvania to , Magistrate of Court No. (or justice of the peace), greeting : JUSTICES OP THE PEACE. 601 We being willing, for certain causes, to be certified of a certain plea, etc., between plaintiff , and defendant , before you depending, do command you, tbat the plea aforesaid, witb all things touching the same, before our judges of our Court of Common Pleas, Ko. ', at Philadelphia, there to be held the Monday of next, so fiiU and entire as before you they now remain, you certify and send, together with this writ : that we may further cause to be done thereupon that which of right and according to the laws and Constitution of this Commonwealth ought. Witness the Honorable , President of our said court, at Philadel- phia, the day of , in the year of our Lord one thousand eight hundred and eighty- Prothonotary. § 1433. Return to certiorari. To the Honorable the Judges within named : The plea within mentioned* with all things touching the same so full and entire as before me they remain, I hereby respectfully certify and send, as within I am commanded, together with this writ. Magistrate of Court No. (or Justice). §1434. Exceptions. The following rules are in force in Phila- delphia : In all cases of certiorari, the particular exceptions intended to be insisted on must be filed two days before the first argument-day, and in default thereof, the judgment below shall be affirmed of course ; the assignment of general errors is insufficient and void. (Rule XIV., section 41.) It shall be the duty of the party suing out a writ of certiorari to cause the record to be returned two days before the first argument-day, in default of which the certiorari shall be dismissed. Rules on magistrates to return writs of certiorari, directed to them in due season, will be granted, if applied for, on the regular motion-days. (Ibid., section 42.) § 1435. Directions as to steps to be pursued after obtaining certio- rari. Take the writ to the magistrate, serve it upon hina, and ask when you can call for the record. Pay his fees. If he says he will send it to the prothonotary, watch the docket, and if the record be not I'etumed in due season, prepare at once an affidavit of the service of the writ and of the default in not returning it. On this secure and serve notice of a rule on the magistrate to return the writ. When record returned, file exceptions and prepare paper- book of sur exceptions. Let it contain : (1) Copy of transcript. (2) Your exceptions. (3) Your points and authorities. § 1436. If material part of record not returned. File affidavit of service of writ on magistrate, add that a certain material part of the record, viz. , , has not been returned, move for a rule on the magistrate to show cause why he should not return as part of the record . Serve notice of this. 602 PEACTICE ISr PENNSYLVANIA. § 1437. Service of rules. Notice of these rules should be served personally and a copy kept, so that if necessary obedience may be enforced by filing affidavit of personal service. § 1438. Execution. Stay of exeeution. Where the defendant is a freeholder or enters bail, and the judgment ren- dered shall be above five dollars and thirty-three cents and not exceeding twenty dollars, there shall be a stay of execution for three months ; and where the judgment shall be above twenty dollars and not exceeding sixty dollars, there shall be a stay of six months ; and where the judgment shall be above sixty dollars and not exceeding one hundred, there shall be a stay of execution for nine months. (Act March 20, 1810, section 9 ; 5 Sm., 166.) This was amended by the Act June 24, 1885 (P. L., 159), which provided that if the defendant be a freeholder or enters bail ab- solute with one or more sufficient sureties, and the judgment be above sixty dollars and not exceeding $300, there shall be a stay of execution for nine months. These Acts do not apply to judgments obtained for wages for manual labor. § 1439. Stay of execution — Bail absolute. Bail in all cases where bail is now required for stay of execution shall be bail absolute, with one or more sufficient sureties in double the amount of the debt or damages, interest, and costs recovered, conditioned for the pay- ment thereof in event of the defendant's failure to pay the same at the ex- piration of the stay of execution. (Act March 20, 1845, section 1 ; P. L., 188.) § 1440. Bail paying — Judgment to be marked to Ms use. Where a judgment * * * shall be paid by a person who has entered bail for stay of execution or otherwise, such judgment shall remain for the use of such person, and may be prosecuted in the name of plaintiff for the recovery of the amount. (Act of April 23, 1829, section 1 ; 10 Sm., 466.) § 1441. Proceeding against special bail vnthout stay of execution. In cases of commitment, where special bail is entered, where no appeal shall be made from the justice and the special bail do not surrender the body of the defendant * * * on or before the return-day of the scire facias issued by the justice against such bail, and cannot show sufficient cause why he should be exonerated, the justice shall enter judgment and issue execution without stay against him for the same. (Act March 20, 1810, section 5 ; 5 Sm., 162.) § 1442. FOEM or SUGGESTION AND PLEA OF FREEHOLD. A. B. ] V. y Before E. F., Magistrate of Court No. CD.) (Date.) Judgment against defendant for (here briefly state suit), for $ . And now (date), C. D., the defendant, gives the magistrate notice that he is JUSTICES OF THE PEACE. 603 possessed of an estate of fee-simple within said county, situate (here briefly describe as by the Street and No. of the house), worth more than the amount of above judgment, viz., $ , clear of all incumbrances, where- fore he prays that execution of said judgment may stay for months from (date). (Signature of C. D.) City and County of Philadelphia, ss. C. D., being duly sworn according to law, deposes and says that the state- ments contained in the above suggestion and plea are true. Sworn to and subscribed before me, ) this (date). Magistrate. J In Stiles v. Powers, 1 Ash., 407 (1830), it v?as decided that the best practice was to claim the right of freehold before execution, but that this privilege nijght be claimed after execution issued, on payment of costs. § 1443. Freehold must be imincumbered. The defendant against whom two judgments have been recovered the same day cannot suggest freehold for stay of execution, because the lien of either judgment is an incumbrance as against the other, and defendant must show a freehold clear of all incumbrances. Bank v. Craw- ford, 2 W. N., 371 (1875). A similar ruling was made in JenJes v. Grace, 1 W. N., (1874) ; Clippinger v. Creps, 2 Watts, 45 (1833). § 1444. Form of Recognizance for Stay of Execution used by the magistrates in Philadelphia : Defendant asks for stay of execution. I hold myself as absolute security in the sum of $ , for the payment of the above judgment, with interest and costs of suit. A. B., (Address.) (Date.) § 1445. Insufficient recognizance. In Caldwell v. Brindle, 11 Pa. St., 293 (1849), judgment was obtained before a justice for certain debt and costs. In order to obtain a stay of execution the •defendant entered into a recognizance : "July 10, 1843, W. B. enters special bail, etc., for stay of execution, etc., according to law." No penalty or condition was attached to the terms of the recog- nizance nor was the sum set forth ; it was held insufficient to hold the surety. § 1446. Defendami entitled to enter stay of execution until execution igsues. "Where an execution has not issued, even though twenty days have expired, a defendant is entitled to enter special bail to obtain stay of execution. Mann v. Alberti, 2 Binn., 195 (1809). 604 PEACTICE IN PEN^rSYLVANIA. If security for stay of execution be entered subsequent to se- curity on appeal, the former operates as a discharge of the latter. Boup V. Waldhouer, 12 S. & E., 24 (1824). § 1447. Where stay of execution is waived — Rehearing. In all bonds, bills, or notes, wherein, by a special provision in writing for that purpose, is waived the stay of execution given by this Act, any justice may on application to him made, after such bond, bill, or note becomes due, issue a summons * * * and proceed to hear and determine the same as in other cases ; and on judgment being rendered in favor of the plaintiff, he shall or may issue execution thereon, without stay ; neverthe- less, that in case of judgment by default, the defendant may, at any time within twenty days thereafter, be entitled to a rehearing or appeal, * * * although execution may have issued. (Act of March 20, 1810, section 13 ; P. L., 168.) § 1448. Justice shall proceed if appeal not fled. Where an appeal is taken * * * and appellant neglects or refuses to file the same in prothonotary's office of the proper county according to law, it shall and may be lawful for the justice * * * to issue execution * * * at the instance and request of the appellee, or proceed by scire facias against the bail. (Act April 1, 1823, section 5 ; 8 Sm., 176.) § 1449. Defendant may pay before execuiion — Justice refusing to pay money received is guilty of misdemeanor. Every justice of the peace rendering judgment as aforesaid shall receive the amount of the judgment, if offered by the defendant or his agent, before execution, and pay the same over to the plaintiff or his agent when re- quired. * * * And if the said justice shall neglect or refuse to pay over, on demand, the money so received to the plaintiff or his agent, such neglect or refusal shall be a misdemeanor in office. (Act March 20, 1810, section 11 ; 5 Sm., 167.) § 1450. Execution — Constable's duty — Execution against execu- tors. If the amount of the judgment is not paid to the justice as aforesaid, he shall grant execution, if required by the plaintiff or his agent, thereupon, if for a sum not exceeding five dollars and thirty-three cents, forthwith, and for any further sum, after the time limited for the stay of the same. Which execution shall be directed to the constable of the ward, district, or town-' ship where the defendant resides, or the next constable most convenient to the defendant, commanding him to levy the debt or demand and costs on the defendant's goods and chattels ; and by virtue thereof shall, within the space of twenty days next following , expose the same to sale, by public vendue, having given due notice of the same by at least three advertise- ments, put up at the most public places in his township, ward, or district, returning the surplus, if any, to the defendant * * * Or, in case no goods or chattels can l3e found and the defendant be possessed of lands or tenements, the plaintiff may * * * proceed by a transcript to the pro- thonotary aforesaid. Provided, that executions against executors or ad- ministrators shall only be for the assets of the deceased. {Id., section 12.) JUSTICES OF THE PEACE. 605 The lien of a constable's levy continues only twenty days. Page V. Gardner, 1 Dist. Eep., 539 (1891). § 1451. rOKM OF EXECUTION IN DEBT. City of Philadelphia, «s. The Commonwealth of .Pennsylvania to any constable of said city most convenient to the defendant, greeting : Whereas, A. B., of said city, on the day of , A. D. 1891, obtained judgment before , magistrate of Court No. , in and for the said city, against C. D., of said city, for the sum of dollars and cents, together with dollars and cents, costs, which judgment remains unsatisfied : Therefore, we command you that you levy the said debt and the interest thereon, with the said costs, on the goods- and chattels of the sajd defendant, and indorse hereon, or on a schedule to be hereunto annexed, a list of the same, and within twenty days from the date hereof expose the same to sale, by public vendue, you having given due notice thereof by three or more advertisements^ put up at the most public places in said city, and returning the overplus, if any, of the said sale to the said defendant ; and of your proceeding herein, together with this execution, make return to our said court within twenty days from the date hereof, to wit, on or before the day of , 1891. Witness my hand and official seal of said court, the day of , Anno Domini 1891. (Office.) Magistrate of Court No. . § 1452. Execution on judgment where defenda/ni not personally served. No execution issued on a judgment (where defendant is not personally served in a suit commenced by attachment) shall be levied upon other property than such as was seised under the at- tachment ; nor shall the defendant in such case be barred of any set-off which he may have against the plaintiff. Act July 12, 1842, section 32 (P. L., 345). § 1453. Execution on a certified transcript of justice of another county. A justice of one county may issue execution upon a cer- tified transcript of judgment of a justice of another county. A mis-recital in the body of the execution does not render it void. Keeler v. Neal, 2 Watts, 424 (1834). The following statute is the authority for the above decision : If the party defendant shall not reside in the county where a judgment is had against him before a justice of the peace, the person in possession of the docket in which such judgment may be entered, on application to him made by the plaintiff or his agent, shall make out, certify, and deliver to such applicant a transcript thereof, * * * for the recovery of the amount thereof, with costs, before any justice of the peace in any county where the defendant may reside or can be found, as in cases originally brought before him, and the stay of execution shall be counted from the original entry. (Act of March 20, 1810, section 17 ; 6 Sm., 169.) 606 PEACTICE IN PENNSYLVANIA. A justice cannot issue execution on the judgment rendered by another justice of the same county, who is then in commission. HalloweU v. WiUiams, 4 Pa. St., 339 (1846). § 1454. Capias ad satisfaeiendum, when allowed. No execution issued on any judgment rendered by an alderman or jus- tice of the peace, upon any demand arising upon contract, express or implied, shall contain a clause authorizing an arrest or imprisonment of the person against whom the same shall issue, unless it shall be proved by the affidavit of the person in whose favor such execution shall issue, or that of some other person, to ^the satisfaction of the alderman or justice of the peace, either that such judgment was for the recovery of money collected by any public officer, or for official misconduct. (Act of July 12, 1842, section 23 ; P. L., 345.) § 1455. FORM OF EXECUTION AND COMMITMENT. City of Philadelphia, ss. The Commonwealth of Pennsylvania to any constable of said city most convenient to the defendant, greeting : Whereas, A. B., of said city , on the day of , A. D. 1891, obtained judgment before , Magistrate of Court No. , for the said city, against C. D., of said city, for the sum of dollars and cents, together with dollars and cents, costs, which judgment remains unsatisfied : Therefore, we command you that you levy the said debt and the interest thereon, with the said costs, on the goods and chattels of the said C. D., and indorse hereon, or on a schedule to be hereto annexed, a list of the same, and within twenty days from the date hereof expose the same to sale, by pubKc vendue, you having given due notice thereof by three or more advertisements, put up at the most public places in said city, and returning the overplus, if any, of the said sale to the'said^C. D. And for want of sufficient distress, that you take the body of the said debtor into custody, and him convey to the debtor's apartment of the said city, there to be kept by the sheriff or keeper thereof until the debt, interest, and costs aforesaid shall be fully paid. And of your pro- ceedings ^herein, together with this execution, make return to our said magistrate,^within twenty days from the date hereof, to wit, on or before the day of , 1891. Witness ,onr said magistrate at Court No. , who has hereunto set his hand and the official seal of the said court, the day of , A. D. 1891. (Office.) Magistrate of Court No. . § 1456. Effect of entering an ajppeal. The lien of an execution is destroyed by an appeal to the Common Pleas, and where defen- dant's goods are sold under a subsequent execution, the first execu- tion creditor cannot come upon the fund for payment. Cop^s Ap- peal, 39 Pa. St., 284 (1861). Where an appeal has not been per- fected, a magistrate may issue execution at his own risk. Setterly V. Yearsley, 1 Phila., 617 (1854). A similar ruling was made in JUSTICES OF THE PEACE. 607 Hevron's Appeal, 29 Pa. St., 240 (1857). Where, after entering bail, an appeal is neglected, a certiorari will not avail to set aside an execution subsequently issued. Joties v. Canal Co., 10 Phila., 570 (1874). § 1457. Right to recall execution. A justice has power to recall an execution issued by him, and such order exonerates the con- stable. Shuman v. Pfoutz, 1 P. & W., 61 (1829). A similar ruling was made in Ludwig v. Britton, 3 W. & S., 447 (1842). In aDonndl v. Mullin, 27 Pa. St., 202 (1856), Black, J,, said : " If a justice of the peace issues execution on a judgment within the time allowed for an appeal, and the appeal is taken afterward, it is the duty of the justice to revoke the execution. " When the justice notifies the constable that an appeal has been entered and the execution superseded, the constable is bound to re- turn the execution and proceed no further upon it. " If a constable persists in selling the defendant's property under an execution thus superseded, he is a trespasser as much as if he had no process at all in his hands." In Patterson v. Pieronnet, 7 Watts, 337 (1838), an execution was issued immediately upon the judgment of the justice, certain personal property was sold, and the proceeds paid over. It was held that it was then too late to enter bail for stay of execution, although the twenty days had not expired. If a constable levy upon property under a regular judgment, he must proceed with the execution unless advised by the justice that it is stayed or superseded. Kramer v. Wellendorf, 20 W. N., 331 (1887). § 1458. Sale must be by levy and advertisement amd by public vendue. A constable's sale without levy or advertisement is illegal. Ward V. Tayl(yr, 1 Pa. St., 238 (1845). Personal property sold by a constable in an execution must be by public vendue, and a sale to the plaintiff, no person but the constable being present, is invalid. Bichetts v. Unangst, 15 Pa. St., 90 (1850). § 1459. FOKM OF HANDBILL. Constables Sale. To be sold at public vendue, otf , the day of , at o'clock, in the noon, at the house of C. D., (address) Street. To wit : Bedsteads, beds and bedding, bureaus, sofas, lounges, looking- glasses, chairs, tables, queensware, carpets, oil cloths, etc. Together with all and singular the goods and chattels on the premises (place). Seized (under a judgment in an action of debt) as the property of C. D., and to be sold by (Office.) Constable, Court No. . Ward. 608 PEACTICE IN PENNSYLVANIA. § 1460. Constable's return. The return to an execution must be made by the constable on or before return-day. Bachman v. Fen- sta-macher, 112 Pa. St., 331 (1886). The return of the constable indorsed on the execution should be so worded as to be in form to enter on the docket of the justice. Every return should be signed by him as constable, and dated. § 1461. Exemption. The Act of April 9, 1849, section 1 (P. L., 533), provides that in any execution upon a judgment obtained upon contract, and distress for rent. Property to the value of $300, exclusive of all wearing apparel, * * * and all Bibles and sciool-books * * * shall be exempt from levy and sale on execution, or by distress for rent. The Act of April 17, 1869, section 1 (P. L., 69), exempts sew- ing-machines belonging to seamstresses. The Act of May 13, 1876, section 1 (P. L., 171), exempts pianos, melodeons, and organs, leased or hired. See also § 3160 et seq. The constable shall, if requested by the debtor, summon three disinterested and competent persons, who shall be sworn or af- firmed to appraise the property which the debtor shall elect to re- tain. The constable may administer the oath or affirmation to the appraisers. Where the defendant before the justice claims the benefit of the exemption law, and it is disallowed, the proper practice is to take an appeal on certiorari. Borland v. Spitz, 153 Pa. St., 590 (1893). § 1462. FOKM OF NOTICE CLAIMING BENEFIT OF EXEMPTION LAWS. A. B. ] V. y Before Magistrate E. F. Court No. . CD. ] Please take notice that the goods levied upon by you in the above case are exempt from levy and sale, and that I claim the benefit of the ex- emption law. You are hereby requested to appraise the same and to pro- ceed according to law. Eespectfully, (Name of Defendant or his Attorney.) (Date.) To G. H., Esq., Constable. § 1463. Waiving exemption laws. . The defendant may waive the benefit of the exemption laws in execution on a judgment for debt. Case V. Bunmore, 23 Pa. St., 93 (1854) ; Bowman v. Smiley, 31 Pa. St., 225 (1858) ; Smiley y. Bowman, 3 Grant, 132 (1861). § 1464. Attachment executions. Justices may issue attachment executions. Act of April 15, 1845, section 1 (P. L., 459). Any alderman or justice of the peace before whom any judgment remains unsatisfied and an execution has been returned " no goods," may, on the JUSTICES OF THE PEACE. 609 application of the plaintiff and his compliance with the requisitions of the Act to which this is a supplement, issue an attachment in the nature of an execution as therein provided, to levy upon stock, debts, and deposits of money belonging or due to the defendant, in satisfaction of said judgment. {Id., section 2.) The said writ of attachment may be issued, returnable in not less than four nor more than eight days, and shall be served in the manner pointed out for the service of a summons, upon the debtor, depository, bailee, pawnee, or other persons having property of the defendant in his hands, made liable to attachment. * * * And on or before the return-day oif said writ the plaintiff may file with the magistrate interrogatories in writing, addressed to the person summoned as garnishee, in regard to the property and effects of the defendant alleged to be in his hands at the time of the service of said writ, a copy of the same, with a rule to answer, shall be served upon said garnishee personally, to answer under oath or affirmation all such interrogatories as the magistrate shall deem proper and pertinent within eight days after the same shall be served. (Id., section 3.) § 1465. FOE.M OF ATTACHMENT SUE JUDGMENT. City of Philadelphia, as. The Commonwealth of Pennsylvania to any constable of said city most convenient to the defendant, greeting : We command you that you attach C. D., by all and singular his goods and chattels, rights and credits, in whose hands or possession soever the same may be, so that he be and appear before the subscriber. Magistrate of Court No. , in and for the said city, on the day of , A. D. 1890, at o'clock in the forenoon, to answer A. B., and also that you make known to E. F. that he be and appear before our said magis- trate, on and at the said day and hour to show if anything they, the said defendant and the said garnishee, or either of them, have or has or know, to say why a certain judgment obtained before our said magistrate, on the day of , A. D. 1890, against the said C. D., by the said A. B., in the sum of dollars, besides costs of suit, which judgment remains unsatisfied', shall not be levied of the effects of the said defendant in the hands of the said E. F., and have you then there this writ. Witness our said magistrate, who has hereunto set his hand and affixed the official seal of said court, the day of , A. D. 1890. (Office.) [seal] Magistrate of Court No. . § 1466. Jurisdiction in $300. The statute extending the juris- diction of justices to $300 embraces proceedings by attachment exe- cution. Kuhn V. Bcmk, 20 W. K, 230 (1887). § 1467. Attachment execution may issue on a certified transcript. An attachment execution may issue on a judgment entered on a cer- tified transcript from another county. Bartmam, v. JEnsminger, 14 W. N., 530 (1884). § 1468. Attachment execution cannot issue against wages, etc., nor legacies. An attachment execution cannot issue against the wages of labor and salaries, even though the defendant agrees to VOL. I. — 39 610 PRACTICE IN PENNSYLVANIA. waive such privilege conferred by the Act of April 15, 1845. Firmstone v. Mack, 49 Pa. St., 392 (1865). An attachment execution cannot be issued by a justice against a legacy or other interest in the estate of a decedent. Ilessinger v. Mantz, 22 W. N., 107 (1888). § 1469. General directions as to proceeding by attachment. In Masters v. Turner, 10 Phila., 482 (1872), Harding, P. J., said : " Jurisdiction by attachment in the nature of an execution was given to * * * justices * * * by the Act of April 15, 1846. How is this jurisdiction to be exercised ? After judgment has been obtained against a defendant, and a return of ' no goods ' had upon an execution issued thereon, debts due to him, deposits of money made by him, stocks, or other personal property belong- ing to him and not exempt by law from levy and sale, may be at- tached. His debtor, depositary, bailee, pawnee, or other person having such effects of the defendant in his hands may be summoned as a garnishee ; and after interrogatories have been filed, and a rule had upon him to answer, and a copy, both of the interrogato- ries and the rule, has been served as the law directs, if the gar- nishee shall be in default, or if it shall appear by his answei-s, or be shown by the proofs on hearing, that he owes the defendant a debt, or has in his hands property belonging to the defendant equal to or less in amount or value than the plaintiff's judgment, lien judgment should be specially entered that the plaintiff have execu- tion for such sum, naming it, in the hands of the garnishee ; and that, if the garnishee refuse or neglect, on demand made by the constable, to pay the same, then it should be levied of the gar- nishee's goods and chattels, as in case of a judgment against him for his own proper debt ; and, further, that he be thereupon dis- charged as against the defendant of the sum so attached and levied. " If, however, the debt due by the garnishee to the defendant, or the value of the property thus attached be greater than the plain- tiff's judgment, in that case the special judgment of the justice should be that the plaintiff have execution of so much thereof, naming the amount, as will satisfy the plaintiff's judgment against the defendant, with interest and costs. The further entry should follow, as in the former instance, relating to a refusal to pay on the part of the garnishee, and also that relating to a discharge, as against the defendant, for the sum so attached and levied. " With respect to the cost of the attachment proceeding, the plaintiff is not entitled to have execution therefor against the gar- nishee, except when there has been a recovery against the latter for a sum greater than that admitted by his answers to be due from JUSTICES OP THE PEACE, 611 him to the defendant, or when he has been in default, or contests his indebtedness to the defendant. In either of these events, the costs of the proceeding may be imposed on him, no matter whether the debt due from him to the defendant, or the value of the prop- erty belonging to the defendant and in the hands of the garnishee, be greater or less than the amount of the plaintiff's judgment against the defendant. Where the garnishee by his answers admits his indebtedness to the defendant, or that he has property in his hands belonging to the latter, and surrenders it, no liability for the costs of the attachment proceeding ensues as against him. * * * Again, the execution against the garnishee should formally recite the judgment and contain a command to the constable in substan- tial conformity therewith* The further command should also be inserted that in event of a levy and sale of the goods and chattels of the garnishee agreeably to law, if the proceeds thereof should exceed the amount for which the execution issued, the overplus, less the costs of sale, should be returned to the garnishee. A plaintiff has no right to demand or receive from a constable any- thing more than the sum to be collected under the command of the writ, even though his judgment against the original defendant be greater than that against the garnishee." If either in attachment execution before a justice nor on appeal is the garnishee entitled to have a fee taxed as costs, Deerwester V. Eook, 1 Dist. Eep., 406 (1892). § 1470, FOKM OF INTEKKOGATORIES TO GAENISHEE AND KULE TO ANSWER. A. B., plaintiff, "I V. i Before G. H., Magistrate of Court No. . At- C. D., defendant, | tachment on judgment, and E. F., garnishee. J And now, this day of , A. D. 1890, on motion of L.,M., attor- ney pro plaintiff", rule issued on garnishee, returnable same date as the attachment, to answer the interrogatories filed in the above case. If not answered in eight days, judgment will be rendered, according to the Act of Assembly in such case made and provided. Witness our said magistrate and the official seal of said court, this day of , A. D. 1890. Magistrate of Court No. , A. B. 1 Before G. H., Magistrate of Court No. . At- 1). i tachment on jud^ent. Interrogatories to be C. D., defendant, j answered by garnishee ia writing. and E. F., garnishee. J [Filed] First. Do you know the defendant, of whom you are the garnishee in the above writ of attachment ? Second. Have you had commercial or other transactions with the said defendant at the time of the service of the above writ of attachment upon 612 PEACTICE IN PENNSYLVANIA. you ? If yea, what was tlie nature of the transactions and state of your accounts with the said defendant at the time of the service of the writ of attachment upon you ? Third. Was there, or was there not, a balance in your hands in favor of said defendant at the time of the service of the said writ of attachment upon you ? If yea, state the amount particularly. Fourth. Had you in your possession any goods, merchandise, moneys, rights, credits, or effects of any nature whatsoever, belonging to the said defendant, at the time of the service of the said writ of attachment upon you? If yea, state the amount of said money and the mature of the rights and credits, and the nature and quantity of said goods, merchandise, and effects. Mfth. (Here state any additional interrogatories.) (Here state on whom, when, and how served.) Sworn to and subscribed before me, this day of , A. D. 1890. Magistrate of Court No. . Office, Street If the garnishee in the attachment execution in his answer denies indebtedness to the defendant as principal, but admits dealings with him as agent, judgment will not be entered. The plaintiff may re- quire, notwithstanding the answers of the garnishee, the issu» to be tried before the justice. Houpt v. Lewis, 2 Kulp (Luzerne Co.), 337 (1882). § 1471. Return. In an attachment execution, non est inventus is not a proper return as to the defendant. Hains v. Viereok, 2 Phila., 40 (1856). It is the defendant's money or property which is to be taken by the attachment, and of which he ought to have notice. § 1472. Judgment against garnishee. If the garnishee neglect or refuse to answer within eight days (unless for cause shown his time is extended), he shall be adjudged to have in his pos- session property of the defendant equal in value to plaintiff's demand, and judgment may be rendered by default against said garnishee for the amount of the same with costs. (Act of April 15, 1845, section 4 ; P. L., 459.) If the garnishee admits that there is in his possession or control property of the defendant liable to attachment, then said magistrate may enter judg- ment specially to be levied out of said effects, or so much as may be neces- sary to pay the debts and costs. Provided, that the wages of laborers or the salary of any person in public or private employment shall not be liable to attachment in the hands •of the employer. (7 rf., section 5.) § 1473. Appeal from judgments upon attachment execution. The plaintiff, the defendant, or the garnishee in the attachment may appeal from the judgment of the alderman or justice of the peace to the next term of the Court of Common Pleas, on complying with the provisions of the laws regulating appeals in other cases. (Ibid., section 6.) JUSTICES OF THE PEACE. 613 "Where the defendant, subsequent to judgment, assigns for the benefit of creditors, and an attachment execution issues, the assignee may take an appeal. Bletz \. Haldeman, 26 Pa. St., 403 (1856). In proceedings by attachment execution before a justice of the peace, under the Act of April 15, 1845 (P. L., 459), a writ of cer- tiorari to the Common Pleas and subsequent appeal to the Supreme Court may be taken. Strouse v. Lawrence, 160 Pa. St., 421 ; 34 W. N., 230 (1894). § 1474. Exemption laws. In attachment execution issued by a justice, a debtor may claim the benefit of the exemption law, and is in time if he makes such claim on the return-day of the attachment. Kuhn V. Bank, 20 W. N., 230 (1887). § 1475. Filing of transcripts — Liens — Execution thereon — Free- holders. The prothonotaries of tlie respective counties shall enter on their dockets transcripts of judgments obtained before justices of the peace of their pToper counties without the agency of an attorney * * * which transcripts the justices shall deliver to any person who may apply for the same, and which judgments from the time of such entries on the prothonotary's docket shall bind the real estate of the defendants ; but no fieri facias shall be issued by any prothonotary until a certificate shall be first produced to him from the justice before whom the original judgment was entered, stating therein that an execution had issued to the proper constable as directed by this Act, and a return thereon that no goods could be found sufficient to satisfy said demand. * * * And no judgment * * * shall deprive any person of his or her right as a freeholder longer or for any greater time than such judgment shall remain unsatisfied. (Act March 20, 1810, section 10 ; 6 Sm., 166.) The Act of June 24, 1885 (P. L., 160), provides that where the transcript of a judgment obtained before a justice has been filed in the prothonotary' ofBce, such judgment shall thereafter be and have all the force and efiect of a judgment origi- nally obtained in the Court of Common Pleas of said county : Provided, that before any execution shall be issued in the Court of Common Pleas on such transcript, the city recorder, magistrate, justice of the peace, or alderman before whom such judgment shall have been obtained, shall first certify that an execution has been issued on said judgment, and the con- stable to whom the same was directed has made return that no goods could be found sufficient to satisfy said demand. The entry of a justice's transcript can only be made in the county where the original judgment was obtained. Boieman v. Silvers, 1 Dist. Eep., 762 (1892). A judgment entered in the Common Pleas on a transcript of a justice of the peace filed as a lien cannot be disturbed on a rule to open the Common Pleas has no jurisdiction. Lacock v. White, 614 PRACTICE IN PENNSYLVANIA. 19 Pa. St., 495 (1852) ; Litister v. Littster, 151 Pa. St., 474 (1892). But a judgment entered in the Common Pleas on a transcript from a justice, which on its face is invalid, may be stricken off on mo- tion. , Bioe V. Foy, 2 Dist. Rep., 333 (1893) ; see Cookley v. Rehn, 2 Dist. Rep., 331 (1892). § 1476. Where th^ judgment before the justice amounts to $100 and upward, execution by the justice is not a necessary preliminary to issuing fi. fa. from the Common Pleas. The Act of May 9, 1889 (P. L., 176), provides : That where a judgment has been obtained before a justice of the peace to the amount of one hundred dollars and upward, it shall and may be lawful for the plaintiff in such judgment, upon filing a transcript thereof in the Court of Common Pleas of the county in which the judgment was obtained, to have execution thereof in said court without first having an execution issued by the justice and a return of nulla bona by a constable. This shall not be construed to affect the right of the defendant in such judg- ment to supersede the same, by the entry of bail, an appeal, or certiorari. § 1477. Where the judgment against a married woman is void, the transcript may be stricken off. Where judgment has been taken against a man and his wife before a justice by default of appear- ance, and a transcript filed for the purpose of lien, the judgment, being void as to the wife, may be stricken off. Brown v. MeKinr- ney, 25 W. K, 76 (1889). § 1478. Appeal within twenty days supersedes the lien obtained by filing transcript. Where an appeal is taken within the twenty days, a transcript filed as a lien against real estate is of no force. Myers v. Bott, 10 W. N., 259 (1881). The transcript will be stricken off, on motion, where an appeal is taken. Bubinsky v. Patrick, 2 Dist. Rep., 695 (1893). § 1479. Where judgment obtained and one of two plaintiffs dies, the survivor may issue execution vnthout sci. fa. If one plaintiff dies after judgment in a suit before a justice, the survivor may have execution without scire facias; suggesting the death of his co-plaintiff on the record or reciting it in the writ is sufficient. Berryhill v. Wells, 5 Binn., 56 (1812). § 1480. After five years, judgment must be revived. No execution shall be issued on a judgment rendered before a justice of the peace after five years from the rendition of such judgment, unless the same shall have been revived by scire facias or amicable confession. (Act May 5, 1854, section 1 ; P. L., 581.) An execution by a justice upon a judgment more than five years old, without a previous warning by scire facias, is irregular. Ban- nan v.Baihbone, 3 Grant, 259 (1858). It will be noted that the ruling in Heehner v. Chave, 5 Pa. St., JUSTICES OF THE PEACE. 615 115 (1847), to the contrary, was previous to the above statute of 1854. (See sections 251 and 252 of this book as to revival of judg- ments.) The Act of May 5, 1854, which provides that no execution shall issue on a judgment of a justice after five years unless revived by sci.Ja., is not repealed by the Act of June 24, 1885, relating to the filing of a transcript of the judgment in the Common Pleas and to the issuing of execution thereon. Construing the two Acts to- gether, execution must issue within five years, and during that time a transcript can be filed in the Common Pleas, and if there be a return of "nulla borm," either before or after filing the transcript, the latter has all the force of a judgment obtained in the Common Pleas. But if five years have elapsed, a sai. fa. to revive must issue from the justice of the peace, and after the judgment on the sd.fa. there must be a return of "nulla bona" within the next five years, before execution can issue from the Common Pleas. WhUe the Act of May 9, 1889 (P. L., 176), dispenses with exe- cution before a justice on judgments of $100 or upward, it does not do away with a 9oi. fa. to revive after five years. Smith v. Wehrly, 157 Pa. St., 407 (1893); Printing Co. v. Wehrlt,, Id., 415 (1893). §1481. Appeal. The right of appeal favored. The cases show that the right of appeal has at all times been favored by the courts of Pennsylvania, and that general words in a statute are sufficient to secure it. Nothing short of a plain intention to deprive a suitor of the right will avail in those cases in which the contrary inter- pretation is sought to be established. The decisions relating to appeals are so numerous that the effort has been made to present settled questions of practice only, and to collate such mooted points as properly belong to this treatise with- out discussing them at length. § 1482. When allowed — Judgment of justice for five dollars and thirty-three cents, or of referee for twenty dollars, conclusive. If the parties appear before the justice, either in person or by agent, the justice shall proceed to hear their proofs and allegations, and if the demand shall not exceed five dollars and thirty-three cents, shall give judgment, as to right and justice may belong, which judgment shall be final ; but if the demand or sum in controversy shall be more than that sum, and shall not exceed one hundred dollars, and either party shall refuse to submit the determination of the cause to the justice, he shall in that case request them to choose arbitrators, * * * and on having heard their proofs and alle- gations, they, or a majority of them, shall make out an award under their hands, and transmit the same to such justice, who shall thereupon enter judgment for the sum awarded, * * * which judgment so obtained, 616 PEACTICE IN PENNSYLVANIA. when not exceeding twenty dollars, shall be final and conclusive to both plaintiff and defendant without further appeal. (Act of March 20, 1810, section 3 ; 5 Sm., 162.) §1483. Incase of refusal to refer, judgment of justice can be appealed. If either party or their agents shall refuse to refer, the justice may pro- ceed to hear and examine their proofs and allegations and thereupon give judgment publicly as to him of right may appear to belong ; either party having the right to appeal within twenty days after judgment being given, either by the justice alone, or on award of referees when such award shall exceed the sum of twenty dollars. {Id., section 4.) § 1484. Defendant can appeal where appeal allowed plaintiff. The right of appeal from judgment of aldermen and justices of the peace, and from their judgments on awards of referees, is hereby extended to defendants in all cases wherein, by existing laws, the right of appeal is en- joyed by the plaintiffs. (Act of March 20, 1845, section 3 ; P. L., 189.) This Act was construed according to its terms in Priestly v. Ross, 11 Pa. St., 410 (1849). § 1485. Justice to give judgment within teli days from final hear- ing. It shall be the duty of justices of the peace and aldermen of this Com- monwealth to render judgment in any cause or causes pending before them within a period of ten days after all the evidence in such causes shall have been heard. (Act of March 22, 1877, section 1 ; P. L., 13.) If defendant has no notice that judgment has been entered, the time to appeal begins to run from the expiration of the ten days. Haines v. Townsend, 1 Chest. Co. Rep., 146 ; Inder v. Houser, 2 Del. Co. Rep., 132. § 1486. Appeal in trespass and trover if judgment exceed five dol- lars and thirty-three cents — Where award exceeds twenty dollars. In proceedings in trespass and trover before a justice either party shall have the right of appealing where the judgment shall exceed five dollars and thirty-three cents, and where judgment given on the award of referees exceeds twenty dollars. (Act March 22, 1814, section 3 ; 6 Sm., 182.) This Act received a careful construction in the case of Cook v. Bunkle, 25 Pa. St., 340 (1855), Knox, J. : "John G. Dunkle brought an action of trespass against John Cook and Jeremiah McDonald before a justice of the peace. The plaintiff's claim, as set forth on the docket of the justice, was for twenty-five dollars damages for the destruction of his sheep by the defendants' dog ; referees were chosen, who awarded in favor of the plaintiff eleven dollars, and judgment was entered upon the award. The defendants appealed to the Court of Common Pleas, where their appeal was dismissed for the reason that the case was not appealable. To reinstate the appeal this writ of error was JUSTICES OF THE PEACE. 617 taken. The third section of the Act of 22 March, 1814, gives to either party the right to an appeal where the judgment given by a justice or an alderman alone exceeds five dollars and thirty-three cents, or where, en- tered on award of referees, it exceeds twenty dollars in an action of tres- pass or trover. " The literal reading of this section would give to either party the right to appeal where the judgment entered upon an award of referees exceeded twenty dollars, and not otherwise. Thus, if the plaintiff's demand was for $100, and the judgment was for one dollar, the letter of the statute would not give him the right of appeal ; but if his demand was for twenty-five dollars and his judgment for twenty-four dollars, standing upon the letter alone, his right to an appeal could not have been questioned. Whilst in no case could the defendant appeal if the judgment entered upon the award does not exceed twenty dollars. The injustice of such a statutory provision was so manifest, and its inconsistency so obvious, that the legislative intent was sought for beyond a literaUreading. It was clear that the intention of the legislature was to preserve the right of appeal where the adjudication had been substantially against the party in a sum exceeding twenty dollars by referees or five dollars and thirty-three cents by the justice or alderman alone, and to carry out this intention it was decided by this court, soon after the passage of the Act of 1814, that where the plaintiff's claim ex- ceeded five dollars and thirty-three cents and the judgment of an alderman was for the defendant, the plaintiff had the right of appeal {Stewart v. Keemle, 4 S. & E., 72) ; but where the plaintiff's claim in trover was for fifty dollars damages and the referees awarded in his favor eleven dollars, it was held that the defendant could not appeal. Ulrich v. Sarkey, 6 S. & E., 285. All of the subsequent cases, either under the Act of 1814 or that of 1810, have been in accordance with the principle above stated, that is to say, if the judgment is through the intervention of referees, and the plaintiff's demand, as set forth on the docket, has been reduced more than twenty dollars, he is entitled to an appeal, although the judgment may be for less than that sum. If the judgment is for more than twenty dollars, the defendant can appeal, but where it is for less he cannot, except in cases under the Act of 1810, where a bona fide set-off has been made, and the amount which is adjudged against the party, including the set-off, is greater than twenty dollars. Stoy v. Yoet, 12 S. & E., 385 ; Soop v. Coates, Id., 388 ; Klingemmith v. Nole, 3 P. E., 120 ; McCloskey v. MoConnel, 9 Watts, 17 ; Downey v. Ferry, 2 Watts, 304. " So stood the law until the passage of the Act of 20 March, 1845, which provided ' that the right of appeal from judgments of aldermen and justices of the peace, and from their judgments on awards of referees, should be extended to defendants in all cases wherein, by existing laws, the right of appeal is enjoyed by plaintiffs.' Under this Act it was held, in Priestly v. Rom, 11 Pa. St., 410, that where a plaintiff, in an action of trespass, ob- tained judgment before an alderman for five dollars upon a claim of dam- ages of twenty-five dollars, either the plaintiff or defendant was entitled to an appeal. This Act gives to the defendant an appeal where the plaintiff may have one, but it does not extend the plaintiff's right, and there is no case to be found in our reports where the plaintiff has been allowed an appeal from a judgment entered by a justice of the peace or an alderman, upon an award of referees, unless he has lost, taking his demand as the standard of his rights, more than twenty dollars. In the case under con- 618 PEACTICE IN PENNSYLVANIA. sideration, as the judgment was for eleven dollars, the defendants had no right to appeal, unless they derived their right from the Act of 1845, and as the plaintiff's demand was only reduced fourteen dollars he could not have appealed, and consequently the Act of March 20, 1845, has no bearing upon the case." § 1487. Appeal allowed in attachment under Act of 1842. Under the Attachment Act of July 12, 1842, section 34, the right of appeal is given to the parties. § 1488. In summary convictions and penalties either party may appeal upon allowance and cause shown. In cases of summary conviction in this Commonwealth or of judgment in suit for a penalty before a magistrate or court not of record, either party may appeal to such court of record as may be prescribed by law upon allowance of the appellate court or judge thereof, upon cause shown. (Constitution of 1874, Art. V., section 14.) An appeal from the judgment of a magistrate or a court not of record, in a suit for a penalty, may be taken upon allowance of the Court of Common Pleas or any judge thereof, upon cause shown : Provided, that all appeals shall be upon such terms as to the payment of costs and entering bail as the court or judge allowing the appeal shall direct. (Act April 17, 1876, section 1 ; P. L., 29.) § 1489. On appeal all defects and irregularities before judgment waived. ' By taking an appeal, one waives any defect before judg- ment which otherwise would have been fatal. Jones v. Canal Co., 10 Phila., 570 (1874). Such irregularities as occurred in the proceedings before a justice are cured on appeal. Kuhn v. Bank, 20 W. N., 230 (1887). § 1490. The sum in controversy regulates the appeal. The sum in controversy and not the judgment regulates the right to an appeal. The amount in dispute may, with sufficient certainty, be ascertained by the oath of the justice or other competent authority. Soop v. Coates, 12S. &E., 388 (1825) ; Klinginsmith v. Nole, 3 P. & W., 119 (1831) ; Downs v. Ferry, 2 W., 304 (1834) ; McCloshey v. McConnell, 9 W., 17 (1839) ; Priestly v. Ross, 11 Pa. St., 410 (1849). ■ § 1491. When an appeal lies. If judgment be given against two defendants, one of them may appeal though the other comes into court and dissents. Gallagher v. Jackson, 1 S. & E., 492 (1815). An appeal will lie from a judgment upon a scire facias on a judgment of justice. Gv,ilky v. Gillingham, 3 S. & R., 93 (1817) ; Watson V. Wehrly, 2 Dist. Rep., 530 (1892). An appeal lies from the judgment of a justice in an action for a penalty incurred by neglecting to serve notice under Arbitration Act of 1810. Rogers V. Bennett, 16 S. & R., 243 (1827), An appeal may be taken by JUSTICES OF THE PEACE. 619 either party from judgment on a scire facias against a constable to recover the amount of an execution. 8oa v. Kelso, 4 W. & S., 278 (1842). Appeal lies from a judgment of non-suit by a justice. He has no power to non-suit unless plaintiff fails to appeal. Lawver V. Walh, 17 Pa. St., 75 (1851). If a judgment be confessed by mistake or by fraud and the wronged party discovers such fact, he has the right of appeal. Rowen v. King, 25 Pa. St., 409 (1855). An appeal lies from the judgment of a justice where part of the demand passed upon by the justice was not within his jurisdiction. Bunce v. Stanford, 27 Pa. St., 265 (1856). An agent may appeal. Jones v. Gamxil Co., 10 Phila., 570 (1874). § 1492. When appeal does not lie. If the justice had not juris- diction. Common Pleas have none on appeal. Moore v. Wait, 1 Binney, 219 (1807) ; Owen v. Shelhamer, 3 Id., 45 (1810) ; Wright V. Guy, 10 S. & R., 227 (1823) ; Bagman v. Roberts, 61 Pa. St., 497 (1869). If it does not appear from record that security was entered, appeal does not lie. Onilky v. Gillingham, 3 S. & E,., 93 (1817). No appeal can be allowed* where a c6ntroversy, the amount of which is more than $100, is submitted to the justice. Morrison w. Weaver, 4 S. & E.., 190 (1818). Nor where an award of referees is less than twenty dollars, unless the plaintiff's claim, set forth upon the records of the justice, exceeds that sum. Bayard v. Hawk, 3 P. & W., 174 (1831) ; Cook v. DunMe, 25 Pa. St., 340 (1855). (See section 1486.) Nor where the claim is not set forth on the jus- tice's docket. Walter v. Bechtol, 5 Eawle, 228 (1835). Nor where judgment of justice is less than five dollars and thirty-three cents, and no cross-demand appears to have reduced the amount claimed. Mlis v. Brewster, 6 Watts, 277 (1837) ; Mack v. Thayer, 2 Phila., 291 (1857). Nor where execution has issued and the judgment against one not a freeholder has been satisfied from the proceeds of the sale. Patterson v. Peironnet, 7 W., 337 (1838). Nor where defendant has allowed twenty days to elapse before taking a rule to show cause why the judgment should not be opened, which rule is dismissed. Bussel v. Smith, 1 Phila., 425 (1853). Where the appeal does not lie, acquiescence of appellee cannot con- fer jurisdiction. Morrison v.Weaver, 4 S. & R., 190 (1818) ; Stay V. Yost, 12 S. & E., 385 (1825). § 1492 a. Waiver of appeal must be in writing. Where a party waives the right of appeal, and agrees to be bound by the decision of the justice, he is estopped from appealing. Pritchard v. Denton, 8 Watt., 371 (1839). A waiver of appeal in a lease is binding, and judgment by a mag- 620 PEACTICE IN PENNSYLVANIA. istrate on such lease cannot be appealed from. Lippincott v. Cooper, 19 W. K, 130 (1886). In a suit before a justice on a note waiving the right of appeal, even though the defendant denied the signature, there can be no appeal. Cawky v. Bohan, 120 Pa. St., 295 (1888). In this case the defendant did not deny under oath his signature, and the question as to the execution of the note was not raised in a legal manner. There was a mere verbal denial by the defendant, whereupon the plaintiif obtained a continuance and subsequently proved that the defendant had signed the note. Where parties agree to waive the right of appeal, such waiver must be in writing, made before the justice and a part of the record. I>awson v. Oondy, 7 S. & E., 366 (1821). On appeal from a justice in a suit upon a lease containing a waiver of appeal, a rule to strike off the appeal filed more than a year after the appeal is too late. Kenney v. Ralph, 1 Dist. Rep., 720 (1892). § 1493. Affidavit on appeal. In Philadelphia County. In all cases in which judgment shall have been jendered for plaintiff by any alderman in the city of Philadelphia, no appeal shall be allowed unless the defendant shall make oath or affirmation, to be filed in the cause, that the same is not intended for delay merely. (Act of May 1, 1861, section 1 ; P. L., 535.) This provision is superseded by the Act of 1865 : In appeals by defendants in the city of Philadelphia, the defendant, or some one acting in his behalf, having knowledge of the facts of the case, shall file an affidavit with the justice, setting forth that the appeal is not for the purpose of delay, but that if the proceedings appealed from are not removed he or the defendant will be required to pay more money or receive less than is justly due, which affidavit shall be attached to the transcript by the alderman to be filed in the court to which the appeal is taken. (Act March 27, 1865, section 1 ; P. I., 794.) § 1494. In Allegheny County. No appeal from the judgment of an alderman or justice of the peace in the county of Allegheny shall be allowed unless the appellant, or some person acting in his behalf having knowledge of the facts of the case, shall file with the alderman or justice an affidavit, setting forth that the appeal taken is not for the purpose of delay, but that if the proceedings appealed from are not removed the appellant will be required to pay more money or receive less than is justly due, which affidavit shall be attached to the transcript by the alderman or justice, to be filed with the appeal. (Act of May 18, 1871, section 1 ; P. L., 938.) § 1495. In Lancaster and Dauphin Counties. In Lancaster County no appeal shall be allowed unless appellant, or his agent or attorney, shall make oath or affirmation, to be filed in the cause, JUSTICES OP THE PEACE. 621 that he has reason to believe that injustice has been done him, and that the same is not intended for delay merely, and pay all costs accrued, unless appellant make oath that he or she is unable to pay said costs. (Act March 2, 1868 ; P. L., 256.) This Act does not apply to non-residents. (Ibid.) The Act of February 23, 1870 (P. L., 221), makes a similar provision for Dauphin County. § 1496. Regulations as to appeals in Oameron, Venango, Erie, Columbia, and Luzerne Counties. The Act of March 26, 1868 (P.L., 495), provides: That no appeal shall be allowed in Cameron County unless the party his or their agent or attorney, shall give bail for costs, comply with other requirements, and make an oath or affirmation that such appeal is not taken or entered for the purpose of delay, but in good faith, and because he or they verily believe that injustice has been done to him or them, and that he or they have a just and legal defense to the plaintiff's demand, or is entitled to more than the amount of the judgment, which oath or affirma- tion shall be filed and annexed to the transcript. This was extended to Venango County by Act of March 11, 1870 (P. L., 397), and by the Act of April 5, 1870 (P. L., 931). The Act of March 11, 1870, was extended to Erie and Columbia Counties by Act of March 23, 1872 (P. L., 524). The Act of February 28, 1870 (P. L., 269), contains similar pro- visions as to Luzerne County. § 1497. Affidavit required in landlord and tenant proceedings. In taking an appeal from a landlord and tenant proceeding, an affi- davit that the appeal is not taken for delay must be filed. Garter V. ffess, 3 W. K, 325 (1877). § 1498. Chmrdian may appeal without affidavit or security. A guardian shall be allowed to appeal from the judgment of a justice or an award of arbitrators without being required to make the usual affidavit and without giving surety or paying costs. (Act March 27, 1833, section 1 ; P. L., 99.) § 1499. Affidavit in suits for wages. In all cases in which judgment shall have been rendered by any justice of the peace or alderman in this Commonwealth for wages of manual labor, before the defendant shall be entitled to an appeal from the judgment of the justice or alderman, he or his agent or attorney shall make oath or affirmation that the appeal is not intended for the purpose of delay, but that he believes that injustice has been done him, which affidavit shall be attached to and sent up with the transcript of appeal. And the said de- fendant shall be required to give good and sufficient bail (for) the payment of the debt and costs to be paid when finally adjudged to \>& due the plain- tiff by the court, in all cases of labor. (Act of April 20, 1876, section 1 ; P. L., 43.) 622 PEACTICE IN PENNSYLVANIA. An appellant from the judgment of a justice for wages of manual labor must make the affidavit that the appeal is not for the pur- pose of delay, but because he firmly believes injustice has been done. Flegal v. DoUera, 1 Dist. Eep., 190 (1892). § 1500. Exemdor or administrator need not file affidavit. This Act does not apply to an executor or administrator sued in his rep- resentative capacity for wages for manual labor. Koontz's Admr. v. Howsare, 100 Pa. St., 506 (1882). An executor or administrator against whom a judgment is re- covered before a justice of the peace, may appeal to the Common Pleas without iiling an affidavit and entering the security prescribed by the Act of April 20, 1876, section 1 (P. L., 43). Ibid. § 1501. When affidavit filed. Under the Act of May 1, 1861, the affidavit must be filed when appeal entered, not after the expira- tion of twenty days. Mowntney v. McFarland, 7 Phila., 392 (1870). § 1502. FOEM OF AFFIDAVIT ON APPEAL. A. B. 1 Before E. F., Magistrate of Court No. V. > Judgment obtained CD. J City of Philadelphia, ss. C. D.,the above-named defendant, being duly (sworn or affirmed) accord- ing to law, deposes and says that the appeal taken in the above case is not for the purpose of delay, but that if the proceedings appealed from are not removed, he will be. required to pay more money than is justly due. and subscribed before " me, this day of , A. D. 1890. Witness my hand and official seal of said court, the day and year above written. E. F., Magistrate of Court No. . [seal] § 1503. Bail or Recognizance on Appeal. Bail for appeal to he absolute in double amount of costs. The bail ^required byjlaw in cases of appeal shall be bail absolute m double the probable amount of Roosts accrued and likely to accrue, with one' or more sufficient sureties conditioned for the payment of all costs accrued orTthat^may be legally recovered. (Act March 20, 1845, section 1 ; P. L., 188.) Depositing money with a justice is not a compliance with the Act requiring a recognizance. Power Go. v. Hutchinson, 3 Dist. Rep., 668 (1894). In an appeal from the judgment of a justice of the peace in forma CD. JUSTICES OF THE PfiACE. 623 pauperis, the party appealing must give security for costs. Davi- son V. 8uit Co., 4 Dist. Rep., 237 (1895). One who appeals from the judgment of a justice of the peace must enter bail even though he file an affidavit of his inability to pay costs. lams v. Hall, 4 Dist. Rep., 259 (1895). § 1504. AU {except municipal) corporations to give bail on appeal or writ of error for debt, interest, and costs. Any corporation except a municipal corporation on appeal or writ of error shall give bail absolnte for the payment of debt, interest, and costs. (Act of March 15, 1847, section 1 ; P. L., 361.) A corporation (not municipal) must give absolute security for debt, interests, and costs, on appeal. Twrnpilce Co. v. Naglee, 9 S. & R., 227 (1823) ; Young t. Colvin, 168 Pa. St., 449 (1895). Municipal corporations are privileged to appeal without entering security. King v. District, 1 Phila., 402 (1852). The condition of a recognizance to be given under the Act of 1847 by a corporation does not provide for the appearance of the party appealing at the next term of court to prosecute his appeal with effect. Shivery v. Orauer, 2 Dist. Rep., 387 (1893). § 1505. In trespass. The security required when defendant ap- peals from judgment of a justice in trespass must be double the amount recovered. Langs v. Galbraith, IS. & R., 491 (1815). § 1506, In wage cases. The Act of April 20, 1876, section 1 (section 1499), requires security for payment of debt and costs. § 1507. Attorney may become security without leave of cowrt. The rule of court prohibiting an attorney from becoming security unless by leave of the court does not apply to security entered be- fore a magistrate on appeal. Gardy v. Mojit, 14 W. N., 438 (1884). See Laughlin v. Prigg, 3 Dist. Rep., 418 (1894). The better practice is for the attorney not to become security, § 1508. Recognizance must be for a certain amownt. The sum of money should be written in the recognizance, for it cannot be supplied by reference to the debt and costs at the date of the entry of the bond, nor will the court assume that the bond had been taken in double the amount. Caldwell v. Brindle, 11 Pa. St., 293 (1849). § 1509. Sufficient recognizoMces. " June 4, defendant appeals. I, F. S., having been duly sworn and justi- fied, and bound as absolute bail in the sum of twenty dollars, or such sum as may be necessary to pay all costs that have or may accrue in this case in prosecuting this appeal." Seidenatriker v. Buffum, 14 Pa. St., 159 (1850). " M. becomes bound in the sum of thirty-five dollars on condition that the defendant shall appear at the next Court of Common Pleas to prose- cute his appeal with effect." Murray v. Haslett, 19 Pa. St., 356 (1852). 624 PRACTICE IN PENNSYLVANIA. " I become bail absolute in this case conditioned for the payment of all costs that have accrued, and all costs that may accrue in case the said judg- ment^be affirmed, and also for all rent that has accrued and may accrue up to;the time of final judgment."— A. A. H. Hardy v. Watts, 22 Pa. St., 33 (1853). "It being by consent of plaintiflf's attorney — bail to be taken in the sum of $250 — G. H. for bail, he having justified. * * * Whereupon, said G. H. was recognized in the sum of $250 as bail in said suit, accord- ing'> Act of Assembly, etc., etc." Harvey v. Beach, 38 Pa. St., 500 (1861). " A. B. goes security in the sum of fifty dollars for the prosecution of this suit>.efiect." Bhey v. Baird, 51 Pa. St., 85 (1865). § 1510. Insufficient recognizances. The following recognizances were held insufficient : "JJ. W. bound in a sum certain to cover all costs that plaintiff will prose- cute this appeal with effect." Williamson v. Mitchel, 1 P. & W., 9 (1829). A recognizance on appeal from an award before a justice condi- tioned to pay costs " With one dollar per day for every day lost by defendant in attending to such^appeal." ShuffY. Morgan, 7 Pa. St., 125 (1847). " Defendant gives bail, which is entered on the docket, for the sum of $100 ; J. W. B., bail." MeeJker v. Brachney, 35 Pa. St., 276 (1860). § 1511, If transcript not filed and recognizance defective. Where the^transcript has not been filed with the prothonotary, but bail has been entered before the justice, the other side may except to bail before the justice, and serve a notice of the rule to justify on the attorney of appellant, Owmmings v. Forsman, 6 Pa. St., 194 (1847). § 1512. If transcript fled, rule appellant to perfect recognizance. Where a recognizance on appeal is defective, the proper course is to rule appellant to perfect his bail within a specified period, or in default thereof that the appeal be quashed. Means v. Trout, 16 S. & R., 349 (1827) ; Burgess v. Jackson, 2 P. & W., 431 (1831) ; Bream v. Spangler, 1 W. & S., 378 (1841) ; Adams v. NuU, 5 W, & S., 363 (1843) ; Koenig v, Bauer, 57 Pa. St., 168 (1868) ; Bei> heffer v. Filler, 7 Phila., 338 (1870) ; Hummer v. School District, 10 Phila., 494 (1874). The perfected recognizance must then be filed nunc pro tunc. Adams v. Null (supra). § 1513. Negligent appellee waives rights under a defective recog- nizance. If appellee is negligent in availing himself of a defective recognizance, he waives his right. Cavenoe v. Butler, 6 Binn., 52 (1813) ; Cochran v. Parker, 6 S. & R., 549 (1821) ; Shank v. Warfel, 14 Id., 205 (1826) ; Wiedner v. Matthews, 11 Pa. St., 336 (1849). § 1514. A. B. JUSTICES OF THE PEACE. 625 FORM OF SECUMTY ON APPEAL. ^ Before E. F., Magistrate of Court No. . Q J) I Judgment obtained City of Philadelphia, ss. 1890, defendant flies his affidavit and appeals. I hold myself indebted to the plaintiff in the sum of dollars, condi- tioned for all costs that have or may accrue in this case up to the final de- termination of this suit, and that the defendant will prosecute his appeal with effect. (Name of Surety) (Address.) § 1515. Transcript. Docket to be kept — All to be certified on appeal. * All proceedings before a justice shall be entered at large by him in a docket or boot kept for that purpose, in which he shall state the evidence upon which the plaintiff's demand may be founded, whether upon bond, note, penal or single bill, writing obligatory, book-debt, damages or assump- tion, or whatever it may be. The whole proceeding shall be certified to the prothonotary of the proper county on appeal, who shall enter the same on his docket, and the suit shall then be subject to the same rules as other actions ; the costs before the justice shall await the event of the suit. (Act March 20, 1810, section 4 ; 5 Sm., 164.) § 1516. Conclusiveiiess of record. In Hazelett v. Ford, 10 Watts, 101 (1840), Chief Justice Gibson said of a justice and his docket : " He is the judge of a court, which, deriving its jurisdiction from statutory grants, proceeds ia most things according to the substance contained in the forms of the common law, and whose docket, as to things adjudicated by him, has the conclusiveness of a record." § 1517. What the docket should set forth as to appearance, pro- cess, service, demand, etc. It should set forth legal service of pro- cess, the appearance or default of the defendant, and the presence of plaintiff or a representative, as well as the kind of evidence ad- duced to support the claim. Northern Liberties v. (7 Neil, 1 Phila., 427 (1853) ; McCale v. Kulp, 8 Phila., 636 (1871) ; Paine v. Ood- shall, 29 Leg. Int., 12 (1872). In distraint damage feasant, the affidavit upon which the action is based and the public notice required by the statute are part of the record, and may be given in evidence in an action of trover for the subject of the distraint. Miller v. Knapp, 47 Leg. Int., 309 (1890). It should set forth that the summons was legally served and re- turned on oath. Sloan v. McKinsiry, 18 Pa. St., 120 (1851). In VOL. I. iO 626 PRACTICE IN PENNSYLVANIA. cases of the non-appearance of the defendant, it should set forth how the process was served. Fraily v. Sparks, 2 Pars., 232 (1848). The record must show that the justice had jurisdiction. Kelly V. March, 15 W. N., 30 (1884). In cases of summary pro- ceedings, the jurisdiction must affirmatively appear on the docket. Graver v. Fehr, 89 Pa. St., 460 (18,79). The justice's record should set forth generally the plaintiff's demand, and that it does not ex- ceed $100, M'Entire v. M'Elduff, 1 S. & E., 19 (1814). Simi- lar rulings were made in Kirh v.AeGhtemacht, 1 Phila., 426 (1853) ; McOale v. Kulp, 8 Phila., 636 (1871) ; Paine v. Qodshall, 29 Leg. Int., 12 (1872) ; Maxwell v. Perkins, 93 Pa. St., 255 (1880). It should set forth with reasonable certainty how the cause of action arose. Moore v. B. B., 11 Phila., 348 (1876). It is not essen- tial that the defendant should have the amount of his claim entered upon the justice's docket. A statement made in writing by the plain- tiff containing not only the amount of his claim, but the nature of it, is equivalent to an entry of the amount of his claim by the jus- tice on his docket. Klinginsmith v. Nole, 3 P. & W., 119 (1831). Where judgment is rendered upon the mere production of defen- dant's promissory note, the record should state that defendant was the maker of it. Leonore v. Ingram, 1 Phila., 519 (1854). If judgment be given against a married woman in an action against husband and wife, the record must show that the debt was con- tracted by the wife for necessaries for the support of her family. Gould v. McFall, 111 Pa. St., 66 (1885). Similar rulings were made in Hartzell v. Osborne, 15 W. N., 142 (1884) ; JBrovm v. McKinney, 47 Leg. Int., 49 (1889). In an action before a justice under a city ordinance, the record must show such ordinance ; the court will not take judicial notice of it. City v. Cohen, 13 W. N., 468 (1883). A similar ruling had been made in Manayunk v. Davis, 2 Pars., 289 (1851). A record is fatally defective which does not show upon what day the plaintiff entered his appearance, and judgment was obtained ; Gvdnner v. Brendt, 2 Dist. Rep., 50 (1892) ; or which fails to show that the plaintiff appeared at the time named in the summons and offered the evidence of his claim. Mlenberger v. Bush, Id. (1892). Where both plaintiff and defendant appear before a justice of the peace, the record, to support a judgment for plaintiff, must show that he offered evidence. Chambers v. Beynolds, 2 Dist. Rep. , 402 (1893). In a suit against a foreign insurance company before a jus- tice of the peace, where the process is served outside of the county, the record should show : (a) That the defendant is a foreign insurance company ; (6) that the summons issued to a constable of the county JUSTICES OF THE PEACE. 627 in which the justice resides ; (c) that such constable, by writing in- dorsed on or attached to the summons, authorized the constable of the county where the State agent of defendant resides to serve the process ; (d) that the person upon whom the process was served was the duly designated State agent to receive service of process. Life Ins. Co. v. Cook, 3 Dist. Rep., 625 (1894). § 1518. Where a judgment is tendered, the record should show the tender. Where a tender of judgment is made either on the trial of the case or before an appeal, the record should show notice to the plaintiff or his agent of the offer. Driesback v. Morris, 94 Pa. St., 22 (1880). A similar ruling was made in Sdbert v. Kline, 1 Pa. St., 38 (1845). § 1519. In civil cases, eddence at length need not be set forth. A justice in ordinary civil cases is not bound to set forth the evidence at large on his docket, but only the kind of evidence produced to support the claim, showing the nature of the contract and the juris- diction of the justice. Jones v. Evans. 1 Browne, 207 (1810) ; Mulvary v. Miller, Id., 339 (1811). § 1520. In cases of penalties, evidence must appear at length. Comm. V. Came, 2 Parsons, 265 (1847). Certiorari to justice of the peace. Defendant was charged with disturbing a religious meeting, and convicted. Defendant excepted to the record, inter alia, because the nature of the disturbance was not specifically stated. Paksons, J. : " It is a well-settled principle that where an Act of Assembly simply im- poses a penalty, and gives authority to justices of the peace to take cogni- zance of the violation thereof, and prescribes no method or form for the prosecution, the conviction must be in accordance with the rules of the common law, and the whole record must show that the proceedings have been conducted, in all respects, according to the course of the common law. * * * There is no fixed and definite charge in the information of the offense, nor is there anything like a regular specific information ; this is indispensably necessary : Paley on Convictions, 58-66, * * * and the rule seems to be this, that the information must contain a complete state- ment of the offense, with all its qualities, for the evidence subsequently stated can only support the charge, but can by no means extend or supply what is wanting in it. " Another defect apparent upon the face of the record is that the magis- trate has not set out the evidence at length. This he was bound to do : 4 Burr., 2064, and Paley in his Treatise on Convictions * * * has stated the rule of law correctly in these words : ' As the record of convic- tion is intended to exhibit an exact account of the magistrate's proceedings and to show that the judgment has been legal and regular, it is most natural that the facts should be fitly disclosed, in order that the judgment upon them may be well founded." * * * " Lord Mansfield laid it down as an undoubted maxim that in a con- viction the evidence must be set out in order that the superior court may 628 PRACTICE IN PENNSYLVANIA. judge of it : 1 Burr., 1163. And so strict is the rule, that it was held in the case of Bex v. Thompson, 2 T. Eep., 18, that it is the duty of the magis- trates in all cases to state the whole of the evidence and not merely the result of it. In the case of Bex v. Serrt, 7 T. Eep., 152, and Bex v. Clark, 8 T. Eep., 220, it would seem to be the better opinion that all the evidence should be stated, not only that of the prosecution, but also that of the defen- dant. He should not state merely the result of the evidence, but the evi- dence itself." Proceedings reversed. Comm. V. Nesbit, 34 Pa. St., 398 (1859). Certiorari to Mayor of Pittsburg. Information against defendant for performing labor on Sunday, contrary to Acts of 1794 and 1855. Defendant was ordered to pay a fine of twenty-five dollars. It was assigned for error : 1. That the mayor did not set out on the record the testimony taken by him in the case ; 2. That the particular ofi^nse was not explic- itly set out. LOWEIE, C. J. : « * * * jt ig essential that a summary conviction shall con- tain a finding that a special act has been performed by the defen- dant, and that it shall describe or define it in such a way as to in- dividuate it and show that it falls within an unlawful class of acts. "Without this, a judgment that the law has been violated goes for nothing. * * * When the record contains no definite facts, but only a legal conclusion from unrecorded facts, the superior court cannot, without compelling a return of the evidence, or tak- ing testimony of what it was, decide whether the legal conclusion, that is, the conviction of the offense, is right or wrong. In such a case, for the safety of the citizen, they usually reverse the convic- tion, simply because no act appears upon it that justifies the judg- ment. " A similar ruling was made in Comm. v. Richer, 13 W. N., 142 (1883). In a suit before a justice of the peace for a penalty under an or- dinance, the record must show definitely the nature of the charge, the ordinance making the act penal, and the penalty provided, and the conviction /oKowed by the fine. It should also contain the evi- dence, or the substance of it, upon which the judgment is founded. Wilcox V. Borough, 2 Dist. Rep., 721 (1892). § 1521. On certiorari, the evidence is no part of the record. The evidence forms no part of the record upon a certiorari. Comm. v. Oipner, 20 W. N., 500 (1887). § 1522. An agreement to discontinue should appear on docket. In Cope V. Bisk, 21 Pa. St., 66 (1853), Mr. Justice Lewis said : JUSTICES OP THE PEACE. 629 '' Where a suit before a justice * * * ig terminated by any act or agreement of the parties which amounts, directly or indi- rectly, to a discontinuance of the action, it is a part of the official duty of the justice to enter such act or agreement upon his docket, and the docket entry is evidence of the same." § 1523. The record should sei forth the day of judgment. If, however, the day of appearance is mentioned, and the judgment then set forth generally, the court will presume it was entered upon the date of the appearance. Buchmyer v. Dubs, 5 Binn., 29 (1812). If a justice enters on his record judgment by default, the record should state the hour of the day the plaintiff took judgment. Lind- say V. Sweeny, 6 Phila., 3Q9 (1867) ; contra, Fronheiser v. Werner, 3 Dist. Eep., 515 (l894) (C. P. Carbon Co.). The transcript must show that the defendant failed to appear at the hour named in the summons. Smith v. Fetherston, 10 Phila., 306 (1875). § 1524. Waiver of appeal should be docketed. If judgment be given on a note which contains a waiver of appeal, such waiver should be noted on the docket. It cannot be shown by parol tes- timony. Foss V. Bogan, 92 Pa. St. , 296 (1879). § 1525. The record should show that security was entered. On appeal, it must appear from the record that security was given. Guilky V. Oillingham, 3 S. & R., 93 (1817). § 1526. A transcript cannot be amended by a certificate of facts within the recollection of a justice relative to the judgment rendered by him. Boylan v. Hays, 7 Watts, 509 (1838). If an offer to confess judgment do not appear on the justice's docket, a certificate of such fact is no part of the transcript, dem- ents V. GHibeH, 12 Pa. St., 255 (1849). § 1527. When defective transcript waived. If the transcript of a justice be defective, and yet defendant on the appeal appear and proceed with the trial without raising objection, the defect is waived. WeidenhaToer v. BerUe, 103 Pa. St., 448 (1883). § 1528. The right to amend transcript is vested in the Common Pleas. Where a transcript does not conform to the justice's docket, which is alleged to be erroneous, and an application is made for leave to amend the docket by the transcript, the decision of the Common Pleas upon the question of the amendment is final. Cald- ■wdl V. Thompson, 1 Rawle, 370 (1829). If a justice commit a mis- take in making up his transcript, the court will on motion allow the transcript to be amended. Kearney v. PennocJc, 2 Dist. Rep., 32 (1892). A. B. V. CD. 630 PRACTICE IN PENNSYLVANIA. § 1529. FORM OF TEANSCKIPT. Transcript from the docket of Magistrate of Court No. . Summons issued (date, etc.), A. D. 1890. Returnable (date, etc.), A. D. 1890. Between the hours of 10 o'clock m. and 11 o'clock M. (Name) constable. Returned on oath (date), A. D. 1890. Served on defendant by (here state mode of service). (Here insert record of proceedings to be faithfiilly transcribed from the docket of the justice or magistrate.) City of Philadelphia, ss. I hereby certify the above to be a correct transcript from my docket. Witness my hand and official seal of said court, the day of 1890. (Name), Magistrate of Court No. . § 1530. Transcript must be delivered on demand. The justice on demand by either plaintiff or defendant shall make out a copy of his proceedings at large, and deliver the same duly certified by him tojthe party requiring the same. If he refuse so to do after demand made, it 'shall be deemed a misde- meanor in office. (Act March 20, 1810, section 23 ; 5 8m., 164.) The indictment against the justice should state a previous tender of the legal fee. Wilson v. Comm., 10 S. & R., 373. § 1531. Becord of anotlier County. If defendant reside in a cov/nty^other than where the judgment was obtained, justice may cer- tify the record, etc. If the defendant does not reside in the county where judgment is obtained against him, application may be made by the plaintiff or his agent to the person in possession of the docket in which such judgment may be entered, who shall make out, certify, and deliver a transcript of all proceedings and deliver all evidence in his possession for the recovery of the amount thereof, with costs, before the justice of any county where the defendant may reside or can be found, as in cases originally brought before him, and the stay of execution shall be counted from the original entry. (Act March 20, 1810, section 17 ; 5 Sm., 169.) A justice of the peace to whom a transcri|)t from another county has been handed, may issue thereon a sci. fa. to revive, and on the judgment thus obtained issue an execution. Stewart v. Eisenhower, 4Dist. Rep., 565 (1895). § 1532. Appellant to file the transcript on or before first day of next term — Cause to be decided on merits — Proceedings when execu- tor shall plead no assets. If the appellant within twenty days after judgment enter bail for an appeal, he shall file the transcript of the record in the prothonotary's office on or before the first day of the next term of the Court of Common Pleas after entering bail. JUSTICES OF THE PEACE. 631 On appeal, the cause shall be decided on its merits, and no deficiency of form or substance in the record or proceedings, nor any mistake in the form or name of the action, shall prejudice either party. If any executor or administrator shall declare after judgment against him before a justice that he has not sufficient assets to satisfy the judg- ment, the justice shall forthwith transmit the record to the prothonotary of the Common Pleas to be entered on his docket, and the court shall adjudge and decree thereon, and appoint auditors to ascertain and apportion the assets. (Act March 20, 1810, section 4 ; 5 Sm., 164.) § 1533. When to be filed in Philadelphia Coimty. All appeals firom alderman * * * shall be filed in the Court of Com- mon Pleas of the city and county of Philadelphia on or before the monthly return-day in said court next ensuing the date of the entry of the judgment before the alderman, instead of to the first day of the next term, as hereto- fore. (Act of May 1, 1861, section 1 ; P. L., 535.) § 1534. In Allegheny Cowniy. All appeals as aforesaid shall be filed in the Court of Common Pleas of the comity of Allegheny on or before the monthly or term return-day in said court next ensuing the date of the entry of the judgment before the alderman or justice, instead of to the first day of the next term, as hereto- fore : Provided, that if the appellant shall perfect his appeal by bail and affidavit as aforesaid, within twenty days after the entry of the judgment as aforesaid, such appeal shall be effectual in case he shall file the tran- script of the record of the alderman or justice and the affidavit as aforesaid, on or before the next return-day of said court thereafter. (Act of May 18, 1871, section 2 ; P. L., 939.) § 1535. In Delaware County. All appeals shall be filed on or before the next return-day after the taking thereof if twenty days shall have 'elapsed, and if not, then on or before the next return-day thereafter. (Act of April 9, 1862 ; P. L., 347.) This Act gives at least twenty days in which to file the appeal after it is taken, i. e., until the next monthly return-day ; but if at that time twenty days shall not have elapsed from the time the appeal was perfected, the appellant is allowed until the next monthly return-day to file it in the prothonotary's office. Machine Go. v. BiGe, 1 Del. Co. Eep., 63. § 1636. Practice as to perfecting and filing appeal. In Lvng v. McCormiok, 1 W. N., 134 (1874), it was said "the practice direct- ing the appeal to be filed to the return-day next ensuing the entry of judgment has always been to allow the defendant twenty days after judgment in which to perfect his appeal, and to file his appeal before the return-day next after the expiration of the twenty days." If however, the appeal be taken before the expiration of the twenty days, the transcript must be filed before the next return- 632 PRACTICE IN PENNSYLVANIA. day following the date of the appeal. 8mith v. Walker, Id. , 415 (1875). If the appeal is taken in twenty days, it need not be entered on the docket in the prothonotary's office within that time ; the appeal is properly entered any time before return-day. JBeale v. Dough- eriy, 3 3inn.,432(1811). § 1537. Computing the time within which appeal must he entered. Sleek V. King, 3 Pa. St., 211 (1846). If judgment be given against defendant by default, and he afterward in due time has the justice fix a day for a hearing to show cause why the judgment should not be opened, and said judgment is confirmed, the time to appeal runs from the final decision and not from the original judgment. In computing the time from which an appeal may be taken, the judgment-day is not included. In Thomas v. Assn., 3 Phila., 425 (1859), Judge Allison said : " In Agnew v. Oity, 2 Phila., 340, this court, following the lead of Thomas v. Affliok, 16 Pa. St., 14, held that the day on which a judgment is entered is to be included in the computation of time for an appeal. Thomas v. Affliok ex- pressly overruled Gosweiler's Estate, 3 Penn., 200, the court say- ing the rule of computation is to include the first and to exclude the last day. Upon the strength of a decision which we were bound to regard as an authority controlling us, the appeal in Agnew v. Ciiy was stricken off, because, counting the day on which judgment was entered, it was one day too late. Barbier v. Chandler, 17 Pa. St., 49, followed shortly after Thomas v. Affliok, and reannounced the same rule, in which ease the court held the day of issuing, and also of return, were both to be counted in a summons issued by a justice of the peace. These two cases overthrew the law as it had previously been settled. Sims v. Hampton, 1 S. & R., 411 ; Brown V. Brmim, 3 S. & R., 496 ; 3 Pa. Hep., 200. And it is but rea- sonable to suppose that the new rule thus settled by solemn adjudi- cation was to be considered the established law of the land ; but in Cromelien v. Brink, 29 Pa. St., 524, we have the last opinion of the Supreme Court upon the point, which declares Thomas v. Affliok and Barbier v. Cha/ndler were erroneously decided, and restores the old rule, excluding the first and including the last day. Cromelien V. Brink, therefore, requires us to say that Agnew v. City is no longer to be regarded as of authority in this court, and that the appeal in this case must be allowed." If the twentieth day fall on Good Friday, the appeal may be perfected on the next succeeding secular day, Linville v. Daham, 6 W. K, 528 (1878). Where an appeal is taken on a return-day, the party has until JUSTICES OP THE PEACE. 633 the next succeeding return-day to file it. Dwire v. Weber, 1 W. N., 64 (1874). In Philadelphia County there are two return-days in September, but the filing of appeals is only to the next monthly return-day. Hartranfl v. Clarke, 4 W. N., 543 (1877). § 1538. Filing appeals nunc pro tunc. Filing appeals nunc pro tunc is allowed only on good cause shown, as where a defendant has exercised due diligence and has been prevented from taking his appeal by absence from the county or sickness of the alderman, or by refusal of the latter to take bail or give defendant transcript : Kear v. Rodgers, 9 Phila., 525 (1872) ; Nutz v. Barton, Id., 526 (1872) ; HaiTies v. Hillary, Id., 526 (1872), or where the delay is due to a mistake or misapprehension of the party appealing. JKc- NuUy V. McCarty, 4 W. N., 478 (1877). The appellant must not be guilty of neglect, or such right will be denied. Hibbs v. 8tine8, 8 Phila., 236 (1871). Where an appeal was not filed in proper time, through the over- sight of counsel, a rule to allow the appeal to be filed nunc pro time was granted. Woods v. Brolashy, 2 "W. N., 198 (1875). Where a party is misled by a magistrate as to taking an appeal, the appeal will be allowed nunc pro tu/nc. Sn/yder v. Swyder, 7 Phila., 391 (1870) ; Kelly v. Gilmore, 1 W. K, 73 (1874) ; Moore v. Kria-, 2 W. N., 724 (1876) ; Devine v. Boyle, 4 W. K, 139 (1877). But the misconduct of the magistrate must be official. Where defendant appeals, and the justice promises to file the transcript be- fore the next term in the Common Pleas and neglects to do so, and the defendant subsequently files the appeal himself, the appeal will be stricken off. Mouk v. Enop, 2 Watts, 72 (1833). A similar ruling was made where the justice promised to make out and deliver the transcript to defendant's attorney, and made it out, but failed to deliver it as promised. Sherwood v. IT Kinney, 5 Whar., 435 (1840). Ignorance of the law is no ground for allowing an appeal nunc pro turns. UMer v. Ketcherra, 1 W. JN"., 3 (1874) ; Hepperd v. Van Horn, 2 W. N., 67 (1876). Where a transcript sur appeal has not been filed within the time required by the Act by reason of the neglect of the attorney, the court cannot permit it to be filed nunc pro tunc. Ward v. Letzhus, 31 W, N., 412 (1893). Where an appeal is not properly perfected, and the fault is that of the appellant and not of counsel, the court will not interfere. Uhler v, Ketoherra, 1 W. N., 3 (1874). 634 PEACTICE IN PENNSYLVANIA. A rule for leave to file an appeal nunc pro time is too late if exe- cution has issued. Dobson v. FeU, 14 W. N., 456 (1884). The Common Pleas, in its discretion, will allow an appeal after twenty days nunc pro tunc. Bwy. Co. v. Boyle, 29 W. N., 20 (1891). § 1539. Ruie to file an appeal nunc pro tunc. As soon as you discover that your client has omitted to file his appeal, if the excuse be sufficient, prepai-e his affidavit of all the facts and present it to a judge, with the following rule indorsed : A. B. I V. S- Common Pleas, No. . Term, 1890. No. . CD. ] And now (date), on motion of E. F., plaintiff's (or defendant's) attorney, the court grant a rule to show cause why an appeal nunc pro tunc should not be filed in the above case. Returnable (date), 10 A.M. Proceedings to stay. Having obtained your allocatur, hand your papers to the court clerk, obtain from him a certificate of the granting of the rule, serve it upon the magistrate or justice, and notify the other side. Depo- sitions should then be taken in order to establish your client's right to file his appeal nunc pro tunc. The rule is then argued. § 1540. Quashing appeals. If there be any defect or irregu- larity on the face of the record of the appeal, you should take a rule to show cause why the appeal should not be quashed. The following form may assist you : A. B. ) V. '>■ Common Pleas, No. . Term, 1890. No. . CD. j And now (date), on motion of E. F., attorney pro (defendant), the court grant a rule on (plaintiff) to show cause why the appeal in the above case should not be quashed, for the following reasons (state them). Rule returnable (date), 10 A.m. INDORSEMENT. A. B. ] V. y Common Pleas, No. . Term, 1890. No. . CD. ) Rule to show cause why appeal should not be quashed. E. F., Attorney pro Defendant. As this is a rule of course, you do not need the signature of a judge, nor need the rule be supported by affidavit. Hand the rule to the court clerk ; notify the counsel on the other side, prepare your paper-books, and be ready to argue the case on the next current motion-list. Where the Common Pleas grant a rule to amend an appeal by JUSTICES OF THE PEACE. 635 filing an amended transcript, if the amended transcript be still de- fective, the appeal will be quashed. Miles v. Tanner, 3 P. & W. , 95 (1831). - In Carothers v. Oummings, 63 Pa. St., 199 (1869), judgment was recovered before a magistrate in favor of plaintiff, and after the twenty days had expired defendant appealed. In due time the de- fendant entered a non pros, for want of a narr., and three weeks sub- sequently the plaintiff moved to quash the appeal because not en- tered in proper time. The lower court discharged the rule to quash. The Supreme Court said : " We think the judgment of non pros, was not valid, and we think it should be reversed. This will leave the case in court, and, unless the court shall reconsider it, its decision on the motion to quash the case must go on to trial and to final judgment, when the failure to quash can be taken ad- vantage of there. We do not mean to decide that the appeal is not good — matters of which we have no knowledge may possibly exist to render it good. We speak only by the record ; as that stands, the case was not in a situation to authorize the defendant to enter the non pros. " Judgment of non pros, reversed and ordered to be stricken off, the case to stand to be proceeded in as if no such entry had been made." The reporter states that the writ of error was taken to the order discharging the rule to quash. Judge Thompson says, in his opinion, that it was taken to the judgment of nonpros., and the decision supports his assertion. § 1541. Waiver of right to quash by acquiescence. A party waives his right to quash by acquiescence in an appeal, and this may be inferred from delay as well as other acts, Gannl Co. v. Lof- tus, 71 Pa. St., 420 (1872) ; e.g., if the defendant having appealed, the plaintiff files his statement before moving to quash. Sleek v. Kimg, 3 Pa. St., 211 (1846). See also Greenawalt v. Shannon, 8 Pa, St., 465 (1848) ; Hoffman v. Dawson, 1 Jones, 280 (1849), where the motion to quash was denied because the award of arbi- trators had been filed before the motion was made. § 1542. Writ of error to dismissal of appeal. If tbe appeal be dismissed, a writ of error lies. Beale v. Dougherty, 3 Binn., 432 (1811). § 1543. Rule to strike oflf appeal. If appeal be not filed within the prescribed time, the opposite party may enter a rule to show cause why the appeal should not be stricken off. Proceed as under section 1540, relating to quashing appeals. Unless the defendant is unavoidably prevented from entering his 636 PRACTICE IN PENNSYLVANIA. appeal before return-day, the appeal will be stricken otf. Wilson V. Hathaway, 8 Phila., 235 (1871). Where the appeal is defective, yet no injury is done to the other party's rights, the party may perfect his appeal. Wormelsdorf v. Hei^ner, 104 Pa. St., 1 (1883). §1544. If plaintiff appeal, he' shall give defendant written notice. The Philadelphia rule (Rule V., section 6 a) is as follows : " In all cases of appeal by the plaintiff from the judgment of a magistrate the plaintiff shall serve a written notice of the appeal upon the defendant, stating the court, term, and number of the suit, and file an affidavit of such service ten days before taking a judgment by default." This was literally construed in Howard v. Achuff, 19 W. N., 334 (1887). Judgment for want of [an appearance cannot be taken in a suit appealed from a magistrate. The first judgment by default would be for want of an affidavit of defense, to obtain which judgment you must comply with the above rule and prove service of your statement. §1545. Judgment by default on appeal. The Philadelphia rule (Rule v., section 6) is as follows : " In all cases of appeal by defendant from judgment of a magistrate where, on the calling of the case for trial, defendant does not appear to prosecute his appeal, and the plaintiff is 'present and ready for trial, the court may, on motion of plaintiff's attorney, afSrm the judgment of the magistrate : Provided, that when there shall have been an award of arbi- trators filed upon such appeal, judgment of affirmance of such award shall be entered, and when the award shall have been for a sum of money, the judgment shall be for that sum, together with the interest thereon from the day of filing the award, or the day named in the report." Where a defendant appeals from the judgment of a magistrate, and in the Common Pleas the defendant does not appear and the judgment of the magistrate is affirmed, the defendant cannot, on a writ of error, object to the pleadings in the Common Pleas. Elh- inton V. Fennimore, 13 Pa. St., 173 (1850). § 1546. Pleadings on appeal. When the appeal has been filed, the plaintiflF's counsel must file his statement and serve a copy upon the defendant or his attorney. In Philadelphia, the subsequent steps are regulated by rule of court. The rule in Philadelphia County (section 126 e) is as follows : " In all cases of appeal from judgments of magistrates the pleadings and procedure shall be the same as in like causes commenced in court." This rule was adopted sub-sequent to the Act of 1887. It would therefore seem clear that after the appeal has been filed the proceed- ings are under the Act of 1887. In some of the county courts a leaning has been made toward the old practice of filing a narr. or a copy of the instrument sued JUSTICES OP THE PEACE. • 637 on. In the absence of any decision by the Supreme Court upon this point, the better practice seems to be to file your statement in all cases and proceed under the Act of 1887. A court rule providing that on an appeal from a justice an ap- pearance shall be entered for appellee within a specified time is without force. Jones v. Brown, 1 Dist. Kep., 675 (1883). If the plaintiff has appealed and is entitled to judgment for want of an affidavit of defense, before taking such judgment he must serve a notice of his appeal and of the statement upon defendant, as required by rule of court, section 1544. If the defendant take a certiorari, he need not notify the plaintiff. Walker v. Hopple, 16 W. N., 495 (1885). § 1547. Cause of action continues the same on appeal. While the appeal and the proceedings in the Common Pleas as to the plead- ings are de novo, the cause of action must continue the same. If the substance of the demand be identical with the proceedings be- fore the justice, the plaintiff may join in his na/rr. a count in trover and conversion, the suit before the justice being upon a contract of bailment. M'Cahan v. Hirst, 7 Watts, 179 (1838). If the cause of action be the same, though there be a variance in the description of the instrument sued on, it is no ground for reversal on writ of error. ^ecAtoZ v. Coftaw^A, 10 S.&R., 122(1823). In Esherw. Flag- ler, 17 S. & R., 141 (1827), the suit before the justice was in tres- pass, but on appeal the declaration was in assumpsit. The Supreme Court held, where the declaration and the transcript agree in sub- stance, variances in form would be disregarded. In Kraft v. GHl- ehrist, 31 Pa. St. , 470 (1858), an action of debt was brought be- fore the justice, and on appeal the plaintiff was allowed to declare in trover. In SteoM v. Weber, 20 Pa. St., 435 (1853), Lewis, J., said : " Where the parties have voluntarily tried an action of tort under pleadings applicable only to actions on contracts, it is a waiver of all objections to the form of the action, and also to any variance between the form of the proceeding before the justice and that tried on appeal in the Common Pleas." An action of debt was commenced before a justice and appealed to the Common Pleas. The form of action should have been in tort, but the court charged that under the evidence in the case the action of debt might be sustained. There was no formal narr. filed. The Supreme Court held that the case having been tried on its merits, the form of action had prejudiced neither party. Weiler v. Kershner, 109 Pa. St., 219 (1885). § 1548. The demand, on appeal, cannot be increased. While it is true that on appeal from the judgment of a justice, the proceed- 638 • PRACTICE IN PENNSYLVANIA. ings are de novo, it is well settled that the demand cannot be in- creased beyond the limit of the justice's jurisdiction, except so far as to embrace the interest which has accrued since the institution of suit. It is not competent for the plaintiff to cure the defect by remit- ting part of the verdict, or for the court to determine that $100 was the proper amount of damages for which judgment should be entered. Linton v. Vogle, 1 Pennypacker, 275 (1881). A similar ruling was made in Schlecht v. Mestein, 3 W. N., 95 (1876). Con- tra, Darrah v. Wamock, 1 P. & W., 21 (1829), where the plain- tiff was allowed to remit the excess at the bar of the Supreme Court. Under the old practice, the parties on appeal could go to trial without pleadings. Ownningham v. McOue, 31 Pa. St., 469 (1858). § 1549. When statement must be filed, and judgment of non pros. In Philadelphia County, the plaintiff has twelve months from the return-day to which the appeal was entered in which to file his narr. or statement, and not twelve months from the first day of the term in which the appeal is entered. Ellis v. Pennington, 2 W. N., 29 (1875). The Philadelphia rule is as follows : " Unless a declaration be filed within twelve months from the return-day * * * to which an appeal is entered, a nonpros, shall be entered by the prothonotary as a matter of course, unless the parties otherwise agree in writing filed, or the court, upon cause shown, shall extend the time." In Simons v. Kutz, 1 W. N., 553 (1874), the defendant took an appeal. It was held that he should give notice to the plaintiff to elect to file a declaration, or to treat the transcript as such before a judgment of non pros, is entered. But the contrary was decided in Ellis V. Pennington, 2 W. N., 29 ; Paris v. Hein, 6 Id., 124 ; Snyder v. Hensd, 7 Id., 280. Where plaintiff, by writing filed, elects to treat his transcript as a narr. , but does not notify defendant, judgment of non pros, is void. Govett v. Wiley, 13 W. N., 98 (1883). A non pros, suffered because of change of counsel, was taken off in Whittaker v. Van Arsdalen, 2 W. N., 98 (1875). In Ellis V. Donaghy, 6 W. N., 541 (1879), a non pros, was en- tered more than a year after the action was commenced. On the same day a narr. and a rule to plead were filed. The plaintiff swore that at the time his narr. was filed there was no judgment of non pros, entered on the docket. The non pros, was stricken off § 1550. What should be averred in the statement. The decla- ration or statement should bring the case within the jurisdiction of JUSTICES OF THE PEACE. 639 the justice. It has been ruled that the plaintiff may lay his dam- ages at a sum over $100, but that on the trial the evidence must show jurisdiction by the magistrate. Under the later cases of Linton v. Vogle, 1 Penny., 275 (1881) ; Jmier v. Boyd, 12 W. N., 353 (1882) ; Reoh v. Clemm, 13 Id., 46 (1883), the declaration should bring the case within the jurisdiction of the justice, and this is the better practice. Under the old mode of pleading, the narr. containing the com- mon counts in assumpsit could lay the damages at $1000 if they were restricted by the bill of particulars filed, showing the claim to be within the justice's jurisdiction. On appeal in trover neither party is bound by the amount of damages recovered before the justice. Mill^ v. Orisswdl, 3 Pa. St., 449 (1846). For the general rules concerning statements, etc., see the Chap- ters on Assumpsit and on Statements. For forms of Statements, see the Appendix. § 1551. Amendment on appeals from justices. Act of 20 March, 1810, section 4 (5 Sm., 164), provided that " Upon any such appeal from the decision, determination, or order of justices of the peace to the Court of Common Pleas * * * in any county, the cause shall be decided in such court on its facts and merits only ; and no deficiency of form or substance in the record or proceedings returned, nor any mistake in the form or name of the action, shall preju- dice either party in the court to which the appeal shall be made." In Graham v. Vandalore, 2 Watts, 131 (1833), suit was brought in the name of A., agent for B., against G. In the Common Pleas the action was brought in the name of B. Hdd, that the variance was immaterial. Where a justice makes an error in the name of a firm as plain- tiffs, an amendment will be allowed on appeal. Bratton v. 8ey- mawr, 4 W., 329 (1835). Action brought before justice in name of treasurer of corpora- tion ; on appeal names of trustees may be substituted. Comfort v. Leland, 3 Wharton, 81 (1837). Where a suit is not set out by justice with technical precision, it is the duty of the court, on appeal, to put it in form, and the name of an omitted partner as defendant may be introduced on the record before the jury is sworn. Eogees, J. : " If we were to hold jus- tices to strict technical rules, it would greatly impair the usefulness of this tribunal, and for this reason we have been very liberal in the allowance of amendments. Johnston v. Fessler, 7 W., 48 (1838). In Megargell v. Goal Co., 8 W. & S., 342 (1845), it was held 640 PRACTICE IN PENNSYLVANIA. that if one sues for a penalty as a common informer, an amend- ment to the declaration that he sues as well for himself as for the treasurer of the county may be permitted. On an appeal, the names of the parties may be transposed and changed to adapt the legal form to the merits. Griffen v. Tovyn- ship, 4 W. & S., 327 (1842) ; Uyster v. Bineman, 11 Pa. St., 147 (1849). A suit before a justice was brought by "A." On appeal, this was amended to "A. and B., late trading as A.," to the use of A. Ghie V. Kline, 13 Pa. St., 60 (1850). A suit before a justice was brought by " A. and B., trading as B. & Co." V. S. & Co." On appeal, leave was obtained by plaintiff to amend by adding the name of " C, trustee of S. & Co.," defen- dant. Seitz V. Buffam, 14 Pa. St., 69 (1850). In KeUy v. Mchman, 3 Whar. , 419 (1838), an action of assumpsit was brought before the justice in the names of A. and B. (for the use of A.), plaintiffs, against C. On appeal, it was sought to amend by striking out B., as the contract was with A. The amendment was not allowed. A simi- lar ruling had been made in SteUey v. Harp, 6 S. & R., 544 (1819). The court may permit an amendment to the statement at any time during the progress of the cause. § 1552. The judgment of a justice cannot be attacked collaterally except for collusion. The plaintiff may compel the production of the justice's docket ; but, unless this is done, the transcript has the same force as the original and imports absolute verity. Baird v. CampbeU, 4 W. & S., 192 (1842). § 1553. Set-off. The defendant may offer as a setoff the trans- cript of a judgment obtained by him against the plaintiff. O'NeU V. WMteear, 1 Phila., 446 (1854). In Cook v. Shirley, 4 "W". N., 560 (1877), it was decided that de- fendant, on appeal, may plead a set-off, although he made no such claim before the magistrate. A similar ruling was made in Tate V. Tate, 2 Grant, 150 (1858). If a justice has not jurisdiction of a demand sought to be used as a set-off, then the Common Pleas, on appeal, cannot entertain the set-off. The form is changed by the appeal, but the cause of ac- tion remains the same. Walden v. Berry, 48 Pa. St. , 456 (1865) ; Beihm v. Snell, 119 Pa. St., 317 (1888). A similar ruling was made in HoMen v. Wiggins, 3 P. & W., 469 (1832). See § 1347 et seq. § 1554. Cases in whicli the judgment of a justice bars a subsequent proceedings for the same cause of action. Where judgment against JUSTICES OF THE PEACE. 641 a plaiDtiff is rendered by a justice, and plaintiff appeals and discon- tinues, the judgment before the justice is a bar to any other suit for the same cause of action. Hose v. Turnpike Company, 3 Watts, 46(1834). If a justice erroneously renders judgment against the plaintiff for want of jurisdictiou, and the judgment is not appealed from, it is binding on the plaintiff and a bar to another suit for the same cause of action before another justice. Kase v. Best, 15 Pa. St , 101 (1850). Where a justice decides in proceedings under the Act of April 3, 1830, that there is no rent in arrear, and that the relation of land- lord and tenant does not exist, his judgment, unreversed and unap- pealed from, is a bar to any subsequent proceedings brought for the same purpose before another justice. MarsteUer v. Marstdler, 25 W. K, 421 (1890). If the plaintiff obtain judgment before a justice, and subsequently appeals to the Common Pleas and afterward discontinues, he cannot proceed upon the judgment given by the justice. Felton v. Wey- man, 10 Pa. St., 70 (1848). § 1555. Voluntary non-suit not a bar. If the plaintiff, on ap- peal, suffers a voluntary non-suit on account of lack of jurisdiction of the justice, this does not bar a subsequent action in the Common Pleas. Tovmship v. Gardner, 16 W. N., 348 (1885). A similar ruling was made where the plaintiff abandoned his first action be- fore the justice. MeOuUoch v. Logan, 3 W. N., 88 (1876). § 1556. Costs. Plaintiff may lose costs if he sue in Common Pleas when a justice has jwisdiotion. If suit be brought for any debt or debts, demand or demands in any other manner than is directed by this Act, and the verdict or judgment, exclusive of costs, shall not amount to more than one hundred dollars, unless an affidavit be filed in the prothonotary's office before the issuing of the writ of summons or capias, setting forth that he, she, or they did truly believe the debt due or damages sustained exceeded the sum of one hundred dollars, the costs in such suit shall not be recovered. (Act March 20, 1810, section 26 ; 5 Sm., 161.) In Qraban v. Hirshfidd, 47 Leg. Int., 278 (1890), an action was brought in the Common Pleas for $140 for rent ; the plaintiff, however, claimed only thirty dollars before the jury, as he had relet the premises to another tenant soon after the defendant's removal. Gordon, J.: " The sums received by the plaintiff from the re- letting certainly stand in no better position than direct payments on account of the claim, and a reduction below the jurisdictional amount from payments has been frequently held to bar costs." Judgment without costs. VOL. — 41 642 PEACTICE IN PENNSYLVANIA. The usual practice under this Act is to file your prceeipe with an affidavit that the debt or damage exceeds $100, as follows ; A. B. ) C.P, No. . V. }■ Term, 1896. CD. j No. . Sik: Issue summons assumpsit, returnable see. leg. E. F. Atty. for Plaintiff. (Date.) To Prothonotary C. P. City and County of Philadelphia, ««. A. B., the above-named plaintiflf, being duly sworn according to law, de- poses and says that he truly believes that the debt due him by the defen- dant above named (or the damage sustained by him) for the recovery of which this suit is brought, exceeds the sum of one hundred dollars. Sworn to and subscribed before me, ) » r> this day of ,1896. J '^^ • § 1557. If less than $100 recovered in Common Pleas by reason of set-off. If less than $100 is recovered in the Common Pleas on a suit by reason of a set-off, the plaintiff shall have his costs. Spear V. Jamieson, 2 S. & R., 530 (1816) ; Sadl&- v. Slobaugh, 3 Id., 388 (1817) ; Bartram v. MoKee, 1 W., 39 (1832) ; Munich v. Id., 33 Pa. St., 378 (1859). If, however, it do not appear that the plaintiff's claim was re- duced because of a set-off, costs will be imposed on plaintiff. Stew- art V. Milchd, 13 S. & R., 287 (1825) ; Rogers v. Batdiffe, 23 Pa. St., 184 (1854) ; Iron Go. v. Ehule, 53 Pa. St., 93 (1866). § 1558. Notice of spemtl matter vnU bring set~off on record. Where no affidavit has been filed, under the plea of payment, the plaintiff should take a rule on defendant to give notice of special matter, in order to bring the defense on the record and qualify the plea by showing whether set-off or direct payment was the defense. Iron Co. V. Bhule, 53 Pa. St., 93 (1866). § 1559. Costs on appeal to abide the event of the suit. Costs on appeal * * * from the judgment of justices * * * shall abide the event of the suit, and be paid by the unsuccessful party, as in other cases : Provided, that if the plaintiff be the appellant, he shall pay all costs which may accrue on the appeal if, in the event of the suit, he shall not recover a greater sum or a more favorable judgment than was rendered by the justice. (Act April 9, 1833, section 1 ; P. L., 480.) The statute of 22 and 23 Car. II., c. 9, which provides that if the jury find the damages in certain suits to be under the value of 40 s., the plaintiff shall not recover more costs of suit than the damages so found shall amount to, although in force in Pennsyl- JtrSTICES OP THE PEACE. 643 vania, only refei's to suits originally brought in the Common Pleas. Judgments before justices are governed by the Acts of March 22, 1814, and April 9, 1833, which latter Act provides that the costs on appeal shall abide the result of the suit and be paid by the unsuccess- ful party. Knappenberger v. Moth, 32 W. N., 181 (1893), follow- ing King w.Boyler, 31 Pa. St., 424 (1858). § 1560. Costs in trespass and trover. The provision that costs, on appeal, shall abide the result of the suit and be paid by the unsuccesful party, includes appeal in trespass and trover. Kmg v. Boyles, 31 Pa. St., 424 (1858). In this case the plaintiff obtained a judgment for thirty-five dol- lars before a justice. The defendant appealed. The case was tried by arbitrators, who found'that there was no cause of action. The Common Pleas awarded the plaintiff ten cents. Held, that he was entitled to full costs. § 1561. In the following cases plaintiff eniiHed to costs. If the plaintiff recover the same amount on appeal as before the justice, he is entitled to costs. Dearth v. Laughlin, 16 S. & E,., 296 (1827) ; Johnston v. Perkins, 1 P. & W., 23 (1829) ; see Barker v. Mc- Oreary, 66 Pa. St., 162 (1870). If plaintiff appeal from a judgment against him, and recovers, he is entitled to a judgment with full costs. Adams v. M'llheny, 1 Watts, 58 (1832). If, upon appeal, the plaintiff recovers a more favorable judgment than before the justice, though there is an intermediate award of arbitrators for a greater amount than the judgment, he is entitled to costs. Newhouse v. Kelly, 5 Watts, 508 (1836). In case the defendant appeal and succeeds in reducing the plain- tiff's judgment, plaintiff is nevertheless entitled to costs. Imd- say v. Corah, 7 Watts, 235 (1838). If a defendant appeals from an award in favor of the plaintiff, and the plaintiff recovers more than the award, but leps than such amount with interest, he is allowed costs. Haines v. Moorhead, 2 Pa. St., 65 (1845). § 1562. Whm defendant entitled to costs. Where separate suits are brought before a justice, and one of the defendants appeals, and on the trial, under the plea of set-off, interposes his judgment before the justice and obtains a verdict in his favor, he is not en- titled to his costs. Oroff v. Bessler's Admr., 27 Pa. St., 71 (1856). If plaintiff recovers the same amount on an award of arbitrators in the Common Pleas as before the justice, and defendant appeals therefrom and plaintiff is non-suited, the defendant is entitled to costs. Flick V. Boucher, 16 S. & R., 373 (1827). 644 PEACTICE IN PENNSYLVANIA. If judgment before a justice is given in favor of defendant in a certain amount, and he appeal and recover a verdict of liije amount, he is entitled to costs. Holman v. Fester, 7 W. & S., 313 (1844). If, on appeal from the judgment of a justice in favor of defen- dant, the matter is submitted to arbitrators, who find for plaintiff, and defendant appeals therefrom and obtains a verdict, the costs are imposed on plaintiff. Addison v. Hampson, 6 Pa. St., 463 (1847). If defendant obtains judgment before a justice and on plaintiff's appeal the award of arbitrators is "no cause of action," neither party is entitled to costs. Hoffman v. Slosson, 2 W. & S., 36 (1841). § 1563. Costs where defendant offers to confess judgment for an admiited amouni. If the defendant on the trial of the cause or before an appeal is taken shall offer to give the plaintiff a judgment for the amount which the defen- dant shall admit to be due (which offer it shall be the duty of the justice * * * to enter on the record), and if the plaintiff or his agent shall not accept such offer, then and in that case, if the defendant shall appeal, the plaintiff shall pay all the costs which shall accrue on the appeal, if he shall not in the event of the suit recover a greater amount than that for which the defendant offered to give a judgment, and in both cases the de- fendant's bill shall be taxed and paid by the plaintiff in the same manner as if a judgment had been rendered in court for the defendant. (Act April 9, 1833, section 1 ; P. L., 480.) To exempt a defendant from the payment of costs if he intends to rely on the ground of a tender, he should plead the tender be- fore the justice, have it entered on the docket, offer to pay and pro- duce the money before the plaintiff, and on the appeal put in the plea of tender of the money. Seibert v. Kline, 1 Pa. St., 38 (1845). In order to escape liability for costs the defendant must tender the amount of the debt, with interest and costs. McDowell v. Glass, 4 Watts, 889 (1835). A tender ,of a sum certain implies that interest is to be added. Park V. Sw'eeny, 39 Pa. St., Ill (1861). An offer to confess judgment for the proper amount should ac- company the tender. Dicherson v. Anderson, 4 Whar., 78 (1838). § 1564. Judgment confessed by agent. In an action before a justice, an offer to confess judgment can be made by an agent of defendant. Randall v. Wait, 48 Pa. St., 127 (1864). § 1565. Recovery of sum less than offer. If, after plaintiff has had judgment rendered in his favor before a justice, defendant makes an offer to confess judgment for a less amount, which offer is rejected, and plaintiff, on the appeal, recovers a less sum than JUSTICES OF THE PEACE. 645 the offer, the defendant is entitled to costs. MagiU v. Tomer, 6 W., 494 (1837). Where such offer is made at the hearing, and plaintiff, on appeal, recovers less than the offer, the defendant is entitled to costs. Oard- ner v. Davis, 15 Pa. St., 41 (1850). § 1566. If judgment increased in Common Pleas. If the justice give judgment for a smaller amount than the offer, and plaintiff, on appeal, recovers more than the judgment, but less than the offer, the plaintiff is entitled to costs. McMaster v. Rvpp, 22 Pa. St. , 298(1853). § 1567. Jvdgment cannot be tendered after appeal. An offer to confess judgment after an appeal is taken is too late. Bogart v. Rathbone, 1 Pa. St., 188 (1845). § 1568. Counsel fee. In Shuey v. Biiner, 3 W. & S., 275 (1842), RcHtBKS, J., said : "It seems to have been the practice in some counties, under the Act of the 20th of March, 1810, to charge a counsel fee of four dollars in addition to a judgment fee, and fifty cents per day for every day the party attended on the appeal. Without deciding on the propriety of this construction, we are of opinion that since the Act of 1833 there is no foundation for any such practice. * * * The costs are made to bide the event of the suit without regard to the amount recovered, or whether the judgment may or may not be more favorable to the party entering the appeal." § 1569. Constables fee and mileage. Where a constable serves a number of writs at the request of a single plaintiff against a num- ber of defendants, he may recover, in addition to his fee for ser- vice, mileage in each case at six cents per mile. McGee v. Dillon, 103 Pa. St., 433 (1888). § 1670. Costs to be paid before delivery of transcript — Act of 1893 regulating costs. Justices of the peace for the counties of Centre, Blair, Lehigh, Clinton, Schuylkill, Allegheny, Indiana, Northampton, Luzerne, Lebanon, Berks, Perry, Mifflin, and York may demand and receive from the appellant and from the plaintiff desiring a transcript for entering in the Common Pleas, or other transcripts, in any case tried before them, before giving a transcript of appeal or other transcript, all costs that may have accrued in the said action : Provided, that payment of coste in the first instance by the appel- lant or plaintiff shall not debar him of the right to receive the same from the appellee or defendant in the same manner and to the same extent as provided in the Act of April 9, 1833 : And provided further, that any party to suits shall have the right to appeal and demand transcripts without said payment of costs upon making and filing an affidavit with the justice of his inability to pay such costs. (Act of March 2, 1868, section 1 ; P. L., 257.) 646 PRACTICE IN PENNSYLVANIA. The Act of June 24, 1885, extends these provisions throughout the State, and is as follows : In all cases of appeal from the judgment of an alderman or a justice of the peace, the said alderman or justice shall be entitled to demand and receive from the appellant the costs in the case before the making and de- livery of the transcripts for said appeal ; and if the appellant shall finally recover judgment in the case appealed, he shall be entitled to receive and collect from the adverse party the costs so as aforesaid paid on appeal. (Act of June 24, 1885, section 1 ; P. L., 159.) Alderman and justices of the peace shall have the same right to demand and receive the costs as aforesaid before issuing a transcript of a judgment recovered before them for entry in the Court of Common Pleas, or other purpose ; and the party paying the same shall be entitled to recover them from the party legally liable to pay the same : Provided, however, that any party to a suit before an alderman or justice of the peace shall have the right to appeal and demand and receive transcripts without payment of costs as hereinbefore provided, on their making and filing with the alder- man or justice of the peace an affidavit that they are unable through poverty to pay said costs. {Id., section 2 ; P. L., 159.) On taking an appeal from a justice of the peace, the party appeal- ing'must pay all costs accrued before he shall be entitled to receive his transcript. Svmday v. Snayberger, 4 Dist. Rep., 296 (1895). The Act of May 23, 1893 (P. L., 117), regulating and estab- lishing the fees to be charged by justices of the peace, aldermen, magistrates, and constables, so far as it relates to persons who come into office subsequent to the passage of the Act, is constitutional. Cornell v. Beaver Co., 8 Dist. Rep., 783 (1894). It repeals the Act of April 2, 1868 (P. L., 3), Fraim v. Laneaster, 171 Pa. St., 486 (1895). § 1571. Aot o/1885 applies to Philadelphia. The Act of June 24, 1885, requiring costs to be prepaid on appeals, applies to cases before magistrates in Philadelphia. Kelly v. Royal, 46 Leg. Int., 108 (1889). § 1572. Dockets of Justices. When jusiioe to deliver his docket, etc. — Executors of justice^If justice interested — If he abscond. °" Where a justice resigns, or is removed from office, or removes from his proper district or county, it shall be his duty to deliver his docket, with all the notes, bonds, and other papers in his possession concerning any judg- ment or suit entered thereon, to the neighboring justice of the district. In cases of death, absconding, voluntary or compulsory absence of a jus- tice from his proper place of abode, such duty shall devolve on his legal representatives. The justice to whom the docket is delivered shall proceed in the same manner and with like effect as the original justice might have done. If such justice shall be interested in the suit or judgment, such suit or judgment shall be proceeded in by another justice of the proper county. JUSTICES OF THE PEACE. ' 647 to whom a transcript shall be furnished, as well as the original docket, if required. If the justice shall abscond or depart from the district without delivering his docket and papers to some justice, it shall be the duty of the person in whose possession the same may be left or found to make a delivery thereof as aforesaid, under the penalty of one hundred dollars. If the said docket and papers shall not be left in the particular custody of any person, it shall be the duty of any disinterested justice to take pos- session thereof, and the like proceedings shall be had upon the suite and judgments contained in the said docket as provided for when the docket is properly delivered. (Act February 20, 1833, section 1 ; P. L., 52.) § 1573. Temporary absence of justice. In case of the temporary absence of any justice, it shall be lawM for him, previous to his departure, to deposit his docket and all papers con- nected with any judgment rendered by him with the nearest justice in the district, who is authorized to issue executions as if the judgments had been originally rendered by him. (Act February 20, 1833, section 2 ; P. L., 52.) § 1574. On expiration ofterm,.doc1cet to be delivered. Every justice elected under this Act shall, on the expiration of his term of office, deliver over his docket and like papers to whomever is elected and commissioned to succeed him. (Act June 21, 1839, section 10 ; P. L., 379.) This Act was extended by the Act April 21, 1846, section 6 (P. L., 434), which provided : That the foregoing Act shall be deemed and construed to extend to all cases of succession in office, whether by death, resignation, removal, or otherwise. In case of the decease of any justice, the delivery shall be made by his legal representative to the person who may be elected to suc- ceed him. § 1575. Proceedings to enforce delivery. If the term of office of the justice has expired, and he do not deliver his docket to his suc- cessor, he cannot be compelled to do so by an order of court upon petition and rule to show cause. In re Baker, 44 Pa. St., 440 (1863). § 1576. Removal of justice out of district. Every person who has been a justice and has removed or shall remove out of the district for which he was commissioned, shall, upon demand made by any person, deliver, or cause to be delivered, his dockets and all official records to the nearest justice. If any person shall fail, for twenty days, to comply with the provisions of this section, he shall forfeit and pay one hundred dollars, to be recovered by action of debt for the use of any person who may sue for the same. He may be compelled to deliver such docket and records by a decree and attachment issued from the Common Pleas or any judge thereof in vacation on application being made therefor by any person. Said court or any judge thereof in vacation shall have power to enforce a delivery of such docket and records against any person in possession of the same, and being about 648 PRACTICE IN PENNSYLVANIA. to remove out of the State, without making the delivery thereof; and the same proceedings are authorized to compel the delivery of justice's docket in the hands of any other person who has removed, or may remove, or be about to remove, out of the proper district where such dockets belong. (Act April 21, 1846, section 4 ; P. L., 434.) § 1577. Lost or destroyed dockets. Where dockets shall have been destroyed or lost, it shall be lawfiil for any person or persons interested in any action pending or judgment had, and who desire to have the same supplied, to apply to such justice, or their successors in office, or to any justice in any county in which the defendant or defendants in such proceedings may reside, by petition setting forth the proceedings to be supplied and veriiied by affidavit ; whereupon the justice shall issue a precept, in the nature of a writ of summons, which shall be served as in other cases requiring the defendant in such action or judg- ment, or his representatives, to appear before such justice on a day certain to be named in said writ, not less than five nor more than eight days from the issuing thereof, and show cause why the prayer of the petitioner should not be granted. In all cases where the facts set forth in such petition shall be denied, it shall be the duty of such justice to hear the parties and receive testimony as in other cases, as well his own testimony upon affidavit as the testimony of others. Upon the hearing thereof, if the said justice shall be of opinion that the facts alleged in such petition are true, or in case such facts be not denied, he shall order the said proceedings be supplied, and thereupon enter the same upon his docket ; which said entries shall have the same force and effect as if the original record had not been lost or destroyed, and either party may have his remedy by appeal or certiorari. (Act April 30, 1850, section 1 ; P. L., 640 ; and Act of June 11, 1879 ; P. L., 151.) § 1578. OivU and Criminal docket to be kept — Fees to be noted — All costs, fines, etc. , to be entered in a day-book. Each magistrate in Philadelphia shall keep a civil and criminal docket in which shall be entered daily all proceedings of said court, and it shall be the duty of the magistrate receiving any costs, fees, fines, penalties, or other moneys to note the same in the margin of the proper docket opposite to the entry of the case in respect to which the same is received, with date and name of person from whom received. Said docket shall be open to proper inspection. Each magistrate shall also keep a day-book in which he shall enter all costs, fees, fines, and penalties collected by him, with date and the person from whom and purpose for which received, and the time and manner in which the same is disposed of. (Act February 5, 1875, section 11 ; P. L., 56.) § 1579. Suits against Justices. Notice. No writ shall be sued out against, nor any copy of any process shall be served on, any justice for anything done by him in the execution of his office until notice in writing of such intended writ or process shall have been delivered to him or left at the usual place of his abode by the party or his attorney or agent who intends to sue or cause the same to be sued out or served, at least thirty days before suing out or service of the same. JUSTICES OF THE PEACE. 649 Such notice shall clearly and explicitly set forth the cause of action which the party claims to have against the justice. On the back of which notice shall be indorsed the name of such attorney or agent, together with the place of his abode. (Act March 21, 1772, section 1 ; 1 Sm., 364.) In computing the thirty days, the first day, or day of service, is included ; the last day is excluded. Thmms v. Afflick, 16 Pa. St., 14 (1851). See, however. Act of June 20, 1883 (P. L., 136). § 1580. POEM OF NOTICE. (Date.) To L. M., Justice of the Peace for County. Sir : According to the provision of the Act of Assembly, approved March 21, 1772, section 1 (1 Sm., 364), you are hereby notified that if you do not tender sufficient amends within thirty days from above date, I will bring an action against you in the Court of Common Pleas in and for the coimty of for the following causes : (here set forth your grievances) by reason of all which illegal and oppressive conduct I have sustained material injury and damage. Very respectfully yours, A. B. § 1581. Indorsement of notice. A. B. ) V. y L. M., Justice of the Peace. ) Notice. E. F. (Address). Attorney pro A. B. (Date). § 1582. Hequisites of notice. The notice should indicate the cause of action with reasonable precision. It should identify the injury complained of and sought to be re- dressed. It should set forth the name of the attorney or agent, with the place of his abode, on the indorsement of the notice. The resi- dence of the attorney need not be in the county where the justice has his office. If the name of the attorney be not so indorsed, the plaintiff must give his place of abode. Two or more penalties may be included in the same notice. If the proposed suit be for taking illegal fees, the notice should state for what act or service the fee was charged, what the legal fee, if any, was, the excess of the illegal over the legal fee, etc. In an action against a justice of the peace to recover a penalty, under the Act of 1772, for taking illegal fees, the notice must set forth clearly and explicitly the cause of action and should refer to 650 PEACTICB IN PENNSYLVANIA. the statute or claim a penalty. MoClelland v. Semmens, 1 Dist. Eep., 356 (1892). The Act of May 23, 1893 (P. L., 117), repeals the Act of Feb- ruary 3, 1865 (P. L., 92), and inasmuch as it makes no provision for a penalty against a justice of the peace for taking illegal fees, the only remedy is by indictment. Sohultzman v. McCarthy, 5 Dist. Eep., 10 (1895). See § 1595. § 1583. What the notice need not state. The notice need not state the kind of writ upon which suit will be commenced nor the kind of action. § 1584. Declaration. The declaration must conform to the no- tice when suit is instituted in the Common Pleas. Appk v. Rambo, 13 Pa. St., 9 (1849). § 1585. Amends may be tendered. Any justice within thirty days after notice given may tender amends to the party complaining or his agent or attorney. If it be not accepted, such justice may plead such tender in bar to any action brought against Mm grounded on such writ or process, together with the plea of not guilty, and any other plea with leave of the court. If upon issue joined the jury shall find the amends tendered to have been sufficient, then they shall give a verdict for defendant, and in such case, if the plaintifif is non-suited or discontinues his action, or in case judgment shall be given for defendant upon demurrer, such justice shall be entitled to the costs as if he iad pleaded the general issue only. If the jury find no amends were tendered, or that the same were insuffi- cient and against the defendant on other plea or pleas, then they shall give verdict for the plaintifi" and such damages as they shall think proper, which he shall recover with costs. (Act of March 21, 1772, section 2 ; 1 Sm., 364.) Where an Act gives a penalty to the party aggrieved no sum of money short of the penalty could be sufficient amends. Lowrie v. Verner, 3 "Watts, 318 (1834). § 1586. Amends may bepaid into court. If the justice shall neglect to tender amends or tender insufficient amends, before the action is brought, he may, by leave of court, at any time before issue joined, pay into court such sum of money as he shall see fit ; where- upon such proceedings, orders, and judgments shall be made by such court as in other actions where defendant pays money into court. (Act of March 21, 1772, section 4 ; 1 Sm., 364.) § 1587. Plaintiff must prove notice was given, to justice. A plaintiif shall not recover a verdict against a justice unless it is proved upon the trial that notice was given as aforesaid ; in default thereof, such justice shall recover a verdict and costs as aforesaid. {Id., section 3.) Proof may be made by producing the witness who served the notice and having him state, under oath, his mode of service. JUSTICES OF THE PEACE. 651 The plaintiff cannot prove service by a witness who heard the notice read in defendant's presence, unless he can identify the paper and specify the day. Minor v. Neal, 1 Pa. St., 403 (1845). § 1588. Plaintiff's evidence limited to the fads in notice. No evidence shall be permitted to be given by plaintiff except such as is contained in the notice. (Id., section 5.) § 1589. Limitation in suits against justice or constable. No action shall be brought against any justice for anything done in the execution of his office, or against any constable, or other officer, or persons acting as aforesaid, unless commenced within six months after the Act committed. (Id., section 7.) § 1590. Complaints against justices. On complaint made in writing, signed by at least twenty of the taxable inhabitants of any township or county, against any justice residing therein, the chief justice or any other of the justices of the Supreme Court, or the president or any associate judge of any of the Courts of Common Pleas, shall issue process to any constable commanding him to summon the said justice so complained of to appear before him on some certain day, which shall not be more than ten nor less than five days from the date of such process, and also to issue compulsory process to compel the attendance, as well of the witnesses named by the complainants as those whom such justice shall require in his behalf. On the day appointed for hearing the said judge shall proceed to examine, on oath or affirmation, all such witnesses as may appear, and shall fairly, carefiilly, and impartially write down all deposi- tions, cross-examinations, and interrogatories as aforesaid taken, and shall thereupon seal up and transmit the same to the secretary of the Common- wealth, who shall lay them before the legislature. (Act January 14, 1804, section 1 ; 4 Sm., 107.) § 1591. How costs of complaint against justice to be paid. The judge shall transmit a certified schedule or list of the names of the witnesses and the time they respectively attended, together with the account of the costs upon each process served by the constable, to the commissioners of the county ; and the expense of such attendance and service, together with all necessary expenses arising under the provisions of this Act, shall be paid out of the moneys raised for the use of the proper county in which such justice resides, upon warrants drawn by the commissioners of the county upon the county treasurer. (Id., section 2.) § 1592. Proceedings against a justice who collects a judgment and refuses to pay over. Where a justice shall receive the amount of a judgment rendered by him, or any part thereof, and shall refuse to pay the same over to the plaintiff or his agent or the person to whom it is owing, such refusal shall be a misde- meanor in office. Besides the remedy for such misdemeanor, the party may petition the Court of Common Pleas of the proper county where the justice resides, setting forth the refusal of the justice to pay over the moneys by him col- lected. The court shall take immediate order therein, by directing a notice 652 PRACTICE IN PENNSYLVANIA. to issue, directed to the justice, returnable forthwith or at such certain day as will suit the convenience of the court, setting forth the contents of the- petition. On the return of the said notice and due proof of the service thereof, if the said justice appears in pursuance of the notice and admits the facts set forth in the petition, or shall neglect or refuse to appear, in either case the court shall enter judgment for the amount so retained by the justice, with interest from the receipt thereof and four dollars to the parly aggrieved, besides costs. Should the facts be disputed by the justice, the court shall, upon his appearance, form an issue, and judgment entered on the verdict of the jury shall be final and conclusive, and execution shall issue forthwith without stay of execution. The court shall decree as to the costs of such issue as to right and justice shall appertain. (Act March 28, 1820, section 8 ; 7 Sm.,. 310.) § 1593. Justices shall give bonds. Justices and aldermen shall give bond before entering upon the perform- ance of their duties in not less than $500, nor more than $3000, as the Court of Common Pleas or one of the judges thereof in vacation may direct, with one or more sufficient securities, unless the person elected be possessed of a sufficient freehold estate. Said bond shall be in the name of the Commonwealth, with conditions, for the faithful application of all moneys that come into his hands officially. No surety shall be liable unless proceedings be commenced within eight years from the date of the bond, according to the Act of June 14, 1836,. relating to Official Bonds. (Act of June 21, 1839, section 6 ; P. L., 378.) § 1594. magistrate's bonds in Philadelphia — Liability of sure- ties, etc. A bond shall be given by a magistrate in Philadelphia County with two or more sufficient sureties, who shall be freeholders and approved by one of the judges of the Court of Common Pleas, which bond shall be taken by the prothonotary in the name of the Commonwealth, with conditions for faithful performance of his duties and proper application of all moneys that shall come into his hands as such magistrate. Such bond shall be held in trust for the benefit of all persons who may sustain injury from said magistrate in his official capacity. Said sureties shall not be liable unless proceedings be commenced within six years from the time such causes of action shall accrue. Such bond shall forthwith be recorded in the office for recording of deeds. Copies of such bond, certified by the recorder, shall be good evidence in any action brought against the obligors in the same manner as the original would be. (Act February 5, 1875, section 7 ; P. L., 56.) § 1595. Remedies against justice who retains money in his official capacity. If a justice refuse to pay over moneys received by hira in his official capacity, there are two remedies : First, your proceeding may be by petition to the Court of Com- mon Pleas — citation and hearing — with a jury trial, if demanded, to try an issue of fact ; or. JUSTICES OF THE PEACE. 653 Second, by proceeding in assumpsit on the justice's bond, as in cases of official bonds. If a justice of the peace charge fees illegally, under the Act of 1868, the remedy is by indictment. The penal Act of 1814 does not apply. Irons v. Allen, 169 Pa. St., 633 (1895). See § 1582. § 1596. Actions against Constables. Duties of constables — As to levy. When a justice issusB execution it shall be directed to the constable of the ward, district, or township where the defendant resides, or the next constable most convenient to the defendant, commanding him to levy the debt and costs on the defendant's goods and chattels. The constable shall within twenty days next following expose the per- sonalty for sale by public vendue, having given due notice by at least three advertisements put up at the most public places in his township, ward, or district. (Act of March 20, 1810, section 11 ; 5 Sm., 167.) No action can be maintained against a constable if he refuse to take an execution, he not being a constable " of the ward, district, or township where the defendant resides, or the next constable most convenient to the defendant." Corwm. v. Lents, 106 Pa. St., 643 (1884). If the execution be directed to , constable, the constable is not bound to execute it, although he is justified in so doing. It would have been more prpper to direct the writ to the con- stable by name, or to the constable of the district generally. Paul V. VanUrk, 6 Binn., 124 (1813), Tilghman, C. J. The constable must make return to the execution in writing within twenty days, unless he can show sufficient reason for the delay. Keller v. Qarke, 6 W. & S., 534 (1843). § 1597. As to details of Execution. The constable shall indorse the goods or chattels levied upon, and the time of such levy, on the execution or schedule thereto annexed. The constable is empow- ered to take a bail-bond, for the sufficiency of which he is respon- sible. Act of March 20, 1810, section 18 (5 Sm., 167) ; Act of March 28, 1820, section 4 (7 Sm., 309). § 15S8. Constable to make out his bill for fees, charges, etc. When the constable shall collect or receive the debt, interest, and costs, or any part thereof, in any execution, it shall be his duty to make out and deliver to the defendant a bill of particulars of his fees and charges, together with a receipt signed by him, if said fees, etc., are paid. (Act of March 28, 1820, section 3 ; 7 Sm., 309.) § 1599. When constable shall perform duties of coroner. In suits in which the sheriif of the county is interested as a party, where no coroner can serve, it is the duty of the constable to perform the duties 654 PEACTICE IN PENNSYLVANIA. of coroner as to service of process, etc. (Act of April 22, 1850, section 19 ,* P. L., 553.) § 1600. Actions for False Returns. When constable makes false returns or fails to produce plaintiff's receipt. If the constable make a false return or does not produce plaintiff's receipt on return-day, or make such other return as may be deemed sufficient by the justice, the justice shall issue a summons to be served by a constable, or other fit person or supervisor, who shall execute the same, commanding the constable to appear before him on some certain day, not exceeding eight days from date, and then and there show cause why an execution should not issue against him for the amount of the first execution. If the constable neglects to appear, or does not show sufficient cause why the execution should not issue against him, then the justice shall enter judgment against such constable for the amount of the first execution, with costs, without stay of execution, which execution shall be directed to any constable, or other fit person or supervisor, whose duty it shall be to exe- cute the same. This shall in no way impair the proceeding with regard to insolvent debtors, and their discharge on full surrender of their property .^ (Act March 20, 1810, section 12 ; 5 Sm., 167.) This Act was strictly interpreted iu Baohman v. Fenstermacher, 112 Pa. St., 331 (1886). § 1601. When constable shall refuse to make return of writ, efc. Where the justice issues a summons, warrant of arrest, or execution in any civil suit against any constable foj? any debt or demand alleged to be due by him in his private capacity, such process shall be directed to any other constable in the city or county in which the justice shall reside, and if such constable shall refiise or neglect to make return of the same, or, having collected the money, reflise or neglect to pay over or account for the same,, he shall be proceeded against as in the twelfth section of the Act of March 20, 1810. (Act of March 28, 1820, section 1 ; 7 Sm., 308.) § 1602. When constable reuses to pay overplus money. If a constable or his deputy refuse or neglect to pay to defendant the over- plus money he may have received upon any execution, proceedings may be instituted against him as in cases of false return. (Act of March 28, 1820,, section 2 ; 7 Sm., 308.) §1603. lAabiliiy of constable refusing adequate security. Goods were levied upon by a constable ; there was a dispute as to their liability ; the plaintiflF tendered adequate security ; the constable refused to proceed unless certain designated security was given. It was held, that the constable should have proceeded. Meeker v. Sutton, 2 Phila., 288 (1857). § 1604. Proceedings against constable. If a constable is guilty of official misconduct, suit may be brought against him and his surety on his official bond in the Common Pleas or the party injured may proceed against the constable alone before a justice, and afterward. JUSTICES OF THE PEACE. 655 against his surety, as prescribed in section 19 of the Act of March 20, 1810. Palmer v. Omm., 6 S. & R., 244 (1820). § 1605. Mandamus may issue to a magistrate to compel issuing of a summons. The Common Pleas will issue a mandamus to com- pel a magistrate to issue a summons against a constable for unlawful delay in serving and returning a writ. Comm. v. Smith, 3 W. N., 95 (1876). § 1606. Mode of proceedings against constable. No action shall be brought against any constable » * * or any person acting by his order and in his aid, for anything done in obedience to any warrant under the hand and seal of any justice of the peace until de- mand has been made, or left at the usual place of his abode, by the party or parties intending to bring such action, or by his, her, or their attorney or agent, in writing, signed by the party demanding the same, of the perusal and copy of such warrant, duly certified under his hand, and the same has been neglected or refused /or the space of six days after such demand; and in case, after such demand and compliance therewith, by showing the said warrant, and giving a copy thereof, certified as aforesaid to the party demanding the same, any action shall be brought against such constable, or other person or persons acting in his aid, for any such cause as aforesaid, without making such justice or justices who signed or sealed the said warrant defendant or defendants, on producing and proving such warrant at the trial of such action, the jury shall give their verdict for the defendant or defendants, notwithstanding any defect or defects of jurisdic- tion. * * * If the action be brought jointly against such justice * * * and such constable * * * on proof of such warrant, the jury shall find for such constable, * * * notwithstanding such defect or jurisdiction. * * * If the verdict shall be against the justice * * * the plaintiff or plaintiflfs shall recover, his * * * costs to be taxed * * * as to include such costs as plaintiff or plaintiffs are liable to pay to such defen- dant or defendants for whom such verdict shall be found. * * * Provided always, that where the plaintiff in such action * * * shall obtain a verdict, * * * the justices before whom the cause shall be tried shall, in open court, certify on the back of the record that the injury for which such action was brought was wilfully and maliciously committed, the plaintiff shall be entitled to have and receive double costs of suit. Provided always, that no action shall be brought against any justice * * * for anything done in the execution of his office, or against any constable * * * unless commenced within six months after the Act committed. (Act of March 21, 1772, section 6 ; 1 Sm., 365.) No action can be brought against a constable until demand has been made upon the officer and the same has been neglected or re- fused for six days. Ream's Appeal, 157 Pa. St., 444 (1893) ; Comm. V. Warfd, 33 W. K, 357 (1893). § 1607. Proceeding against bail. Where a constable neglects or refuses to perform his duty, if judgment be first obtained against him and nothing can be recovered, the justice is authorized to issue 656 PEACTICE IN PENNSYLVANIA. a seire facias and proceed against his sureties. Act of March 20, 1810, section 19 (5 Sm., 170). § 1608. Proceedings to Recover Possession of Lands by Pur- chasers at Sheriff's Sale. Legislation. It was long considered that on an execution and sale of lands, the sheriff could not give possession to the purchaser, conformably to the English practice, as is more fully set forth in the elaborate and learned opinion in Pennsylvania v. Kirhpatriek et al., reported in Addison's Reports, 193 (1794). The initial Act of the legislature on this subject was passed on April 6, 1802 (3 Sm., 530), and its supplement, March 14, 1814 (6 Sm., 133). The provisions of these Acts found a later substitute in the Act of June 16, 1836 (P. L., 780), which resembles very closely its predecessors, and the decisions therefore under the former Acts re- late in all essential respects to the Act of 1836. Schuylkill County is specially provided for in the Act of May 13, 1871 (P. L., 820), which contains clauses similar to the Act of 1836, but provides in place of a hearing before two justices that the petition shall be presented to the Court of Common Pleas or a judge thereof in vacation, and in place of a jury assessing the dam- ages, this responsibility is cast upon said court or judge. The Act of May 13, 1871, providing the mode of proceeding in Schuylkill County, has no application to leasehold estates. Seltzer V. Bobbins, 18 W. N., 113 (1886). § 1609. Pwehaser at sheriff's sale to give notice to party in pos- session. Whenever lands or tenements shall be sold by virtue of any execution, * * * the purchaser of such estate may, after the acknowledgment of a deed therefor to him by the sheriff, give notice to the defendant as whose property the same shall have been sold, or to the persons in possession of such estate under him, by title derived from him subsequently to the judg- ment under which the same were sold, and require him, or them, to sur- render the possession thereof to him within three months from the date of such notice. (Act June 16, 1836, section 105 ; P. L., 780.) § 1610. FOKM OF NOTICE OF SHERIFF'S SALE, REQUIMNG TENANT TO QUIT THE PREMISES. A. B. ] Common Pleas No. , Term, 1890. No. . V. y Philadelphia (date). C. D. j To G. H., Sib : Please take notice that, by virtue of a writ of issued in the above-entitled case, E. F., Esq., High Sheriff (or coroner), of the JUSTICES OF THE PEACE. 657 county of Philidelphia, did on the first day of , 1890, expose to sale the following property (here describe fully from the deed). At the said sale I became the purchaser of said premises, and the said sheriff (or coroner), on , acknowledged a deed to me for said premises. You are the defendant as whose property the said premises were sold and are in possession thereof (or you were and are in possession of said premises under the defendant in said execution by title derived from him subse- quently to the judgment under which said property was sold). I therefore give you notice and require you to surrender the possession of the said premises to me within three months from the date of this notice or I shall proceed according to law. Very respectfully, (Signature of Purchaser.) § 1611. Purchaser may j)resent petition to recover possession. If the defendant or any person in possession under him shall refuse or neglect to comply with the notice and requisition of the purchaser as afore- said, such purchaser, or his heirs or assigns, may apply by petition to any justice of the peace, alderman, or magistrate of the city, town, borough, or county where such real estate may be, setting forth : 1. That he purchased the premises at a sheriff's or coroner's sale. 2. That the person in possession at the time of such application is the defendant as whose property such real estate was sold, or that he came into possession thereof under him. 3. That such person in possession had notice as aforesaid of such sale, and was required to give up such estate three months previous to such application. (Act of June 16, 1836, section 106 ; Act of May 24, 1878, sec- tion 1 ; P. L., 134.) The complaint must set forth all the facts necessary to give the j ustice j urisdiction . ^ §1612. FORM OF PETITION BY PUBCHASEE TO OBTAIN POSSESSION. To Esq., Magistrate of Court No. , of Philadelphia County. The complaint of A. B. respectfully represents : That he is the owner of all that certain (here recite description of real estate briefly). That your petitioner purchased the said premises at a sheriff's (or coro- ner's) sale on the day of , A. D. 1890, and that a sheriff's (or coroner's) deed therefor to your petitioner, bearing date the day of A. D. 1890, was duly acknowledged in open court by the sheriff (or coroner) of said county, and duly entered among the records thereof. That the person in possession of the above-described premises at the time of this application is C. D., who was the defendant in the execution as whose property such real estate was sold (or is C. D., who was at the time of said sale and now is in possession of said premises, under the defendant in the execution under which the property was so sold, by title derived from said defendant subsequently to the judgment under which said property was so sold). That said C. D., on the (date) had notice from your petitioner, VOL. I.— 42 658 PRACTICE IN PENNSYLVANIA. in -writing, of said sheriff's sale, and was on said day of , 1890, and three months previous to this application, duly required, hy notice in writing, personally served upon him by your petitioner, to remove from and leave the said premises and to surrender the possession thereof to your petitioner. Notwithstanding which the said C. D. has refused and neglected, and still doth refuse and neglect, to comply with said notice and requisition of your petitioner. That your petitioner prays that a warrant in the nature of a summons, directed to the sheriff of said county, be issued commanding him to summon a jury of six men of his bailiwick to appear before you , Esq., Magistrate of Court No. , , at a time and place to be specified, within not less than three nor more than eight days next after the issuing thereof, and also to summon the said , at the same time to appear before you and said jury, to show cause, if any has, why delivery of possession of said premises should not be forthwith given to the petitioner. (Name of Complainant.) A. B., the above-named petitioner, being duly sworn according to law, deposes and says that the facts set forth in the foregoing petition are true and correct. Sworn to and subscribed before me, 1 (date). >• (Name of Complainant.) " Magistrate. ] § 1613. Justice shall direct precept to sheriff to summon jury and party in possession. If the application as aforesaid shall be verified by the oath or affirmation of the petitioner, or if probable cause to believe the facts therein set forth be otherwise shown, the said justice, alderman, or magistrate is hereby en- joined or required forthwith to issue his warrant, in the nature of a sum- mons, directed to the sheriff of the county, commanding him to summon a jury of six men of his bailiwick to appear before said justice or magistrate, at a time and place to be specified, within not less than three nor more, than eight days next after the issuing thereof, and also to summon the defen- dant, or person in possession at the same time, to appear before him and the said jury, to show cause, if any he has, why the delivery of the posses- sion of such lands or tenements should not be forthwith given to the peti- tioner. (Act of June 16, 1836, section 107, as amended by Act of May 24, 1878, section '2 ; P. L., 134.) § 1614. FORM OF WARRANT. COMMOITWEALTH OF PENNSYLVANIA, 1 County of Philadelphia, J **• To the Sheriff of the County of Philadelphia, greeting : Whereas I have been informed by the petition of A. B. that he has pur- chased at a sherift's sale a certain messuage or tenement and lot of ground situate (here describe premises), and that a deed for the said premises to the said A. B. was duly acknowledged by the sheriff (or coroner) on the (date), and that the said C. D. is now in possession of said premises, and has had notice of said sale requiring him to give up possession of said premises three months before the application of the said petitioner ; that JXrSTICES OF THE PEACE. 659 the said C. D. has refiised, and still doth refiise, to comply with the terms of said notice according to law. Therefore I command you that you summon a jury of six men of your bailiwick to appear before the undersigned, Magistrate of Court No. , of said county, on the (date and hour), to inquire of such matters as shall be submitted to them in the premises, and also that you summon C. D., of said county, to appear before the said magistrate at his office , in the city of Philadelphia, at the time named, to show cause, if any he has, why delivery of possession of the said estate should not be forthwith given to the purchaser. Witness the hand and official seal of the said magistrate. (Date.) [seal] (Address.) Magistrate of Court No. . § 1615. Sheriff must sehet jury. If a precept be issued to the sheriff, commanding him to summon a jury, the sheriff cannot select a jury from a list prepared by his deputy. Pa. R, R. Co. v. Heis- ter, 8 Pa. St., 445 (1848). The selection of a jury, being a judicial act, must be performed by the sheriff, and not by his deputy. MeMullen v. Orr, 8 Phila,, 342 (1871). § 1616. FORM OF EETUKN OF THE SHERIFF. I hereby certify and return that I have summoned six good and lawful men of my bailiwick, to be and appear at the time and place within named, and that I have also summoned C. D., the defendant (being the tenant in possession of the within-described premises), by giving to him (date) a true and attested copy of the within writ, and making known to him the con- tents thereof. So answers, etc. Sheriff. L. M., being duly sworn according to law, deposes and says that the facts set forth in the foregoing return are true. Sworn to and subscribed befoi-e me, this ] (date). \ L. M., Deputy Frothy. J Deputy Sheriff. Attached to the return is the following : Sheriff's Office, Philadelphia, September , 1890. A. B. ) Before Magistrate , Court No. . V. \ No. Street, C. D. j on (day and date), at M. Jurors (names). Sheriff. §1617. Who may Recover Possession. A purchaser may recover the ihterest of the debtor. A purchaser at a judicial sale has a right to recover the interest the debtor has at the time of sale. If a naked possession only, he succeeds to that right, Knox v. Herod, 2 Pa. St., 27 (1845). ■ 660 PRACTICE IN PENNSYLVANIA. § 1618. A purchaser of land bdongi'ng to railroad compixny sub- ject to servitude. A purchaser at a sheriff's sale of land belonging to a railroad company, which land is subject to the servitude of their right of way, has a right to the possession of the land, sub- ject to the servitude of the company. Rwy. Oo. v. Keenan, 56 Pa. St., 198 (1867). § 1619. Purchasers of real estate under Orphans' Court sale. Purchasers of real estate sold under orders of the Orphans' Court shall, after the confirmation of the sale and execution and acknowledgment of the deed, have a right to proceed to obtain possession of the purchased premises in the same manner as now provided in relation to purchasers at sheriff's sales. (Act April 9, 1849, section 16 ; P. L., 527.) This Act applies to Orphans' Court sales in partition. § 1620. Purchaser under a lev. fa. in a mechanic's claim suit. "Where one purchases a property at a sheriff's sale under a lev. fa. on a judgment on a mechanic's claim, he may avail himself of the benefit of the Act of June 16, 1836, to recover possession of the premises. Walridge's Appeal, 95 Pa. St., 466 (1880). § 1621. Purchaser of interest of tenant at wiU. If the defendant in the execution holds as a tenant at will of another, his interest being purchasable, the purchaser at a sheriff's sale is entitled to possession. This decision is under the Act of March 13, 1871 (P. L., 820), relating to Schuylkill County, but it is applicable in prin- ciple to the Act of 1836. Qerher v. Hartwig, 11 W. N., 197 (1881). § 1622. If defendant do not appear, proof of service of warrant must be made. If, at the time and place appointed for the hearing of the parties, the defendant or person in possession as aforesaid shall fail to appear, the said justice shall require proof, by oath or affirmation, of the due service of such warrant upon him, and of the manner of such service : Provided, that such service shall have been made three days before the return. (Act of June 16, 1836, section 108.) § 1623. If defendant appear, the justice to make inquiry as to title and notice. If the defendant, or other person in possession under him as aforesaid, shall be duly summoned as aforesaid, or he shall appear, the said justice and jury shall proceed to inquire : 1. Whether the petitioner, or those under whom he claims, has or have become the purchaser of such real estate at a sheriff's or coroner's sale, as aforesaid ; and a sheriff's or coroner's deed for the same, duly acknowl- edged and certified, shall be full and conclusive evidence of that fact before such justice and jury. 2. Whether the person in possession of such real estate was the defen- dant in the execution under which such real estate was sold, or came into the possession thereof under him, as aforesaid. JUSTICES OP THE PEACE. 661 3. Whether the person so in possession has had three months' notice of such sale previous to such application. {Id., section 109.) § 1624. If party in possession claim title under person other than defendant in execution, justice shall summon said person, etc. If the person in possession of the premises shall make oath or affirmation before the justice that he does not hold the same under said defendant, but under some other person, whom he shall name, the said justice shall forth- with issue a summons to such person, requiring him to appear before him at a certain time therein named, not exceeding thirty days thence follow- ing, and, if at such time, the said person shall appear and make oath or affirmation that he verily believes that he is legally entitled to the premises in dispute, and that he does not claim under the said defendant, but by a different title, or that he claims under the said defendant by title derived before the judgment aforesaid, and shall enter into a recognizance with sureties, as aforesaid, in such case also the justice shall forbear to give judgment. (Id., section 115.) Where the defendant makes affidavit that he does not hold under the execution defendant, but under a third party, the magistrate cannot be compelled by mandamus to enter judgment upon the ver- dict of the jury before summoning such third person. Oomm. v. McClintoch, 36 Leg. Int., 412 ; 13 Phila., 26 (1879). The justice must issue a summons to such party, even though the defendant in possession has filed no recognizance. Bauer v. Angmy, 12 W. N., 526 (1882). § 1625. Finding of jury as to damages — Justice shall enter judgment for damages assessed and costs. In case of a finding for the petitioner as aforesaid, the jury shall assess the damages as they shall think right against such defendant or person in possession for the unjust detention of the premises, and thereupon the said justice shall enter judgment for the damages assessed and reasonable costs, and such judgment shall be final and conclusive to the parties. (Act of June 16, 1836, section 111.) The inquest should find that A. B. was the defendant whose land was sold ; that he was in possession at the time ; that the purchaser gave notice to him and the tenants, and that such notice was given three months prior to the application to the justice. Cooke V. Bdnharl, 1 Rawle, 317 (1829). § 1626. FOEM OF INQUISITION. A. B. V. CD. Inquisition taken at Magistrate's Court No. , in the city of Philadel- phia, on the (date), before Magistrate (name), and upon the oaths of (names of jurors), six good and lawful men of said county of Philadelphia, who, being duly sworn and charged to inquire of the premises, do say that the said A. B. in the annexed warrant named has become the purchaser of the 662 PBACTICE IN PENNSYLVANIA. real estate therein mentioned, to wit (here describe premises), that a sheriflf's (or coroner's) deed therefor to A. B. was duly acknowledged (date) in open Court of Common Pleas No. , of said county. That the said C. D., now in possession of said premises, holds by title derived from E. F., the defendant in the execution under which the same was sold subsequently to the judgment under which the same was sold (or that C. D. now and at said sale in possession is the defendant as whose property the said premises were sold), that said C. D. after said sale had three months' notice thereof and of the requisition of the said A. B. to sur- render the possession of said premises to him previously to the said appli- cation, and that the said C. D. has hitherto refused and neglected to comply with the terms of said notice and requisition. Wherefore the said magistrate does hereby award possession of said premises to the petitioner, and the jury do assess the damages in favor of A. B. and against the said C. D. for the unjust detention of said premises at the sum of dollars. In witness whereof, the said magistrate, as well as the aforesaid jury, have to this inquisition set their hands and seals the day and year first above written. [seal] Magistrate of Court No. . (Signatures and seals of six Jurors.) § 1627. Judgment of the justice final. In proceedings by a pur- chaser at a sheriff's sale to obtain possession, the judgment of the justice is final and conclusive. Where execution has been returned nulla bona, a transcript cannot be filed in the Common Pleas and execution issued thereon. Amos v. 8tiles, 1 W. N., 414 (1875). § 1628. No action lies on such record to recover damages and costs. No action of debt will lie on such a record. Bodkin v. McDonald, 2 W. N., 586 (1876) ; supporting Mayer v. Kirby, 14 S. & R. , 162 (1826) ; contra, Gault v. McKinley, 2 Phila. , 71 (1856). § 1629. Transcript of judgment cannot be filed. The judgment under a proceeding by a purchaser at a sheriff's sale to obtain pos- session is not within the meaning of the Act of March 20, 1810, section 10, authorizing transcripts of judgments of justices to be entered on the docket of the Common Pleas. Bodkin v. McDonald, 2 W. N., 478 (1876). § 1630. Justice to issue warrant to deliver possession. The said justice shall thereupon issue his warrant, directed to the sheriff, commanding him forthwith to deliver to the petitioner, his heirs or assigns, full possession of such lands or tenements, and to levy the costs taxed by the said justice and the damages assessed by the jury, as aforesaid. (Act of June 16, 1836, section 112.) § 1631. FORM OF WARRANT OF POSSESSION. City and County of Philadelphia', ss. The Commonwealth of Pennsylvania to the Sheriff of the County of Philadelphia, greeting : Whereas, due proof has been made before E. F., Esq., a magistrate of JUSTICES OF THE PEACE, 663 the city of Philadelphia, and six good and lawful men of the same city and county aforesaid, summoned for that purpose, that A. B., of said city, had purchased at sheriff's sale all that certain messuage and lot or piece of ground situate (here describe property) ; that the said A. B., the purchaser at said sale, did, on the day of , 1891, give notice to the said C. D., defendant in the execution in possession of said premises (or as case may be) of the said sale, and did require him to surrender up the possession of the said premises to A. B., the said purchaser, within three months after the date of such notice, and the said 0. D. has hitherto refused, and doth still refuse to comply therewith. All of which premises being duly found by the said magistrate and jury, according to the form of the Act of General Assembly in such case made and provided. Therefore, I command you, the said sheriff, forthwith to deliver to the said A. B. full possession of the premises aforesaid : And you are also commanded that of the goods and chattels of the said C. D. in your bailiwick you cause to be levied as well the sum of dollars, which to the said A. B. was awarded by said jury as damages sustained by the unjust detention of the premises as dollars for costs and charges by A. B. in and about said case and in that behalf expended. Whereof the said 0. D. aforesaid is convict. Hereof fail not . Witness the said magistrate at the city aforesaid, the day of in the year of our Lord one thousand eight hundred and ninety-one. [seal] Magistrate. § 1632. Stay of proceedings. When the complainant has made it appear that he is the vendee at the sheriff's sale or grantee of such vendee, and that he has given three months' notice to quit, and that the respondent is the defendant in the execution or in possession imder such defendant by title subsequent to the judgment, such complainant is entitled to recover possession. But if the respondent alleges on oath that he does not claim under the defendant, but by adverse title, or that he claims by the same title, but by a transfer of it previous to judgment, the justice should stay the proceedings until the truth of the respondent's alle- gation can be determined. In Lenon v. MoCall, 3 S. & R., 102 (1817), Tilghman, C. J., said : " The person in possession may stay the proceedings of the justices on making oath that he claims under the defendant in the execution by title derived before the judgment, provided security be given." The oath is sufficient if it contains a positive averment of title being derived before the judgment. If the oath and recognizance are offered before judgment is ren- dered, that is sufficient. § 1633. If party in possession shall make affidavit and file bond, judgment stayed. If the person in possession of the premises shall make oath or affirmation before the justices : 664 PHACTICB IN PENNSYLVANIA. 1. That he has not come into possession and does not claim to hold the same, under the defendant in the execution, but in his own right ; or; 2. That he has come into possession under the title derived to him from the said defendant before the judgment under which the execution and sale took place, and shall become bound in a recognizance, with one or more sufficient sureties, in the manner hereinafter provided, the said justice shall forbear to give the judgment aforesaid. (Act of June 16, 1836, section 114.) § 1634. Affidavit of defendant and its requisites. Under the Act of June 16, 1836, the right of the plaintiff to recover can only be denied upon affidavit and proof. 1. That the person in possession has not come into possession and does not claim to hold the same under the defendant in the execution, but in his own right ; or, 2. That he has come into possession under the title derived to him from the said defendant before the judgment under which the execution and sale took place ; or, 3. That he holds under a third person, who claims in his own right, and not under the defendant, or claims under the defendant, by title derived before the judgment. The affidavit must strictly comply with the terms of the Act. Bank v. Cowperthwaite, 10 W. N., 532 (1881). In Mon V. Stokes, 12 W. N., 240 (1882), it was decided that the affidavit need not set forth the title to the premises by the person in possession in extenso, and is sufficient if it conform to the words of the Act and do not specify when the title commenced in possession. The tenant in possession cannot have a stay of proceedings if his affidavit avers that he holds possession of a part of the premises under the defendant in the execution. Hawk v. Stouch, 5 S. & R., 157 (1819). In a proceeding under the Act of April 9, 1849, section 16, by a purchaser at an Orphans' Court sale to recover possession, the tenant filed an affidavit that she claimed the premises in her own right as tenant in fee by title and possession derived prior to the sale. The affidavit was held insufficient. Hennegan v. Williams, 4 W. K, 458 (1877). A tenant cannot controvert the title of his landlord or defend the possession against him or anyone claiming title under hira. The purchaser at the sheriff's sale succeeds to all the title and rights of the defendant in the judgment under which the premises were sold. Wilson v. Hubbell, 1 Penny., 418. § 1635. FOBM or AFFIDAVIT PKESCEIBED BY STATUTE. The oath or affirmation which shall be administered to such claimant shall be in the following form, to wit : JUSTICES OF THE PEACE, 665 I do (swear or affirm) that I verily believe that I am legally entitled to hold the premises in dispute against the petitioner ; that I do not claim the same by, from, or under the defendant, as whose property the same were sold, (or, as the case may be) that I do not claim the same by, from, or under the defendant, as whose property the same were sold, by title derived to me subsequently to the rendition of the judgment under which the same were sold, but by a different title, etc. (Act of June 16, 1836, section 116.) § 1636. FORM OF AFFIDAVIT. A. B. 1 Before E. F., Ma^strate of Court No. . V. y On the petition of A. B., purchaser at a sheriff sale of a cer- C. D. j tain liact of land, to recover possession thereof from C. D. City and County of Philadelphia, ss. C. D., being duly sworn according to law, deposes and says that he is legally entitled to hold the premises in dispute against the petitioner ; that he did not come into possession of the premises situate (here briefly de- scribe premises) and does not claim to hold the same under the defendant in the execution, by virtue of which the same were sold as aforesaid, but in his own right [or that he came into possession of the premises situate (here briefly describe premises) under title derived to him from the de- fendant in the execution before the judgment under which the execution was issued and the sale took place or that he did not come into posses- sion of the premises situate (here briefly describe premises) by title by, from, or under the defendant in the execution, as whose property the same was sold, but by title derived previously to the rendition of judgment under which said premises were sold by deed of conveyance from (here set forth your title)]. Sworn to and subscribed before me, I this (date). i Notary Public or Magistrate. J [seal] §1637. Requisites of bond. The recognizance aforesaid shall be taken in a sum fiilly sufficient to cover and secure, as well the value of the rents and mesne profits of such lands or tenements, which may have accrued, and which may be expected to accrue, before the final decision of the said claim, as all costs and dam- ages, with condition that he shall appear at the next Court of Common Pleas having jurisdiction and then and there plead to any declaration in ejectment which may be filed against him, and thereupon proceed to trial in due course of practice, and in case he shall fail therein, that he will de- liver up the said premises to the purchaser, and to pay him the full value of the rents or mesne profits of the premises accrued from the time of the purchase. (Act of June 16, 1836, section 117.) §1638. ■ FOEM OF KECOGNIZANOE. Know all Men by these Pebsents, that we, 0. D., E. D., F. D., are held and firmly bound unto A. B. in the sum of dollars, lawiul money of the United States of America, to be paid to the said A. B., his heirs, executors, or administrators, to which payment well and truly to be 666 PKACTICB IN PENNgYLVANIA. made we bind ourselves and each of us, our and each of our heirs, execu- tors, or administrators, jointly and severally by these presents. Sealed with our seals this day of , A. D. 1890. Now the condition of this obligation is such that if the above bounden C. D. shall appear at the next Court of Common Pleas having jurisdiction, and then and there plead to any declaration in ejectment which may be filed against him, and thereupon proceed to trial in due course of practice, and in case he shall fail therein, that he will deliver up the said premises to the purchaser and pay the said A. B. the full value of the rents or mesne profits of the premises accrued firom the time of purchase thereof, together with all costs and damages, then this obligation to be void ; other- wise, to be and remain in fiill force and virtue. Signed, sealed, and delivered in the | presence of: >• SEAL SEAL SEAL § 1639. If facts found against defendant, justice shall make record. Upon the finding of the facts as aforesaid, the justice shall make a record thereof, and thereupon he shall award the possession of such real estate to the petitioner. (Act of June 16, 1836, section 110.) § 1640. FORM OF EEOOED. A. B. V. CD. Be it remembered, the (date) Before E. F., Magistrate of Court No. , for the City and County ot Philadelphia : The petition of A. B., verified under oath thereof, was presented (date) to said magistrate setting forth, inier alia, that the petitioner had purchased at sheriff's sale a certain lot or piece of ground with the messuage thereon erected (here describe premises), and that the deed for the same to the peti- tioner was duly acknowledged by the sheriff of the comity of Philadelphia (date), in open Court of Common Pleas, No. ; that the said C. D., the de- fendant in said judgment, then and now in possession of said premises, was duly notified of the sale of said premises to the petitioner, and required to deliver possession of said premises to A. B. three months previous to said application. This C. D. has refused, and still doth refiise, to do. That, ' therefore, A. B. applied by petition for his remedy agreeably to the Act of Assembly. That on the (date) a warrant was issued by the said magis- trate to the sheriff of the said county commanding him to summon a jury of six men to appear before the said magistrate, at Court No. , No. Street, Philadelphia, on the day of , 1890, at (hour), to inquire of the premises, and also to summon the said C. D. to appear before the said magistrate and jury at the same time and place, and show cause, if any he had, why delivery of the possession of the said premises should not be given to the petitioner. And now (date), the said jury having come before the said magistrate at the time and place in said warrant named, and the said C. D. having also appeared, and the said jury having been duly sworn, the said magistrate and jury proceeded to inquire of the premises, and found that the said A. B. became the purchaser of the real estate, in his JUSTICES OF THE PEACE. 667 petition mentioned, being the premises particularly above described, at a sheriff's sale, when said premises were sold by virtue of an execution as the property of the said C. D., and that a sheriff's deed therefor was duly acknowledged by the sheriff aforesaid on the day of , 1890, and delivered to the said A. B., and that the said O. D. at the time of said sale was, and now is, in possession of said real estate, and is the defendant as whose property the same was sold (or as case may be) and haa had notice of said sale and of the requisition of the said A. B. to give up said estate three months previous to his said application, and that the said C. D. has refused and neglected to comply with said notice or requisition to surrender the possession of the said premises to the petitioner. Therefore it is the judgment of the said magistrate that delivery of possession of the said premises be made to the said petitioner, and also the said jury has assessed the sum of dollars against the said C. D. as damages for the unjust detention of the said premises.* Whereupon the said magistrate, the same day, does award possession of the said real estate to the said A. B. and enters judgment against the said C. D. for the sum of dollars as damages aforesaid, and the sum of dollars as the reasonable costs by said A. B. in said suit expended. Concerning all these premises, I, the said magistrate, do make this my record. In witness whereof, I have hereunto set my hand and official seal the day and year aforesaid. E. F., [seal] Magistrate of Court No. . If a stay of proceedings is sought, the record may be as in above form down to the asterisk, and then is as follows : And the said C. D. then and there makes his affidavit that he has not come into possession of the aforesaid real estate and premises, and does not claim to hold the same under the defendant in the execution as whose prop- erty the same were sold, but in his own right (or as the case may be, e. g., that he has come into possession of the said real estate and premises under title derived to him from the defendant in the execution as whose property the same were sold, before the judgment under which the said execution and sale took place). And the said C. D. then and there also becomes bound in a recognizance, with two sufficient sureties taken and acknowledged before me, the said justice, in the sum of dollars, and with condition (here fill in the con- dition of the recognizance). Concerning all which premises, I, the said magistrate, do make this my record. In witness whereof, I (conclude as above). If judgment of possession be entered, the defendant should be found to be the defendant named in the execution under which the property was sold, and to have been then and still in pos- session ; or if the person in possession be not the defendant in the execution, it should be found that he came into possession of PRACTICE IN PENNSYLVANIA, said premises under the defendant in the execution, by title de- rived from said defendant in the execution subsequently to the judgment under which the premises were sold. § 1641. Certiorari not a supersedeas. No certiorari which may he issued to remove such proceedings shall be a supersedeas, or have any effect to prevent or delay the execution aforesaid, or the delivery of the possession agreeably thereto. (Act of June 16, 1836, section 113.) This section received interpretation in Jackson v. (?feason,6 Phila.,. 307 (1867). On oertiorari, nothing but the record of the proceedings before the magistrate and jury is before the court. Rwy. Co. v. Keenan^ 56 Pa. St., 198 (1867). § 1642. Justice shall give jndgment when recognizance for- feited. If such recognizance shall be forfeited, the justice aforesaid shall proceed to give judgment, and cause such real estate to be delivered up to the peti- tioner, in the manner hereinbefore enjoined and directed. (Act of June 16, 1886, section 118.) § 1643. Proceeding in Common Fleas not a new action. When a person in possession of land sold by the sheriff makes defense before the justice that he did not obtain, and does not claim, the possession of the land under the defendant in the execution, and enters into the recognizance required, and the cause is certified into court, this is equivalent to a removal by oertiorari to a higher court for trial, and all the proceedings thereafter are a part of the same cause that was begun before the justice, and not a new cause. Walker v. Bush, 30 Pa. St., 357 (1858). In Dean v. Connelly, 6 Pa. St., 246 (1847), Mr. Justice Coulter said : " The present case discloses a proceeding commenced before two justices of the peace by a purchaser at sheriff's sale, under the provisions of the Act of 1836, to obtain possession of the land purchased by him. The person in possession made the oath prescribed by the statute and the proceeding was transferred to the Common Pleas according to the provisions of the Act. * * * After the proceeding was transferred, * * * a difier- ent issue and a new posture of the case was substituted. " In order to protect the rights of all parties, the statute authorizes the person in possession to make oath that he did not come in, nor claim to hold, under the defendant in the execution, or that he did come into pos- session under title derived from defendant before the judgment on which the execution and sale took place. The terms of the oath are that I do not claim the same by, from, or under the defendant as whose property the same were sold, by title derived to me subsequently to the rendition of the judgment under which the same were sold, but by a different title. The JUSTICES OF THE PEACE. 669 person in possession thus becomes the actor in court, asserts the nature of the title under which he claims, and admits the judgment and sale. " And part of his recognizance is, that if he feils therein, that is, the trial, he will deliver up the said premises to the purchaser. The defen- dant must establish that he claims under a title which governs and over- rides the one sold by the sheriff, or else he fails ; and therefore the judg- ment, execution, and sale are admitted and are, in fact, part of the process. If the recognizance is forfeited by the defendant or person in possession, either on trial or by his not appearing, the justices are then to proceed and give judgment and cause the real estate to be given up to the purchaser." § 1644. Directions as to suit in Common Pleas. A stay of pro- ceedings having properly been entered before the justice, promptly commence your action in the Common Pleas. This may be done by commencing the action in the ordinary way as in cases of ejectment. See Chapter XIV., sections 581, 582 d seq. la Wagner v. Graham, 14 W. N., 343 (1884), it was decided that when the proceedings are commenced in the Common Pleas, the plaintiff must secure and file the transcript; that the recognizance required the defendant only to appear and plead. § 1645. The purchaser may claim rents subsequent to delivery of deed. If any lands or tenements shall be sold upon execution, as aforesaid, which at the time of such sale, or afterward, shall be held or possessed by a tenant, or lessee, or person holding or claiming to hold the same under the defendant in such execution, the purchaser of such lands or tenements shall, upon receiving a deed for the same, as aforesaid, be deemed the land- lord of such tenant, lessee, or other person, and shall have the like remedies to recover any rents or sums accruing subsequently to the acknowledgment of a deed to him, as aforesaid, whether such accruing rent may have been paid in advance or not, if paid after the rendition of judgment on which sale was made, as such defendant might have had if no such sale had been made. (Act of June 16, 1836, section 119.) If after notice shall be given of such sale, as aforesaid, such tenant, lessee, or other person shall pay any rent or sum accruing subsequently to the acknowledgment of such deed and notice given him, as aforesaid, to such defendant, such tenant, lessee, or other person so paying shall never- theless be liable to pay the purchaser. (Id., section 120.) In Bamk v. Wise, 3 "Watts, 400 (1834), Kennedy, J., said : " With respect to those who purchase lands at sheriff's or coroner's sales, which are held and occupied by tenants under leases given by the defen- dants named in the executions before the date of the liens of the debts or claims to satisfy which the sales are made, this section is to me plainly declarative of what the law was before the passage of the Act. But if it was intended * * * to embrace the case of a sale of land made by a sheriff or coroner which is occupied by a lessee or tenant holding the same under a lease made subsequent to the date of the lien of the judgment under -which the sale is made, then it, in language as forcible and as perspicuous 670 PRACTICE IN PENNSYLVANIA. as it was possible to use, makes the purchaser at the sheriff's or coroner's sale the landlord and the occupant of the land his lessee or tenant, giving the purchaser an express right and authority to demand and receive any rents due subsequent to such sale, and forbidding the tenant of the land after notice of the sale to pay any rent so becoming due to the defendant in the execution, under the penalty of having to pay it again to the pur- chaser ; thus securing to the purchaser at sheriff 's or coroner's sale, in such case, a right merely to the reversion, which, without more, would entitle him to all the rent becoming due or payable after the date of his purchase, as an incident to the estate purchased, the same as in the first case, where the tenant of the land holds under a lease made anterior to the date of the lien of the judgment or claim under which the sale was made. " His remedies by distress or otherwise for the recovery of the rent that shall become due subsequent to the sale shall be the same as that of the defendant named in the execution would have been, provided the sale had never taken place. " To rent which became due or payable before the sale it is clear that the purchaser can make no claim ; but to the rent which shall become due or payable after that nothing can be made more clear than his right to it." This decision is supported by Braddee v. Wiley, 10 Watts, 362 (1840). § 1646. Attornment. The purchaser may affirm an existing lease and claim the rent payable under it, unless the sale be sub- sequent to the time named in the lease when the rent is payable in advance ; if he disaffirm the lease and give the tenant notice to quit, he cannot claim anything under the terms of the lease. Bank V. Ege, 9 Watts, 436 (1840). Where no time is stipulated for the payment of rent, it is by law payable at the end of the year. The purchaser's title under his judgment being paramount to the lease, he may affirm the lease and avail himself of the legal remedies of the former owner to re- cover rent. The accruing rent runs with the land, and cannot be separated from it by the act of the debtor, before it is due, as against the purchaser under the judgment. Menough's Appeal, 5 W. & S., 433 (1843). § 1647. Purchaser has like remedies with owner. Whenever the owner can maintain an action for use and occupation, the same remedy lies in favor of the purchaser at sheriff's sale for any sum accruing after he has received his deed. Hayden v. Patterson, 51 Pa. St., 261 (1865). § 1648. If proceedings tainted with corruption, etc. If a cause be so conducted as to justify the charge of partiality, corruption, and extortion, it is a good ground for setting aside the proceed- ings. JUSTICES OP THE PEACE. 671 The proper course in such a case is to bring the record up on certiorari, and then show sufficient grounds for corruption, par- tiality, or extortion, by affidavits. The court will go into proofs in order to determine the truth of the charge. It is one of the exceptions to the general rule that upon certiorari nothing but the record is brought up, and this is allowed that jus- tice may be done and suitors may be protected where they would otherwise be defenseless. CHAPTER XXI. LANDLORD AND TENANT. §1649. Distress. Farm of distress, etc. See Chapter V., Ground Rents, section 149. ' For replevin by tenant. See Jd., sections 152-155. Remedy by tejiant against landlord for excessive distress. Bring action of trespass. Proedpe, section 519. § 1650. Jurisdiction of justices in cases of rent. The power of justices of the peace shall extend to all cases of rent not exceeding one hundred dollars, so far as to compel the landlord to defal- cate, or set off, the just account of the tenant out of the same, l)ut the landlord may waive further proceedings before the justice, and pursue the method of distress in the usual manner for the balance so settled ; but if any landlord shall be convicted, after such waiver, in any court of record, of distraining for and selling more than to the amount of such balance, and of detaining the surplus in his handSj he shall forfeit to the tenant four times the amount of the sum detained : Provided, that no appeal shall lie in the case of rent, but the remedy by replevin shall remain as heretofore. (Act of March 20, 1810, section 20 ; 5 Sm., 170.) The Act of March 20, 1810, does not allow the tenant to appeal, but gives him a remedy by replevin. Yet the right of the landlord to appeal is not taken away. lElhe v. MsenJbeis, 104 Pa. St., 514 (1883). The matter of distress is so extended in its detail that only the important questions of practice before a justice will be noticed. The duties of constables in this regard are clearly set forth in the statutes. Outside of Philadelphia, the jurisdiction of a justice in an action to recover for rent due is enlarged by the Act of May 29, 1879, to the amount of three hundred dollars. Beatty v. Rankin, 139 Pa. St., 358 (1891) ; Survey v. Qvmzberg, 148 Pa. St., 294 (1892). § 1651. RigM to restrain for arrears of rent. Where any tenant is in arrears for rent, and his lease has determined or ended, the landlord may, during the continuance of his title and after the determination of the lease, distrain as he might have done if such lease was not ended. Act of May 21, 1772, section 14 (1 Sm., 375). LANDLOBD AND TENANT. 673 For taxes. Tenants residing on lands owned by persons not re- siding in the township are liable for the payment of road taxes, and such tax may be deducted from the rent or recovered from the owner in an action of debt. Act of April 6, 1802, section 8 (3 Sm., 516). In the same manner tenants are liable for all taxes which may be deducted from the rent or recovered in an action of debt. Act of April 3, 1804, section 6 (4 Sm., 203). The Act of April 15, 1834, section 46 (P. L., 518), provides that the goods and chattels of a tenant shall be liable to distress and sale for non-payment of taxes assessed upon the property he occupies. The Act of April 19, 1883, section 1 (P. L., 9), extends the above Act so that in cities of the first class the distress may not only be levied upon the tenant's goods, but the personalty of the owner of the premises, wherever found. The right to distrain after tenant's death. A landlord cannot dis- train the goods of an insolvent deceased lessee on the demised prem- ises — such goods being in the hands of an administrator. The proper practice is to claim for the rent at the audit of the administrator's account. StaMman's Estate, 26 P. L. J., 113 (1879). Gandy v. Dickson, 166 Pa. St., 422; 36 W. N., 95 (1895). § 1652. Forfravdvlent removal. Where any tenant fraudulently or clandestinely conveys or carries off or from the premises goods and chattels with intent to prevent the landlord from distraining, the landlord may, within thirty days next ensuing, take and seize" such goods or chattels wherever they may be found, as if actually distrained upon such demised premises. Act of March 21, 1772, section 5 (1 Sm., 371). Provided, that before seizure, no bona fide sale for a valuable consideration shall have been made to a person not privy to such fraud. Ibid., section 6. In the city of Philadelphia, where any tenant, before rent is due, shall fraudulently convey or carry off from such demised premises goods and chattels, with intent to defraud the landlord, said land- lord may consider the rent apportioned up to the time of such fraudulent act, and within thirty days take and seize such goods as a distress for the rents, apportioned, wherever found, as if dis- trained upon the demised premises : Provided, he shall make oath, before such seizure, before some judge or justice of the peace, that be verily believes that said goods and chattels were carried away for the purpose of defrauding, as aforesaid : Provided, that before such seizure, no bona fide sale for a valuable consideration shall have been consummated with anyone not privy to such fraud. VOL. I. — 43 674 PRACTICE IN PENNSYLVANIA. This is extended to the cities of Pittsburg and Allegheny by the Act of March 29, 1870 (P. L., 669). § 1653. For dower and in insolvency. The Act of March 29, 1832, section 43 (P. L., 203), provides that in an Orphans' Court sale of realty charged with dower, the share of the widow of the purchase-money shall remain in the purchaser's hands, and the in- terest thereof shall be annually paid her. If not so paid, then she may recover it by distress. The Act of March 29, 1832, section 41 (P. L., 202), provides, in a partition sale of realty charged with dower, the widow shall be entitled to interest on her share of the purchase-money in lieu of dower, due annually, and, if not paid, it may be recovered by dis- tress. The Act of June 16, 1836, section 28 (P. L., 735), provides that a landlord may distrain for one year's rent upon the goods of an insolvent after his discharge. § 1654. When, properly seized in execfution to be liable for r&ni due not exceeding one year — Writ not to be stayed vrithout landlord's consent. The goods and chattels being in or upon any messuage, lands, or tene- ments, which are or shall be demised for life or years, or otherwise taken by virtue of an execution, and liable to the distress of the landlord, shall be liable for the payment of any sums of money due for rent at the time of taking such goods in execution : Provided, that such rent shall not exceed one yfear's rent. (Act June 16, 1836, section 83 ; P. L., 777.) After the sale by the officer of any goods or chattels he shall first pay out of the proceeds of such sale the rent so due, and the surplus thereof, if any, he shall apply toward satisfying the judgment mentioned in such exe- cution : Provided, that if the proceeds of the sale shall not be sufficient to pay the landlord and the costs of the execution, the landlord shall be enti- tled to receive the proceeds after deducting so much for costs as he would be liable to pay in case of a sale under distress. {Id., section 84.) Whenever any goods or chattels liable to the payment of rent shall be seized in execution, the proceedings upon such execution shall not be stayed by the plaintiff without the consent of the person entitled to such rent in writing. {Id., section 85.) The form of a warrant and of a distress are given in sections 149, 150. § 1655. Proceedings on a distress are set forth in section 151. Where goods not liable owner must replevy if he knows of dis- tress in time. Where a distress includes the goods of others found on the premises, if the owners desire to assert their title, they have their remedy by an action of replevin — otherwise the landlord may sell, and is not afterward liable iu a subsequent action of trespass. Machine Co. -v. Spencer, 29 W. N., 493 (1892). LANDLORD AND TENANT. 675 But if an owner has no knowledge of a distress in time to re- plevy, he may maintain trespass. Brown v. Stachhovse, 32 W. N., 407; 155 Pa. St., 582 (1893). Landlord knomngly distraining upon goods left for sale is a tres- passer. A landlord who distrains upon goods, knowing them to be the property of another left for sale, on commission, with the tenant, is a trespasser ab initio, and liable in damages to the owner in trespass. Brovm v. Stackhouse (mpra). § 1656. POBM OF constable's APPRAISEMENT. A. B. V. y Sur distraint for rent. Costs, $ CD.' We, the undersigned, haying been summoned by , constable of the Ward, to appraise and value the goods and chattels of C. D., the above-named defendant, and having been duly sworn (or afSrmed), appraise and value the same as follows, to wit : (here set forth the personal property of C. D., and the appraised value of each item). We, the undersigned, having been summoned by , constable of the Ward, to appraise and value the goods and chattels of C. D., the above-named defendant, do solemnly swear (or affirm) that we will well and truly appraise the same to the best of our knowledge and ability. Appraisers : Appraisers sworn before me, this 1 E. F., day of , A. D. 1891. I G. H. Magistrate. L. M., Constable. The inventory in distress should be sufficiently full to inform the tenant of the goods distrained, for which he may issue a writ of replevin. The landlord is not obliged to weigh and measure goods dis- trained. Richards v. McGrath, 100 Pa. St., 400 (1882). § 1657. POKM OF WAIVER OF APPRAISEMENT. A. B. I V. \ Sur distraint for rent. Costs, $ CD. J ' . I hereby request G. H., constable of the Ward, to dispense with the appraisement of the goods and chattels distrained upon by him on premises (place), upon warrant of distress for the above rent, and I do expressly waive the appraisement of said goods and chattels required to be appraised, under Act of Assembly of March 21, 1772, together with all other Acts and laws requiring said goods and chattels to be appraised, and the waiver of said appraisement being for my benefit, I do hereby agree that said goods and chattels may remain upon the premises until said rent and all legal costs are paid, and if the rent and costs are not paid previously to (date), then I agree that the sale of said goods and chattels may take place, on said premises or at any other place selected therefor by said con- 676 PRACTICE IN PENNSYLVANIA. stable, after six days' public notice of sale, the same as if no waiver had taken place. The waiver of appraisement and other proceedings to be without prejudice to the disfress, which is to remain in full force, same as if no waiver had been made. In witness whereof, I have hereunto set my hand and seal this day of , A. D. 1891. C. D. [seal] Witness present, 1 L. M. J §1658. Exemption laws. The sheriff, constable, or other officer charged with the execution of any warrant for levying upon and selling the * * * personal property of the debtor shall, if requested by the debtor, summon three disinterested and competent persons, who shall be sworn or affirmed, to appraise the property which the debtor may elect to retain, and the property thus chosen and appraised, to the value of $300, shall be exempt from levy and sale. Act of April 9, 1849, section 2 (P. L., 533).. This right may be waived in writing by the debtor, or if he neg- lect to notify the officer charged with the execution that he claims the benefit of the $300 law, it will be presumed the privilege has been waived, Winchester v. Qostello, 2 Pars., 279 (1851). § 1659. FORM OF CLAIM FOE EXEMPTION. A. B. I Sur distress for rent before Magistrate , of Court No. . V. > Eent due, $ . Costs, . . Distress warrant issued and C. D. J directed to L. M., constable. ToL. M., Constable: Dear Sib : Please take notice that as to the above distress I claim the benefit of the Act of Assembly, approved the ninth day of April, A. D. 1849, entitled an Act to exempt property to the value of three hundred dollars ($300) from levy and sale on execution and distress for rent, and that I desire an appraisement in compliance with the said Act of all prop- erty levied on under said execution, and I hereby request and notify you to appoint appraisers, and to have the same appraised in compliance with the provisions of the said Act, and request that you will notify me of the time and place of holding such appraisement. Philadelphia (date). Very respectfully yours, C. D., (Address.) § 1660. What may be distrained. The landlord may take and seize cattle or stock belonging to the tenant feeding or depasturing upon all or any part of the premises demised — corn, grass, hops, roots, fruit, pulse, or other product growing on any part of the de- mised premises. Act of March 21, 1772, section 7 (1 Sm., 371). Goods of a stranger in the possession of the tenant not in the way of trade, and without hire, may be distrained. Page v. Mid- dleton, 118 Pa. St., 546 (1888). LANDLORD AND TENANT. 677 § 1661. What may not be distrained. Property to the value of $300, exclusive of wearing apparel of tenant and his family, of Bibles and school-books in use are exempt from distress. Act of April 9, 1849, section 1 (P. L., 533). Goods of a third person placed with a commission merchant on storage in the way of trade. Goods of an auctioneer on the premises for the purposes of sale. Goods of a boarder at a boarding-house actually in use. Goods in the custody of the law under an execution or attach- ment or replevin. Cattle received by a tenant to be pastured for hire. Fixtures attached to the freehold, and which cannot be removed without destroying their character or injuring them. Goods in possession of a tenant for sale on commission. Machine Co. V. Spencer, 28 W. K, 287 (1891). Goods of a third party, to be sold by a tenant under consign- ment. Brovm v. StacJchouse, 32 W. N., 407 (1893). Sewing-machines, leased musical instruments, and typewriters. See § 3165. § 1662. Time within which tenant may replevy. In computing the five days within which the tenant may replevy his goods, the first day upon which the distress is made is excluded, and if the last day fall on Sunday, the tenant has the following day. Mc- Kinney v. Reader, 6 Watts, 34 (1837). § 1663. Bight of tenant as to payment of rent. Where a land- lord, at the tenant's request, agrees that he shall pay his rent at the conclusion instead of the beginning of the month, the landlord cannot thereafter compel a tenant to pay the rent other than at the end of the month, on the ground that the terms of the lease pro- vide for payment in advance. WUgus v. Whitehead, 89 Pa. St., 131 (1879). § 1664. Proceedings to obtain possession at end of term — Two justices — Freeholders to be appointed and to award possession after proof of legal notice. Where any persons having leased to any person or persons any lands or tenements for a term of one or more years, or at will, paying certain rents, and they or their heirs or assigns shall be desirous upon the determination of the lease to have again and repossess their estate, and for that purpose shall demand and require their lessee to remove from the same, if the lessee or tenant shall refuse to comply therewith, in three months after such request it shall be lawful for the lessor or lessors, his or their heirs or assigns to complain thereof to any two justices where the premises are situate ; upon due proof before said justices that the said lessor or lessors had been quietly and peaceably possessed of the lands and tenements so demanded to be delivered up, that he or they demised the same, imder certain rents. 678 PEACTICE IN PENNSYLVANIA. to the tenant in possession, or some person or persons under wliom such tenant claims or came in possession, and that the term for which the same was demised is fully ended ; then it shall be the duty of the said two jus- tices to whom complaint shall be made forthwith to issue a warrant in nature of a summons directed to- the sheriff of the county, commanding the sheriff to summon twelve substantial freeholders to appear before the said justices within four days next after issuing the said summons, and also to summon the lessee or tenant, or other person claiming or coming into the possession under the said lessee or tenant, at the same time to appear before the said justices and freeholders to show cause, if any he has, why restitution of the possession of the demised premises should nou be forth- with made to such lessor or lessors, his or their heirs or assigns. And if, upon hearing the parties, or in case the tenants or other persons claiming or coming into possession under the said lessee or tenant neglect to appear after being summoned, and it shall appear to the said justice and free- holders that the lessor or lessors had been possessed of the lands or tene- ments in question, that he or they had demised the same for a term of years, or at will, to the person in possession, or some other under whom he or she claims or came into possession, at a certain yearly or other rent, and that the term is fully ended, that demand had been made of the lessee or other person in possession to leave the premises three months before such application to the said justices, then it shall be lawful for the said justices to make a record of such finding by them, the said justices and freeholders, and the said freeholders shall assess such damages as they think right against the tenant or other person in possession for the un- just detention of the demised premises ; for which damages and reason- able costs judgment shall be entered by the said justices, which judgment shall be final and conclusive to the parties ; and upon which the said justices shall, and they are required to issue their warrant under their hands and seals directed to the sheriff of the county, commanding him forthwith to deliver to the lessor or lessors, his or their heirs or assigns, fiill possession of the demised premises, and to levy the costs taxed by the justices, and damages so by the freeholders assessed of the goods and chattels of the lessee or tenant, or other person in possession, any law, custom, or usage to the contrary notwithstanding. (Act March 21, 1772, section 12 ; 1 Bm., 373.) Where by law two aldermen are now required to hear and deter- mine any matter before them, the same jurisdiction shall be exer- cised by one magistrate in Philadelphia County. Act of February 5, 1875, section 12 (P. L., 56). Aldermen and city recorders are justices of the peace within the meaning of the Act of 1772. Steamship Co. v. Haas, 31 W. N., 79 (1892). § 1665. Act of 1772 not to apply iojoini tenants, co-partners, or tenants in common. The provisions of the twelfth section of the Act of 1772 shall not be so construed or extended as to enable any landlord or lessor, his heirs or assigns, by the summary mode of proceeding therein prescribed, to dis- possess any person claiming to hold such leased or demised premises as LANDLORD AND TENANT. 679 joint-tenant, co-partner, or tenant in common with the landlord or person claiming possession : Provided, that the tenant or the person in posses- sion, or the person under whom the tenant may claim to hold, shall, upon the return of the warrant in the nature of a summons issued hy the two justices of the peace to whom the landlord, lessor, or person claiming possession may have applied, declare on oath or aflinnation, to be taken and subscribed before the said justices, that the premises in dispute are holden and claimed by or under a co-joint tenant, co-partner, or tenant in common with the landlord, lessor, or person claiming possession, and that the person making such oath or afiBrmation doth verily believe that the premises in dispute do not exceed in quantity or value the just propor- tion of the joint tenant, partner, or tenant in common, by or under whom the premises may be holden or attempted to be holden : And provided also, that the tenant or person in possession, or the person under whom the tenant may claim to hold, shall, with one or more sufficient sureties, become bound by recognizance in the sum of one thousand dollars to the lessor or landlord or person claiming possession, his heirs or assigns, to prosecute his claim at the next Court of Common Pleas to be held for the county where the lands shall be. If the claim shall not be prosecuted then, such proceedings shall be had as would have been had if the recog- nizance had not been entered into. (Act March 22, 1814, section 1 ; 6 Sm., 176.) § 1666. Jwrisdiction. The landlord is entitled to the provisions of the Act only when a certain rent is clearly and distinctly re- served in the lease. McGee v. Fessler, 1 Pa. St., 126 (1845). If the complainant be a residuary legatee of the original lessor, the justice has not jurisdiction. May v. KendaU, 8 Phila., 244 (1871). If it is alleged the magistrate has no jurisdiction, the afl&davit of the defendant must set forth that the title to the lands and tene- ments in question is disputed. If the wife of the tenant make such affidavit, it must be shown that she interposes with the consent and authority of the tenant. Haffner v. Hoeeldey, 3 Brews., 253 (1868). § 1667. Notice to quit. The Act requires three months' notice before the application to the justices. Rioh v. Keyset, 54 Pa. St., 86 (1867). Where a lease is made for a year, and the tenant is permitted to hold over, agreeably to the custom of Pennsylvania, he becomes tenant from year to year, and he cannot be dispossessed but by a notice given three months previous to the end of the year. Fdhner- stock V. Faustenauer, 5 8. & R., 174 (1819). If a lease provides that the term is to end on a day certain, it is not necessary to give the tenant three months' notice before the ex- piration of the lease ; where the termination is uncertain, if the landlord wishes to determine the lease, he must give notice three months before the expiration of the year. Logan v. Herron, 8 S. & E., 459 (1822). 680 PEACTICE IN PENNSYLVANIA. A notice to quit must be expressed in plain and direct language. ' A notice to surrender possession or pay an increased rent is not sufficient. Byrne v. Funk, 13 W. N., 503 (1883). A verbal notice to quit is sufficient, and if it be a written no- tice, a mistake in it may be corrected at the time of service. A no- tice signed by an assignee should be signed by him as assignee. If the tenant has had notice of the assignment, a notice omitting the word '• assignee " is not fatal. Thamm v. Hamberg, 2 Brews., 528 (1868). A notice to quit to one of two joint tenants is good. Qknn v. Thompson, 75 Pa. St., 389 (1874). Notice to quit may be given by a lessor, his heirs or assigns. The notice by the original lessor, even though the property has been conveyed, is sufficient. G-lewn v. Thompson, 75 Pa. St., 389 (1874). Notice served February 12, 1867, to quit May 12, 1867, is suffi- cient and good, MoGowen v. Bennett, 1 Brews., 397 (1867). § 1668. fobm op notice to tenant. Sir: Being in the possession of a certain messuage or tenement, with the appurtenances, situate (here briefly describe by street. No., etc.), in the city of Philadelphia, which said premises were demised to you by me for a certain term, to wit, from the day of , A. D. 18 , until the day of , A. D. 18 , and which said term will terminate and expire on the day and year last aforesaid, I hereby give you notice that it is my desire to have again and repossess the said mes- suage or tenement, with the appurtenances, and I therefore do hereby re- quire you to leave the same upon the expiration of the said hereinbefore mentioned term. City of Philadelphia (date). (Signature of Landlord.) § 1669. Complaint. A complaint signed A. B. per C. D., agent, and followed by the certificate " sworn before us, etc.," and signed by two aldermen, was sufficient in Gamt v. HdH, 75 Pa. St. , 363 (1874). § 1670. FOBM OF COMPLAINT. To E. F. and G. H., Justices of the Peace for the County of The complaint of A. B. most respectfully sets forth, that he is the owner of certain premises, with appurtenances, situate (here briefly describe), and that he was in possession thereof when he demised the said premises to a certain C. D. for the fiill term of years, which said term is fully ended. The said A. B., being desirous upon the determination of the said term to have again and repossess the said estate, for that purpose did on the LANDIiOKD AND TENANT. 681 day of , 1890, last past, demand and require the said C. D. to remove from and leave the same, and that the said C. D. has hitherto refijBBd and still doth refuse to comply therewith; that three months having elapsed since the service of the said notice he makes this complaint, that such proceedings may be taken by you as are directed by the Act of Assembly in such case made and provided. Sworn to and subscribed before me, ) , „ this day of , A. D. 18 . | ^- ^■ § 1671. FOKM OF PRECEPT TO SHERIFF. County of , «g. The Commonwealth of Pennsylvania to the Sheriff of Coimty, greeting : Whereas complaint and due proof were this day made before E. F., Esq., and G. H., Esq., justices of tie peace in and for the county, that A. B., of , on the day of , 18 , was quietly and peaceably possessed of premises (here describe briefly), and being so thereof possessed on the same day and year aforesaid, did demise the said premises to C. D., for the term of (number of years) then next ensuing, at the annual rent of dollars, and that the said C. D., by virtue of the said demise entered into possession of the said demised premises, and held the same during the said term, and is still possessed of the same, and that the said term for which the said premises were demised is fiilly ended ; and the said A. B., being desirous upon the said determination of the said term to have again and repossess the* said premises, for that purpose did, on the day of , 1890, deihand of and require the said C. D. to remove from and leave the same on or before (date), and that the said C. D. has hitherto reftised and still doth reftise to comply with the said demand and requisi- tion to remove from and leave the said premises ; Therefore we command you that you summon twelve substantial freeholders of your bailiwick, so that they be and appear before our said justices at (place) on , the day of , 1890, at (hour) o'clock in the forenoon of that day, and that you also summon the said C. D., so that he be and appear before our said justices and the said freeholders, at the day and place last aforesaid, to show cause, if any he has, why restitution of the possession of the said demised premises should not be forthwith made to the aforesaid A. B., according to the form and effect of the Act of the General Assembly in such case made and provided. And this you shall in nowise omit. And have you then there this writ. Witness the said E. F., Esq., and G. H., Esq., at the city of afore- said, the day of , 1890. E. F. [seal] G. H. [seal] § 1672. Sheriff must summon jury. In proceedings under the Act of 1772, the sheriff must summon and select the jury ; a deputy cannot. Armstrong v. Novmger, 8 Pa. St., 412 (1848). If there be irregularity in summoning the jurors, and the defen- dants appear before the inquest and are heard on the merits, all irregularity is waived. Wistar v. OUis, 77 Pa. St., 291 (1875). 682 PEACTICB IN PENNSYLVANIA. On certiorari, the Common Pleas will not hear affidavits as to such irregularity. Ibid. § 1673. Service on tenant. In proceedings under the Act of March 21, 1772, service on the premises on a person in possession claim- ing to' be agent of the lessee is good. Waits v. Fox, 64 Pa. St., 336 (1870). § 1674. Sheriff's return. If the sheriff's return to the warrant states he has summoned twelve freeholders without naming them, and the inquisition states their names, the law presumes the inquest consisted of those summoned. If objection be made, it must be done before the inquest at the hearing. Gavit v. Mall, 75 Pa. St., 363 (1874). Be careful to see that the return follows the terms of the statute. § 1675. Proceedings at the inquest. If an inquest cannot agree, they may be discharged and another venire issued. Ounningham v. Gardner, 4 W. & S., 120 (1842). If the jurors, after being duly sworn, absent themselves or ad- journ to another day without the consent of the parties, the justices may discharge them and issue a new precept to the sheriff, direct- ing him to summon a new jury. White v. Arthurs, 24 Pa. St., 99 (1854). , § 1676. FORM OF INQUISITION. Inquisition taken at (office), in the county of , on the day of , in the year one thousand eight hundred and , before E. F., Efeq., and G. H., Esq., two of our justices of the peace, by the oaths of (names of jurors), and the solemn affirmations of (names of jurors), twelve substantial freeholders of the said county, who, upon their oaths and affirmations respectively do say that A. B., on the day of , in the year one thousand eight hundred and , was quietly and peaceably possessed of certain premises (here briefly describe). And being so thereof possessed on the same day and year last aforesaid did demise the said premises to C. D. for the term of years then next ensuing, at the rent of dollars, and that the said C. D., by virtue of the said demise entered into possession of the said de- mised premises, and held the same during the said term, and is still pos- sessed of the same, and that the said term for which the said premises were demised is fully ended ; and the said A. B. being desirous upon the said determination of the said term to have again and repossess the said prem- ises for that purpose did, on the day of , 1890, demand of and require the said C. D. to remove from and leave the same within , and that the said C. D. has hitherto refused and still doth refuse to comply with the said demand and requisition to remove from and leave the said premises. And the said freeholders do assess damages against the said 0. D. for the unjust detention of the said demised premises at dollars, besides all costs of suit. Whereupon it is considered by the said E. F. and G. H. LANDLORD AND TENANT. 683 justices aforesaid, that restitution of the said demised premises be made to the said A. B., and that he recover of the said C. D. his damages aforesaid, together with the costs of suit, amounting to dollars. In testimony whereof, as well the said justices as the said freeholders have hereunto set their hands and seals the day and year first above written, at aforesaid. E. F. [seal] G. H. [seal] (Twelve seals.) § 1677. Requisites of the inquisition. The inquisition should state the term was ended, and leave no necessary facts uncertain. Fahnestock v. Faustenauer, 5 S. & R., 174 (1819) ; May v. Ken- dall, 8 Phila., 244 (1871). If the tenant has waived the three months' notice, the omission of such averment is fatal. Sutohin- son V. Potter, 11 Pa. St., 472 (1849). § 1678. Justice not to give judgment if landlord's title disputed — Party claiming shall make affidavit that he believes he is entitled to premises. If the tenant shall allege that the title to the lands and tenements in question is disputed and claimed by some other person or persons, whom he shall name, in virtue of a right or title accrued or happening since the commencement of the lease so made to him, by descent, deed, or from or under the last will of the lessor, and if thereupon the person so claiming shall forthwith or upon a summons, immediately to be issued by the said justices, returnable in six days next following, before them appear, and on oath or affirmation, to be by the said justices administered, declare that he verily believes that he is entitled to the premises in dispute, and shall with one or more sufficient sureties become bound by recognizance in the sum of one hundred pounds to the lessor or lessors, his or their heirs or assigns, to prosecute his claim at the next Court of Common Pleas to be held for the county where the said lands and tenements shall be, then and in such case, and not otherwise, the said justices shall forbear to give the said judg- ment : Provided also, if the said claim shall not be prosecuted according to the true intent and meaning of the said recognizance, it shall be forfeited to the use of the lessor or landlord ; and the justices aforesaid shall proceed to give judgment, and cause the lands and tenements aforesaid to be deliv- ered to him in the manner hereinbefore directed. (Act of March 21, 1772.) In Debozear v. Butler, 2 Grant, 417 (1853), Lewis, J., said : " Where the tenant has acquired the title, after the commencement of the lease, from the lessor himself by descent, deed, or will, the relation of landlord and tenant is at an end, and the summary remedy to obtain possession no longer applies," Where the tenant does not pretend that he claims the premises by descent, deed, or will, but by an agreement in writing or con- tract with the landlord, since the commencement of the lease, he must show either a conveyance executed or such an equitable right 684 PRACTICE IN PENNSYLVANIA. to one as would sustain a bill for specific performance in a court of chancery. § 1679. Judgment. The judgment must be that the premises be delivered up by the lessee to the lessor. A judgment in the alternative for possession or for the amount of rent is fatally irregular. Euans v. Radford, 2 Phila., 370 (1858). § 1680. FORM OF WRIT OF RESTITUTION. County of , s«. The Commonwealth of Pennsylvania to the Sheriff of County, greeting : Whereas due proof has been made before E. F., Esq., and G. H., Esq., two of our justices of said county, and twelve substantial freeholders, sum- moned for that purpose, that (here copy the finding in the inquisition) all which premises being duly found to be true by the said justices and freeholders, according to the form of the Act of General Assembly in such case made and provided : We therefore command you, the said sheriff, forthwith to deliver to the said A. B. fiiU possession of the demised prem- ises aforesaid. And we also command you, that of the goods and chattels of the said C. D. in your bailiwick, you cause to be levied as well the sum of dollars, which the said justices have awarded for his damages sus- tained by the unjust detention of the premises, as for the costs and charges by A. B. in and about his suit in that behalf expended, whereof the said C. D. is convict. And hereof fail not. Witness the said E. F. and G. H., justices as aforesaid, at (place), in the ' county aforesaid, the day of , A. D. one thousand eight hundred and E. F. [seal] G. H. [seal] § 1681. FORM OF RECORD. Be it remembered, that on the day of , in the year one thou- sand eight hundred and , at (place), in the city of , due proof was made before E. F., Esq., and G. H., Esq., two of our justices of the peace, that A. B., of , on the day of , in the year one thousand eight hundred and , was quietly and peaceably possessed of premises (here briefly describe by street and number, etc.). And being so thereof possessed on the same day and year last aforesaid, did demise the said premises to C. D. of said city, for the term of (number of years) then next ensuing, at the annual rent of dollars, and that the said C. D. by virtue of the said demise entered into possession of the said de- mised premises, and held the same during the said term, and is still pos- sessed of the same, and that the said term for which the said premises were demised is fully ended ; and the said A. B. being desirous upon the said determination of the said term to have again and repossess the said prem- ises for that purpose did, on the day of , 1890, demand of and require the said C. D. to remove from and leave the same on or before (date), and that the said C. D. has hitherto refused and still doth refuse to comply with the said demand and requisition to remove from and leave the said premises. Whereupon the said A. B. then, to wit, on the said LANDLORD AND TENANT. 685 day of , one thousand eight hundred and , at the city aforesaid, prayed us, the said justices of the peace, that a due remedy in that behalf be provided for him according to the form of the Act of the General Assem- bly of the State of Pennsylvania, in such case made and provided ; upon which proof and complaint the sheriff of the county of is com- manded that he summon twelve substantial freeholders of his bailiwick, so that they be and appear before us, the said justices, at the (place), on , the day of , 1890, at (hour) o'clock in the forenoon of that day, and that he also summon the said C. D., so that he be and appear before us, the said justices and the said freeholders, at the day and place last afore- said, to show cause, if any he has, why restitution of the possession of the said demised premises should not be forthwith made to the aforesaid A. B. Afterward, to wit, on the said day of , 1890, at the (place), L. M., Esq., sheriff of the county of , appears before us the said jus- tices, and returns that by virtue of the said warrant to him directed he had summoned twelve substantial freeholders, to wit (here set forth names of freeholders), and had also summoned the said C. D. to be and appear at this day and place, as by the said warrant he was commanded; and the said freeholders being called, appear, and are severally sworn and affirmed. And the said C. D. also appears ; and we, the said justices and the afore- said freeholders, proceed to hear and examine the proofs and allegations offered by the said parties, and do find that the said A. B., on the day of , 18 , was quietly and peaceably possessed of premises (here briiefly describe). And being so thereof possessed on the same day and year last aforesaid did demise the said premises to the said C. D. for the term of years then next ensuing, at the annual rent of dollars, and that the said C. D., by virtue of the said demise, en- tered into possession of the said demised premises, and held the same during the said term, and is still possessed of the same, and that the said term for which the said premises were demised is fully ended ; and the said A. B. being desirous upon the said determination of the said term to have again and repossess the said premises, for that purpose did, on the day of , 1890, demand of and require the said C. D. to remove from and leave the same on or before , and that the said C. D. has hitherto refused and still doth refuse to comply with the said demand and requisition to remove from and leave the said premsies. And the said free- holders assess the sum of dollars for damages of the said A. B., occa- sioned by the unjust detention of the said premises. Therefore it is con- sidered and adjudged by us, the said justices of the peace, that the said A. B. shall and do recover possession of the said premises, and have of the said C. D. as well the said sum of dollars for his damages aforesaid, as dollars, for his reasonable costs by him expended in and about this suit in his behalf, concerning which the premises aforesaid we do make this our record. In testimony whereof, we, the said justices of the peace, to this our record have set our hands and seals, at the city of aforesaid, this day of one thousand eight hundred and E. F. [seal] G. H. [seal] § 1682, Bequisites of record. The inquisition is a part of the record. Buchanan v, Baxter, 67 Pa, St., 348 (1871). 686 PKACTICE IN PENNSYLVANIA. The Act applies only to leases in which a certain rent is distinctly reserved. If this fact do not appear on the record, the inquest will be set aside. MoQee v. Fessler, 1 Pa. St., 126 (1845). The record, being an inquest of facts, does not require the testi' mony to be set out. Bedford y. Kelly, 61 Pa. St., 491 (1869). § 1683. Certiorari may issue, but it is not a supersedeas. In proceedings under the Act of 1772, the common law writ of certio- rari may issue, but it is not a supersedeas. De Omtrsey v. Trust Co., 8l"Pa. St., 217 (1876). When a certiorari is taken under the Act of 1 772, and the record of the magistrate brought into the Common Pleas, a rule to take depositions is improper. Steamship Oo. v. Haas, 31 W. N., 79 (1892). § 1684. Justice to deliver possession of premises to landlord when tenant removes without leaving sufficient property for three months' rent or giving security. If any lessee for a term of years in the city and county of Philadelphia shall remove from the demised premises without leaving sufficient property thereon to secure the payment of at least three months' rent, or shall refuse to give security for the payment thereof in five days after demand, and shall refuse to deliver up possession of such premises, it shall be lawful for the landlord or lessor to apply to any two justices within said county and make an affidavit or affirmation of the fact, and thereupon the justices shall forthwith issue their precept to any constable of the proper county, com- manding him to summon such lessee before such justices on a day certain, not exceeding eight nor less than five days, to answer such complaint, and the justices shall on the day appointed proceed to hear the case ; and if it appear that the lessee has removed without leaving sufficient goods and chattels on the premises, or giving security for the payment of rent, and has refused to deliver up possession of the demised premises, said justices shall enter judgment against such lessee that said premises shall be deliv- ered up to the lessor forthwith, and shall, at the request of the lessor issue a writ of possession directed to said constable, commanding him forthwith to deliver possession of the premises to the lessor, and levy the costs on defendant in the same manner that executions are directed. (Act March 25, 1825, section 2 ; 8 Sm., 411.) Where by \kw two aldermen are now required to hear and deter- mine any matter before them, the same jurisdiction shall be exer- cised by one magistrate. Act of February 5, 1875, section 12 (P. L.,56). § 1685. FOEM OF NOTICE TO TENANT TO QUIT. Philadelphia, , 1890. To C. D. I hereby demand of and require you to give me security for the payment of at least three months' rent within five days from the date hereof or LANDLORD AND TENANT. 687 deliver up to me possession of the premises you now hold as tenant under me, said premises being situated (here locate) (you having removed there- from without leaving suflScient property thereon to secure the payment of at least three months' rent), or I shall proceed to obtain possession thereof according to law. A. B., (Address). If a tenant quits possession of premises and receives notice to give security for rent in five days, he must tender security within that time or suffer for his neglect. Ward v. Wandell, 10 Pa. St., 98 (1848). The notice must be signed by the landlord or his authorized agent. Powell v. Campbell, 2 Phila., 42 (1856). ■ § 1686. FOKM OF COMPLAINT. City of Philadelphia, as. On the day of , 1890, personally appeared A. B. before me, the subscriber, L. M., Magistrate of Court No. , of the said city, and being duly sworn according to law, saith that he demised the premises situate No. Street, in said city, for the term of years, from the day of , A. D. 18 , at an annual rent of dollars to C. D., who removed therefrom on or about day of , 18 ; that there are not sufficient goods and chattels on the premises to pay a quarter's rent ; that he refuses to give up possession or security for three months' rent, the same having been demanded more than five days previous to the date hereof. Sworn to and subscribed before me, 1 A. B. the day and year aforesaid. I L. M., r Magistrate of Court No. . J (Office.) The affidavit of plaintiff must show that the premises were de- mised or rented by plaintiff to defendant. Mund v. Vanfleet, 2 Phila., 41 (1856). § 1687. FORM OF STJMMONS. City of Philadelphia, ««. The Commonwealth of Pennsylvania to any constable of the said city, greeting : "Whereas, complaint on oath hath been made before me, the subscriber, L. M., Magistrate of Court No. , of the said city, by A. B., of said city, that he demised the premises situate No. Street, in said city, for the term of years, from the day of , A. D. 18 , at an annual rent of dollars to C. D., who removed therefrom on or about the ^ay of , 18 ; that there are not goods enough on the premises to secure the payment of at least three months' rent ; and the said C. D. refuses to give up possession, or security for three months' rent, the same having been demanded five days previous to the date hereof. You are 688 PEACTICE IN PENNSYLVANIA. therefore commanded to summon the said C. D. to be and appear before the said magistrate, at his court, on the day of , 1890, at o'clock M., to answer the complaint of said A. B. In witness whereof, I have hereunto set my hand and aflSxed the official seal of the said court, the day of , A. D. 1890. (Office.) L. M., [seal] Magistrate of Court No. . § 1688. FORM OF WRIT OF RESTITUTION. City of Philadelphia, as. The Commonwealth of Pennsylvania to any constable of the said city, greeting : Whereas, proof was made on the day of , 18 , before L. M., Magistrate of Court No. , for said city, that A. B. demised the premises situate No. (place) Street, in said city, for the term of years, from the day of , A. D. 18 , at an annual rent of dollars per annum, to C. D., who removed therefrom on or about the day of , 18 , without leaving sufficient goods and chattels on the premises to pay and satisfy three months' rent. That the said C. D. has refused to give up possession of said premises, or give security for the pay- ment of three months' rent, the same having been demanded five days pre- vious to making this complaint. Therefore we command you forthwith to deliver actual possession of said premises to the lessor. And we also com- mand you that you levy the costs indorsed hereon on the goods and chattels of the said C. D. And of your proceedings herein make return to our magistrate within ten days after the receipt of this writ, to wit, on or before the day of , A. D. 18 . In witness whereof, I have hereunto set my hand and affixed the official seal of the said court, the day of , A. D. 18 . (Office.) L. M., [seal] Magistrate of Court No. . INDORSEMENT. Date, Returnable, Writ of Eestitution. L. & T. Act 1825. A. B. V. C. D. Rent, $ Costs, $ Total, $ § 1689. FORM OF RECORD. Landlord and Tenant Case before L. M., Magistrate of Court No. , (Date), 1890, A. B. appears and makes complaint on oath, that he de- mised the premises situate No. Street, in the city of Philadel- phia, for term of years, from the day of , A. D. 18 , at an annual rent of dollars to C. D., who removed therefrom on or about the day of , A, D. LANDLORD AND TENANT. /, 689 18 ; that there are not sufficient goods and chattels on the premises to pay a quarter's rent ; that he refuses to give up possession or security for three months' rent, the same having been demanded more than fiv6 days previous to the date hereof. Same day summons issued, returnable ,18 , at (hour) o'clocK M., G. H., constable; returned on oath. Served on defendant by (mode of service). And now (date), 18 , at (hour) o'clock, there appears before me (here note all who appear personally or by counsel). After hearing the proofs and allegations of said A. B., our said magis- trate does find that A. B. demised the premises situate No. Street, in the city of Philadelphia, for term of years, from day of , A. D. 18 , at an annual rent of dollars to C. D., who has removed therefrom ; that there are not sufficient goods and chattels on the premises to pay a quarter's rent ; that the said C. D. has refused to give up possession of said premises or security for the pajTnent of three months' rent, the same having been demanded at least five days previous to making this complaint. Our said magistrate also finds that the above complaint is in all respects just and true, and enters judgment against the defendant that he shall deliver up possession of the aforesaid premises to the plaintiff. Whereupon a writ of possession issued (date), G. H., constable ; returned. Possession given to plaintifl". City of Philadelphia, ss. I hereby certify the above to be a correct transcript from my docket. Witness my hand and the official seal of said court, the day of , A. D. 1890. (Office.) L. M., [seal] Magistrate of Court No. . § 1690. Requisites of record. The record should show that the lessee is not in possession of the premises in dispute. Freytag v. Anderson, 1 Eawle, 73 (1828). And that the magistrate finds the complaint to be true or proved before him, and that the lessee was a tenant for a term of years. Geisenberger v. Cerf, 1 Phila., 17 (1850); Uber \.Hiekson, 6 Id., 132 (1866). § 1691. Proceedings to obtain possession in case of non-payment of rent. In case any lessee for a term of years, or at will, or otherwise, of a mes- suage, lands, or tenements, upon the demise whereof any rents are or shall be reserved, where the lessee shall neglect or refuse to pay rent reserved as often as the same may grow due according to the terms of the contract, and where there are no goods on the premises adequate to pay the rent in arrear, except such articles as are exempt from levy and sale, it shall and may be lawful for the lessor to give the lessee notice to quit the premises, within fifteen days from the date of the notice ; if such notice is given on or after the first day of April and before the 1st of September, and within thirty days from the date thereof, if given on or after the 1st of September and before the first day of April, And if the lessee shall not within the period aforesaid remove from and deliver up the said premises to the said lessor, or pay and satisfy the rent in arrear, it shall be lawfiil for the lessor VOL. I. — 44 690 PEACTICE IN PENNSYLVANIA. to make complaint on oath or affirmation, to any Justice, as the case may require ; who, on it appearing that the lessor has demised the premises for a term of years or otherwise, whereof any rent has been reserved, that the said rent is in arrear and unpaid, that there is not sufficient goodi and chattels on the premises to pay and satisfy the said rent except such as are by law exempted from levy and sale, and that the lessee has, after being notified, refused to remove and redeliver up possession of the premises, eh^U then issue his precept, reciting substantially the complaint and allegation of the lessor, directed to any constable of the proper county, commanding him to sximmon the said lessee to appear before the said justice at a day and time to be therein fixed, not less than three nor more than eight days there- after, to answer the said complaint. And the said justice shall, on the day appointed, or on some other day then to be appointed by tiie justice, pro- ceed to hear the case, and if it shall appear that the complaint by the lessor k in all particulars just and true, then the justice shall enter judgment against such lessee that the premises shall be deliv^ed up to the lessor, and ^ the request of the lessor issue a writ of possession, directed to the consta- ble, connmajading biTn forthwith to deliver actual possession of the premises to the lessor, and also to levy the costs on the defendant in the same manner that costs are now by law levied and collected on other writs of execution ; and if on the hearing it shall appear that the complaint is vex- atious and unfounded, the justice shall dismiss the same with costs to be paid by the lessor. (Act April 3, 1830, section 1 ; P. L., 187. Act March 22, 1861, section 1 ; P. L., 181.) Where by law two aldermen are now required to hear and deter- mine any matter before them, the same jurisdiction shall be exer- cised by one magistrate. Act of February 5, 1875, section 12 (P. L., 56). § 1692. In Mercer County, tenant who refuses to perform labor may be dispossessed. WhMiever any person shall be tenant of any house belonging to another in the county of Mercer, and occupies the same under an agreement, verbal or written, to perform labor or services for the owner or owners of said house or tenement, in addition to the rent reserved for the use of said house or tenement, whilst he shall occupy the same, and shall, during such occupancy, refuse or neglect to perform such labor or render such service, it shall and may be lawful for such owner or owners, his, her, or their agent or attorney, to dispossess such tenant in the manner provided by the Act of April 3, 1830, section 1, and the Supplements thereto, after giving thirty days' notice to said tenant to surrender possession of the house or tenement in his possession ; and on due proof to the justice of neglect of said tenant to perform such labor or render such service according to tiie agreement, the said justice shall have power to declare the lease by which such house or tenement is held to be void. ^Aet May 4, 1864, section 1 ; P. L., 766, Act April 16, 1869, section 1 ; P. L., 972. Act of April 17, 1869, section 1 ; P. L., 1126.) § 1693. Jurisdiction. The Act of 1830 does not authorize pro- ceedings against a tenant for life or in fee under a perpetual lease. Trimbath v. Patterson, 76 Pa. St., 277 (1874), LANDLORD AND TENANT. 691 If the title to the premises come in dispute, the only remedy is ejectment, and not the proceeding before a justice, Mohan v. But- ler, 17 W. N., 434 (1886). In such case, an affidavit that the title to lands will come into question need not be filed ; an assertion of the fact, sustained by evidence, is sufficient. AUen v. Ash, 6 Phila., 312 (1867). The affidavit of a third party, stating that he claims the rever- sion, is not sufficient to oust the jurisdiction of the magistrate. Daly V. Barrett,, 4 Phila., 350 (1861). § 1694. FORM OF NOTICE TO TENANT TO QUIT. Philadelphia (date), 1890. You are hereby notified to quit tiie premises situate (here locate), wMcii I have leased to you, reserving rent, " or pay and satisfy the rent due and in arrear," being $ , which amount was due on the day of , 18 , and is hereby demanded (you having neglected or refused to pay the amount so reserved, as often as the same has grown due, according to the terms of our contract, and there being no goods on the premises adequate to pay the rent so reserved, except such articles as are exempt from levy and sale by the laws of this Commonwealth), within days from the date hereof, or I shall proceed against you as the law directs. Respectfully yours. To 0. D. [A. B. The oath and complaint should be made by the lessor. ffQpkins V. McOeUand, 8 Phila., 302 (1871). § 1696. FOEM OF COMPLAINT. CSty of Philadelphia, «». On the day of , Anno Domini 1890, personally appeared A. B., before the subscriber, L. M., Esq., Magistrate of Ctourt No. , in and for the said city, and being duly sworn according to law saith that he demised the premises situated Street, in the city of Phila- delphia, for term of years to , at an annual rent of dollars ; that the said rent, to wit, the sum of dollars, due on the day of , A. D. 1890, is in arrear and unpaid, that there are not sufficient goods and chattels on the premises to pay and satisfy the said rent, except such as are by law exempted from levy and sale, and that the said lessee has (after being notified to quit the said premises within . days from the date of the said notice, at which time the amount of rent due was demanded), refused to render and deliver up possession of the said pranises. Sworn to and subsra'ibed before me, ) (date). \ A.B. L. M., Magistrate of Court No. 692 PRACTICE IN PENNSYLVANIA. § 1696. foem op summons. City of Philadelphia, ■) The CoMMOirwEALTH of Pennsylvania, | * Whereas, complaint on oath or affirmation hath been made before L. M., Esq., Magistrate of Court No. , of the said city, by A. B., that A. B. demised a certain tenement, situated (here locate) in the city of Philadel- phia, for the term of years to C. D., at an annual rent of "dollars, , which rent is in arrear and unpaid ; that there are not sufficient goods and chattels oi) the premises to pay and satisfy the said rent except such as are by law exempted from levy and sale ; and that the said lessee has, after being notified according to law, refused to remove and deliver up possession of the said premises. You are therefore commanded to summon the said C. D., to be and appear before our said magistrate, at his court (place), in the said city, on the day of , 1890, between the hours of o'clock m. and o'clock M., to answer the said complaint. In witness whereof, our said magistrate has hereunto set his hand and the official seal of said court, the day of , A. D. 1890. (Office.) L. M., [seal] Magistrate of Court No. . § 1697, Defense of tenant. In proceedings under the Act, a ten- ant may show in defense that the title of the landlord has expired or has been divested by act of law. Smith v. Orosland, 15 W. N., 211 (1884). § 1698. Inquisition and judgment. If the inquisition set forth and find to be true the facts set forth in the complaint, thus estab- lishing the magistrate's jurisdiction, that is sufficient. MoKeon v. King, 9 Pa. St., 213 (1848). The judgment of the justice need not recite the date of the lease, the expiration of the term, or date of the notice. Kraft v. Wolf, 6Phila.,310(1867). § 1699. Rights of tenant upon adverse judgment. The tenant, upon the determination of the justice favorably to the landlord, may use any one of three methods : (a) He may pay the rent ascertained and costs, and continue in (6) He may appeal, upon giving proper security, and continue in possession. (c) He may permit the landlord to execute his writ of posses- sion and levy his costs, and take a writ of certiorari to remedy any- thing in the form or manner of proceedings not authorized by law. . The landlord may use his personal remedy for the recovery of the rent, although repossessed of his property. LANDLORD AND TENANT. 693 § 1700. Tenant may supersede writ of possession by payment of rent and costs. At any time before the writ of possession is actually executed the lessee may supersede and render the said writ of none effect by paying to the con- stable, for the use of the lessor, the rent actually due and in arrear and the costs ; which rent in arrear shall be ascertained and determined by the justice on due and legal proof, and indorsed by him on the said writ of pos- session, together with the costs of the proceeding. Of all of which doings the constable shall make return to the justice within ten 'days after re- ceiving the writ, and the constable shall be answerable in default of exe- cuting the writ according to its lawful requisitions, or in returning the same, in the same manner as to the amount of rent ascertained and deter- mined and costs, as constables are now by law answerable on other writs of execution. No writ of possession, however, shall be issued by a justice for five days after the rendition of judgment ; and if within the said five days the tenant shall give good, sufficient, and absolute security by recognizance for all costs that may have and may accrue, in case the judgment shall be affirmed, and also for all rent that has accrued or may accrue to final judgment, then the tenant shall be entitled to an appeal to the next Court of Common Pleas ; which appeal shall then be tried as other suits, but nothing shall prevent the issuing of a certiorari with the usual form and effect. (Act April 3, 1830, section 1 ; P. L., 187.) § 1701. FORM OF WKIT OF EESTITUTIO]Sr. City of Philadelphia, ss. The Commonwealth of Pennsylvania, to any constable of the said city most convenient to the defendant, greeting : Whereas, proof was made on the day of , 1890, before L. M., Esq., Magistrate of Court No. , of the said city, that A. B. rented to C. D. a certain tenement situated No. , Street, in the city of Philadelphia, for term of year to C. D., at an annual rent of dollars, the rent whereof is in arrears and unpaid ; that there is not sufficient goods and chattels on the premises to pay and satisfy the said rent, except such as are by law exempted from levy and sale ; and that the said lessee has, after being legally notified, refused to remove and redeliver up possession of the premises, according to the Act of General Assembly in such case made and provided ; and whereon the said magistrate, in consideration of the prem- ises, did enter judgment against the said lessee, that said premises should be delivered up to the lessor ; and did also ascertain the amount of rent in arrear to be dollars. Therefore we command you forthwith to deliver actual possession of said premises to the lessor ; and we also com- mand you that you levy the costs indorsed hereon on the goods and chattels of the said C. D. And of your proceedings herein make return to the said magistrate within ten days after your receipt [of this writ, to wit, on or before the day of , 1890. In witness whereof, the said magistrate hasJ.hereunto set his hand and official seal of said court, the day of , 1890. L. M., Fseal] Magistrate of Court No. . 694 PRACTICE IN PENNSYLVANIA. INDORSEMENT. Date, Returnable, Writ of restitution. A. B. V. CD. Eent, $ Costs, $ Total, $ fOKM OF REOOKD. Be it remembered, that on (date) at the city of Philadelphia A. B. ap- peared and made complaint under oath before me that he was the lessor of premises No. Street, in said city, and that on (date) he demised said premises for the term of years to C. D., at an annual rental of dollars, and that said rent was payable monthly, to wit, the sum of dollars per month, and that said lessee is in arrears for months' rent due on to Wit, the sum of $ That there are not sufficient goods and chattels on the said premises to pay and satisfy said rent, except such as are by law exempted from levy and sale, and that said lessee has, after being notified to quit the said premises within (here fallow the Act of 1830) days from the date of said notice at which time the above rent was demanded, refused to render and deliver up possession of the said premises. On said day summons issued returnable (date) at (hour) directed to G. H., constable of said county, which was returned duly served under oath by (mode of service). And on (date fixed in summons) at (hour) there ap- peared before me (here state who appeared and names of counsel), and after hearing the proofs and allegations of said parties said magistrate doth find that (date) A. B. demised said premises situate (place) in said city of Phila- delphia, for the term of years, at an annual rental of dollars, payable monthly to C. D., and that months' rent is in arrears, viz. : (state number of months) amounting to dollars, and that there are not sufiicient goods and chattels on said premises to pay and satisfy the said rent, except such as are by law exempted from levy and sale, and that said lessee, after having been notified (date) in accordance with the provisions of the Act in such case made and provided, refused to remove and deliver up possession of said premises. Whereupon the said magistrate finds said complaint to be true in all respects, and enters judgment against (name), the said lessee, that the said premises shall be delivered up to (name), the said lessor, and at the request of said lessor has issued a writ of possession (date) directed to G. H., con- stable as aforesaid, commanding him to forthwith deliver possession of said premises to said lessor, and also to levy the costs of said action on said de- fendant. Whereupon said writ was duly returned, possession given to said plaintiff and lessor. In testimony whereof, I have hereunto set my hand and official seal to this said record at the city of Philadelphia (date). (Office.) L. M., [seal] Magistrate of Court No. . LANDLORD AND TENANT. 695 Under the Act of April 3, 1830, the justice must ascertain the rent due and in arrear, and indorse the same on the writ of pos- session, yet he cannot issue an execution against the tenant to coerce the payment of the sum. Rubieum v. Williams, 1 Ash., 230; Trimhath v.Patterscm, 76 Pa. St., 280 (1874). § 1702. Requisites of record. The record of a justice must show the term for which the premises were demised ; the omission will be fatal. Trimbath \. Patterson, 76 Pa. St., 277 (1874); Mc- Dermott v. Mollwain, 75 Pa. St., 341 (1874). § 1703. Bail on appeal. The Act of March 20, 1845, section 1, providing the condition of recognizance on appeal, does not apply to the proceeding and judgment under the Act of April 3, 1830, section 1. In proceedings under the Act of April 3, 1830, the following ■ recognizance on appeal was held sufficient : I become bail absolute in this case conditioned for the payment of all costs that have accrued, and all the costs that may accrue in case that the said judgment be affirmed, and also for all rent that has accrued and may accrue up to the time of final judgment. Hardy v. Watts, 22 Pa. St., 33 (1858). § 1704. Waiver of appeal. Where a lessee expressly waives all right to an appeal, writ of error, etc., and agrees that a judgment,, order, or decree shall be final and conclusive, it is binding on him. Uppvneott V. Cooper, 19 W. N., 130 (1886). § 1705. Writ of possession, if judgment affirmed on appeal, issues from Gammon Pleas. When the judgment of the j ustice is affirmed on appeal, the writ of habere facias possessionem properly issues from the Common Pleas. Essler \. Johnson, 25 Pa., 350 (1855). § 1706. Certiorari from the Common Pleas. On certiorari, the transcript of the record is sufficient if it discloses facts necessary to give jurisdiction, without setting forth those facts in detail. Max- well V. Perkins, 93 Pa. St., 255 (1880). In proceedings under the Act of April 3, 1830, to obtain a cer- tiorari, it is not. necessary to make the oath prescribed by the Act of March 20, 1810, section 21. Rubicwm x.Williams, 1 Ash., 230. § 1707. Froceeding s to obtain possession at end of term. Where any person or persons in this State having leased any lands or tenements to any person or persons for a term of one or more years, or at will shall be desirous, upon the determination of said lease, to have again and repossess such demised premises, having given three months' notice of such intention to his lessee, and said lessee shall refuse to leave and surren- der up the said premises at the expiration of said term, in compliance with the terms of said notice, it shall be lawful for such lessor, his agent or attorney, to complain thereof to any justice of the peace where the premises 696 PEACnCE IN PENNSYLVANIA. lie, whose duty it shall be to summon the defendant to appear at a day fixed, as in other civil actions ; and upon due proof being made, the tenant having notice of the time and place of hearing, that the said lessor was quietly and peaceably possessed of the lands or tenements so required to be surrendered up, and that he demised the same to the tenant in possession or to some other person under whom such tenant claims, and that the term for which the same were demised is fully ended, and that three months' previous notice had been given of his desire to repossess the same ; then and in that case, if it shall Jappear right and proper to the said justice, he shall enter judgment against the said tenant, that he forthwith give up the possession of the said premises to the said lessor, and the said justice shall also give judg- ment in fiivor of the lessor and against the lessee or tenant, for such dam- ages as in his opinion the said lessor may have sustained, and for all the costs of the proceeding ; and he shall forthwith issue his warrant to any constable in the county, commanding him immediately to deliver to the lessor, his agent or attorney, flail possession of the said demised premises and to levy the damages and costs awarded and taxed by the said justice, of the goods and chattels of the lessee or tenant, or other person in posses- sion, any law, custom, or usage to the contrary notwithstanding. Provided, that the defendant may, at any time within ten days after the rendition of judgment, appeal to the Court of Common Pleas in the manner provided in the first section of the Act April 3, 1830 : And provided further, that such appeal shall not be a supersedeas to the warrant of possession, but shall be tried in the same manner as actions of ejectment ; and if the jury shall find in fevor of the tenant, they shall also assess the damages which he shall have sustained by reason of his removal from the premises and for the amoimt found by the jury, judgment shall be rendered in his fevor, with costs of suit, and that he recover possession of the premises, and he shall have the necessary writ or writs of execution to enforce said judg- ment : Prooided further, that the tenant may have a writ of certiorari to remove the proceedings as in other cases. (Act December 14, 1863, section 1 ; P. L., 1125.) The Act of December 14, 1863, is constitutional. MoGfregor v. Haines, 6 Phila., 62 (1865) ; Haines v. Leoin, 51 Pa. St., 412 (1866). The Act of April 11, 1866, section 1 (P. L., 97), conferred upon aldermen in this Commonwealth the powers and jurisdiction con- ferred upon justices by the Act of December 15, 1863. By the Constitution of 1874, Article V., section 12, the office of alderman is abolished in Philadelphia County, and the powers and jaiisdiction formerly vested in that officer are conferred upon a magistrate. § 1708. Where ovmer acquires title through descent or 'purchase. The Act of 1863 was extended by the Act of February 20, 1867, section 1 (P. L., 30), so as to apply to cases in which the owner or owners of the demised premises have acquired title thereto by descent or purchase from the original lessor or lessors. § 1709. No 'proceedings to be instituted except upon written lease or parol agreemevt wherein relation of landlord and tenant is estab- LANDIX)ED AND TENANT. 697 lialied. It was also provided by the Act March 6, 1872, section 1 (P. L., 22) : That it shall not he lawful to commence or prosecute any proceedings to ohtain possession under the Act of December 14, 1863, nnless such proceed- ing shall be founded apon a written lease or contract in writing, or on a parol agreement, in and by which the relation of landlord and tenant is established between the parties, and a certain rent is reserved. § 1710. Jurisdiction. If it does not appear that a certain rent was reserved in the lease, the justice has not jurisdiction. Graver V. Fehr, 89 Pa. St., 460 (1879). § 1711. POEM OF NOTICE TO TENANT TO QUIT. To C. D., SiE : You are hereby notified and required to quit, remove from, and deliver up to me possession of the premises situate (here locate), which you now hold as tenant under me, at the end of your current term, to wit, on the day of , A. D. 18 , as I desire to have again and repossess the same. RespectMly yours, A. B., (Address.) Philadelphia (date), 18 . § 1712. Mequiaites of notice. A lease was for one year from March 25, 1868 ; on December 25, 1868, the landlord gave notice to quit. Held, the notice was in time. Dujffy v. Ogden, 64 Pa. St. , 240 (1 870). If a tenant lets from month to month, even though the lease con- tain an agreement to surrender possession on thirty days' notice prior to the expiration of the lease, the tenant is entitled to three months' notice before proceedings can be instituted under the Act of 1863. GavM V. Weed, 6 Phila., 61 (1865). Aside from proceedings under these special Acts, where a tenant holds under a lease from month to month he is entitled to but one month's notice. SoUis v. Bvms, 100 Pa. St., 206 (1882). Under the Act of December 14, 1863, notice to quit must be to remove upon determination of the lease, and not upon some other date. Borough v. Wcdters, 29 W. N., 483 (1892). The three months' notice required by Act of December 14, 1863, may be waived, but the inquisition must find such fact. Coed Co. V. Androkus, 2 Dist. Eep., 764 (1892). § 1713. rokm op complaint — ^no change op ownership. City op Philadei-phia, 1 ^^ The Commonwealth op Pennstlvania, j ' On the day of , A. D. 18 , personally appeared before me, L. M., Magistrate of Court No. , A. B., who, being duly sworn according to law doth depose and say that he is the lessor of certain premises, with 698 PBACnCB IS PENNSYLVANIA, the appurtenances, situate (here locate), and was in quiet and peaceable possession thereof on the day of , A. D. 18 , on which last-men- tioned day he demised said premises to a certain C. D. for the Ml term of year , at a yeacrly rent of $ , which said term is folly ended ; that being desirous, upon the determination of said term, to have again and repossess the said premises, for that purpose he did on the day of , A. D. 18 , demand and require the said CD. to remore from and leave the same, and that the said C. D. has hitherto reAised, and still doth refiise to comply therewith; that three months have elapsed since the service of said notice, and that he makes this complaint that such proceed- ings may be taken as are directed by the Act of Assembly in such case made and provided. Sworn to and subscribed before me, \ this day of , A. D. 18 . i ^ g L. M., j Magistrate of Court No. . j § 1714. FOBM OF COMPLAINT BY PUECHASER FBOM LASTDLORD WHO GAVE THE NOTICE. City of Phtladelphia, 1 The Commonwealth of Pennsylvania, j On the day of , A. D. 18 , personally appeared before me, the subscriber, L. M., Magistrate of Court No. , in and for the said city, E. F., who, being duly sworn according to law, doth depose and say that heretofore, to wit, A. B. was the owner of a certain lot or piece of ground, with the appurtenances, situate (here locate), and was quietly and peaceably in possession thereof on the day of , A. D. 18 , on which last-mentioned day he demised said premises to a certain C. D. for the full term of year , at the yearly rent of dollars, which said term is fiilly ended ; being desirous upon the determination of the said term to have again and repossess the said premises, for that purpose he, said A. B., did on the day of , A. D. 18 , demand and require the said C. D. to remove from and leave the same, and that the said C. D. has hitherto refused, and still doth refuse, to comply therewith ; after making the demise aforesaid, to wit, on the day of , A. D. 18 , by a deed of conveyance duly made and executed, bearing date the same day and year for the consideration therein mentioned, A. B. did grant, bargain, and sell the premises aforesaid, with the appurtenances, unto E. F., his heirs and assigns, that three months have elapsed since the ser- vice of said notice, and that he makes this complaint that such proceed- ings may be taken as are directed by the Act of Assembly in such case . made and provided. Sworn to and subscribed before me, \ this day of , A. D. 18 . i „ „ L. M., r *'• *• Magistrate of Court No. . J § 1715. FORM OF SUMMONS — ^NO CHANGE OF OWNERSHIP. City of Philadelphia, »«. The Commonwealth of Pennsylvania to any constable of said city, greeting: LANDLORD AND TENANT. 699 Whereas, it appears to L. M., Magistrate of "Court No. , in and for the said cily, by complaint, on day of , A. D. 18 , that A. B. was on day of , A. D. 18 , quietly and p«u5eably in possession of a certain messuage or tenement, with the appurtenance, situate (here locate), and being so thereof possessed, on the same day and year last afore- said, did demise the said premises to C D. for the term of years then next ensuing, at the yearly rent of dollars, and that the said C. D., by virtue of the said demise, entered into possession of the said demised premises, and held the same during the said term, and is still possessed of the same ; and that the said term for which the said premises were demised is fully ended ; and that said A. B. being desirous, upon the said determi- nation of the said term, to have again and repossess the said premise, for that purpose did on the day of , A. D. 18 , demand of and require of the said C. D. to remove from and leave the same ; and that the said C. D. hath hitherto refused ; and still doth refuse, to comply with the said demand and reqiiisition to remove from and leave the said premises. You are therefore hereby commanded to summon the said C. D. to be and appear on the day of , A. D. 18 , between the hours of and o'clock in the forenoon, at the said court (place), in the city of Philadelphia, to show cause, if any he has, why restitution of the possession of the said demised premises should not be forthwith made to the aforesaid A. B. according to the form and eflfect of the Act of Assembly in such case made and provided. And this you shall in nowise omit. Witness our said magistrate and the oflScial seal of the said court, the day of , A. D. 18 . (Office.) L- M., [seal] Magistrate of C!ourt No. . , §1716. FORM OF SUMMONS — NOTICE BEFOEE SALE. City of Philadelphia, ss. The Commonwealth of Pennsylvania to any constable of said city, greeting : Whereas, it appears to L. M., Magistrate of Court No. , in and for the said city, by complaint, on of , A. D. 18 , that A. B. was on the day of , A. D. 18 , quietly and peaceably in possession of a certain messuage or tenement, with the appurtenances, situate (here locate), and being so thereof possessed, on the same day and year last aforesaid, did demise the said premises to C. D. for the term of years then next ensuing, at the yearly rent of dollars ; and that the said C. D. by virtue of the said demise, entered into possession of the said demised premises, and held the same during the said term, and is still possessed of the same, and that the said term for which the said premises were demised is fully ended ; and that said A. B. being desirous, upon the said determination of the said term, to have again and repossess the said premises, for that purpose did on the day of , A. D. 18 , demand of and require of the said C. D. to remove from and leave the same ; and that the said A. B., after making the demise aforesaid, to wit, on the day of , A. D. 18 , by a certain deed of conveyance duly made and executed, bearing date the same day and year for the con- sideration therein mentioned, did grant, bargain, and seU the premises aforesaid, with the appurtenances, unto E. F., his heirs and assigns, and the 700 PEAcrricE is penstsylvania. said C. D. has hitherto refiised, and still doth reftise, to comply with said demand and reqnisition to remove from and leave the said premises. Yon are therefore hereby commanded to summon the said C. D., to be and appear on the day of , A. D. 18 , between the hours of and o'clock in the forenoon, at the said court (place), in the city of PhiladelpMa, to show cause, if any he has, why restitution of the possession of the said demised premises should not be forthwith made to the aforesaid E. F., according to the form and eflfect of the Act of Assembly in such case made and provided. And this yon shall in nowise omit. Witness our said magistrate and the official seal of the said court, the day of , A. D. 18 . (Office.) L. M., [seal] Magistrate of Court 'So. , § 1717. POEM OF SCMMOSrS — CHANGE OF OWNEESHTP — SALE BEFOEE NOTICE. CSfcy of Philadelphia, ss. The Commonwealth of Pennsylvania to any constable of said city, greeting: Whereas, it appears to L. M., Magistrate of Court No. , in and for the said city (place), by complaint on of , A. D. 1890, that A, B. . was on the day of , A. D. 18 , quietly and peaceably in posses- sion of a certain messuage or tenement, with the appurtenances, situate (here briefly describe), and being so thereof possessed, on the same day and year last aforesaid, did demise the said premises to C. D. for the term of • . years then next ensuing, at the yearly rent of dollars ; and that the said C. D., by virtue of the said demise, entered into possession of the said demised premises, and held the same during the said term, and is still possessed of the same, and that the said term for which the said premises were demised is folly ended ; and that said A. B., after making the demise aforesaid, to wit, on the day of , A. D. 18 , by a certain deed of conveyance duly made and executed, bearing date the same day and year, for the consideration therein mentioned, did grant, bar- gain, and sell the premises aforesaid, with appurtenance, unto £. F., his heirs and assigns, and the said E. F. being desirous, upon the said deter- mination of the said term, to have again and repossess the said premises, for that purpose did on the day of , A. D. 18 , demand of and require the said C D. to remove from and leave the same ; and that the said C. D. hath hitherto refiised and still doth reftise to comply with the S£ud demand and requisition to remove from and leave the said premises. You are therefore hereby commanded to summon the said C. D.to be and appear on the day of , A. D. 18 , between the hours of and o'clock in the forenoon, at the said court (place), in the city of Philadelphia, to show cause, if any he has, why restitution of the posses- sion of the said demised premises should not be forthwith made to the aforesaid E. F., according to the form and effect of the Act of Assembly in such case made and provide And this you shall in nowise omit. Witness our said magistrate and the official seal of the said court, the day of , A. D. 1890. (Office.) L. M., [seal] • Magistrate of Court Xo. . IiANDIX)ED AND TENANT. 701 § 1718. FOEM OF WRIT OF POSSESSION — SO CHANGE OF OWITEKSHIP. City of Philadelphia, ss. The Commonwealth of Pennsylvania to any constable of said city, greeting: Whereas, due proof has been made before L. M., Magistrate of Court No. , in and for the said city (place), that A. B. did on the day of , A. D. 1890, demise to C. D. a certain house or tenement, with the appurtenances, situate (here briefly describe), for the term of years, at the rent of dollars per annum ; and that the said C. D., by virtue of the said demise, entered into possession of the said premises, and held them during the said term, and is still possessed thereof ; and that the said term is fiilly ended ; and that the said A. B. being desirous, upon the determina- tion of the said term, to have again and repossess the said premises, for that purpose did on the day of , A. D. 18 , demand of and require of the said C. D. to remove from and leave the same ; and the said C. D. has hitherto refused, and still doth refuse, to comply therewith. All which premises being duly found by our said magistrate, according to the form of the Act of Greneral Assembly in such case made and provided. You are therefore hereby commanded forthwith to deliver to the said A. B. full possession of the demised premises aforesaid. And you are also commanded, that of the goods and chattels of the said C. D. in your baili- wick you cause to be levied as well the sum of dollars, which the said L. M., justice, as aforesaid, has awarded for the damages sustained by the unjust detention of the premises as dollars, 'for his costs and charges by binn in and about said suit in that behalf expended, whereof the said C. D. is convict. And hereof fail not. Witness our said magistrate and the official seal of the said court, the day of , A. D. 18 . (Office.) L. M., [sEAii] Magistrate of Court No. . § 1719. FOEM OF WEIT OF POSSESSION — CHANGE OF OWNEBSHIP — NOTICE BEFOEE SALE. CSty of Philadelphia, «». The Commonwealth of Pennsylvania to any constable of said city, greeting: Whereas, due proof has been made before L. M., Magistrate of Court 'So. , in and for the said city (place), that A. B. did on the day of , A. D. 18 , demise to C. D. a certain house or tenement, with the appurtenances, situate (here briefly describe), for the term of years, at the rent of dollars per annum ; and that the said C. D., by virtue of the said demise, entered into possession of the said premises, and held them during said term, and is still possessed thereof; and that the said term is fuUy ended ; and that the said A. B. being desirous, upon the said determination of the said term, to have again and repossess the said prem- ises for that purpose did on the day of , A. D. 18 , demand of and require the said C. D. to remove from and leave the same ; and that the said A. B., after making the demise aforesaid, to wit, on the day of , A. D. 18 , by a certain deed of conveyance duly made and exe- 702 PRACTICE IN PENNSYLVAKIA. cnted, bearing date the same day and year for the consideration therein mentioned, did grant, bargaiu, and sell the premises aforesaid, with the appnrtenances, unto E. F., his heirs and assigns, and the said C. D. has hitherto refased and still doth refiise, to comply therewith. All which {Hjranises being dnly found by our said magistrate, he did thereupon enter judgment against the said tenant that he forthwith give up possession of the said premises to the said E. F., and for the sum of dollars for his damages sustained by the unjust detention of the iwemises as well as dollars for his costs and charges by C. D. in and about said suit in that behalf expended. Therefore we command you forthwith to deliver actual possession of said premises to the said E. F., his agent or attorney, and to levy the damages and costs awarded of the goods and chattels of the said leasee or tenant or other person in possession, and for so doing this shall be your sufficient warrant. Witness our said magiatrate and tiie official seal of the said court, the day of , A. D. 18 . (Office.) L. M., [SEAi.] Magistrate of Court STo. . § 1720. FOBM OP WEIT OF KESTITUTIOlf — CHAUGE OF OiyKEBSHIP — SALE BEFOKE NOTICE. City of Philadelphia, ss. The Commonwealth of Pennsylvania to any constable of said city, Whereas, due proof hath been made before L. M., Magistrate of Court No. , in and for the said city (place), tiiat A. B. did on the day of , A. D. 18 , demise to C. D. a certain house or tenement, with the appurtenances, situate (here briefly describe), for the term of years, at the rent of dollars per annum ; and that the said C. D., l^ virtue of the said demise, entered into possession of the said premises and held them during said term, and is still possessed thereof, and that the said term is fully ended ; and that the said A. B. after making the demise aforesaid, to wit, on the day of , A. D. 18 , by his certain deed of convey- ance duly made and executed, bearing date tiie same day and year for the consideration therein mentioned, did grant, bargain, and sell the premises aforesaid, with the appurtenances, unto E. F., his heirs and assigns ; and the said E. F. being desirous, upon the said determination of the said term, to have again and repossess the said premises, for that purpose did on the day of , A. D. 18 , demand of and require the said C. D. to remove from and leave the same ; and that the said C. D. has hitherto refused, and still doth refuse, to comply 1^«rewith. All which premises being duly found by our said magistrate, he did thereupon enter judgment against the said tenant that he forthwith give up possession of the said premises to the said E. F., and for the sum of dollars for his dam- ages sustained by the unjust detention of the premises, as well as dollars for his costs and chaises by him in and about said suit in that behalf expoided. Therefore we command you forthwith to deliver actual posses- sion of said premises to the said E. F., his agent or attorney, and to levy the damages and costs awarded of the goods and chattels of the said lessee or tenant or other person in possession, and for so doing this shall be your sufficient warrant. LAUDLOED AND TENANT- 703 Witness our said magistrate and the ofBlcial seal of the said court, the day of A. D. 18 . (Office.) L. M., [seal] Magistrate of Court No. . The Act of December 14, 1863, which directs the magistrate to issue his warrant forthwith to dispossess the tenant, is repealed by Ihe supplement of March 24, 1865. Connelly v. Arunddl, 6 Phila., 38 (1865). § 1721. FOEM OF SECOSD — SO CHANGE OF OWNEESHIP. Be it remembered, that on the day of , in the year of our Lord one thousand eight hundred and , at the city of Phila- delphia, due proof was made before L. M., Magistrate of C!ourt No. , in and for said city, that A. B., on the day of , in the year one thousand eight hundred and , was quietiy and peaceably possessed of a certain messuage or tenement, with the appurtenances, situate (here briefly describe), and being so thereof possessed on the same day and year last aforesaid, did demise the said premises to 0. B., for the term of years then next ensuing, at the yearly rent of dollars ; and that the said C. D., by virtue of the said demise, entered into possession of the said demised premises, and held the same during said term, and is stiU possessed of the same, and that the said term for which the said premises were demised is fully ended ; and that the said A. B. being desirous, upon the said determination of the said term, to have again and repossess the said premises, for that purpose did on the day of , A. D. 18 , demand of and require the said C. D. to remove form and leave the same, and that the said C. D. has hitherto refused, and still does refuse, to comply with the said demand and requisition to remove from and leave the said premises. Whereupon the said A. B. then, to wit, on the said day of , A. D. 18 , prayed the said magis- trate, that a due remedy in that behalf be provided for him, according to the form of the Act of the General Assembly of the State of Pennsylvania, in such case made and provided, upon which proof and complaint one of tiie constables of the said city was commanded to summon the said C. D. to be and appear on the day of , A. D. 18 , between the hours of and o'clock in the forenoon, before our said magistrate, at his court in the said city, to show cause, if any h« has, why restitution of the possession of the said demised premises should not be forthwith made to the aforesaid A. B., on the day of , A. D. 18 and M. N., constable, returned on oath served on defendant by (mode of service). Afterward, to wit, on the said day of , A. D. 1890, at (time) o'clock in the forenoon, at the said court, in the said ciiy (office) (here state if C. D. appeared and evidence in brief. If 0. D. did not appear, so set forth). After hearing the proofe and allegations offered by the said A. B., our said magistrate finds that the said A. B., on the day of , A. D. 18 , was quietly and peaceably possessed of a certain messuage or tenement, with the appurtenances, situate (here briefly describe), and being so thereof possessed on the same day and year last aforesaid, did demise the said 704 PBACXICE IN PElOrSYLVAinA. premises to the said C. D. for the term of years then next ensning, at the yearly rent of dollars ; and that the said C. D., by virtue of the said demise, entered into possession of the said demised premises and held the same during the said term, and is still possessed of the same, and that the said term for which the said premises were demised is fidly ended ; and that the said A. B. being desirous, npon the said determination cf the said term, to have again and repossess the said premises, for that purpose did on the day of , A. D. 18 , demand of and require the said C. D. to remove from and leave the same, and that the said C. D. has hitherto refused, and still doth refuse, to comply with the said demand and requisition to remove from and leave the said premises. And our said magistrate doth assess the sum of dollars for the damages of the said A. B., occasioned by the unjust detention of the said premises. Our said magistrate did thereupon enter judgment against the said tenant that he forthwith give up possession of the said premises to the said lessor, and that the said lessor shall and do recover, and have of the said lessee or tenant as well the said sum of dollars for his damages aforesaid, as dollars for his reasonable costs by him expended in and about this suit in his behalf, concerning which the premises aforesaid our said magis- trate doth make this his record. In testimony whereof, our said magistrate to this his record has hereunto set his hand and official seal of the said court, at the city of Philadelphia, this day of , one thousand eight hundred and (Office.) L. M., [SEAi] Magistrate of Court. No . § 1722. FORM OF EECOBD— CHANGE OF OWSTEESHIP — NOTICE BEFOBE SALE. Be it remembered, that on the day of , in the year of our Lord one thousand e^ht hundred and , at the city of Philadelphia, due proof was made before L. M., Magistrate of Cionrt No. , in and for said city, that A. B., on the day of , in the year of our Lord one thousand eight hundred and , was quietly and peaceably pos- sessed of a certain messuage or tenement, with appurtenances, situate (here briefly describe), and being so thereof possessed on the same day and year last aforesaid did demise the said premises to C. D., for the term of years then next ensuing, at the yearly rent of dollars ; and that the said C. D., by virtue of the said demise, entered into possession of the said demised premises, and held the same during said term, and is still possessed of the same, and that the said term for which the said premises were de- mised is fully ended ; and that the said A. B. being desirous, upon the said determination of the said term, to have again and repossess the said prem- ises, for that purpose did on the day of , A. D. 18 , demand of and require the said C. D. to remove from and leave the same ; and that the said A. B., after making the demise aforesaid, to wit, on the day of , A. D. 18 , by a certain deed of conveyance duly made and exe- cuted, bearing date the same day and year for the consideration therein mentioned, did grant, bargain, and sell the premises aforesaid, with the appurtenances, unto E. F., his heirs and assigns, and the said C. D. has hitherto refused, and still doth refuse, to comply with the said demand and LANDLORD AND TENANT. 705 requisition to remove from and leave the said premises. Whereupon the said E. F., then, to wit, on the said day of , A. D. 18 , prayed our said magistrate, that a due remedy in that behalf be provided for him according to the form of the Act of the General Assembly of the State of Pennsylvania in such case made and provided, upon which proof and com- plaint one of the constables of the said city was commanded to summon the said C. D. to be and appear on the day of , A. D. 18 , between the hours of and o'clock in the forenoon, at our said magistrate's court (place) in the said city, to show cause, if any he has, why restitution of the possession of the said demised premises should not be forthwith made to the aforesaid E. F., and on the day of , A. D. 18 , M. N., constable, returned on oath, served on defendant by (mode of service). Afterward, to wit, on the said day of , A. D. 18 , at o'clock in the forenoon, at the court of our said magistrate, in the said city (here state if C. D. appeared, and briefly set forth the evidence. If C. D. did not appear, so set forth). After hearing the proofe and allegations offered by the said A. B., our said magistrate finds that the said A. B., on the day of , A. D. 18 , was quietly and peaceably possessed of a certain messuage or tenement, with the appurtenances, situate (here briefly describe), and being so thereof possessed on the same day and year last aforesaid did demise the said premises to C. D. for the term of year then next ensuing, at the yearly rent of dollars ; and that the said C. D., by virtue of the said demise, entered into possession of the said demised premises, and held the same during the said term, and_ is still possessed of the same, and that the said term for which the said premises were demised is fully ended ; and that the said A. B. being desirous upon the said determination of the said term to have again and repossess the said premises, for that purpose did on the day of , A. D. 18 , demand of and require the said C. D. to remove from and leave the same ; and that the said A. B., after making the demise aforesaid, to wit, on the day of , A. I). 18 , by a certain deed of conveyance duly made and executed, bearing date the same day and year for the consideration therein mentioned, did grant, bargain, and sell the premises aforesaid, with the appurtenances, unto E. F., his heirs and assigns, and the said C. D. has hitherto refused, and does still refuse, to comply with the said demand and requisition to remove from and leave the said premises. And our said magistrate doth assess the sum of dollars for the damages of the said E. F., occasioned by 'the unjust detention of the said premises. Our said magistrate did thereupon enter judgment against the said tenant that he forthwith give up possession of the said premises to the said E. F., and that the said E. F. shall and do recover and have of the said lessee or tenant as well the said sum of dollars for his damages aforesaid, as dollars for his reasonable costs by him expended about this suit in this behalf, concerning which the premises aforesaid our said magis- trate does make this his record. In testimony whereof, our said magistrate to this his said record has here- unto set his hand and the ofllcial seal of the said court, at the city of Phila- delphia, this day of , one thousand eight hundred and L. M., rsEAiy] Magistrate of Court No. . vol.. I.— 45 706 PKACTICE IN PENNSYLVANIA. § 1723. FOB.M OV EJECOBD — CHANGE OF OWNBE8HIP — SALE BEFOEE NOTICE. Be it remembered, that on the day of , in the year of our Lord one thousand eight hundred and , at the city of Philadelphia, due proof was made before L. M., Esq., Magistrate of Court No. , in and for said city, that A. B., on the day of , in the year one thou- sand eight hundred and , was quietly and peaceably possessed of a certain messuage or tenement, with the appurtenances, situate ^ere briefly describe), and being so thereof possessed on the same day and year last aforesaid did demise the said premises to C. D., for the term of years then next ensuing, at the yearly rent of doUars, and that the said C. D., by virtue of the said demise, entered into possession of the said demised premises, and held the same during said term, and is stLU possessed of the same, and that the said term for which the said premises were demised is fiiUy ended ; and that the said A. B., after making the demise aforesaid, to wit, on the day of , A. D. 18 , by a certain deed of conveyance duly made and executed, bearing date the same day and year for the con- sideration therein mentioned, did grant, bargain, and sell the premises aforesaid, with the appurtenances, unto E. F., his heirs and assigns, and the said E. F. being desirous upon the said determination of the said term to have again and repossess the said premises, for that purpose did on the day of , A. D. 18 , demand of and require the said C. D. to remove 6om and leave the same, and that the said C. D. has hitherto re- fused, and still doth refiise, to comply with the said demand and requisition to remove from and leave the said premises. Whereupon the said E. F. then, to wit, on the said day of , A. D. 18 , prayed our said magistrate that a due remedy in that behalf be provided for him according to the form of the Act of the General Assembly of the State of Pennsyl- vania in such case made and provided, upon which proof and complaint one of the constables of the said city was commanded to summon the said C. D., to be and appear on the day of , A. D. 18 , between the hours of and o'clock in the forenoon, at our said magistrate's court, in the said city, to show cause, if any he has, why restitution of the possession of the said demised premises should not be forthwith made to the aforesaid E. F., and on the day of , A. D. 18 , M. S., con- stable, returned on oath, served on defendant by (mode of service). After- ward, to wit, on the said day of , A- D. 18 , at o'clock in the forenoon, at the court of our said magistrate, in the said city (here state if C D. appeared and the evidence in brief. If C. D. did not appear, so set forth). After hearing the proofe and allegations offered by the said K F. our said magistrate does find that the said A. B., on the day of , A. D. 18 , was quietly and peaceably possessed of a certain mes- suage or tenement, with the appurtenances, situate (here briefly describe), and being so thereof possessed on the same day and year last aforesaid did demise the said premises to C. D. for the term of years then next ensuing, at the yearly rent of dollars, and that the said C. D., by virtue of the said demise, entered into possession of the said demised prem- ises and held the same during the said term, and is still possessed of the tome and that the said term for which the said premises were demised is fully ended ; and that the said A. B., after making the demise aforesaid, to wit on the ,' day of [, A. D. 18 , by a certain deed of convey- LANBLOBD AND TENANT. 707 ance duly made and executed, bearing date the same day and year for the consideration therein mentioned, did grant, bargain, and sell the premises aforesaid, with the appurtenances, unto E. F., his heirs and assigns, and the said E. F. being desirous upon the said determination of the said term to have again and repossess the said premises, for that purpose did on the day of , A. D. 18 , demand of and require the said C. D.to remove from and leave the same, and that the said C. D. hath hitherto refused, and stUl doth refuse, to comply with said demand and requisition to remove from and leave the said premises. And our said magistrate doth assess the sum of dollars for the damages of the said E. F., occa- sioned by the unjust detention of the said premises. Our said magistrate did thereupon enter judgment against the said tenant that he forthwith give up possession of the said premises to the said lessor, and that the said lessor shall and do recover and have of the said lessee or tenant as well the said sum of dollars for his damages aforesaid, as dollars for his reasonable costs by him expended about this suit in this behalf, concerning which the premises aforesaid our said magistrate doth make this his record. In testimony whereof, our said magistrate to this his record hath hereunto set his hand and the official seal of the said court, at the city of Philadel- phia, this day of , one thousand eight hundred and L. M., [seal] Magistrate of Court No. . § 1724. Requisites of record. The record should show that the plaintiff was peaceably possessed of the premises and delivered them to the tenant or some one under whom he claims ; that the term is ftilly ended, and that he gave three months' notice of a desire to repossess himself of the premises. Givens v. Miller, 62 Pa. St., 133 (1869) ; McGinnis v. Vernon, 67 Pa. St., 149 (1870). The specific facts contained in the complaint must appear. Ma- Graih v. DonaUy, 6 Phila., 43 (1865) ; ConneUy v. Arvmdel, 6 Phila., 49 (1865). It must appear that judgment has been entered. Dickensheets v. ffotohMss, 6 Phila., 156 (1866). If the record show that the writ was issued returnable in three days ; that six freeholders were assembled and discharged, and a new venire was not issued, the defects are fatal. Horner v. Weth- erdl, 19 W. N., 197 (1887). § 1725. Appeal and its effect in Philadelphia Cowniy. Under the Act of 1772, if the title to land shall come into question, the process is arrested and the contention removed to court, yet there is no such provision under the Act of 1863, and the only remedy is appeal. Komvtz v. Hammond, 62 Pa. St., 182 (1869). The Act of June 25, 1869, section 1 (P. L., 1275), provides that the appeal shall be a supersedeas of the warrant of possession in the city of Philadelphia, notwithstanding the terms of the Act of 1863. The provisions of the Acts of May 1, 1861, and March 27, 1865, 708 PEACnCE IN PENNSYI^VANIA. requiring, on appeal fi-om the jndgment of a magistrate, an affidavit that the appeal is not intended for delay, apply to proceedings under the Act of 1863. Carter v. Hess, 3 W. K, 325 (1877). Upon appeal to the Common Pleas, if final judgment is entered in &vor of the landlord, said judgment should include all rent that has accrued up to the time of the rendition thereof. Dummire v. Priee, 12 "W. N., 179 (1882). § 1726, Certiorari. Proceedings under the Act of December 14, 1863, are subject to removal by certiorari by the Act of March 24, 1865. Hvichifison v. Vanseriver, 6 Phila., 39 (1865). § 1727. Proceedings in case landlord has lost the evidence of the beginning and conclusion of the term. In all cases in the city of Philadelphia where there is a lease or verbal lettuig of property for a term of years or from year to year, and the land- lord, whether the owner at the time of such lease or letting, or hy pur- chase sabsequent thereto, has lost the lease or evidence of the b^inoing and conclusion of the term, or cannot produce proof of the same, it shall be lawful, at any time after the first year, or after the term of years, as the case may be, for the landlord desiring to recover possession of the demised premises to give notice, in writing, to the tenant that he has lost such lease or is unable to make such proof, and requiring the tenant, within thirty days from the time of service of such notice to famish him in writing with the date at which his term of tenancy commenced, and such notice, if supported by affidavit, shall be evidence of what it sets forth. If the tenant shall furnish in writing the date as required, such writing shall be evidence of the &cts contained in it ; but if the tenant shall fail or refase, within thirty days, to comply with the said requirement, the landlord may, at the expiration of that period, give to the tenant three months' notice to quit the premises occupied by him, and shall proceed thereafter in the same manner as is now provided in case of the usual notice to quit at the end of the term : Provided, that if the tenant shall make affidavit, within the thirty days, that he is unable to comply with the requirement of the landlord, stating the causes of such inability, the landlord shall give six months' notice to the tenant to remove from the demised premises, upon which he shall proceed as provided in the cases of the three months' notice. (Act February 28, 1865, section 1 ; P. L., 253.) The Act applies only to a tenancy created by a lease which con- tains a definite term and rent. McMvUin v. McOreary, 54 Pa. St, 230 (1867). § 1728. FORM OF NOTICE OF LOST LEASE. Caty of Philadelphia (date), 1890. Take notice that the evidence of the beginning and 'conclusion of the term for which the premises now occupied by you, situate (here describe briefly), Philadelphia, were leased or rented to you by A. B., is lost, and that I cannot produce proof of the beginning and conclusion of the term of said tenancy aforesaid ; and you are hereby required to furnish me, in LANDLOED AND TENANT. 709 writing, with the date at which your tenn of tenancy commenced, within thirty days from the date you shall have received this notice. Very respectfully yours. To Mr. C. D. A. B. City of Philadelphia, ss. Before me, the subscriber, L. M., Magistrate of Court No. , in and for said city, personally appeared A. B., above named, who, being duly sworn according to law, doth depose and say that the facts set forth in the above notice are true, to the best of his knowledge and belief. Sworn to and subscribed before me, this day of , A. D. 1890. L. M., Magistrate of Court No. . (Office.) § 1729. FORM OF NOTICE TO QUIT. City of Philadelphia (date), 1890. On the day of , 1890, 1 gave you notice requiring you to furnish me in writing, within thirty days from the time of the service of the said notice, with the date at which your term of tenancy commenced of the premises now occupied by you, situate (here describe briefly), Phila- delphia, and you having made affidavit, within the said thirty days, that you are unable to comply with the requirements therein, you are hereby re- quired to remove from and surrender to me possession of said premises within six months from the time you shall receive this notice. Tours, etc., To Mr. C. D. A. B. § 1730. form of complaint. City of Philadelphia, 1 The Commonwealth of Pennsylvania, J ' On the day of , A. D. 1890, before me, L. M., Magistrate of Court No. , in and for said city, personally came A. B., who, being duly sworn according to law, deposed and said that he is the land- lord of a certain three-story brick house, with the appurtenances, situate (here describe by street and No.), that being in possession of and landlord as aforesaid, he rented the same to C. D., as tenant, at a certain yearly rent of dollars ; that the said C. D. was -in possession thereof on day of , A. D. 18 , and for more than one year previous thereto under said agreement ; that being desirous upon the determination of the said term to have again and re- possess the said premises, for that purpose he did on the said day of , A. D. 18 , give notice in writing, supported by affidavit, to the said C. D., that he had lost the evidence of and was unable to make proof of the beginning and conclusion of said term, and demanded and required the said C. D. to furnish him within thirty days the date, in writing, at which the term of tenancy commenced, and that the said C. D. fidled to comply with the terms of said notice within the thirty days aforesaid ; that he did on the day of , A. D. 18 , 710 PEACTICE IN PENNSYLVANIA, give notice to and require the said C. D. to remove from and leave the said premises in six months, and that the said C. D. hath hitherto refnsed, and still doth reiiise, to comply therewith ; that six months have elapsed since the service of said last-mentioned notice, and that he makes this complaint that such proceedings may be taken as are directed by the Act of Assembly in such case made and provided. Sworn to and subscribed before me. this day of A. D. 1890. L. M., Magistrate of Court No. A.B. The plaintiff is not required to show that the term of the tenant has terminated. Mooney v. Rogers, 8 Phila., 297 (1871). § 1731. FOKM OF SUMMOKS. CSty of Philadelphia, sg. The Commonwealth of Pennsylvania to any constable of said city, greeting: Whereas, it appears to L. M., Magistrate of Court No. , in and for the said city, by complaint on day of , A. D. 1890, that A. B. is the landlord of certain premises, with the appurtenances, situate (here briefly describe), Philadelphia, that being in possession of and landlord as aforesaid he rented the same to C. D. as tenant at a certain yearly rent of doUais, that the said C. D. was in possession thereof on the day of , A. D. 18 , and for more than one year previous thereto under said agreement ; that being desirous upon the determination of the said term to have again and repossess the said premises, for that purpose he did on the said day of , A. D. 18 , give notice in writing, supported by affidavit, to the said C. D. that he had lost the evidence of, and was unable to make proof ot, the beginning and conclusion of said term, and demanded and required the said C. D. to furnish him within thiriy days the date, in writing, at which his term of tenancy commenced, and that the said C. D., within thirty days aforesaid, &iled to comply with the said requirement. That he did ori the day of , A. D. 18 , give notice to and require the said C. D. to remove from and leave the same in six months, and that the said C. D. hath hitherto refiised, and stiU doth refase, to comply therewith to remove from and leave said premises. You are therefore commanded to summon the said C. D. to be and appear on the day of , A. D. 18 , at (hour) o'clock in the forenoon, before the subscriber at his said court (location of office), in the said city, to show cause, if any he has, why restitution of the possession of the said demised premises should not be forthwith made to the aforesaid A. B. according to the form and effect of the Act of Assembly in such case made and provided. And this you will in nowise omit. Witness our said magistrate and the official seal of the said court, the day of , A. D. 1890. L. M., [SEAi,] Magistrate of Court No. . LANDLORD AND TENANT. 711 § 1732. FOBM OP WRIT OF EESTITUTIOIT. CSty of Philadelphia, ss. The Commonwealth of Pennsylvania to any constable of said city, greeting : Whereas, due proof hath been made before L. M., Magistrate of Ctourt No. , in and for the said city (office), that A. B. was the landlord of cer- tain premises, with the appurtenances, situate (here briefly describe), that being in possession of and landlord as aforesaid he rented the same to C. D. as tenant at a certain yearly rent of dollars, that the said C. D. was in possession thereof on the day of , A. D. 18 , and for more than one year previous thereto under said agreement ; that being desirous upon the determination of the said term to have and again repossess the said premises, for that purpose he did on the said day of • , A. D. 18 , give notice in writing, sup- ported by affidavit, to the said C. D. that he had lost the evidence of, and was unable to make proof of, the beginning and conclusion of said term, and demanded and required the said C. D. to fiimish him within thirty days the date, in writing at which the term of tenancy commenced, and tlmt the said C. D., within thirty days aforesaid, has fiiUed to comply with the said requirement. That he did on the day of , A. D. 18 , give notice to and require the said C. D. to remove from and leave the same in six months, and that the said C. D. hath hitherto refused, and still doth refuse, to comply therewith to remove from and leave said prem- ises. All which premises being duly found by our said magistrate, he did thereupon enter judgment against the said tenant, that he forthwith give up the possession of the said premises to the said lessor, and for the sum of dollars, for damages sustained by the unjust detention of the premises, as well as for costs and charges by A. B. in and abont said suit in that behalf expended. Therefore we command you to deliver actual pos- session of said premises to the lessor, his agent or attorney, and to levy the damages and costs awarded of the goods and chattels of the said lessee or tenant or other person in possession, and for so doing this shall be your sufficient warrant. Witness our said magistrate and the official seal of the said court, the day of , A. D. 18 . L. M., [seal] Magistrate of Court No. . § 1733. FOEM OF EECOBD. Be it remembered, that on the day of , in the year of our Lord one thousand eight hundred and , at the city of Philadel- phia, due proof was made before L. M., Magistrate of Court No. , in and for the said city, that A. B. on the day of , A. D. 18 , was the landlord of certain premises, with the appurtenances, situate (here briefly describe), that being in possession of and landlord as aforesaid he rented the same to C. D. as tenant at a certain yearly rent of doUars, that the said C. D. was ia possession thereof on the day of , A. D. 18 , and for more than one year previous thereto, under said agreement ; that being desirous upon the determination 712 PRACTICE IN PENNSYLVAIOA. of the said term to have again and repossess the said premises, for that pnrpose he did on the said day of , A. D. 18 , give notice in writing, supported by affidavit, to the said C. D. that he had lost the evi- dence of and was unable to make proof of the beginning and conclusion of said term, and demanded and required the said C. D. to ftimish him within thirty days the date, in writing, at which the term of tenancy com- menced, and that the said C. D., within the thirty days aforesaid, failed to comply with the said requirement. That he did on the day of , A. D. 18 , give notice to and require the said C. D. to remove from and leave the same in sis months, and that the said C. D. hath hitherto refused, and stUl doth refrise, to comply therewith to remove from and leave the said premises. Whereupon the said A. B. then, to wit, on the said day of , A. D. 18 , prayed our said magistrate that a due remedy in that behalf be provided for , according to the form of the Act of Assembly in such case made and provided, upon which proof and complaint one of the con- stables of the said city was commanded to summon the said C. D. to be and appear on the day of , A. D. 18 , at o'clock in the forenoon, before our said magistrate's court, in said city, to show cause, if any he has, why restitution of the possession of the said demised premises should not be forthwith made to the aforesaid A. B. On the day of , A. D. 18 , M. N., constable, returned on oath served on defen- dant (here state mode of service.) !!f' Afterward, to wit, on the said day of , A. D. 18 , at o'clock in the forenoon, at our said magistrate's court (place), in the said city, G. D. did appear. After hearing the proofe and allegations offered by the said A. B. our said magistrate does find that the said A. B. on the day of , A. D. 18 , was the landlord of certain premises, with the appurtenances, situate (here briefly describe), that being in possession of and landlord aforesaid he rented the same to the said C D. as tenant at a certain yearly rent of dollars, that the said C. D. was in possession thereof on the day of , A. D. 18 , and for more than one year previous thereto under said agreement ; that the said A. B. being desirous, upon the determination of the said term, to have again and repossess the said premises, for that purpose , did on the day of , A. D. 18 , give notice in writing, supported by affidavit, to the said C. D. that he had lost the evidence of and was unable to make proof of the beginning and conclusion of said term, and demanded and required the said C. D. to furnish him within thirty days the date, in writing, at which the term of tenancy commenced, and that the said C. D., within the thirty days aforesaid, neglected or &iled to comply with the said requirement. That he did on the day of , A. D. 18 , give notice to and require the said C. D. to remove from and leave the same in sis months, and that the said C. D. hath hitherto refiised, and still doth refuse, to comply therewith to remove from and leave said premises. And our said magistrate doth assess the sum of dollars for the damage of the said A. B., occasioned by the unjust detention of the said premises. Our said magistrate did thereupon enter judgment against the said tenant that he forthwith give up possession of the said premises to the said lessor, and that the said lessor shall and do recover and have of the said lessee or tenant as well the sum of dollars for the damages aforesaid, as dollars for his reasonable costs by him expended in and about this LANDLORD AND TENANT. 713 suit in this behalf, concerning which the premises aforesaid our said magis- trate doth make this his record. In testimony whereof, our said magistrate to this his record hath hereunto set his hand and the official seal of the said court, in the city of Philadelphia, this day of , one thousand eight hundred and ninety. L. M., [seal] Magistrate of Court No. . The record must show a tenancy for years, or from year to year, and that the first year of the term is ended, else the magistrate has no jurisdiction under it. McMuUin v. MeCreary, 54 Pa. St., 233 (1867). § 1734. In FMladelpMa, certiorari to proceedings against ten- ant is a supersedeas, except in proceedings under Act of 1772. In every proceeding brought in Philadelphia under any of the several Acts by landlords to recover possession of property leased for a term of years, or from year to year, in which a certiorari is now allowed, the said certiorari shall be a supersedeas, and the execution shall be suspended until the final determination of the certiorari by the court out of which the same issues ; and the said court, if the determination shall be against the party at whose instance the certiorari has issued, shall proceed to issue a writ of possession directed to the sheriff of the county directing hirri to deliver actual possession of the premises to the lessor, and to levy the costs on de- fendant in the manner that costs are now levied and collected on other writs of execution : Provided, that the certiorari shall be issued within ten days from the date of the judgment rendered and upon oath of the party applying for the same, to be administered by the prothonotary of the Court of Com- mon Pleas, that it is not for the purpose of delay, but that the proceedings proposed to be removed are to the best of his knowledge and belief unjust and illegal, and will oblige him to pay more money than is justly due ; a copy of which affidavit shall be filed in the prothonotary's office : And provided further, that the party applying for the same shall give security for the payment of all costs that have accrued or may accrue, and of the rent which has already or may become due up to the time of the final deter- mination of said certiorari in the event of the same being determined against him. (Act of March 24, 1865, section 1 ; P. L., 750.) As to other cases of certiorari see Title — Justices. The certiorari is not a supersedeas in proceedings under the Act of 1772. DeOmrsey v. Trust Co., 81 Pa. St., 217 (1876). CHAPTER XXII. MAKDAMUS. § 1735. Constitutional provision. The jarisdiction of the Supreme Court shall extend over the State, and the jndges thereof shall, by virtue of their o£Sces, be justices of oyer and ter- miner and general jail delivery in the several counties ; they shall have original jarisdiction in cases of injunction where a corporation is a party de- fendant, of habeas corpus, of mandamus to courts of mferior jwrisdicHon, and oiquo warranto as to all officers of the Commonwealth whose jarisdiction extends over the State, but shall not exercise any other original juris- diction. (Constitution of 1874, Article V., section 3.) § 1736. Statutes. Jurisdiction. The Acts x)f June 14, 1836 (P. L., 626) ; May 25, 1881 (P. L., 32) ; and June 24, 1885 (P. L,, 150), appear to be sapeiseded by the Act of June 8, 1893 (P. L., 345), which provides as follows : Section 1. That the several Courts of Common Pleas shall, within their respective counties, have the power to issue writs of mandamus to all officers and magistrates elected or appointed in or for the respective county, or in or for any township, district, or place within such county, and to all corporations being or having their chief place of business within such county ; and the Court of Conunon Pleas of the county in which the seat of government is or may be located shall have the power, and it shall be required, to issue the writ of mandamus to the Lieutenant-Governor, Secre- tary of the Commonwealth, Attomey-Greneral, Secretary of Intemal Afiairs, Superintendent of Public Instruction, State Treasurer, Auditor-General, Insurance Commissioner, and Commissioners of the Sinking, Fund. § 1737. Petition to be presented — AltemaMve writ to be awarded — When peremptory mandamus may issue in first instance. Sec. 2. Any person desiring to obtain a writ of mandamus shall present his petition therefor, verified by affidavit, to the judge or judges of the proper court, either in session or at chambers, setting forth the &cts upon which he relies for the relief sought, the act or duty whose performance he seeks, his interest in the result, the name of the person or body at whose hands performance is sought, demand or refusal to perform the act or duty, and that the petitioner is without other adequate and specific remedy at law. If such petition presents the substance of a case for mandamus, the court shall direct that such writ issue in the alternative form : Drovided, however, that if the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performii^ it, a peremptory mandamus may be awarded in the first instance and directed to issue forthwith. MANDAMUS. 715 § 1738. Any person beneflciaMy interested may secure the vrrit. Sec. 3. The writ of mandamns may issue upon the application of any person beneficially interested. § 1739. In whose name writ is to be prosecuted — How action to be docketed. Sec. 4. When the writ is sought to procure the enforcement of a public duly, the proceeding shall be prosecuted in the name of the Commonwealth on the relation of the Attomey-Greneral : Provided, however, that said pro- ceeding in proper cases shall be on the relation of the district-attorney of the proper county : Provided further, that when said proceeding is sought to enforce a duly affecting a particular public interest of the State, it shall be on the relation of the officer intrusted with the management of such interest. In all other cases the party procuring the alternative writ shall be plaintiff, the party to whom said writ is directed shall be defen- dant, and the action shall be docketed as in ordinary cases, namely, plaintiff, versus , defendant. § 1740. Alternative wriis to be in force for three months — Service and return. Sec. 5. All writs in the alternative form shall be in force for three months from their date, and may be served by the plaintiff, or anyone by him authorized, or by any sheriff or deputy sheriff in any county of the Commonwealth in which the defendant may be, by giving the defendant personally a copy thereof, attested by the prothonotary of the court award- ing the writ. They shall be returnable at such time, not less than five days after the service thereof, as the court may direct. § 1741. Direction and service of alternative writ against municipal corporation. Sec. 6. When the writ is sought against a municipal corporation the alternative writ shall be directed to such of the corporate authorities in their official capacity as are concerned in the execution of the thing re- quired, and service thereof upon any of such officers shall be sufficient. § 1742. Direction and service of aUemative writ against private corporation — Direction of peremptory writ. Sec. 7. When the writ is sought against a private corporation, domestic or foreign, the alternative writ shall be directed against the corporation by name, and also against any particular person or body of persons connected therewith whom it may be sought to coerce, and service thereof upon any officer or agent of the corporation and upon such particular person or chief officer of such body of persons shall be sufficient. The peremptory writ may be directed to the said corporation, or to the person or body of persons who have the power and whose duty it is to do the act required, or to such superior officer as would be expected to execute the order. § 1743. Direction and service of writ against board or body other tham a corporation. Sec. 8. When the writ is sought against a board or body other than a corporation, it shall be directed to such board or body in their official 716 PEACTICE IN PENNSYLVANIA. capsicity, and service shall be made upon a majority of the members thereof, unless the board or body was created by law and has a chairman or other presiding officer appointed pursuant to law, in which case service upon him shaU be sufficient. § 1744. Third party may d^end writ — His rights and lia]bililie» in such case. Sec. 9. It shall be lawful for the court, when applied to for the writ, or upon and after the issuing of the first writ on the petition of any person having or claiming a right or interest in the subject matter, other than the person to whom the writ is prayed to be or has issued, setting forth his right or interest in or to the subject matter of the controversy, to authorize in proper cases such person, even though he could not have been made original defendant, to frame the return and conduct the subsequent proceed- ings at his own expense, or to take such part therein and on such terms as to the co'irt may seem just ; and in such cases, if judgment is given for or against the party suing the writ, such judgment shall be given against or for the party to whom the writ shall have been directed, but the court may authorize the person permitted as aforesaid to frame the return and con- duct the subsequent proceedings to use the name of the party to whom such writ shall have been directed for recovery of costs and the enforcing of the judgment, and also for the purpose of an appeal to the Supreme Court, with like force and effect as though the party to whom such writ shall have been directed had sought to recover costs and to enforce the judgment or to appeal to the Supreme C!ourt: Provided, however, that when, in such cases, judgment is given in favor of the plaintiff, the court may order that damages and costs, or either, adjudged in favor of such party, shall be paid iu whole or in part by the person permitted as afore- said to conduct the proceedings. § 1745. Court may direct notice of papers fled subsequent to the granting of the writ. Sec. 10. The court may direct what notice shall be given of all papers filed in the proceeding subsequent to the granting of the alternative writ. § 1746. Motion to supersede or quash the writ — If motion be un- successful, return may be filed. Sec. 11. Appearance de bene esse shall enable the defendant to take advantage of defective service of the alternative writ. The defendant may move to supersede or quash said writ ; if he &ils, he shall be permitted t» file his return as in this Act mentioned, and to proceed as if such motion had not been made. § 1747. Defemdant to file his return to writ — In default thereof , judgment to be given against him as in case of insuffidemt return. Sec. 12. The defendant shall file in the office of the prothonotary of the court awarding the alternative writ a return thereto, verified by affidavit, within the time specified in the writ, and in default thereof judgment shall be given against him with the same effect as if he had filed a return and such return had been adjudged insufficient. MANDAMUS. 717 § 1748. Court may permit corredion of uncertain, vague, evasive, or informal return. Sec. 13. In such return, certainty to a certain intent in general, and no more, shall be required. If the return is uncertain, vague, or evasive, or informal in any respect, such opportunity may be afforded for the correc- tion thereof, as to the court shall seem just and reasonable. § 1749. Time shall be allowed to make return, plead, etc. Sec. 14. The court applied to for the vmt shall allow the plaintiff and defendant, respectively, such convenient time to make return, plead, reply, rejoin, or demur as shall be just and reasonable. § 1750. Return may be demurred to or traversed, etc. Sec. 15. The plaintiff may demur to the return, or he may plead to or ' traverse all or any of the' material facts therein contained ; the defendant shall reply, take issue, or demur and like proceedings shall be had as in other actions at law. § 1751. If plaintiff recover judgment, he shall have damages and costs. Sec. 16. K a verdict is found for the plaintiff and judgment is entered thereon, or if a judgment is given for him upon a demurrer or by nihil dicit or for want of an answer by non sum in/ormatus or other pleading, he shall recover his damages and costs. § 1751 a. If defendant have judgment, he shall recover costs. Sec. 17. If judgment is given for the defendant, he shall recover his costs. § 1751 b. One recovery for false return is a bar to other axiions. Sec. 18. If damages are recovered against any person making return as aforesaid, such recovery shall debar every other action for making such return. § 1751 c. Costs allowed or refused in the discretion of the Court. Sec. 19. The costs of the application for a writ of mandamus, whether such writ is granted or not, also the costs of the writ if issued and obeyed or not prosecuted to judgment as aforesaid, may be given or refused accord- ing to the discretion of the court. § 1751 d. Execution for damages and costs. Sec. 20. Damages and costs may be levied by execution as in other cases. § 1751 e. How the plaintiff 's damages shaU be ascertained. Sec. 21. Damages sustained by the plaintiff shall be ascertained by the jury trying any issue in fact ; if no such issue is tried, they shall be ascer- tained by the court in such manner as may be deemed just and reasonable. § 1751 /. After judgment for plaintiff upon alternative torit, per- emptory writ to be awarded. Sec. 22. Whenever, in accordance with this Act, judgment is given for the plaintiff, the court may award that a peremptory mandamus shall issue 718 PEAcrricE in Pennsylvania. in that behalf, and shall also enter judgment for damages and costs, and thereupon such peremptory writ of mandamus may be issued accordingly, at any time after twenty days from the signing of the judgment, and not before, unless the exigence of the case, in the discretion of the court, re- quires it, in which event the court may direct that said writ shall issue forthwith. § 1751 g. Action by public officer for public benefit, not to abate by termination of his office. Sec. 23. When the writ is sought by a public ofScer in his official capacity for the public benefit, the action shall not abate by the termination of his office, but may be prosecuted by his successor. § 1751 h. Death or rem'-.val of pUmdiff, executor, administralor, . or trustee not to abate the writ. Sec. 34. When the writ is sought by an executor, administrator, or trustee, the death of the plaintiflf or his removal from position by resigna- tion or otherwise shall not abate the writ. But the action may be con- tinued by his successor. § 1751 i. Death, redgnaOon, or removal from office of defendant not to ahate suit. Sec. 25. The death, resignation, or removal from office by lapse of time or otherwise, of any defendant, shall not have the efiect to abate the suit, but his successor may be made a party thereto and any peremptory writ shall be directed against him. § 1751 J. Am^ndm^nts. Sec. 26. Defects in substance in the alternative writ may be taken advan- tage of at any stage of the proceeding. Amendments may be allowed as in other civil actions save as hereinafter mentioned. § 1751 k. Direction, service, and return of peremptory writ. Sec. 27. The peremptory writ shall be directed to the same person as the alternative writ, save as herein authorized ; it shall be served in the same manner as the [alternative writ, and it shall be made returnable at such time as to the court awarding it may seem just and reasonable. § 1751 1. Peremptory writ may be superseded or quashed, bwt can- not be amended. Sec. 28. The peremptory writ, though issued, may be superseded or quashed for such cause as to the court may seem just, but no amendment thereto shall be allowed. § 1751 m. Appeal from order granting writ or refusing it — iSu- persedeas. Sec. 29. The party aggrieved by the proceedings had in any Court of Common Pleas upon any writ of mandamus may remove the same at any time within twenty days after final judgment, order, or decree, or in cases where the granting of said writ is requiied by the first section of this Act, at any time within twenty days after refusal to Jgrant said writ, into the Supreme Court]|by appeal as in other actions of law, and such appeal shall MANDAMUS. 719 supersede any peremptory writ awarded by the court and also any execu- tion for damages or costs, upon bail to be given as in other civil cases. § 1751 n. Appeal to supersede peremptory vrrit issued mthin 20 days after jvdgment. Sec. 30. Such appeal shall also supersede any peremptory writ issued within twenty days after final judgment, order, or decree : Provided, how- ever, that the certiorari in consequence of such appeal be lodged in the ofllce of the prothonotary of the court awarding the writ before the man- date thereof shall have been fully complied with : Provided further, that said appeal shall be made returnable forthwith. § 1751 0. Appeal to be retv/mahle forthioith. Sec. 31. Every such appeal may be made returnable forthwith, and, if thus made returnable, it shall be heard and decided by the Supreme Court in any district in which it may be in session, as in this Act provided in cases originating in said court ; and if not thus returnable, it shall be heard and decided by said court when in session in the proper district at the term to which it shall have been made returnable. § 1751 p. Cases imdedded by Supreme Court before close of its session shall be certified from district to district. Sec. 32. The Supreme Court Ln any district shall exercise, throughout the State, original jurisdiction in the cases authorized by the organic law of the State ; and if not decided before the close of its session in said district, shall cause the same to be certified to and filed for action with the pro- thonotary of said court in the district within which it shall be next in session, and so to be certified fi-om district to district until finally decided. § 1751 q. Supreme Court shall dispose of issues of fad, enter judg- ments, etc., and direct how damages and costs shall be recovered. Sec. 33. The Supreme Court in such cases shall dispose of all issues of feet arising therein in such manner as may be deemed just and reasonable, and shall enter such judgments, orders, or decrees and in such manner and on such terms as to it may seem proper, and to that end may make all necessary rules and regulations. Damages and costs allowed by this Act and awarded by the Supreme Court shall be recovered in the manner said court may direct. § 1752. Mandamus against county commissioners. The Act of April 29, 1844 (P. L., 501), requiring county commissioners to collect taxes, etc., contains the following provision, section 43 : In the event of the commissioners of any county neglecting or refusing to comply with any of the requisitions of this Act, it shall be the duty of the Supreme Court or the Court of Common Pleas of said county on the appli- cation of the State Treasurer, whose duty it is hereby made to apply for the same, to award write of mandamus requiring compliance therewith and enforce obedience thereto. § 1753. Definition of mandamns. Mandamus is defined by Bou- vier to be a high prerogative writ, usually issuing out of the highest court of general jurisdiction in a State, in the name of the sover- 720 PBAcncE rs peitnsylvania. eignty, directed to any natnral person, corporation, or inferior court of judicature within its jurisdiction, requiring them to do some par- ticular thing therein specified, and which appertains to their office or duty. Bouvier's Law Dictionary, Vol. II., 93 (14th ed.). The modem writ of mandamus, says High (Extraordinary L^al Bemedies, section 1), may be defined as a command issuing from a common law court of competent jurisdiction, in the name of the State or sovereign, directed to some corporation, officer, or inferior court, requiring the performance of a particular duty therein speci- fied, which dniy results from the official station of the party to whom the writ is directed, or from operation of law. § 1754. ITot a prerogative writ in the United States. In this country a mandamus cannot, in any strict sense, be termed a pre- rt^tive writ. From the nature of our system of government, the writ has necessarily been stripped of its prert^tive features ; and the better considered doctrine now is that tlie writ has, in the United States, lost its prerogative aspect, having come to be re- garded much in the nature of an ordinary action between the par- ties, and as a writ of right to the extent to which the party ag- grieved shows himself entitled to this particalar species of relief. High, Extr. L^al Rem., sections 3 and 4. While a mandamus is no longer r^arded as a high prerogative writ, but one of right, yet to be entitled to it the specific right must be clear and indisputable, for the deprivation of which there is no other specific l^al remedy. When the right depends upon disputed facts, they must be found by a jury in relator's fevor before the writ will issue ; but where the question is one of law, it will be determined by the court. Comm. V. School Directors, 4 Dist. Bep., 314 (1895). § 1755. When mandamus is allowed. It issues only where there is a clear and spedfic I^al right to be enforced, or a duty which ought to be and can be performed, and where there is no other specific and adequate l^;al remedy. The person seeking the relief must show a dear l^al right to have the thing sought by it done, and done in the manner and by the person sought to be coerced. The writ, if granted, must also be effectual as a remedy, and it must be within the power of the respondent, as well as be his duty to do the act in question. The exercise of the jurisdiction rests to a considerable extent within the sound discretion of the court, subject always to the well-settled principles which have been estab- lished by the courts or fixed by l^slative enactment. (-W., sec- tion 9.) In Bex V. Barker, 3 Burrows, 126 (1762), Lord Maissfield MANDAMUS. 721 stated the general scope of the remedy by mandamns as follows : " Where there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of public concern or attended with profit) ; and a person is kept out of pos- session or dispossessed of such right, and has no other specific legal remedy, this court ought to assist by mandamus." In this case the writ was granted to compel the trustees of a chapel to admit a minister to the performance of his functions, it appearing that he had been duly elected by the congregation. § 1756. Supreme Court has no jurisdiction to mandamus the Gov- ernor to commission a justice of the peace. In Comm. v. Hartranft, 77 Pa. St., 154 (1874), a petition to the Supreme Court was pre- sented for a mandamus to be directed to the Governor of Penn- sylvania, commanding him to issue a commission to the petitioner, a justice of the peace, the petitioner alleging he was duly elected. Petition was reftised on the ground that under article V., section 3, of the Constitution, the Supreme Court had no jurisdiction. § 1757. Indictment not suah a remedy as will bar mandamus. Though mandamus will issue only where the petitioner is without other legal remedy, the &ct that an indictment will lie for the omission to do a particular act is no objection to the allowance of a mandamus to compel the performance of that act. Rex v. Rail- way Co., 2 Barn. & Alder., 646 (1819) ; Reg. v. EaMern Counties Ry. Co., 10 Adol. & Ellis, 531 (1839). In Comm. v. Johnson, 2 Binn., 275 (1810), it was ruled that mandamus would lie to compel the supervisors of public roads to pay orders drawn upon them by justices of the peace, who were authorized by Acts of Assembly to draw such orders. The fact that the supervisors were liable to indictment or suit in their in- dividual character for their refusal to pay was held by Tilghmaii, J., no defense to the petition for a mandamus. " It is said that the supervisors may be indicted for neglect of duty. But if they were indicted and convicted, the orders might stiU be unpaid. It is said also that if they withhold payment without just cause, they are liable to an action. Granting that they are, it must be brought against them in their private capacity ; and there is no form of ac- tion against them which, being carried to judgment, will authorize an execution to be levied on the treasury of the Northern Liberties." Sule for mandamus made absolute. § 1758. To prevent the issuing of a mandamus, the remedy must be competent to reach the end intended to be sought by it. In Over- seers of P(yrter v. Overseers of Jersey Shore, 82 Pa. St., 275 (1876), npon writ of error to order of the lower court discharging rale for vol.. I. — 46 722 PEACnCE IN PENNSYLVANIA. mandamus, it was held that the relief should have been granted to compel the overseers of a township to provide for a pauper who had been adjudged entitled to a settlement in that township, in spite of the fact that a penalty was provided by statute in case of their refusal to do so. Opinion by Agnew, C. J. § 1759. It vjiU lie to compel a court of inferior jurisdiclion to enter judgment. In Fish v. Weatherwax, 2 Johns. Cases, 215 (1801) (N. Y.), judgment upon a verdict for plaintiff was arrested in the Common Pleas, because of the insufficiency of his declaration ; he thereupon moved that the court enter judgment for defendant in order that he might take his writ of error. Upon the court's re- fiisal to do so, he applied for a mandamus from the Supreme Court to enforce the entry of judgment by the judges of the lower court. Held, that he was entitled to the writ. Hule for mandamus granted. § 1760. To compel payment of a judge's salary. A mandamus is the proper remedy to compel payment of a salary of a judge fixed by law and payable by the treasurer of the State. Comm. v. Hep- bwm, 5 W. & S., 403 (1843). § 1761. To compel Board of Wardens to d^ne low water mark. In TalJMm v. Wardens of PhUadelphia, 2 Phila., 246 (1857), a mandamus was decided to be the proper remedy where the Board of Wardens twice refused to define the low water mark of Wind- mill Island, on application of an owner who desired to build a wharf. § 1762. County Commissioners may be compelled to provide funds to pay the interest on obligations assumed by the county. Comm. V. Commissioners of Allegheny County, 32 Pa. St., 218 (1858). Alternative mandamus and return. The county of All^heny, nnder authority of an Act of Assembly, having subscribed to the stock of a projected railway company, and issued interest-bearing bonds in payment of its subscription ; held, that mandamus would lie at the suit of a bondholder, commanding the county commis- sioners to make provision for raising money to pay the interest on the said bonds as it accrued. The return to the alternative man- damus being insufficient, a motion for a peremptory mandamus was granted. § 1763. To compel deBnquent corporation to discharge its liahility under a subscription to the stock of a railroad company. In Comm. V. Perkins, 43 Pa. St., 401 (1862), a petition was presented for a mandamus to compel respondents (Commissioners of All^heny Connty) to levy and collect a tax for the purpose of paying in- terest on bonds issued in payment of a subscription by the Com- missioners of All^beny County to the capital stock of the Alle- MANDAMUS. 723 gheny Valley Railroad. Opinion by Read, J. "A peremptory writ of mandamus awarded." § 1764. To compel a municipal corporation to provide means for payment of interest on its bonds. Comm. v. Councils of City of Pittsburgh, 34 Pa. St., 496 (1859). Alternative mandamus. Sur demurrer to return. The alternative mandamus commanded the Select and Common Councils of the city of Pittsburg to assess and levy a tax to provide for the payment of interest upon bonds issued by the said city. The return set up many grounds of defense, but nowhere disputed the salient fects as alleged in the alternative writ. Upon general demurrer, the opinion of the court was de- livered per Strong, J. : " * * * Judgment must be entered upon the demurrer against the defendants, and a peremptory writ awarded." § 1765. To compel a borough to keep streets in repair. Where a borough is bound to keep its streets in repair, such performance may be compelled by mandamus. Borough v. Oomm., 34 Pa. St., 293 (1859). § 1766. Previous demand and refusal to perform public duty not essential. In Comm. v. Commissioners of Allegheny, 37 Pa. St., 237 (1860), the decisions in the cases cited, sections 1762, 1764, were followed by the Supreme Court, although no demand for pay- ment had been made before the issuance of the mandamus. Opin- ion by WOODWAED, J. The doctrine enounced in these cases was reaffirmed in Comm, V. Councils of Pittsburgh, 88 Pa. St., 66 (1878), in which man- damus was awarded to compel the levy of a -.tax to pay municipal bonds issued for public improvements. It has also been adopted in many other cases. § 1767. Members of City CowncHs may be compelled to meet and elect heads of departmemts. Lamb v. I/ynd, 44 Pa. St., 336 (1863). Petition of Owen Lamb et al. , members of the Common Council of Philadelphia, praying for a mandamus requiring members of Select Council to meet in joint assembly with Common Council on the day of the next stated meeting, and to proceed to the election of certain municipal officers required by the charter of the city to be chosen by Councils. The defendants set up that three persons had been fraudulently retained as members of the Common Council who were not lawful members of that body, and that the majority had fraudulently excluded two persons who ought to be members, for the purpose of obtaining a majority in favor of one political party so as to control the elections that were to be held at the joint meeting, ffeld, per LowKiB, C. J. , that these facts, if true, affi)rded 724 PEAcncE IS Pennsylvania. no ground for members of Select Council to refuse to do thdr offi- cial duty. Mandamus awarded. § 1768. To compel the issuing of a cerlijlcate to a teadier. A mandamus will be granted to compel the issuing by the school con- trollers of a certificate to a teacher duly qualified and elected. Mc- Manus v. CorUroUers, 7 Phila., 23 (1868). § 1769. To compel Cotmcils to make an appropriation directed by statute. In Commissioners v. City, 3 Brews., 696 (1869), a man- damus was granted commanding the Councils of Philadelphia to make an appropriation directed by Act of Assembly to the com- missioners appointed to build South Street bridge. § 1770. In Assessors of PMladdphia v. Commissioners, 3 Brews., 333 (1869), the question arose as to granting a mandamus where one Act of Assembly forbade the city officers from making a con- tract without an appropriation therefor ; but a later Act authorized and commanded said officers to purchase certain books, papers, and articles, but no appropriation was made for that purpose. Rule for mandamus made absolute. § 1771. To compel Bighway Commissioners to enter into contract for paving directed by Act of Assembly. In Comm. v. Dickinson, 3 Brews., 561 (1869), the Chief Commissioner of Highways of Philadelphia was required by statute to enter into contracts for paving certain streets, application being made for a mandamus to compel him to enter into such contract. The return set ibrtb that Councils had made no appropriation. To this return the relators demurred. Judgment entered on the demurrer in fevor of the Com- monwealth, and mandamus awarded. Opinion by Petece, J. § 1772. Register of Wills may be compelled to perform a mimste- rial act. Comm. v. Bunn, 71 Pa. St, 405 (1872), sur alternative mandamus and return. The twenty-fifth section. Act March 15, 1832, provided that, " Where any question of kindred or other disputable and difficult matter comes into controvensy before any r^;ister, he shall, at the request of any person interested, appoint a raster's court for the decision thereof." A controverted ques- tion having arisen before the Register of Philadelphia pending a hearing upon caveat to the probate of a will, he was requested by a party in interest to summon a raster's court in accordance with the provisions of the Act. Upon his refusal, a peremptory man- damus was awarded,. Opinion by Thompson, C. J. While a mandamus may issue to compel the Register to perform a ministerial or clerical act, yet it will not lie where there is ample remedy by appeal. Comm. v. Thomas, 35 W. K, 255 (1894). § 1773. To compel the Regider of Wills to certify to the Orphan^ MANDAMUS. 725 Churl disputed question of kinship. Mandamus will be granted to compel the Register of Wills to certify a question of disputed kin- ship to the Orphans' Court. Taylor v. Comm., 103 Pa. St., 97 (1883). § 1774. Mandamus loiU lie to restore to membership in a corpora- tion one who has been unlawfully expelled therefrom. Evans v. Phila- delphia Club, 50 Pa. St., 107 (1865). E., being a member of re- spondent organization, a chartered social club, was expelled from the same for an assault upon another member within the club-house. Held, upon demurrer to return to the alternative mandamus, that in the absence of specific power to expel for such a cause conferred by charter, a by-law of the corporation was not a sufficient justifi- cation for the expulsion. Peremptory mandamus awarded. § 1775. To restore corporator disfranchised without cav^e. Where a corporator has been disfranchised without sufficient cause, or irreg- ularly, he may be restored by mandamus. Comm. v. Society, 15 Pa. St., 251 (1850). § 1776. If the trial, etc., be regular, mandamus will not lie. If there be a hearing and trial according to a mode prescribed by an association, and there is no allegation of irregularity in the proceed- ings, the sentence is conclusive on the merits, and cannot be inquired into collaterally, either by mandamus or any other mode. Comm. V. Society, 8 W. & S., 247 (1844). § 1777. To compel erection of bridge. The building of a county bridge was duly authorized in 1859. Nothing was done toward its erection until 1867, when a contract was awarded and afterward rescinded. Hdd, that mandamus would lie to enforce its erection. Oommissioners v. Comm., 72 Pa. St., 24 (1872). § 1778. To compel rebuilding of a bridge. A mandamus will be awarded, under Act of May 5, 1876, to compel county commis- sioners to rebuild a bridge where the road leading to and from the bridge is a turnpike, and the bridge has been accidentally destroyed. Mya-s v.Crnnm., 110 Pa. St., 217 (1885). § 1779. To compel a railway company to seU tickets at its estab- lished rate of fare. Slate v. JR. B. Co., 2 Cent. Rep., 726 (1886). Desiring to purchase a commutation ticket between two points on the line of the A. railroad company, the relator ofiered at the proper office of the company the price at which such tickets were sold by it to the public. Acting under instruction from the officers of the company, the agent refused to sell the ticket to him, because on a former occasion he had refused to pay his fare when he had forgotten to bring his commutation ticket with him. Upon a rule for a mandamus to compel the sale of the ticket by the com- 726 PBAcncE m Pennsylvania. pany ; hdd, that the relator was entitled to the relief sought. Man- damus awarded. § 1780. To compel school directors to admit colored children to the public schools. Kaine v. CommonweaMh, 101 Pa. St., 490 (1882) ; Cknnm. v. Williamson, 10 Phila., 490 (C. P., 1873). In both of these cases it appeared that colored children were refused admit- tance to the schools which were provided for the white children of the districts in which they lived, separate schools being established for the children of colored parents. Held, that mandamus would lie to compel the admission of the colored children to the district schools without distinctions founded upon race or color. " It is asked, may not the school directors and teachers assign the boy to such roora and school as may be adapted to his grade and attainments ? Undoubtedly they may. Their authority and discretion in that respect is not questioned here. The objection is that their action is not based on any consideration of his qualifica- tions or attainments, but rests on his color alone." Judgment awarding peremptory mandamus affirmed. Per Mercxte, J. Kaine v. Gomm. {supra). § 1781. To enforce the right of inspection of the books of a private corporation by a stockholder. Comm. v. Phoenix Iron Co. , 105 Pa. St., Ill (1884); Phcenix Iron Co. v. Oomm., 113 Pa. St, 563 (1886). A stockholder in the Phoenix Iron Company, a trading corporation, filed his petition alleging, inter alia, that he was largely interested in the company ; that its business was extensive, pros- perous, and profitable ; that no dividend had been declared for many years ; that the officers in control of the company were mem- bers of a partnership with which they had established intimate business relations upon the part of the company, to the prejudice of the company and to their own advantage as individuals and co- partners ; that he intended to file a bill in equity to ascertain and enforce his rights as a stockholder ; that he was denied the infor- mation in r^ard to the affairs of the company upon which his bill must be predicated ; and denied access to the books and papers of the company which contained such information. He prayed for a rule upon the company respondent, and upon its officers, to show cause why an alternative maudamus should not be issued requiring respondents to permit the relator to inspect the books and papers of the iron company at reasonable times, in so far as it should be necessary in order for him to ascertain the specified matters recited. This rule was granted and after hiring discharged. Held by the Supreme Court to be error. Judgment reversed. Alternative mandamus awarded. Opinion per Trunkey, J. MANDAMUS. 727 This case again came before the Supreme Court upon writ of error to the judgment of the lower court, sustaining a demurrer to respondent's return to the alternative mandamus. The facts, and the law bearing upon them, were once more carefully analyzed in a learned opinion by Clakk, J. ; the relator was held entitled to his remedy by peremptory mandamus, and the judgment of the lower court awarding the final writ was affirmed. 113 Pa. St., 563 (1886). Where stockholders desire a copy of the stock-list for the pur- pose of consulting with and obtaining proxies from other stock- holders to be used at a coming election, such right is legal and may be enforced by mandamus. Comm. v. Phila. & Reading R. R. Co., 3 Dist. Eep., 116 (1893). A mandamus may issue to compel a bank acting as a transfer agent of City and State loans to permit holders to inspect documents relating to said loans. In re Guarantee Trust Co., 3 Dist. Rep., 205 ; 34 W. X., 14 (1894). § 1782. To prevent discrimination by a telephone company. Bell Telephone Co. v. Comm., 17 W. K, 505 (1886). The petition for alternative mandamus recited that relator was a telegraph company and respondent a telephone company, both being corporations ; that relator had offered respondent the usual price or rental which it charged the public for the use of telephones, and had requested that it furnish an instrument to relator ; that respondent did fur- nish a telephone to a rival telegraph company, the W. company ; that the request of relator had been refused. Mandamus prayed for accordingly. The return to the alternative writ denied in gen- eral terms the all^ations of the petition, and set up that respon- dent was operating by virtue of a license from the N. telephone company ; that it had offered relator to furnish to it a telephone, "except to facilitate its business in the delivery and transmission of messages ; " that the facilities furnished the W. telegraph com- pany were in pursuance of an agreement between that company and the N. telephone company, whereby the latter agreed not to license the use of its telephones to any line competing with the W. telegraph company for such purposes, and whereby it agreed to fully license the said W. company to use telephones procured from it for transmitting telegraphic messages. Upon demurrer this return was held insufficient, the demurrer was sustained in the Common Pleas, and the judgment of that court was affirmed upon writ of error, the opinion of Arnold, J. , who decided the case below, being adopted by the Supreme Court, 728 PEACTICE IN PENNSYLVANIA. § 1783. To compel the granting of a license to run omnibuses in the streets of a dty. Gomm. v. BaMwin, 9 W. N., 233 (C. P., 1880). Petition for mandamus and return. By Act of Assembly and ordinances thereunder, the Chief Commissioner of Highways of Philadelphia was authorized from 4;ime to time to grant licenses to the owner or owners to keep and use omnibuses upon the pay- ment of specified annual license fees for each omnibus. The re- lator, having tendered the proper amount of fees, requested the commissioner to issue a license to him to run a line of omnibuses upon one of the highways, which request was refused. The petition averred these facts and asked for a mandamus to the commissioner to compel the issuance of the proper license. The return set up that the matter lay within the discretion of the commissioner, and that he had exercised his best discretion ; it furthermore recited various reasons for his refusal to grant the license. The court, finding the reasons insufficient to justify the refusal, held that the discretion vested in the commissioner was not such an arbitrary one as would authorize him to refuse to license without good ground for his action. Opinion per Allison, P. J. Mandamus awarded. § 1784. To compel the sealing of biUs of exception. A writ in the nature of mandamus, under the Statute of Westminster EC. (18 Edw. I., chapter 31), sometimes called a writ of si ita, will lie from the Supreme Court to the judges of the lower courts, to compel them to seal bills of exception in proper cases. Reichen- bach V. Euddaoh, 121 Pa. St., 18 (1888) ; Oonrmo v. SgMoss, 55 Pa. St., 28 (1867). At common law it would not lie in a criminal case under the Statute of Westminster. The right to a bill of exceptions in such case is under the Act of May 19, 1874. Haines v. Oomm., 99 Pa. St., 410 (1882). § 1785. To compel the granting of licenses to sdl liquor at whole- sale. In re Prospect Brewing Co., 127 Pa. St., 523 (1889). Al- ternative mandamus and return sur application for writ of peremp- tory mandamus from the Supreme Court to require the judges of the Court of Quarter Sessions of Philadelphia, sitting as a license court, to grant a brewer's license to relator. From the petition for alternative mandamus, and the return thereto, it appeared that the relator, a corporation, had applied to the Court of Quarter Ses- sions for a renewal of his license for one year from June 1, 1889 ; that no remonstrance or objection to such application had been filed ; that after hearing by the said court the application had been refused, because the judges of the license court found " that the said MANDAMUS. 729 company had conducted its business during the year then expiring in violation of law ; that said company was not a fit person to re- ceive the license applied for ; and that so far as it was possible for a corporation to possess a moral character, it did not possess a good moral character." Hdd, that the return was uncertain, vague, and indefinite ; that under existing laws applicable to Philadelphia the lower court was required to issue the license, upon application, in the absence of objection or remonstrance thereto, and that where such remonstrance or objection was filed, the court could lawfully inquire only whether the applicant was a citizen of the United States, of temperate habits, and good moral character. Peremptory mandamus awarded. Opiniou by Chief Justice Paxson. A similar application was refused in Comm. v. Wilson, 25 W. N., 148 (1889), directed to the Quarter Sessions of Jefferson County, on the ground that Pollard's Case, 127 Pa. St., 507, and Prospect Breimng Oo.'s Oase, Id., 523, were decided upon the local laws in force in Allegheny and Philadelphia Counties, which are the " ex- isting laws " embraced in the Act of May 24, 1887, and thdt Jeffer- son County came under the general law of May 22, 1867 (P. L., 40). § 1 786. To the return judges of an election to compel them to make api-oper retwn of the votes cast. Thompson v. Ewvng, 1 Brews., 67 (1862). By Act of Assembly of July 2, 1839, section 43 (P. L., 528), it was provided that citizens of the Commonwealth in the military service of the United States might exercise the right of suf- frage at elections held thereafter. At the election held on the sec- ond Tuesday in October, 1861, a large vote was polled by soldiers who were with the army engaged in the war of the rebellion. The prothonotary of the Court of Common Pleas of Philadelphia, act- ing under advice of the court, certified this soldier vote to the re- turn judges, many of whom refused to include it in their returns. Held, that mandamus would lie to compel the return judges to com- pute the votes thus cast. Peremptory mandamus awarded, per Ltjdlow, J. § 1787. To compel return judges to sign certificate of election. A mandamus will be awarded to compel return judges of a senatorial district to sign a certificate of election. It is not within their power to judge or examine what precedes the county returns or to inves- tigate charges of fraud. Comm. v. Emmimger, 74 Pa. St., 479 (1873). To compel a justice to grant an appeal. A mandamus will issue in a proper case to compel a justice of the peace to grant an appeal. Minich v. Basom, 2 Dist. Rep., 709 (1893). 730 PRACTICE IN PENNSYLVANIA. The forgoing citations will serve to illustrate the circumstanoes under which relief by maadanius is permissible, and in some meas- ure to specialize the general language of the definitions. No at- tempt has been made to give a complete list of the cases in which the use of the writ of mandamus has been upheld. § 1788. When mandamus will not be granted. To compel com- Tuissioners in bankruptcy to give certificate of conformity. RespnA- Uca V. Clarhson etai.,\ Yeates, 46 (1791). Motion and rule for mandamus to compel the commissioners of bankruptcy to issue a certificate to the petitioner or show cause, etc. By the law then in force in relation to the subject, the bankrupt was entitled to re- ceive a certificate from the commissionere oa his conforming to the directions prescribed by the Act of Assembly, which certificate was necessary in order that he might be discharged. The commis- sioners made return that there appeared to them reason to doubt that the petitioner had made a true, full, and perfect disclosure and discovery as required. Held, that this return was sufficient. Kule dischai^ed. § 1789. Nor to ti;y the tide to an office which is filled by another. A mandamus was refused against county commissioners who de- clined to recognize an assessor, the latter having failed to file his copy of affirmation in the commissioner's office, as required by Act of Assembly. Comw. v. County Oommissioners, 6 Wh., 476 (1841). Quo warranto, not mandamus, is the proper remedy to try the title to an office which is already occupied, though the latter writ may issue to put the relator in possession when the office is vacant. § 1790. To compel a court of inferior jurisdiction to decide a case in a particular way. Comm. v. Judges of Common Pleas, 3 Binn., 273 (1810). Motion in the Supreme Court for rule upon the judges of the Court of Common Pleas of Philadelphia County to show cause -why they should not be compelled by mandamus to admit an appeal from the judgment of an alderman, which they, upon motion, had stricken off. Rule refused. " In the case of the United Stales v. Lawrence, 3 Dall., 42, it was determined by the Supreme Court of the United States, clearly and unanimously, after full argument, that, although they might command an inferior judge to proceed to judgment, yet they had no power to compel him to de- cide according to the dictates of any judgment but his own. Upon this principle it would be improper for us to issue a mandamus, be- cause the Court of Common Pleas have already decided according to the dictates of their own judgment." Per Tilghman, C. J. Comm. V. Cochran, 5 Binn., 87 (1812). The secretary of the land office, acting under dii-ection of a board of property which MANDAMUS. 731 was clothed by law with judicial power in the premises, refused to issue patents for land sold by the Commonwealth, except upon ten- der of the interest which that body had decided to be due, the amount of such interest being in dispute. Upon alternative man- damns and return, the Supreme Court refused to interfere with the discretion of the board of property, and denied the prayer for a peremptory mandamus to the secretary to compel the issuance of the patents. Opinion by Tilghman, C. J. Comm. V. McLaughlin, 120 Pa. St., 518 (1888). McLaughlin was convicted in the Court of Quarter Sessions of Montgomery County of maintaining a nuisance, to wit, a magazine for explo- sives, and sentenced to abate the same and to pay a fine. The dis- trict attorney, averring that the nuisance had not been abated in accordance with such sentence, moved the said court to order the sheriff to abate it, which motion was denied ; thereupon he applied to the Supreme Court for a mandamus to the judges of the lower court to compel them to make the order. Petition for mandamus refused. " The court below has acted upon the application of the district attorney, and refused it. If the court had declined to act, there might have been some ground for the application for a mandamus. That the writ will lie from this court to a lower court to compel the performance of a duty is settled law. Thus, if a judge unrea- sonably delay judgment in a particular case, he may be compelled to do so by mandamus. But it will not lie to compel him to give judgment in a particular way ; it will only require him to act. Hence, when the judge has acted, mandamus will not lie to reverse his action." Per Paxson, J. § 1791. Nor to Gompd the granting of a change of venue. Pdi- tion of Newlin, 123 Pa. St., 541 (1888). N. having begun suit against the County of Indiana, in the Court of Common Pleas of that county, moved said court for a change of venue on the ground that all the tax-payers residing in the county were interested ad- versely to him. His motion was refused. Upon petition to the Su- preme Court for a mandamus commanding the judge of the lower court to grant the change of venue asked for, held, opinion per Williams, J., that the petition laid no ground for the writ of mandamus. § 1792. Nor to compel the prothonotary of a eou/rt to amend a record. Comm. v. HuMz, 6 Pa. St., 469 (1847). The Court of Common Pleas of Allegheny County having refused, upon motion, to direct the prothonotary to amend the record in a case which had been tried in that court, a rule for a writ of mandamus to the pro- 732 PRACTICE IN PENNSYLVAJdIA. thonotary was taken in the said court to effect the same end. This was refused. Upon writ of error, the order refusing the writ was affirmed. § 1793. Nor to eompel admission of an attorney. A writ of man- damus to the Common Pleas, requiring them to admit an attorney, was refused — such admission is a judicial and not a ministerial act. Oomm. V. Judges, 1 S. & R., 187 (1814). In Oomm. v. Judges, 5 W. & S., 272 (1843), a mandamus was refused to reinstate an attorney stricken from the rolls of the Dis- trict Court of Philadelphia. § 1794. Nor to eompel the issuing of a eommission to a superin- tendent of instrudion not fully qualified. In Comm. v. Wi^he/rsham, 90 Pa. St., 311 (1879), a mandamus directed to the superintendent of public instruction to issue a commission to the relator, who had been elected city superintendent of schools at Scranton, was refused. It appeared the relator had been objected to by a number of citi- zens, who were also on the board of school control, as not possess- ing sufficient qualification. Mercur, J. : " It is true, by the Act of April 9, 1867, it is pro- vided that serving as county, city, or borough superintendent shall be deemed a sufficient test of qualification, but the Act also pro- vides that if, upon examination of the evidence of competency, it shall not prove to be such as is required, or if objection be made in conformity with the fourth section of the Act of 1865, the super- intendent of common schools shall appoint two competent persons, himself being the third, to examine the person elected, and if, upon such examination, his qualifications are found insufficient, the com- mission shall not issue. * * * Such objections were made, the committee appointed, and a report made unfavorable to the relator." § 1795. Nor to compel discretionary ads. In Comm. v. Cbwi- missioners, 5 Binn., 536 (1813), it appeared that the legislature had directed the county commissioners to draw orders upon the county treasurer for the services of a schoolmaster if they approved thereof. The matter being one of discretion with the commission- ers, a mandamus was refused where the commissioners had dis- approved the bill. In Oomm. v. Mayor, 5 Watts, 152 (1836), the Select and Com- mon Councils of Lancaster directed the mayor to issue a certificate of loan to a certain member of Councils for special services. This he declined to do. A mandamus was refused. In Oomm. v. Henry, 49 Pa. St., 530 (1865), the mayor was duly authorized by Councils to execute leases for coal lands belonging to the Girard Estate to such persons as may be accepted by the super- MANDAMUS. 733 intendent. The mayor, in his return to a writ of mandamus to compel him to execute the leases, alleged that improper means had been used to obtain them, and as the city was trustee for the estate, the proposed leasing would be detrimental to the interests of the trust, and was a matter within his sound discretion. Mandamus refused. § 1796. Nor to oompd tlie affixing of a corporate seal to amend- ments to a charter. In Oomm. v. Trustees, 6 S. & E., 508 (1821), a writ of mandamus was refused where a majority of an incorpo- rated body sought to compel the trustees of the corporation to affix the seal to certain alterations and amendments to the charter, con- trary to their judgment. § 1797. Nor to seat an official if there be doubt as to his election. A mandamus will be refused where there is doubt as to the validity of an election. Oomm. v. Commissioners, 5 Rawle, 75 (1835). § 1798. Nor to compel exoneration from a school tax alleged to be v/njastly assessed. In School Directors v. Anderson, 45 Pa. St., 388 (1863), a mandamus was refused to compel school directors to exonerate and discharge the relator from a tax assessed by them against him. The petitioner averred that he was charged with school taxes upon a mortgage held against a company in which he owned one- half the stock, which was itself taxed, and that the company was insolvent and unable to pay interest on the mortgage. Woodward, J. : " This was an unprecedented application of the writ of mandamus. It is not the ordinary official duty of school directors to exonerate taxes, but rather to levy and collect them. If they were backward in the exercise of this official func- tion, mandamus might be used to stir them up. But when they have set themselves in motion and are proceeding to discharge the duty imposed by law, they are no longer subject to mandamus." § 1799. Nor to compel school directors to ered, a sehool-hcmse. In re Application of Citizens of Manhdm Township, 5 Clark, 400 (1855) (C. P. of Lancaster County). Petition by citizens for man- damus to compel the school directors of Manheim Township to erect an additional school-house. Answer of respondents averring that, after consideration of the subject, the board of directors had de- cided that it was unnecessary and injudicious to erect the school- house asked for, and that the interest of the township did not re- quire the erection of said school-house. By Act of Assembly, the boards of directors were empowered and enjoined to establish a suf- ficient number of common schools, and to cause suitable buildings to be erected, purchased, or rented for school-houses. Rule for mandamus discharged, per Hayes, J. 734 PRACTICE IN PENNSYLVANIA. § 1800. Nor to compd oouriiy Qommissioners to draw orders on the treasury, there being no money applicable to the purpose in the county treasury. Cbmm. v. Price, 1 Whar.,1 (1835). The Court of Quar- ter Sessions, confirming an award of damages in favor of certain persons, ordered the amount awarded to be paid out of the county treasury. The county commissioners refused to draw orders on the treasurer in accordance with this direction. A rule for mandamus was obtained from the Supreme Court, to compel them to do so, by one in whose favor the award was made. Upon the commissioners' answer, showing that there were no funds in the treasury which could be applied to the satisfaction of the award, the rule for man- damus was discharged. § 1801. Nor to compel payment of interest on an order on the county treasurer. In Gomm. v. Commissioners, 4 S. & R., 125 (1818), the court refused a mandamus to the county commissioners to enforce the payment of interest on an order drawn by the com- missioners on the county treasurer. In Hester's Case, 2 W. & S., 416 (1841), a mandamus was re- fused directed to the county commissioners to pay a certain debt for which no suit had been brought. " The established rule of law, which has been constantly recognized and acted on by this court, is that a mandamus will not be granted where there is a spe- cific remedy by action ■ * * * the party has a remedy by action. He must first sue the county commissioners and recover against them. " § 1802. Nor to compel an act by a cmporation whose chief place of business is in a county other than that where proceedings are brought. In Whitemarsh Township v. M. R., 8 W. & S., 365 (1845), a petition for mandamus was presented in the Common Pleas of Montgomery County, setting forth that the Philadelphia, Germantown and Norristown Railroad Company occupied part of the bed of a public road in Whitemarsh Township, Montgomery County, Pa., thereby obstructing the free use and passage of the public road ; that the company had not made a good and sufficient road for public accommodation alongside of said railroad in place of the part of the public road so occupied by them. The defen- dants, on this complaint of the supervisors of the township, re- sponded that defendants had their office and chief place of business in Philadelphia, and had no office or chief place of business in Montgomery County, and that under the Act of June 14, 1836, the court had no jurisdiction. Mandamus refused. § 1803. Nor to compel the allowance of an appeal from assessment of taxes after the statutory period. The assessor of Doylestown re- MANDAMUS. 735 turned to the commissioners that he had assessed relator $50,000, to which the commissioners added |25,000. The relator did not take any steps toward an appeal until after the time allowed by the Act. " To found the application for the mandamus, the law requires that the applicant establish a specific legal right as well as the want of a specific legal remedy." " The complaint and decision of the commissioners was Decem- ber 29, 1848, and the petition to the Common Pleas was not pre- sented until February 9, 1849, long after the expiration of the thirty days allowed by the Act. * * * jjig case, as presented, is not one of specific legal right." Mandamus to compel allowance of the appeal refused. James y. Commissioners, 13 Pa. St., 72 (1850), Buensidb, J. § 1804. Nor to compel supervisors to receive certifioates of work from non-residents on account of taxes on unseated lands. In Comm. ■V. Supervisors, 29 Pa. St., 124 (1858), a writ of mandamus directed to the supervisors of a township to compel them to receive certifi- cates of the amount of woris; done by non-resident owners of un- seated lands and allow a credit therefor was refused, upon the ground that the relator had ample remedy by injunction to restrain the county treasurer from selling such land for taxes. A writ of mandamus cannot issue to compel a mayor and the clerks of council to certify an ordinance under the Act of March 21, 1866 (P. L., 262), where the record shows that the mayor vetoed the ordinance and that councils failed to pass the ordinance over his veto, even though a technical objection may arise as to the exercise of the veto power. Comm. v. Mtler, 26 "W. N., 369 (1890). § 1805. Mandamus not a substitute for quo warranto. Man- damus is not the regular mode of showing that a new board of directors of a fire association was elected without authority. The proper proceeding to test their official character would be quo war- ranto. Assn. V. Benseman, 4 W. N., 1 (1877). § 1806. The Supreme Oowt refused a mandamus to compel the letting of stalls in a market, referring the relator to the cownty court. In Comm. v. Baroux, 36 Pa. St. , 262 (1860), a petition for man- damus was presented, directed to the commissioner of markets in Philadelphia, to compel him to let stalls in the market-houses, even though the farmers brought meat for sale not raised on their own farms. " We cannot allow it. * * * It is in our discretion to re- fuse it. * * * If there be an adequate remedy in another form or before another court. * * * "jhe Common Pleas has all the 736 PRACTICE IN PENNSYLVANIA, authority needed for the case, and we must refer the relator to that tribunal." § 1807. Mandamus will not lie to compel performance of an act by unineorporaied bodies. A writ of mandamus cannot issue from the Court of Common Pleas to individuals in their private rela- tions, nor to associations having no chartered powers. Wolf v. Gomm., 64 Pa. St., 252 (1870). § 1808. Nw to compel opening of a street not on the city's plans. In Comm. v. Dickinson, 83 Pa. St., 458 (1877), an alternative mandamus issued to compel the commissioner of highways in Phil- adelphia to open Volkmar Street, as directed by Act of Assembly. The return denied that such street was on the city plans. Instead of trying the issue of fact and having it determined in the usual way, the relator demurred on the ground that the return contra- dicted the Act of Assembly. Mandamus refused. § 1809. Nor to compel the satisfaction of a mortgage which had been lost for forty years. In Gomm. v. Lane, 3 W. N., 546 (1877), a mandamus to have the Recorder of Deeds of Philadelphia County satisfy a mortgage was refused on the grounds that the instrument had been lost forty years before, and that as relator's title was de- rived from a sale upon the mortgage, there was no cloud on his title. § 1810. Nor at the suit of a private person to compel the perform,- ance of a public duty. Councils of Reading v. Comm., 11 Pa. St., 196 (1849). This was a petition in the Court of Common Pleas' for a mandamus to compel the Councils of Reading to keep open a public street which was alleged to be unlawfully obstructed. The petitioners were private citizens. Upon alternative mandamus, re- turn thereto, and demurrer to the return, the lower court sustained the demurrer and awarded a peremptory mandamus. On writ of error, the judgment was reversed. " The nuisance in this case is a public one, and it does not appear from the statement of the re- lators that they have received any special injury from it to entitle them to any civil remedy whatever. The obstruction of the side- walk is not more injurious to them than it is to the inhabitants at large ; and it would consequently seem that an indictment is exclu- sively the means to abate it." Per Gibson, C. J. Hefner v. Gamm., 28 Pa. St., 108 (1857). The town councils of the borough of P., being authorized and required by statute to open a certain alley, were requested by the relator, a private citi- zen, to do so. He was the owner of real estate which would have been enhanced in value by the opening of the alley. Councils re- fused to proceed in the matter, whereupon the relator applied for MANDAMUS, 737 a mandamus. Upon alternative writ, return, and demurrer, the court below entered judgment for plaintiff. Held, to be error. " It is manifest that [the relator's] interest, in kind, if not in degree, is common to all the inhabitants of P. * * * It will be soon enough for the courts to interfere to open that alley when those public officers whose duty it is to see that the laws are executed move the courts to action. The law was enacted for the public ; and if the public acquiesce in its non-execution, the courts, who are only other agents of the public, have no duty or power in the prem- ises." Per Woodward, J. Judgment reversed and judgment for defendants. In Ccrnim. v. Park, 9 Phila., 481 (1872), a petition for man- damus was presented by a private citizen to require Councils, under an Act of Assembly placing Occident Avenue upon the public plans, to have it opened, graded, curbed, and paved. Petition dismissed, on the ground that a private citizen must show a right independent of that which he holds in common with the public. A mill-owner who has lost custom and been placed at a great disadvantage by reason of the absence of approaches to a bridge is not entitled, as a private relator, to a mandamus to compel the erection of such approaches by the borough officers. Comm. v. Westfldd, 1 Dist. Rep., 495 (1891). § 1811. Nor to compel the laying of a water-pipe, no appropria- tion being made. In Comm. v. McFadden, 8 W. N., 454 (1880), a writ of mandamus directed to the chief engineer of the Water Department of Philadelphia, to compel him to lay water-pipe under an ordinance, was refused, no appropriation having been made. §1812. Nor to compel the payment of a disputed acoownt. Comm. ex rel. Prison Inspectors v. Commissioners, 16 S. & R., 317 (1827). 8ur rule in the Supreme Court to show cause why mandamus should not issue to compel respondents to pay an account for keeping cer- tain convicts in the penitentiary. Respondents showed cause that the charges were unreasonable and the account disputed. Per Ow- riam: "A jury alone is competent to determine the propriety of the charges. The remedy in the first instance is by action against the respondents in their corporate capacity, after which a mandamus to enforce the judgment might be altogether proper ; but before the merits are determined in the usual way an application like the pres- ent is premature." Rule discharged. § 1813. Nor when a remedy by appeal is provided. Comm. v. Clark 6 Phila., 498 (1868). Demurrer to return to alternative mandamus requiring respondents (the Board of Port Wardens of Philadelphia) to show cause why they should not issue a license to VOL. I. — 47 738 PKACTICE IN PENNSYLVANIA. relator, permitting him to extend a wharf into the Delaware River. By Act of February 7, 1818, it is provided that if the board shall refuse an application for a license, the applicant may apply by peti- tion to the Court of Quarter Sessions, who shall proceed to sum- mon a jury, etc. Hdd, per Strong, J., that the statute provided an ample remedy for petitioner, and that mandamus would not lie. Judgment for respondents. § 1814. Nor to compel the transfer of stock upon the books of a corporation. Insurance Co. Y.Comm., 92 Pa. St., 72 (1879). The relator having purchased stock in the respondent company at sher- ififs sale, requested the secretary to transfer the stock to him on the corporation books ; upon refusal, he applied for a writ of mandamus to compel the making of the transfer. His right to the stock was not undisputed. Judgment for the relator was entered in the lower court, which judgment was reversed upon writ of error. " At the threshold the relator is met with the objection that mandamus will not lie, for the reason that even if his right to the stock be clear, and the respondents have wrongfully refused to make the transfer, he has an adequate remedy in an action on the case for damages. * * * If the courts here were inclined to enlarge the remedy, it could not be done in a case where the right is disputed, where no public interest is involved, where no reason is shown for a transf^ of a specific and favorite thing, and where the remedy by action is fully adequate." Per Trunkey, J. § 1815. Nor to compel the giving of pvJblic c&nbraxsts to the lowest bidder. Oomtn. v. Mitchell, 82 Pa. St, 343 (1876). By Act of 24 May, 1874 (P. L., 230), it was provided that work and mate- rial for public uses should be furnished under contract to be given to the lowest responsible bidder. The water committee of Councils of Pittsburgh having charge of the erection of water-works adver- tised for sealed proposals for contracts to do the work required, and awarded the contract to one who was not the lowest bidder. Held, affirming the judgment of the lower court, that in the absence of fraud or corruption mandamus would not lie at the suit of the lowest bidder to compel the awarding of the contract to him, though he was found by the court to be in every sense " responsible," be- cause : (1) The matter lies within the discretion of the body empow- ered to award the contract ; and (2) if injury result from the- im- proper award of the contract, such injury is to the public at laige and not to the lowest bidder, who is therefore without l^al right in the premises. In Comm. v. Guardians, 13 W. N., 61 (1883), a mandamus to compel the guardians of the poor to "accept relator's bid for supply- MANDAMUS. 739 ing milk was refused. Biddle, J.: "By their bid they proposed to contract for certain work ; that bid was not accepted. It was a mere proposal that bound neither party, and as it was never con- summated by a contract, the city acquired no right against the re- lators, nor they against the city. They are wanting in a specific remedy only because they have failed to establish a legal right." These rulings were reaffirmed by the Supreme Court in Doug- lass V. Comm., 108 Pa. St., 559 (1885). § 1816. N^or will mandamus lie to compel city controllers to coun- tersign warrants. In Comm. v. Lyndall, 2 Brews., 425 (1867), a mandamus was awarded against the city controller to compel him to countersign a school-teacher's warrant. Brewstee, J., dissent- ing. • But this ruling was reversed in Runkle v. Comm., 97 Pa. St., 328 (1881) ; JDechert v. Comm., 113 Pa. St., 229 (1886). In these cases, city controllers refused to countersign warrants upon the treasury which were presented to them for that purpose, assigning reasons which, though different in the two cases, involved in each the exercise of discretionary powers upon their part. Held, that they could not be compelled by mandamus to countersign the warrants. " The Act of 23d of May, 1874 (P. L., 230), clothes him [the city controller] with judicial powers ; he must not only countersign warrants drawn on the city treasury, but he is also required to pass upon their rectitude, and for this purpose he may not only make personal inquiry, but may require the production of evidence. * * * Upon him also is imposed ' all the duties now enjoined on county auditors by the laws of this State, and he shall scruti- nize, audit, and settle all accounts whatever in which the city is concerned.' But the powers of county auditors are as full and complete within their jurisdiction as are the powers of courts. They may issue subpoenas for parties and witnesses, they may com- pel the production of books and papers, administer oaths, compel the attendance of witnesses, and punish contempts by attachment. "With all this judicial and deliberative power the controller of the city of Eeading is clothed, and of necessity he must be left free to exercise his own judgment; but how can he exercise these impor- tant functions if he is to be controlled in his judgment by the Court of Common Pleas, or any other court ? " Per Gordon, J., 97 Pa. St., 331. § 1817. Nor to aid an immoral or pernicious calling; e.g., stock gambling. Slerrett v. Mectno Co., 44 Leg. Int., 253 (1887) (C. P. of Philadelphia County). Demurrer to return to alternative, man- 740 PBACTICE IN PENNSYLVANIA. damus. This petition was filed to compel the corporation respon- dent to furnish relator a "ticker" or electrical machine used for the purpose of quoting the price of stocks. From the return it appeared that at the place where he desired the machine to be fur- nished him relator was the keeper of a " bucket shop," wherein gambling or wagering on the price of stocks was the business car- ried on, and where no legitimate business was transacted. These facts being admitted by the demurrer, Hdd, per GoEDON, J., that relator was not entitled to the peremptory writ. Mandamus re- fused. ' ' The writ of mandamus is not of right, but its issue is for the sound discretion of the court, and it ought never to be granted where the object sought to be attained is an immoral one, or of a pernicious or immoral tendency, or against public policy." § 1818. Nor to compel the granting or transfer of retail liquor liemses. In re Raudenbush's Petition, 120 Pa. St., 328 (1888). Petition in the Supreme Court for a writ of mandamus to compel the judges of the Court of Quarter Sessions of Philadelphia to issue a retail liquor license to petitiouer. The petition set forth in sub- stance that petitioner had carried on the business of selling liquor at retail at his residence for five years theretofore, having been licensed so to do ; that he presented his petition to the Court of Quarter Sessions for a renewal of said license, in accordance with the terms of the Act of May 13, 1887 (P. L., 108) ; that he had complied strictly with said Act, and possessed all the qualifications thereby required ; that at the hearing upon his petition for a license no remonstrance, objection, or evidence against the granting of the same had been offered ; that afterward such petition or application was refused by the said judges. By the Act of 1887 above referred to, the judges of the Court of Quarter Sessions were empowered to hear petitions of residents in favor of, and remonstrances against, granting licenses, and were directed to refuse the same "whenever in the opinion of the said court, having due regard to the number and character of the petitioners for and against such application, such license is not necessary for the accommodation of the public and entertainment of sti-angers or travellers, or that the applicant or applicants is or are not fit persons to whom such license should be granted." Hdd, that the discretion vested by this Act in the judges of the Court of Quarter Sessions could not be controlled by mandamus, and that the petition must be refused, per Paxson, J. " The peti- tioner assumes that he is entitled as a matter of right to a license upon complying with the provisions of the Act of 1887, in the absence of any allegation that he is an improper person to be so MANDAMUS. 741 licensed. This is the fallacy which underlies his case, as well as the able argument of his learned counsel. He has no such abso- lute right, nor has any other man in the Commonwealth. * * * The petitioner begs the whole case when he assumes that he has a right to a license because he is a respectable man, has always kept a respectable house, and that no remonstrances have been filed against him. It is an error to suppose that the sole duty of the court is confined to the inquiry whether the applicant is a citizen of the United States and a man of good moral character, etc. Back of all this lies the question, whether the petitioner's house is ' neces- sary for the accommodation of the public and entertainment of stran- gers and travellers,' and the plain duty of the Court of Quarter Ses- sions, under the Act of Assembly, is to so exercise its discretion as to 'restrain' rather than increase the sale of liquor. * * * ^\^q question is one of public concern ; the petitioner is no party to it in the sense that persons are parties to private litigation." In re BlumenthaVa Petition, 125 Pa. St., 412 (1889). In this case the decision in Raudenbush's Petition was quoted and followed, and a petition for a mandamus to compel the judges of the Court of Quarter Sessions to transfer a license to sell liquor was denied, the said judges having refused an application for such transfer. The original licensee in this case died during the term for which his license was granted, and the application for a transfer was made by his widow, who was also devisee of the premises in which liquor was licensed to be sold. " She was entitled to a hearing, and if she had been denied that, it could be secured to her by mandamus, but there the remedy ends, and the judgment to be pronounced as a result of the hearing is for the Court of Quarter Sessions, not for us. * * * The court below had the power under the Act of 1858 to transfer this license, but it was a matter of discretion, and not reviewable here." Peti- tion dismissed, per Paxson, C. J. § 1819. Rule to show cause formerly required. Under the old method of practice, before the alternative writ could go out it was necessary for the relator to take a rule on the respondent to show cause why the mandamus should not issue. This course was pursued in all the earlier cases, and the merits of the entire controversy were often determined upon the return to the preliminary, rule. See Rea- pvhlica v. Olarkson, 1 Yeates, 46 (1791) ; Comm. v. Johnson, 2 Binn., 275 (1810) ; Oomm. v. Bosseter, Id., 360 (1810) ; Oomm. v. Cochran, 5 Id., 87 (1812) ; Oomm. v. Commissioners, 16 S. & R., 317 (1827) ; Oomm. v. Commissioners, 1 Wh., 1 (1835). § 1820. But a preliminary rule is no longer necessary. By Act of 742 PRACTICE IN PENNSYLVANIA. June 14, 1836, section 20 (P. L., 626), it was provided that the person or persons who ought to make return to the writ should make his or their return to the first writ of mandamus issued. Since the passage of that Act the practice has prevailed of issuing the alternative mandamus (which is itself substantially a rule to show cause), upon ex parte petition, supported by affidavit, and without putting the relator to his preliminary rule. "The Act of Assembly very plainly points the course to be pur- sued when a proper suggestion is filed. If it contain the substance of a case for mandamus, the course is to issue an alternative writ, commanding the defendant to perform the act required, or return his reason for not doing it." Treasurer of Jefferson Qo. v. Shan- non, 51 Pa. St., 221 (1865). In Keasy v. Bricker, 60 Pa. St., 9 (1868), Mr. Justice Agnew very ably sets out the steps preceding the issuing of a mandamus. They "are not to be assimilated to a proceeding in equity, with all its attendant pleadings. The ordinary practice is to direct an alternative mandamus to issue when the court is satisfied, on affi- davits, that the writ should be issued as a matter of justice and right, to compel the performance of an act or duty, for which other- wise there would be no adequate remedy. This gives the party to whom it is directed an opportunity to do the act or to show good reason at the return of the writ why he should not do it. He does this by making a return to the writ. It is at this point the plead- ings in the cause begin. The return may traverse the fects alleged in the writ, or, admitting them, may avoid performance by stating sufficient facts in excuse. The relator may then demur, plead to, or traverse the facts set forth in the return." See also Phoenix Iron Oo. v. Qmm., 113 Pa. St., 563 (1886), in which the forgoing cases are cited and approved. The Act of June 8, 1893, § 2, dispenses with any preliminary rule and adopts the practice stated in Keasy v. Bricker, supra, § 1737. Since the Act of 1836, the course of taking the preliminary rule to show cause was sometimes adopted, either because of it being re- quired by rule of court, or because the practitioner preferred it. MeMahon v. Association, 2 Brews., 441 (1868) ; Oomm. v. Iron Oo., 105 Pa. St., Ill (1884); Telegraph Oo. v. Camm., 114 Pa. St., 592 (1886). A rule to show cause must still be taken before mandamus can issue against the city of Philadelphia upon the award of a road jury. In re Devereux Street, .13 Phila., 103 (1879). § 1821. Where defendants appear, and there is no coniroversy as to facts, the right of relator being dear, a perempai-y vxrit may issue MANDAMUS. 743 in first instance. In Comm. v. Borough, 15 W. N., 506 (1884), Trunkey, J., said : " The ordinary practice is to direct an alter- native mandamus where good c&ase, prima fade, appears, and this gives the parties an opportunity to do the act or show cause at the return of the writ why they should not. * * * "If the defendants have appeared to a rule or notice of an appli- cation for a mandamus, and have been heard, and there is no con- troversy in respect to the facts, and the right of the relator is clear, a peremptory writ may, in the discretion of the court, be issued in the first instance. " Under § 2 of the Act of 1893, above cited, a peremp- tory writ may be issued in the first instance where the right is clear. § 1822. Writ returnable in a different district. A writ of man- damus may be issued by the Supreme Court at Pittsburgh and made returnable to the Supreme Court for the Western District. Black, J.: "Our jurisdiction is over the whole State. It is not the practice to issue writs beyond the district in which they are made returnable, and that is all that was decided in Duffy v. Turnpike, 9 S. & E,., 59. But no law forbids it. There are cases, and this is one of them, in which the rule of practice ought to be relaxed, though it certainly would not be relaxed if a motion were made to quash the writ in a purely local and private case." R. R. v. Com~ missioners, 21 Pa. St., 9 (1852). §1823. Requisites of suggestion. The suggestion or petition for the alternative writ should set forth all the facts specifically which, if true, would entitle the relator to the relief sought, and it must show a clear prima facie right to the mandamus. All the facts relied upon should be stated so clearly that the respondent may admit or deny them in his return, so that an issue may be framed upon the fundamental averments made by the relator. The sug- gestion should show that relator has a specific right and is without other adequate remedy, though it is not always necessary to so allege in terms. The act or acts whose performance is sought to be compelled by the mandamus must be clearly and distinctly spe- cified. See High, Extraor. Eem., section 450 et seq. In the case of Telegraph Co. v. Oomm., 114 Pa. St., 592 (1886), the Supreme Court indicates the degree of precision and certainty which is required in the suggestion for alternative mandamus as well as in the return thereto. Relator, in substance, averred that respondent was a corporation engaged in the business of furnishing telephones for hire ; that it charged the uniform price of eighty- four dollars per year for such hire ; that relator had tendered that sum to respondent and requested that a telephone be furnished to it ; that respondent had refused to comply with this request and 744 PRACTICE IN PENNSYLVAKIA. had demanded the sum of $150 per year for doing so. Mandamus prayed for accordingly. Respondent's return allied that its rate for furnishing telephones varied with the distance, cost of erection, etc. ; that it charged $150 per year for telephones at the distance from its office at which relator desired one, and that it had always been ready and willing to furnish one to relator upon being paid that sum, etc. Upon demurrer the lower court held this return uncertain and evasive, and entered judgment for relator, whereupon respondent sued out a writ of error. " As in considering a demurrer regard must be had to all the pleadings, and not merely that part of them to which the demurrer refers, we must, in order to reach a correct result, review the writ which, of course, follows the petition. * * * It may be ad- mitted that all that is essentially necessary to maintain the writ of mandamus is found in the above statement : that is, that a definite legal right exists in the relators to have the telephone service and a consequent duty on the part of the company to furnish it. There is also in this statement of facts on which the right is made to de- pend, certainty to a common intent ; that is, they are stated with a precision sufficient to express the right of the one and the duty of the other in such manner that the ordinary mind, disregarding tech- nicalities of pleading, may easily apprehend them. So also, as the want of a specific l^al remedy is made to appear from the same source, we may concede that there is enough in the petition to war- rant the alternative writ. But on the principles above stated, we are at a loss to discover why the answer was not sufficient. Cer- tainty to a common intent is the rule, and that applies as well to the answer as to the petition, and it is sufficient that the former, without ambiguity or evasion, responds to and denies the asser- tions of the latter." Judgment reversed. Opinion by Gordon, J. The relator, in his petition, ought to set forth or refer to the law or ordinance imposing the duty averred by him. Smiih, v. Comm., 41 Pa. St., 335 (1861). § 1824. Form of suggestion. The following may be used as a form of suggestion, the allegations in each case being carefully adapted to the facts : § 1825. FOBM OF SUGGESTION FOE MANDAMUS TO DELIVEE BOOKS, ETC., OF A COEPOEATION. Conunonwealth. ex relatione "1 Your petitioner respectfully represents that prior to May 4, 1884, was president of the Company, and as such president had in his MANDAMUS. 745 possession the books, papers, and other property of said corporation, to wit, the certificate of corporation of the Company ; the corporate seal of the Company ; the minute book of said corporation ; two stock ledgers of said corporation marked respectively G. M. D. " A.," and G. M. D. " B. ;" the stock certificate book ; the minute book of Railroad Company ; deed from the sheriflf of County to , for the property of the Eailroad Company, and assignment of the same to the Railroad Company ; deed of the sheriflf of County to for the same property ; deed of the sheriff of County to , for the property and fran- chises of the Company, and assignment of the same to the Railroad Company ; contract between the Company and ; deed and releases for right of way to the Railroad Company, the Railroad Company, Company, and the Company, and other books, papers, and eflfecte belonging to said Company ■; that by decree of this Honorable Court it was adjudged and decreed that was duly elected president of the Railroad, at the stockholders' meeting of said corporation, held under the supervision of a Master appointed by this court, on , and adjourned to and thereafter to serve for the ensuing year, yet the said continues to hold and retain possession of said books, papers, and other property of the said Company, and has neglected and refiised to deliver the same to your petitioner, although said has been requested so to do ; that by reason of the premises and said reftisal your petitioner has suflfered great damage, and has no specific and legal remedy therefor. He therefore prays this Honorable Court to issue a writ of mandamus directed to said , commanding him, the said , to deliver to your petitioner the said books and papers, and other property of the said Company, and he will ever pray. , being duly sworn according to law, deposes and says the facts set forth in the above petition are just and true to the best of his knowledge and belief. Sworn to and subscribed before me, "I this day of , 18 . ! Notary Public. J § 1826. FORM OF SUGGESTION FOK MANDAMUS TO COMPEL THE OPENING OF STREETS DULY AUTHORIZED BY ACT OF ASSEMBLY. In the Court of Common Pleas, in and for the city and county of Phila- delphia. And now, October 1, 1872, comes F. Carroll Brewster, Esq., Attorney- General, into court, and gives the court here to understand and be informed that the Commonwealth of Pennsylvania, by " An Act to authorize the opening and paving of certain portions of Fifteenth, Sixteenth, and Norris Streets," approved May 6, 1872 (P. L., 1163), did {inter alia) direct the Chief Commissioner of Highways to open Fifteenth, Sixteenth, and Norris Streets through Monument Cemetery, of which Mahlon H. Dickinson, then and now Chief Commissioner of Highways, had and has notice. And the court is here further informed that the said streets, before the 746 PRACTICE IN PENNSYLVANIA. passage of said Act, had been marked out and through said cemetery, so that the same can be opened easily, and without disturbing any who have been interred therein. Your relator therefore asks that this court may command the said Mahlon H. Dickinson, as Chief Commissioner of Highways, to open Fif- teenth, Sixteenth, and Norris Streets through Monument Cemetery, of the same width as laid out on the existing plans, up to the boundary lines of said cemetery, or the cause why not to show unto your Honors in answer to said command. F. CAKROLL BREWSTER, Attomey-Greneral. § 1827. FOKM OF PETITION FOE. A MANDAMUS TO SEAL, A BILL OF EXCEPTIONS IN A CRIMINAL CASE. Appellants, In the Supreme Court of Pennsyl- vania for the Eastern District. Term, 18 . No. . The Commonwealth of Pennsylvania, Appellee. To the Honorable the Judges of the Supreme Court of the State of Penn- sylvania : The petition of humbly showeth that they are the appellants in the above-entitled cause, wherein an appeal was specially allowed by your Honorable Court on the day of , A. D. 18 , to remove the record and proceedings in the Court of Quarter Sessions of the Peace of the county of Philadelphia, to sessions, 18 , No. . Your petitioners sought by said appeal to bring before your Honorable Court certain errors committed by the Hon. , an associate justice of the said Court of Quarter Sessions in the said case, which was tried before him and a jury on the days of , A. D. 18 . That during said trial the said judge made the following rulings, all of which are alleged by your petitioners to be errors, and as to all of which the peti- tioners duly excepted at the time, and the judge at the request of their counsel noted exceptions, to wit (here insert copy of exceptions). And your petitioners further show that when petitioners' counsel stated their exceptions the learned judge noted the same, and that he has now in his possession the original bills of exceptions ; that, although required so to do, be has not filed the same, and has twice refused to seal the formal copy thereof, prepared and tendered to him for that purpose. And your petitioners attach hereto as part hereof the said bill of exceptions and the charge excepted to, which are marked " Exhibit A." And your petitioners further show that the right of a siiitor to a bill of exceptions is secured by the Statute of 13 Edward I., chapter 31 (1285), •reported as in force in this State (Roberts' Digest, 92), that the remedy for the refiisal of a judge to seal a bill is provided by that law and is now here prayed. That the Act of the General Assembly of this Commonwealth, approved May 19, 1874, expressly gives to petitioners the right to a bill of excep- tions in these words : " In the trial of all cases of felonious homicide and in all such other criminal cases as are exclusively triable and punishable in the Courts of Oyer and Terminer and General Jail Delivery, exceptions to any decision MANDAMUS. 747 of the court may be made by the defendant, and a bill thereof shall be sealed in the same manner as is provided and practised in civil cases ; and the accused, after conviction and sentence, may remove the indictment, record, and all proceedings to the Supreme Court. In capital offenses a writ of error or certiorari shall stay execution of sentence ; in all other cases such writs shall not stay or delay execution of sentence or judgment without the special order of the Supreme Court or a justice thereof for that purpose ; and in case of such order, the said Supreme Court or justice may make such order as the case requires, for the custody of the defendant or for admission to bail. In all other criminal cases exceptions, as aforesaid, may be taken, and in cases charging the offense of nuisance, or forcible entry and detainer, or forcible detainer, exceptions to any decision or ruling of the court may also be taken by the Commonwealth, and writs of error and certiorari, as hereinbefore provided, may be issued from the Supreme Court to all criminal courts, when specially allowed by the Supreme Court or any judge thereof." (P. L., 1«74, section 1.) And your petitioners farther show that the said refusals of said learned judge, the Hon. , to seal the aforesaid bills of exceptions are to the grievous and manifest injury of the petitioners and against the statutes in such case made and provided. They therefore pray this Honorable Court to award a writ, conformably to the statute in such case made and provided (13 Edward I., chapter 31), directed to the said Hon. , commanding him to appear at a certain day either to confess or deny the matters herein set forth ; and if he confess the same, to affix his seal to said exceptions or to so much of the same as he shall so confess, and your petitioners also pray for such other writ, relief, and remedies as by law petitioners are entitled to. And as in duty bound they will ever pray. (Signatures.) The petitioners above named, having been duly according to law, do depose and say that the facte set forth in the foregoing petition are true and correct, to the best of their knowledge and belief. Sworn to and subscribed before me, "| this day of 18 . I Prothonotary. J Here attach bills of exceptions as " Exhibit A." COPY OF INDOKSEMENT. et al., Appellants, | V. I Supreme Court of Pennsylvania, The Commonwealth of Pennsylvania, [ Term, 18 . No. . Appellee, J Petition of Appellante to the Supreme Court. " To award a writ conformably to the statute in such case made and pro- vided, directed to Hon. , commanding him to appear at a certain day, either to confess or deny the matters therein set forth ; and if he confess the same, to affix his seal to said exceptions," and for such other writ relief, and remedies as by law petitioners may be entitled to. 748 PRACTICE IN PENNSYLVANIA. § 1828. FOBM OF PETITION FOK A MAN^DAMUS TO COMPEL A JITDGE TO SEAL A BILL- OF EXCEPTIONS DST A CTVTL CASE. A. B. et al., Appellants,) Supreme Court of Pennsylvania, Eastern District. V. V Term, 18 , No. . C. D., Appellee. ] To the Honorable the Judges of the Supreme Court of the Commonwealth of Pennsylvania : The petition of respectfally represents : 1. That they are appellants in the above-entitled cause, wherein an appeal was issued on the day of , A. D. 18 , whereby your petitioners and the other plaintiffi therein named sought to bring before this Honorable Court certain errors committed by the Honorable , an associate justice of the Court of Common Pleas for the county of , in a cerkiin cause which was tried before him and a jury on divers days and times between the day of and the day of , the record and proceedings of said case so sought to be removed being entitled as of Term, 18 , No. , in the said Court of Common Pleas for the city and county of 2. That , late of the city of , died on the day of , A. D. 18 , seized and jiossessed of real estate and premises in the city of , producing rental of about per annum, and of personalty consisting chiefly of mortgages, insurance, and railway securities to the amount of about , as far as can at present be ascertained. 3. That on the day of , A. D. 18 , there was presented for probate before , Esquire, then register of wills of the county of , a certain writing dated the day of , A. D. 18 , by a certain person calling herself , and who claimed to be the widow of the said decedent by virtue of an alleged marriage contracted on the day of , IS , which said writing the said proponent averred to be the last will and testament of said , and by the terms of which the entire estate, real and personal, of the decedent was devised and bequeathed to her absolutely, and she was appointed the sole executrix. 4. That on the said date of the day of , A. D. 18 , two certain papers were presented for probate before the said register by , one of your petitioners, one of said writings being dated the day of , 18 , and the other of them dated the day of , 18 , which first writing said averred to be the last will and testament of the said , in which said proponent was named as a legatee in the sum of $15,000, and the second writing as a codicil to said first writing, in which said proponent was named as the residuary devisee and legatee of the entire estate of the decedent after the payment of certain annuities and legacies therein named, the principal of which amounted in the aggregate to the sum of about $15,000. 5. That at the said time the said objected before the said register to the probate of the said writing of the date of day of , 18 , alleged to have been executed by the said , and averred said will was procured by duress, fraud, imposition, and undue influence exercised over the mind of the said , and that at the time the MANDAMUS. 749 said writing was alleged to have been executed the said was not of sound disposing mind, memory, and understanding, and requested that an issue might be directed to the Common Pleas to try by a jury the validity of said writing and the matters of fact which might be objected to. That (names of defendants), next of kin of , deceased, also ob- jected before the said register and averred that the said writing of the date of of , 18 , was procured by duress, fraud, conspiracy, im- position, and undue influence exercised over the mind of the said , and that at the time said writing was alleged to have been executed the said was not of sound disposing mind, memory, and understanding, and requested that an issue might be directed as aforesaid, to try by a jury the validity of said writing and the matters of fact that might be ob- jected to. 6. That the said register proceeded to hear testimony as to the validity of the said writing of the date of the day of , 18 , and the argument of counsel thereon, and on the day of , 18 , refused to admit said writing to probate as the last will and testament of the said , deceased, and on the day of , 18 , issued his precept to the Court of Common Pleas for the county of , com- manding that an action should be entered upon the record of the said court as of the day of the delivery of his said precept into the office of the prothonotary between the said , executrix and devisee named in the writing dated the day of , 18 , and the said , legatee and devisee aforesaid, and , next of kin as aforesaid, with such of the said parties as plaintiffs and defendants as the said court shall order and direct, so that an issue therein might be formed upon the merits of the controversy between the said parties and tried in due course of law accord- ing to the practice of the said court in an action commenced by writ, as follows : (1) Whether or not at the time of the making of the said alleged writing of the date of the of , 18 , the said was of sound dispos- ing mind, memory, and understanding. (2) Whether or not the said alleged will was made by reason of undue influence exercised over the mind of the said That on the same day the said precept was entered upon the record of the said court as of No. , of Term, 18 . 7. That it was then so proceeded with in the said court that the said , executrix and devisee named in the said writing of the day of , 18 , should be plaintifi", and the said , legatee and devisee as aforesaid, and the several above-named parties as cousins, as next of kin of the said , should be the defendants, and that an action was then entered on the record of the said court in the above form between the said parties to try the issues set forth in the precept of the said register. 8. That on the (date) the pleadings were filed in the said court by the counsel for the respective parties, in which issue was raised and joined upon the matters and things set forth in the said precept of the said regis- ter in accordance with the terms and requirements thereof. 9. That on the (date) a jury was called and sworn in the said court to try and determine the issues and questions aforesaid, before the Honorable , one of the associate justices of the said court ; that said cause was proceeded with under the direction of the said associate justice until (date), 750 PEACTICE IN PENNSYLVANIA. when the said jury rendered their verdict for the said plaintiff on both issues, upon which verdict judgment was entered on the (date). During the progress of the trial various exceptions to the ruling of the court as to the admission and rejection of evidence were taken by , of counsel for defendants. The court charged the jury (date), when exceptions were taken by to various parts thereof, and also to the ruling of the court on both plain- tiff's and defendants' points, all of which were noted at the time. 10. A few days before the trial it was agreed in writing by all the coun- sel, both for the plaintiff and defendants, that the testimony of the wit- nesses and all rulings, and the charge of the court, should be taken by (name), stenographer, and three copies thereof should be made and fur- nished by him, as follows : . In pursuance of this agreement the testimony of all the witnesses examined at the trial, and all rulings of the court on the admission and rejection of testimony, and all exceptions were taken by the stenographer, and copies of the same were furnished under said agreement to the court and counsel daily as the trial progressed. The charge of the court and its rulings on both plaintiff's and defendants' points, with all exceptions thereto, were taken by the stenographer, and copies thereof ftirnished to the court and counsel the day following, so that in one day after the verdict the court and counsel had full and correct copies of all testimony, rulings, and matters incident to the cause in ac- cordance with the agreement aforesaid. 11. (Here set forth the presentation of bills of exceptions to the court, the difficulties attending the same, and final refusal of the judge to seal said bill of exceptions, including conversations, correspondence, and every matter incident to the demand and refusal. Set forth the rule of court relied upon in support of the refusal to seal the bill.) (In this case it was the rule requiring a copy of the bill of exceptions to be served on counsel.) 12. And your petitioners respectftilly show that the said rule of court cannot under any reasonable or proper construction be held to have any application to a case like the present, when by virtue of an agreement as to the taking of the testimony and charge by a stenographer and the flir- nishing of copies to the respective parties, the attorney for the successM party has already in his possession, practically in like manner as if directly flimished by his adversary, a copy of the bill of exceptions. That the object of the rule is to prevent a surprise to the party and his attorney, not to compel the unsuccessful party to the performance of an useless, and, in cases like the present, involving such a voluminous mass of testimony, an almost impossible task. That this agreement in this case under which the testimony and charge were taken really substituted and took the place of the rule in this case as to a furnishing of the copy of the bill. But, even apart from this agreement, the rule must have and receive such a reasonable construction and application as shall make it not a denial and obstruction, in such cases as the present, of the right to an appeal altogether, and that the rule as undertaken to be applied and enforced against your petitioners would amount not to a regulation, but to a practi- cal denial of the privilege of an appeal and right of appeal given by the statutes of the Commonwealth. 13. Your petitioners further show that the said refusal of the said MANDAMUS. 751 judge, the Honorable , to seal the aforesaid bill of exceptions is to the grievous and manifest injury of the petitioners and the plaintiffs in said appeal, and against the statute in such case made and provided, and your petitioners and the said appellants being entitled to have the said several errors of the said judge reviewed and corrected by your Honorable Court therefore pray : That your Honorable Court award its writ in conformity with the statute in such case made and provided, directed to the said Honorable , commanding him to appear at a certain day, either to confess or deny the matters herein set forth ; and if he confess the same, to affi-y his seal to the exceptions aforesaid, and they will ever pray, etc. (Signatures of Petitioners.) State of Pennsylvania, \ County of , J **■ , being duly sworn according to law, deposes and says the facts set forth in the foregoing petition are just and true, to the best of his knowl- edge, information, and belief. Sworn to and subscribed before me, "| this day of ,A.D.18 . (Signature of Petitioner.) [seal] Notary Public. J INDOESEMENT. No. Term, 18 . In the Supreme Court of Pennsylvania, Eastern District. A. B. et al., Appellants, C. D., Appellees. Petition of A. B. ef al., appellants, to award a writ conformably to the statute in such case made and provided, directed to the Honorable , commanding him to appear at a certain day, either to confess or deny the matters therein set forth ; and if he confess the same, to affix his seal to bill of exceptions. (Signatures of Counsel) pro Petitioners. Writ allowed returnable. (Signature of Justice of Supreme Court.) It will be observed that the facts in the case from which this form is taken were peculiar. See 121 Pa. St., 18 (1888), and 127 Pa. St., 564 (1889). The writ of error was issued before this pe- tition was presented. The pleader will readily make his petition conform to the facts of his case. . § 1829. Allowance of writ. The suggestion or petition having been sworn to by the relator, have it allowed by the court or a judge thereof, then take it to the prothonotary, who will issue the alternative writ. § 1830. Form of writ. The alternative mandamus should, in general, follow the language of the petition, and it should com- mand the respondent to do the thing or things prayed for, or show 752 PRACTICE IN PENNSYLVANIA. cause why he should not do so. This example will show the form of the writ : § 1831. FOKM OF ALTERNATIVE WRIT OF MANDAMUS TO OPEN STREETS DULY AUTHORIZED BY ACT OF ASSEMBLY. City and Cotmty of Philadelphia, ss. The Commonwealth of Pennsylvania, to Mahlon H. Dickinson, Chief Commissioner of Highways, greeting : Whereas, F. Carroll Brewster, Attorney-General, has filed his informa- tion in our Court of Common Pleas, setting forth that by an Act to author- ize the opening and paving of certain portions of Fifteenth, Sixteenth, and Norris Streets, approved May 6, 1872 ^. L., 1163), the Chief Commissioner of Highways is directed to open Fifteenth, Sixteenth, and Norris Streets, through Monument Cemetery, of which you, the said Mahlon H. Dickin- son, have had notice, and that said streets, before the passage of said Act, had been marked out through said cemetery, so that the same can be opened easily and without disturbance of any interment. And whereas, on said information, and according to the prayer thereof, the said court did order a writ of alternative mandamus should issue as prayed for ; therefore. We command yon, the said Mahlon H. Dickinson, as Chief Conunis- sioner of Highways, to open Fifteenth, Sixteenth, and Norris Streets, through Monument Cemetery, of the same width as laid out on the existing plans up to the boundary lines of said cemetery, or the cause why not you show, in answer to this writ, on the eleventh day of October, 1872, and herein fail not. Witness, the Honorable Joseph Allison, president of our said court, at Philadelplda, this first day of October, 1871. GEOEGE T. DEISS, [seal] Deputy Prothonotary. § 1832. FORM OF WRIT ADDRESSED TO A JUDGE TO COMPEL HIM TO SEAL HIS BILL OF EXCEPTIONS. Eastern District of Pennsylvania, ss. The Commonwealth of Pennsylvania to , greeting : Whereas, by statute, among other things, it is provided that in any suit before the justices where an exception is taken, if the said justice before whom the same is taken refuse to allow the same, and the party making the exceptions puts the same in writing, and requires the justice to put his seal thereto in testimony of the same, if he reftise so to put his seal, it shall be afiixed as in said statute, is set forth : And whereas (names of petitioners) have filed their petition before the justices of the Supreme Court of Pennsylvania, complaining that lately in a certain case in the Court of Common Pleas, No. , for the county of , as of Term, 18 , No , before you, the said (name of judge), between (name of plaintifT) and (names of defendants), various ex- ceptions were taken and alleged to certain rulings and to your charge, and those exceptions have been put in writing for that you refuse to allow the same, and have been repeatedly required and prayed to affix your seal to those exceptions according to the form of the aforesaid statute. Yet so it MANDAMUS. 753 is, that you have objected and still do object and refuse to affix your seal to the aforesaid exceptions, to the grievous injury and manifest prejudice of the said (names of defendants), and they did pray said justices to provide a remedy for them. And whereas, said petition so filed before the justices of the Supreme Court of Pennsylvania is in words and figures as follows (here insert peti- tion at length). And because we are desirous that the aforesaid statute be strictly ob- served, and that justice be done to the said et al. in the premises, we command you that if so it be, that on or before Saturday, the of , Anno Domini 18 , you affix your seal to the aforesaid ex- ceptions thus had before you in the aforesaid suit by the aforesaid in writing, according to the form of the statute aforesaid. And herein fail not, under the penalty in such cases pending. Witness the Honorable , Doctor of Laws, Chief Justice of our said Supreme Court, at , this day of , in the year of our Lord one thousand eight hundred and , and of the Commonwealth the one himdred and Prothonotary. § 1833. Mandamus must be directed to the proper parties. In Respublica v. Commissioners, 4 Yeates, 181 (1805), a mandamus directed to the commissioners of Philadelphia County to pay the salary of the gaol-keeper, was refused. It was provided by statute that the inspectors should draw the orders and have them countersigned by the commissioners. It was shown that an arrangement was made between the commissioners and inspectors, whereby the former were allowed to draw the orders. The court decided the agreement was a mere nullity so far as it contravenes the Act of Assembly. The court must see the law car- ried into execution, notwithstanding a practice may have prevailed against it. § 1834. If the writ be against corporation officers, the corpora- tion should be a defendant. A writ of mandamus to compel the officers of a corporation to permit relator to examine their books should make the corporation a party defendant. Comm. v. Coit, 15 W. N., 270 (1884). See § 1742. § 1835. Service of the writ — The original must be handed to de- fendant. Service need not be made by the sheriff. The writ should be served by giving the original to the respondent. If there be more than one respondent, copies should be given, and the original shown to each of them, except one, to whom the original must be given. A return to the final writ that defendant was served by leaving a copy with him is not good, and will not support an at- tachment for disobedience. Comm. v. Brady, 6 Phila., 121 (1866). In Ely V. Penn District, 1 Phila., 18 (1850), it was decided that service of a mandamus upon a township by serving the president VOL. I. — 48 754 PRACTICE IN PENNSYLVANIA. and clerk of the board was not sufficient ; it should be upon the commissioners. § 1836. Respondent must be given time to comply. In Qhilds v. Comm., 3 Brews., 194 (1870), the alternative writ issued, and on the same day a peremptory mandamus was awarded. Sdd, to be error. The respondent must be given sufficient time to comply with the requirements of the alternative writ. Per Shahswood, J., quoting section 22, Act of 14 June, 1836 (P. L., 626). See § 1749. § 1837. If no appearance be entered by the return-day of the writ, prepare and file an affidavit showing that service has been made upon respondent, and stating the date and manner thereof, and enter judgment for want of an appearance. See section 23 of this book. § 1838. No rule on the defendant to demur, plead, or answer is necessary. The form of the writ requires a return. Defendant may move to quash, and, if unsuccessful, should have his return ready to be filed. If he desire to speed the case, he may rule the plaintiff to demur, etc., to the return. Commonwealtli of Pennsylvania ex relatione A. B. V. C. D. Sie: Enter rule on plaintiff to demur, plead, or answer in fifteen days, or judg- ment sec reg, E. F., Attorney for Bespondent. Pate.) To Prothonotary, Common Pleas. Notice and copy of this rule should be served on the attorney who has appeared for relator, and another copy kept. Upon de- fault, the usual reminder should be sent to counsel. If it is dis- regarded, file affidavit of service and take judgment. See section 26. § 1839. Relator must not move for judgement on the return — He must demiwr, plead, or traverse — This gives defendant opportunity to amend. In Adams v. Duffdd, 4 Brews., 9 (1863), a petition for mandamus was presented to the Court of Common Pleas, set- ting forth that relator was elected a member of Common Council in Philadelphia, and his term would not expire till December, 1862 ; that defendants, members of Common Council, declared his seat vacant previous to that time because he became an officer of the United States. The defendants responded that by Act of February 2, 1854, sec- Common Pleas, No. 1. March Term, 1890. No. 100. MANDAMUS. 755 tion 35, they were empowered to judge of the qualification of their members, and that the Act of April 16, 1838, section 38, forbade the relator to continue to hold the office of councilman after his ap- pointment as a United States officer. The court awarded the man- damus without a demurrer, plea, or traverse of material facts being filed. The Supreme Court reversed, per Loweie, C. J.: "We have no doubt the Common Pleas has jurisdiction by mandamus over municipal as over county and township officers. * * * The defendants had made their return, and according to form prescribed by the statute and insisted on by us, * * * it was then the duty of the relator to demur, plead to, or to traverse all or any of the material facts contained in such return. He did nothing of the kind. He moved to disallow the returns and enter judgment in his favor, and this was done. We cannot sanction this prac- tice, for it leaves it entirely uncertain on what grounds the case was decided. It leaves the defendants uninformed of the nature of the objections to be raised to the return, and takes away their right to amend their return in the regular course of pleading." § 1840. If respondent demnr or move to quash, which he may do if he conceive the suggestion to be irregular or defective upon its face, prepare your paper-book against his motion, and order the case upon the argument-list. See sections 28, 29, in regard to preparation of paper-books. § 1841. If respondent plead to your suggestion, file a replication where the plea demands one, and put the case on the trial-list when it is properly at issue. § 1 842. If answer or return be filed, you may, in your turn, de- mur, plead to, or traverse the answer. If it allege facts which are untrue, and which, as stated, constitute a good defense to your pe- tition, deny them by means of a traverse. If the answer be such that further statement of the facts is necessary to put the question in its proper light, embody your new allegations in the form of a plea or traverse. By these means an issue of fact or of law will sooner or later be forced upon your adversary, which must be dis- posed of respectively before a jury or upon argument in court. In Haines v. Comm., 99 Pa. St., 410 (1882), it was held that the return to a writ under the Statute of Westminster, to compel the sealing of a bill of exceptions in civil or criminal cases, was conclusive, and could not be contravened. § 1843. Eetnm, sufficiency of. The return to the mandamus must set forth the facts with sufficient certainty. Where a by-law of a society provides that the expulsion of a member must be on 756 , PEACTICE IN PENNSYLVANIA. suffideni evidence, it must appear that proofs were taken and that the charge made by the board was in writing, and signed by them as required by the charter. Society v.Oomm.., 52 Pa. St., 125 (1866). In the return to an alternative mandamus, the facts npon which the denial of the relator's rights is based must be set forth directly, specifically, and positively. Comm. v. Chittenden, 2 Dist. Rep., 804 (1893) ; Cbmm. v. School Biredors, 4 Dist. Rep., 314 (1895). § 1844. Demurrer to Answer. It will be noticed that many cases kre decided upon demurrer to the return or answer ; and upon examination of respondent's reply to the alternative writ it is prob- able that you will find your opportunity to demur. This will, in general, serve to bring before the court the entire question of your right to the relief sought as well as the sufficiency of the return. Remember, however, that by demurrer you admit all the facts properly allied by respondent. Ackerman v. Buchman, 109 Pa. St., 254 (1885). Demurrer will be proper if the return be uncer- tain, vague, or evasive, or if it be defective in substance, alleging facts which, if true, constitute no bar to your right to mandamus. But defendant is not obliged to traverse facts or answer breaches of duty not assigned in the writ. R. R. Oo. v. Comm., 120 Pa. St., 537 (1888). The return must, however, distinctly aver &cts, not mere inferences or arguments therefrom. Oman., v. Pittsburgh, 34 Pa. St., 496 (1859) ; Owim. v. Commismyners, 37 Pa. St., 237 (1860) ; Gomm. v. Commissioners, Id., 277 (1860). The certainty required in the return is of that degree called "certainty to a com- mon intent in general." The facts must be so clearly stated as to admit of a fair and ready comprehension. Possible objections need not be anticipated. See Telegraph Co. v. Friend, 114 Pa. St., 592 (1886) ; Comm. v. Commissioners, 32 Pa. St., 218 (1858) ; Comm. V. Hancock, 9 Phila., 535 (1872). Having filed your demurrer, prepare to sustain it upon argu- ment. Order it upon the list and be ready with your paper-book. Judgment in your favor upon the demurrer will be final, not re- spondeat ouster. § 1845. DEMTTEEER TO THE EETUKN TO A MANDAMUS TO OPEN STEEETS DTTLY ATJTHOEIZED BY ACT OF ASSEMBLY. Com. ex rel. Attorney-Greneral 1 V. [• Common Pleas, September, 1872. No. 209. Mahlon H. Dickinson. J The said relator saith that the said return of Mahlon H. Dickinson, and the matters contained therein, are not sufScient in law to preclude the Com- monwealth from having the writ of peremptory mandamus commanding him, the said Mahlon H. Dickinson, as Chief Commissioner of Highways, MANDAMUS. 767 to forthwith open Fifteenth, Sixteenth, and Norris Streets, through Monu- ment Cemetery, of the same width as laid out on the existing plans, up to the boundary lines of said cemetery, and the following causes of demurrer are specifically assigned : I. That neither the Act of March 15, 1847, nor of March 12, 1849, dis- abled the Commonwealth from opening highways on compensation being made for the land taken. II. That the enactment of May 6, 1872, in said alternatiye writ of man- damus recited, abrogated any previous law requiring the consent of any citizen of the Commonwealth to the opening of the streets named in said enactment. III. Because the said return is in other respects uncertain, informal, in- sufficient, and defective. Wherefore, for want of a sufficient return, the said relator prays that a peremptory mandamus do issue. F. CAEEOLL BREWSTEE, Attorney-General. § 1846. FORM OF ANSWER TO SUCMJESTION FOR MANDAMUS TO DELIVER BOOKS, ETC., OF A CORPORATION. Commonwealth ex rel. "1 > Common Pleas, No. . Term, 18 . No. . J Sur rule to show cause why a writ of mandamus should not issue, etc. , the respondent, for answer to- the above rule heretofore granted against him on the relation of , says : 1. Eespondent is advised and submits to the court, that the said is not the proper and legal custodian of the books and papers or other assets of the Eailroad Company specified in his said suggestion, and has no right to demand the same of this respondent or to have the writ of mandamus prayed for. That the only proper parties to such a proceeding are the corporation named in such suggestion and its treasurer or secretary, who alone would be entitled to the custody of the said books and papers if no receiver had been appointed to take and hold the same. 2. And further answering this respondent says : That to Term 18 , in the Court of Common Pleas, No. , for the city and county of Philadelphia, and others filed their certain bill in equity against the same corporation, the Eailroad Company, and against this respondent, and others, the directors of said corporation, praying, among other things, for the appointment of a receiver. And afterward, to wit, on the day of (months before the entry of the decree in favor of said relator referred to in his said sugges- tion), such proceedings were had in the said bill in equity pending in said Court of Common Pleas, No. , that by the consideration and judgment of said court it was then ordered and decreed that , Esq., be appointed receiver, to take charge of the books and papers, charter, and other assets of the corporation defendant, and the same to preserve under the direction of the said court. And this respondent was enjoined from intermeddling with the afiairs of said corporation or doing any act by which the present status of the case or the rights of the parties shall be affected, of which decree respondent was 758 PBACTICB IS PENNSYLVANIA. duly notified, and the same still remains in fiill force. And respondent farther saith that he contested the said proceedings in the Court of Com- mon Fleas, No. , and defended the same to the best of Ms ability ; that said decree was obtaiaed against his objection and in spite of his defense, and without his consent or collusion. And respondent is advised that the aforesaid proceedings and decree are a bar to the claim herein set up by the relator, and that said Court of Common Pleas, No. , having obtained jurisdiction over said corporation and its books and assets and over this respondent upward of a year before the bill was filed in this court, the respondent cannot be further required to answer to your Honors iu this behalf. Wherefore respondent asks to be hence dismissed with his reasonable costs. , having been duly affirmed according to law, doth affirm and say that the facts above set forth are true, to the best of his knowledge and belief. ■ Affirmed to and subscribed before me, ) this day of , 18 . | Notary Public, j § 1847. FOKM OF KETUEN TO A MANDAMUS TO OPEN STREETS DULT ATJTHOEIZED BY ACT OP ASSEMBLY. The Commonwealth of Pennsylvania ex rel. F. Carroll Brewster Common Pleas, September Term, 1872. No. 209. V. Mahlon H. Dickinson, Chief Commissioner of Highways. The return of Mahlon H. Dickinson, the defendant above named, to the writ of alternative mandamus, shows to the court : 1. That this defendant is informed, and believes it to be true, that the Monument Cemetery Company of Philadelphia, the corporation named in the Act of the Greneral Assembly of the Commonwealth of Pennsylvania, passed March 15, 1847, and referred to in the Acts of Assembly cited in the said writ, being advised that the said Act of March 15, 1857, was in some of its provisions unconstitutional, at a formal and regular meeting of its corporators, in the year 1847, rejected the whole of the said Act of Assem- bly, and refused to accept the same. 2. That on the 12th of March, 1849, the said General Assembly passed an Act entitled " An Act relating to the Monument Cemetery of Philadel- phia," which was duly and legally accepted by the said corporation, the third section of which is iu these woids, viz. : " That no streets or roads shall hereafter be opened through the grounds of the said cemetery company, occupied as a burial ground, except by and with the consent of the managers thereof." That this last Act is wholly unrepealed and in fiill force. That the streets mentioned in the said writ, if opened as demanded, will pass through the grounds of the said Monument Cemetery Company, occapied as a burial ground, and that the managers thereof have not given their consent thereto. 3. That whilst it is true that there are no interments of hiunan bodies actually made in the parts of said cemetery grounds which will be occupied MANDAMUS. 759 by said [streets, if opened as demanded through the same, yet there are such interments in close proximity thereto, and that the opening of said streets as demanded will necessarily destroy to a great extent the privacy and sacredness of said burial ground, and entail very large cost upon the said cemetery company, and that the whole of the groimd proposed to be taken by the opening of said streets is occupied by said cemetery company for a burial ground, and for no other purpose. 4. That if the said Act of March 15, 1857, was, prior to its attempted re- peal, a valid Act, and part of the charter of the said " The Monument Cemetery Company of Philadelphia," which was originally incorporated by the Commonwealth of Pennsylvania, by Act passed March 19, 1838,' then the Act of May 6, 1872, is unconstitutional, so far as it attempted to repeal the third section of the Act of March 15, 1847. Wherefore the said defendant prays to be hence dismissed with his costs, .etc. (Here insert affidavit.) • § 1848. FOKM OF ANSWER TO A MANDAMUS TO SEAL A BILL OF EXCEPTIONS IN AN ISSUE DEVISAVIT VEL NON. et al., Appellants, ] In the Supreme Court of Pennsylva- V. > nia, for the Eastern District. Appellees. ) Of Term, 18 . No. . To the Honorable the Judges of said Court : The answer of to the writ hereto attached directed to him by the said court on the day of , A. D. 18 . This respondent by protestation, not admitting or allowing any of the matters of the petition of to be true as they are therein alleged, answering, saith : That on (date), there was called for trial before this respondent in the Court of Common Pleas, No. , for the county of Philadelphia, a certain case in which , executrix mentioned in the last will and testament of , deceased, was plaintiff, and et al. (naming them), were defendants, the same being an issue framed in said court on a precept from the Eegister of Wills of Philadelphia County, to determine whether or not , deceased, was, at the time of the making of his last will and testament, dated ,18 , of sound disposing mind, memory, and understanding, and whether or not said will was made by undue influence exercised over the mind of the said That at said trial , Esq., appeared as counsel for plaintiff, and , Esq., and , Esq., appeared as counsel for the various defendants. That the said Court of Common Pleas, No. , had not then, and never has had, an official stenographer, nor was there an official stenographer employed in the trial of said cause. That prior to the trial, for their own convenience, counsel for the respec- tive parties in interest entered into the following agreement : V. \ C. P., No. . Term 18 . No. . d al. ) " And now (date), it is hereby agreed between counsel for all the parties in interest that be employed as stenographer to take the testimony 760 PEACTICE IN PENNSYLVANIA. and charge of the court in the ahove case ; that three copies thereof be ma«le, one for the court, one for counsel for plaintiff, and one for counsel for defendants ; and that the stenographer be paid out of the funds of the estate of , deceased." That said agreement was signed by counsel for the various parties in in- terest, but this respondent was not a party thereto. That it was not in- tended to, and did not and could not, take the place of the rules of court hereinafter set forth, without the consent of this respondent, which consent was neither asked nor given at any time. That In point of fact four copies, in all respects alike, were made by the stenographer, one copy of which was given to this respondent, one to counsel for plaintiff, and two to counsel for defendants. That the copy from time to time given this respondent was alleged to contain the oral testimony given on the trial of the cause and the charge of the court, but it did not contain, as in said petition averred, all the testi- mony, rulings, charges, and exceptions incident to the case. That said trial was so proceeded with that on (date), the jury rendered a verdict for the plaintiff on both issues. That for many years prior to said trial, at that time and always since then, the rules of said Court of Common Pleas, No. , have provided, infer alia, as follows (here insert rules of court). That the said court had and has power to make said rules, and they are not only reasonable, but are essential to the orderly and proper administra- tion of public justice in courts of law. That said rules have been published from time to time, and are well known to all practitioners in said court, and may be readily and easily known to all litigants. That rules in all essential respects similar to the foregoing are in force in all the Courts of Common Pleas of this Commonwealth, so far as are known to this respon- dent ; and said rules, in hoec verba, were in force in your Honor's court, when sitting as a Court of 2/isi Prius, prior to the adoption of the Consti- tution of this Commonwealth in 1874, which abolished said Court of Nisi PriiLS ; and sections , as above, are conjoined and form rule as at present in force in your Honor's court. That on (date), , Esq., one of the counsel for the appellants, presented to this respondent a book alleged to be a bill of exceptions, and this respondent was requested to affix his seal thereto ; but said alleged bill of exceptions was confessedly incorrect and incomplete, and the request to seal the same was withdrawn by , and at his request the same was marked, in accordance with section of the rules of court aforesaid, as follows : " Presented (date), ." No agreement of any kind was made in relation thereto, either by this respondent or by counsel for the appellee, in this respondent's presence or witii this respondent's knowledge. That nothing further was ever done in relation to said alleged bill of ex- ceptions, so far as is known to this respondent, until (date) (here state the ' Mr. then stated that counsel for the appellee had examined the alleged bill of exceptions, and had agreed thereto with the single change that the exceptions to the charge of the court should be sealed as exceptions for Mr. , instead of exceptions for defendants as pre- pared by him, Mr. ; and that counsel for the appellee had subsequently agreed to the same thing in the presence of this respondent. This was denied by counsel for the appellee, who asserted that he had had MANDAMUS. 761 no opportunity to examine said alleged bill of exceptions, and had not examined it, and that he had made no agreement of any kind in relation thereto. Said alleged agreements of counsel not being in writing, this re- spondent, under the rules of court as aforesaid, was obliged to consider the same as of no validity. As a matter of fact, no such agreement was made in the presence of this respondent. Counsel for the appellants then tendered to counsel for the appellee an alleged copy of said alleged bill of exceptions, to be used in the then present sealing of the bill ; but counsel for the appellee refused to receive the same for that purpose, because not in compliance with the rules of court aforesaid. It was admitted at that time by all of the Counsel for the appellants then present, to wit, , that there had been a failure on their part to com- ply with the rules of court as aforesaid ; and counsel for the appelllee insist- ing upon a compliance therewith, this respondent declined to seal said alleged bill of exceptions. It was also admitted by counsel for the appellants that they had re- ceived during the trial two complete copies of the testimony and charge of the court, in all respects similar to the one received by counsel for the appellee ; and it was also stated by them that, with all the force they could put to work, it had taken them all the intervening time from the receipt of the letter of counsel for the appellee as aforesaid, requiring a copy of the bill, until the then present hour, to transform one of said copies into a copy of said alleged bill of exceptions. Counsel for the appellants admitted that the time for sealing the bill, as provided by the rules of court aforesaid, had expired, and requested this respondent to give them further time than as provided in said rules ; but the same was objected to by counsel for the appellee, and this respondent saw no reason why the rules of court could not, and should not, have been complied with, and therefore declined so to do. No other time was ever mentioned or fixed by counsel for the appellants for sealing of said alleged bill of exceptions, nor was this respondent, at any subsequent time, requested "to examine the same or affix his 'seal thereto, That as to the other alleged agreements between counsel in said petition set forth, this respondent has no personal knowledge of the same, and they were and are denied by counsel for the appellee, and are not in writing, and must, therefore, under the rules of court as aforesaid, and under rule of your Honor's court, be considered of no validity. And this respondent further showeth to your Honors that he had no opportunity to examine such alleged bill of exceptions until after the ser- vice of this writ upon him, when there was served upon him a copy of said alleged bill of exceptions, in which copy it is stated, among other things, that certain exceptions, seventeen in number, were taken by the defendants to''the"charge and rulings of this respondent, which were never taken by them in Jmanner and form as therein set forth, nor were they noted or stated as so taken in the copies furnished by the stenographer as aforesaid. That said alleged bill of exceptions is, in this respect, in precisely the form in which it was on (date), when it was presented to this respondent, as here- inbefore set forth, and he declined to seal the same because it did not cor- rectly recite the facts. And this respondent avers that it is not a true bill 762 PRACTICE IN PENNSYLVANIA. of exceptions, and does not state [the exceptions in manner and form as ihey were taken upon the trial of the cause. And this respondent ftirther showeth to your Honors that at the conclu- sion of the trial of said cause counsel for the appellanis had two com- plete copies of the oral testimony and charge, as taken stenographically, the same in all respects as the single copy furnished counsel for the ap- pellee ; and in view thereof it was neither unreasonable nor unjust to them to require of them that they comply with the rules of court as afore- said. And this respondent respectfully submits to your Honors that said rules of court are, of necessity, applicable to all causes alike, whether the testimony taken be much or little, and howsoever counsel, for their own convenience, obtain copies of the same. And this respondent further showeth to your Honors that the testimony and charge, as fiirnished by the stenographer, is confessedly incomplete as a bill of exceptions ; so much so that counsel for the appellants averred to lyour respondent, and in said petition it is averred that they had " at once set about preparing such a copy (of the alleged bill of exceptions) on the receipt of Mr. 's notice (as aforesaid), and though hardly possible they had by use and combination of all materials been able only by this moment (date) to prepare the same ;" and this respondent respect- folly submits to your Honors that it was unreasonable to ask counsel for the appellee to admit that he had a copy of said alleged bill of ex- ceptions, or to accept that which he had in lieu of the copy to which he was entitled under the rules of court as aforesaid, when, with all the force they could put at work, it took the appellants forty-eight hours to trans- form a copy in all respects similar to his into an alleged bill of excep- tions ; and it is not therefore correctly stated in said petition that counsel for the appellee " has already in his possession, practically in like manner as if directly fumKhed by his adversary, a copy of the bill of exceptions." Eespondent respectfully submits that an order should be entered by your Honors that this respondent go without day. (Signature of Respondent) Philadelphia County, ss. , the respondent above named, being duly sworn according to law, deposes and says that the facts set forth in the foregoing answer are just and true, to the best of his knowledge, information, and belief. Sworn to and subscribed before me, ] this day of ,A.D.1887. (Signature of Eespondent.) Judge, C. P. j § 1849. Bills of exceptions — Eetnrn to writ under Statute Westminster II. conclusive. Upon a petition under the Statute Westminster II. (13 Edw. I., ch. 31) for a writ to the judge of a lower court to compel the sealing of a bill of exceptions, the return of the judge is conclusive. If it be untrue in fact, the relator is left to his remedy by action against the judge for a false return. For this reason greater certainty is required in the return to this writ, certainty to the greatest possible extent ; and the proper method of raising the question of the sufficiency of the return is by filing ex- MANDAMUS. 763 ceptions to it. Oonrow v. Sohloss, 55 Pa, St., 28 (1867) ; Haines V. Oomm., 99 Pa. St., 410 (1882). § 1850. Trial. As already indicated, if an issue of fact be raised at any stage of the proceedings, it must be decided, as in the case of other civil action, before a jury. Order the case on the trial- list, and prepare for trial with its usual incidents of verdict, motion, and rule for a new trial, payment of jury fee, and final judgment, §1851. Peremptory mandamus. Any of these roads having been travelled to final judgment in your favor, obtain the writ of per- emptory mandamus, which issues of course. It should follow the language of the alternative writ down to the command to show cause, etc. Serve it in the same manner as is required in the case of the alternative mandamus. See section 1835. § 1852. FORM OP PEREMPTOBY MANDAMUS. County of Philadelphia, «s. , The Commonwealth of Pennsylvania to (names of respondents), greeting : Whereas (names of relators), lately, that is to say, in the term of , A. D. 18 . , No, , exhibited their petition before the Honorable the Judges of our Court of Common Pleas, No. , for the county of Philadelphia, asking relief touching the matters therein particularly complained of and set forth at length ; now therefore, upon due consideration thereof, we do command you (here insert the particular acts and duties to be performed by respon- dents, as prayed for in your petition). Witness the Honorable , president of our said court, at Philadel- phia, the day of , in the year of our Lord one thousand eight hundred and eighty Prothonotary. § 1853. Attachment for contempt. Where a mandamus is not obeyed, an attachment will issue for contempt. Comm. v. Taylor, 36 Pa. St., 263 (1860). Prepare an affidavit showing time and manner of service and averring respondent's neglect or refusal to comply with the man- damus, and take a rule to show cause why the attachment should not issue. The rule being made absolute, get the attachment from the prothonotary and give it to the sheriff for service, with direc- tions as to respondent's address, etc. The sheriff will serve by taking the respondent into custody to await the disposition of the court, which wUl enforce obedience by process for contempt. See CcmL V. Sheehan, *81 Pa. St., 132 (1872). 764 PRACTICE Df PENNSYLVANIA. § 1854. FOBM OF RULE TO SHOW CAUSE WHY AN ATTACHMENT SHOULD NOT ISSUE. Commonwealth of Pennsylvania ex rel. "l ! Court of Common Pleas, , of V. I County. Term,;i8 . No. , A. B. et al. J And now (date), on consideration of the within affidavit and on motion of , this court enter a rule on (A. B. et cU.) to show cause why an attachment should not issue against them for contempt of this court in dis- obeying the peremptory mandamus issued (date). Returnable (date). Get a judge to append his initials. To this rule the defendant must file an answer. If the court should decide the answer insufficient, an order will be made for the attachment. § 1855. FOBM OE 0KDE9 FOB ATTACHMENT. Commonwealth of Pennsylvania ex rel. 1 I Court of Common Pleas, No. , of V. I County. Term, 18 . No. . C. D. et al. J And now (date), the answer of the above-named defendants (state official capacity, if any) to the rule granted upon them to show cause why an atteichment, as for a contempt, should not be issued against them for dis- obeying the vfrit of peremptory mandamus issued against them heretofore, being read, it is judged insufficient as an answer to the rule ; and it is decreed that the rule be made absolute; and that an attachment do now issue against (names of defendants), (state official capacity, etc.), and the sheriff of County is directed to have them before this court on the first day of (Signature of Ju^e.) § 1856. form of attachment. State op Pennsylvania, 1 County of Philadelphia, J " The Commonwealth of Pennsylvania to the sheriff of the said county, greeting : We command you to attach A. B. so to have him before our Court of Common Pleas, No. , of said county forthwith, then and there to answer, as well touching a contempt which he, as it is alleged, has committed s^ainst us in disobeying the peremptory writ of mandamus issued out of this court (date) as of Term, No. , as also such other matters as shall be laid to his charge ; and farther to abide the orders of our said Court in this behalf. And hereof fail not. Witness the Honorable , president judge of said court, at Phila- delphia, this day of , A. D. one thousand eight hundred and eighty A. B., [seal] Clerk. MANDAMUS. 765 § 1867. Damages. Damages suffered by the relator may be as- sessed by the jury trying issues of fact, and may be collect€d by the ordinary process of execution. If the case be decided without the intervention of a jury, relator may have his writ of inquiry of dam- ages. See Chapter XV. upon that head. Soddy V. Qrnnm., 31 Pa. St., 86 (1885), Lewis, C. J. " The Act of 14 June, 1836, gives the right to recover damages in the writ of mandamus as in an action for a false return of such writ." § 1858. Appeal. From the final judgment of the Court of Com- mon Pleas an appeal will lie to the Supreme Court, as in other ac- tions at law ; but judgment awarding the alternative writ is not final, and an appeal therefrom is premature. Supervisors v. Brod- head, 7 Cent. Eep., 49g (1887). See sections 1751m, 1751w, and 17510. § 1859. The pleadings and no extraneous matters are considered by the Supreme Court on appeal. Those defenses which should be set up in the defendant's return to a writ of alternative mandamus, and which are omitted, cannot be considered on error to the Su- preme Court. Borough v. Water Co., 97 Pa. St., 554 (1881). In Oomm. v. Bechert, 16 W. N., 508 (1885), a writ of peremp- tory mandamus was awarded, directed to the controller of Philadel- phia, to countersign a warrant drawn in favor of relator. The re- spondent took a writ of error, but the relator, fearing that the delay in the Supreme Court would practically be a decision against him, obtained a rule to enforce obedience to the mandamus upon filing a refunding bond, with security, for the repayment of the money if the decision should be reversed. CHAPTER XXIII. NEGLIGENCE. § 1860. No limitation as to damages for injuries nor as to time within which action shall be brought against corporation, different from other cases. No Act of the General Assembly shall limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property ; and, in case of death from such injuries, the right of action shall survive, and the Gieneral Assembly shall prescribe for whose benefit such action shall be prosecuted. No Act shall prescribe any limitations of time within which suits may be brought against corporations for injuries to persons or prop- erty, or for other causes, different from those fixed by general laws regu- lating actions against natural persons; and such Acts now existing are avoided. (Constitution of 1874, article 3, section 21.) § 1861. Action shall not abate by death of plaintiff. No action hereafter brought to recover damages for injuries to the person by negligence or de&ult shall abate by reason of the death of the plaintiff; but the personal representatives of the deceased may be substi- tuted as plaintiff, and prosecute the suit to final judgment and satis&ction. (Act of April 16, 1851, section 18 ; P. L., 674.) § 1862. Widow or personal representatives may maintain action. Whenever death shall be occasioned by unlawful violence or negl^ence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased, or, if there be no widow, the personal representatives, may maintain an action for and recover damages for the death thus occasioned. (Ibid., section 19.) § 1863. Who may bring action. The persons entitled to recover damages for any injury causing death shall be the husband, widow, children, or parents of the deceased, and no other relative ; and the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors. (Act of April 26, 1855, section 1 ; P. L., 309.) § 1864. When action shall be brought — Declaration. The declaration shall state who are the parties entitled to such action ; the action shall be brought within one year after the death, and not there- after. (Ibid., section 2.) NEGLIGENCE. 767 § 1865. Certain laborers employed on roads, etc., of railroad companies have only rights of employes. When any person shall sustain personal injury or loss of life while law- fully engaged or employed on or about the roads, works, depots, and prem- ises of a railroad company, or in or about any train or car therein or thereon, of which company such person is not an employ^, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employ^ : Provided, that this section shall not apply to passengers. (Act of April 4, 1868, section 1 ; P. L., 58.) § 1866. Damages. In all actions now or hereafter instituted against common carriers, or corporations owning, operating, or using a railroad "as a public highway, whereon steam or other •motive power is used, to recover for loss and damage sustained, and arising either from personal injuries or loss of life, and for which, by law, such carrier or corporation could be held responsi- ble, only such compensation for loss and damage shall be recovered as the evidence shall clearly prove to have been pecuniarily suffered or sustained, not exceeding in case of personal injury the sum of three thousand dollars, nor in case of loss of life the sum of five thousand dollars. {Ibid., sec- tion 2.) § 1867. Article 3, section 21, of the Constitution — At first held unavailing as against previous acceptance of the provisions of the Act of April 4:, 1868. Under the constitutional provision, above quoted (Article 3, section 21), it was held in Pa. R. JR. Co. v. Lang- don, 92 Pa. St., 21 (1879), per Paxson, J., that a railroad com- pany accepting by formal resolution of its board of directors that portion of the Act of April 4, 1868 (P. L., 58), which limited the amount recoverable for death caused by the negligence of common carriers, thereby made such Act a part of its charter, which could not be abrogated by the subsequent adoption of the Constitution ; that therefore, in spite of the provisions of section 21, Article 3, a company which had so accepted in 1868 could not be held liable in case of death resulting from its negligence in a greater amount than $5000. § 1868. Effect of Article 3, section 21, doubted. In Railroad Company v. Boyer, 97 Pa. St., 91 (1881), it was doubted, though not decided, whether the constitutional prohibition repealed the limitation of liability for death under the Act of 1868, and whether that Act applied at all to a railroad company which had not accepted it. § 1869. Idmitation of liaMlity held abrogated — Constitution ap- plies equally to accepting and non-accepting corporations. Lewis v. Hollahan, 103 Pa. St., 425 (1883), took more decided ground. 768 PKACTICE IN PENNSYLVANIA. It was therein held that the statutory Limitation to $5000 damages in case of death applied equally to assenting and non-assenting cor- porations ; that the result of non-acceptance by any company was merely to deprive it of the privilege of indemnity by insurance, as provided by section 3 of the Act of April 4, 1868, and of the bene- fit of section 4 of that Act. Further, that the limitation of liability contained in said Act was abrogated and repealed by Article 3, sec- tion 21, of the Constitution. The earlier case of Pa. R. R. Go. v. Langdon, supra, was said to be " well decided on other controlling questions, but we do not see our way clear to follow it as authority on the precise constitutional question involved in this case. One of the questions in that case was as to the effect' of acceptance by the company of the Act of 1868. In this case that question does not arise." Per Steerett, J. But in R. R. Co. v. CJonway, 17 W. N., 429 (1886), it was said that Railroad Co. v. Langdon was not overruled by Lewis v. HoUahan, supra, though (per Paxson, J.) " some of the reasoning by which it was supported was not sustained in the later case." A verdict of over $5000 was sus- tained, it not having properly appeared at the trial of the cause that the defendant company had accepted the provisions of the Act of April 4, 1868. § 1870. Leuns v. HoUahan confirmed. R. R. Co. v. Langdcm overruled. In R. R. Co. v. Bowers, 124 Pa. St., 183 (1889), this vexed question was finally settled. It was there held doubtfiil whether the legislature is empowered to make a binding contract with corporations limiting their liability for negligence, which it is beyond the power of a subsequent l^islature to repeal or modify ; and it was explicitly ruled that the limitations of liability con- tained in the Act of April 4, 1868, were absolutely repealed and annulled as to accepting or non-accepting corporations by virtue of the constitutional clause above referred to. "Railroad Company V. Langdon, as was said by our brother Sterrett in Lewis v. Sbl- lahan, supra, was well decided on other controlling questions, and upon all of those questions it stands as authority. To the extent, however, that it refers to the effect of the present Constitution upon the Act of 1868, it is now overruled." Opinion by Paxson, C. J. Judgment affirmed upon a verdict for plaintiff of $14,500 (all above $10,000 remitted), against a carrier which had accepted the Act of 1868, the cause of action being death occasioned by the negligence of the company defendant. § 1871. Limitation of liability for personal injuries invalid. The right to recover damages for personal injuries is not the creature of statute law. It is protected wholly and in part by the biU o^ rights. NEGLIGENCE. 769 and the provision in the Act of April 4, 1868 (P. L., 58), limiting the liability of carriers for such injuries, when caused by their neg- ligence, to $3000 is invalid. Central Railway v. Oooh, 1 W. N., 319 (1875) ; Passenger Railway v. Boudrou, 92 Pa. St., 475 (1880). § 1872. Special limitations of time for bringing action avoided. In re Orape Street, 103 Pa. St., 121 (1883), section 21, Article 3, of the Constitution was given a broad construction, applying it to- all claims against individuals or corporations without regard to the form of proceedings to enforce the claim. It was held that thereby the limitation of one year prescribed in the general road law of June 13, 1836, section 7, for the commencment of proceedings for assess- ing damages for the opening of streets was avoided as to damages accrued since the Constitution went into effect. See also Brower v. City, 26 W. N., 270 (1890). The special period of limitation of three years, established by Act of April 17, 1866 (P. L., 106), in the cases therein enumerated (for right of way and for use and occupancy), is repealed by Article 3, section 21, of the Constitviion of 1874. Bowling v. R. R. Co., 21 W. K, 527 (1888) ; SdpU v. B. & C. V. R. R. Co., 129 Pa. St., 425 (1889). § 1878. Limitation under Act of April 26, 1855, not repealed. But the limitation of one year within which actions must be brought under the Act of 26 April, 1855, is not repealed by this section of the Constitution. Wasson v. Pa. Co., 25 P. L. J., 184 (1878) ; Kasfmer v. R. R. Co., 41 Leg. Int., 346 (1884). § 1874. Suit does not abate upon death of wrongdoer. The provision in the Constitution (Article 3, section 21), that the right of action for injury to persons or property shall survive, means that such right shall survive in favor of the representatives of the person injured, not that it shall survive the death of him who commits the injury. Moe v. Smiley, 125 Pa. St., 136 (1889). But the Act of June 24, 1895 (P. L., 236), provides that in cases of injuries wrongfully done to the person of another the right of action shall survive against the personal representatives of the wrongdoer. § 1875. Acts of 15 April, 1861, and 26 April, 1855 — Action therewnder should be brought in name of all surviving children. Under Acts of 15 April, 1851 (P. L., 674), and 26 April, 1855 (P. L., 309), an action for the death of a father caused by defen- dant's negligence should be brought in the names of all the chil- dren, whether injured by the death or not. The proceeds of the suit are to be divided among them as if under the intestate law, VOL. I. — 49 770 PKACTICE IN PENNSYLVANIA. and, though the action is in tort, they may recover jointly. R. R. Co. V. Robinson, 44 Pa. St., 175 (1863). § 1876. If widow survive, action should be brought in her name alone. If the person killed leave a widow and children, only the former should be made plaintiff, but the children should be named as parties entitled. R. R. Co. v. Decker, 84 Pa. St., 419 (1877) ; Borough v. Reinhart, 41 Leg. Int., 337 (1883). § 1877. Court will not reverse for technical misjoiner after trial on the merits. If the children be improperly joined as plaintiffs, the Supreme Court will not reverse therefor, atler trial on the merits, without objection, and after verdict and judgment against defen- dant. R. R. Go. v. Oonway, 17 W. N., 429 (1886). § 1878. If decedent leave widow, his parents are not entitled. If a widow and parents, but no children, survive, the widow alone is entitled to the damages. The parents have no right to any part thereof. Lehigh Go. v. Rwpp, 100 Pa. St., 95 (1882). § 1879. Personal representatives cannot sue for the damages — Widow or relatives have the right. If the injured person die, the right of action against the wrongdoer for his death survives to his widow, not to his personal representatives. The Act of April 26, 1855, is still the law upon this subject, the l^islature having made no further enactment in regard thereto under provision of Article 3, section 21, Constitution of 1874. Books v. Borough of Danville, 95 Pa. St., 158 (1880). The Act of April 15, 1851, is modified and altered in this re- spect by that of April 26, 1855, which confers the right to sue upon the relatives therein mentioned iustead of decedent's repre- sentatives. Goakley v. R. R. Go., 5 Clark, 444 (1858) ; R. R. Co. v. Zebe, 33 Pa. St., 318 (1858) ; Books v. Borough of JDanville, supra. But the earlier Act is not so far repealed as to invalidate pro- ceedings under it before the passage of the later one. Conroy v. R. R. Co., 1 Pitts., 440 (1858). A husband suing as adminis- trator of his wife was in that case allowed to amend his narr. in accordance with the Act of April 26, 1855, upon the passage of that Act. § 1880. Action lies for death caused by sale of liquor to an intoxi- cated person. An action may be maintained by a widow against an innkeeper who has furnished intoxicating liquor to her husband while he was drunk, in consequence of which he fell and received injuries resulting in death. Her right to sue in such case is sus- tained by Acta of April 15, 1851, sections 18, 19 (P. L., 674), and April 26, 1855, section 1 (P. L., 309), in conjunction with the Act of May 8, 1854 (P. L., 663). Fink v. Garman, 40 Pa. St., 95 (1861). NEGLIGENCE. 771 § 1881. Recovery for death of adult child if the family relation have continued. Parents may recover for the death of a child over age if the family relatiou be shown to have continued, and if there be ground for reasonable expectation of pecuniary advantage from him. R. R. Co. v. Adams, 55 Pa. St., 499 (1867) ; R. R. Co. v, Keller, (57 Pa. St., 300 (1871). § 1882. The question is for the jury. It is for the jury to say whether there is such reasonable expectation. R. R. Co. v. Kirk, 90 Pa. St., 15 (1879). § 1883. No right of action in parents for death of emancipated infant child. If the child be free by age or emancipation, and live apart from his parents, contributing nothing to their support, they have no right of action for his death. In this case the decedent was an infant nineteen years of age, and married. Lehigh Co. v. R'wpp, 100 Pa. St., 95 (1882). § 1884. Mother cannot recover for injury to minor child. A mother cannot recover under the Acts for injury (not resulting in death) to her minor son, nor for the expense of medical attendance, etc., in- curred in curing him of such injury. Railway Go. v. Stuttler, 54 Pa. St., 375 (1867), See also Veon v. Oreaton, 27 W. N., 57 (1890), in regard to the " person aggrieved," under Act of May 8, 1854 (P. L., 633), by injuries to a minor son not resulting in his death. § 1885. Father may have an action for injury to infant son. A father may recover for loss of services of an infant son and for ex- penses of nursing, etc., if the son be injured by the negligence of another. R. R. Co. v. KeUy, 31 Pa. St., 372 (1858). § 1886. Mother may recover for death of infant son. If the minor sou of a widow die from his injuries, she may recover against him whose negHgen6e was the cause of it. R. R. Co. v. Bantom, 54 Pa. St., 495 (1867). § 1887. Mother of a hastard cannot maintain action for his death. The mother of a bastard has no right of action for negligence re- sulting iu his death. Harkins v. P. & R. R. R. Co., 11 W. N., 120 (1881). § 1888. Act of April 26, 1855, is without extra-territorial effect. The Act of April 26, 1855, has no extra-territorial force. It will not sustain an action by the widow in a Pennsylvania court for an injury committed in New Jersey, resulting in the death of her hus- band, the law of that State requiring such an action to be brought by the representatives of the decedent for the benefit of the widow and next of kin. Usher v. R. R. Co., 126 Pa. St., 206 (1889); Knight v. R. R. Co., 13 W. N., 251 (1883). 772 PEACTICE IN PENNSYLVANIA. § 1889. Snit authorized against the representatives of a decedent' wrongdoer. The Acts of April 15, 1851, section 19 (P. L., 674), and April 26, 1855 (P. L., 309), did not authorize a suit against the representatives of one who kills another by violence brought after the death of the wrongdoer. Moe v. Smiley, 125 Pa. St, 136 (1889). But such action may be maintained under the Act of June 24, 1895 (P. L., 236). See § 1874. § 1890. Damages under the Acts of April 15, 1851, and April 26, 1855 — To be measured by pecuniary standard. Damages for the death of another caused by defendant's n^ligence are to be estimated by a pecuniary standard. JR. R. Co. v. Robinson, 44 Pa. St., 175 (1863) ; R. R. Co. v. 2e6e, 33 Pa. St., 318 (1858); R. R. Co. v. Vandever, 36 Pa. St., 298 (1860) ; R. R. Go. v. Decka-, 84 Pa. St., 419 (1877). No mental soliatum or compensation for the sufferings of the per- son injured can be allowed the survivors. R. R. Go. v. Zebe, supra ; R. R. Co. v. Buihr, 57 Pa. St., 335 (1868) ; R. R. Co. v. Vaiir- dever, 36 Pa. St., 298 (1860) ; OoaUey v. R. R. Co., 5 Clark, 444 (1858) ; Coal Co. v. MoEnery, 91 Pa. St., 185 (1879). ' § 1891. Compensation the rule. For n^ligence without wanton- ness or malice the damages are merely compensatory. Lehigh Co. V. Ru^, 100 Pa. St., 95 (1882) ; Phila. TracHiyn, Co. v. Orbann, 119 Pa. St., 37 (1888) ; CoUins v. Leafy, 124 Pa. St., 203 (1889). §1892. Probableeamings the true measure of loss by death. The proper measure of pecuniary loss suffered by the death of a father is the amount which the deceased would probably have earned by his intellectual or bodily labor in his business or profession during the residue of his lifetime, and which would have gone for the bene- fit of those suing, taking into consideration his age, ability, and disposition to labor, and his habits of living and expenditure. Per Shakswood, J., in R. R. Co. v. BuOer, 57 Pa. St., 335 (1868). § 1893. Pecuniary damage must be clearly shown. The measure of damage is such compensation only as the evidence shall clearly show to have been pecuniarily suffered by surviving relatives. R. R. Co. V. Decker, 84 Pa. St.,''419 (1877). See R. R. Co. v. Kdler, 67 Pa. St., 300 (1871). § 1894. Legal claim upon decedent not essential — Jury must de- termine amxiunt. It is not necessary to sustain the action that the survivors should have had a legal claim upon the person killed. Id. The sound sense of the jury must ascertain the pecuniary value from the evidence in the case. Id. The damages are such as the court and jury, under all the circumstances, shall consider reasonable. R. R. Co. V. Bantom, 54 Pa. St., 495 (1867). NEGLIGENCE. 773 § 1895. Under Act of 1855 jury should be definitely instructed as to the measure of damage. Under the Act of April 26, 1855, it is error to allow the jury to apply what standard they may see fit for the measurement of damages. R. R. Co. v. Kelly, 31 Pa. St., 372 (1858) ; R. R. Co. v. Ze6e, 33 Pa. St., 318 (1858) ; R. R. Co. v. Vandever, Id., 298 (1860). See Collins v. Leafy, 124 Pa. St., 203(1889). So it is error to instruct the jury that in measuring the damage " they might also consider the opportunities of acquiring wealth or fortune by change of circumstances in life." Mansfield Go. v. McEnery, 91 Pa. St., 185 (1879). But if the idea of mere compensation be fairly expressed in the charge of the court, it Js not error that the word " compensation " is omitted. R. R. Co. v. Franz, 24 W. F., 321 (1889). § 1896. More latitude allowed the jury under Act of 1851. It would seem to have been proper, however, to allow the jury to find the standard of measurement in a suit by decedent's personal repre- sentatives, under Act of Api-il 15, 1851. " The law can furnish no definite measure for damages that are essentially indefinite." Per LowKiE, J. R. R. Co. V. MoOoskey, 23 Pa. St., 526 (1854). § 1897. Measure of damage in suit for death of minor child. If the suit be by parents for the death of a minor child, the standard of damage is the pecuniary value of his services during minority, expenses of nursing, medical and funeral expenses, etc. R. R. Co. V. Zebe, 33 Pa. St., 318 (1858). See R. R. Co. v. Kdly, 31 Pa. St., 372 (1858) ; R. R. Co. v. Bantom, 54 Pa. St., 495 (1867). The standard is the same if the plaintiff be the widowed mother of the deceased minor. R. R. Go. v. Bantom, supra. § 1898. In suit for injury to child, parent should not recover the damages enuring to the person injured. In estimating the damage to a parent for injury to his minor child, the elements of compen- sation for which the child himself has a right of action should be excluded from the calculation. R. R. Co. v. Kelly, 31 Pa. St., 372 (1858). § 1899. Measure of damage for personal injuries. Damages for injuries resulting from negligence generally include not only the direct expenses incurred by the plaintiff by reason of the injury, but also for the privation and inconvenience he is subjected to, and for the pain and suffering he has already endured, bodily and men- tally, and which he is likely to experience, as well as the pecuniary loss he has sustained, and is likely to sustain, during the remainder of his life from his disabled condition. Scott Tovmship v. Mont- gomery, 95 Pa. St., 444 (1880). 774 PRACTICE IN PENNSYLVANIA. § 1900. Funitive damages. Exemplary or punitive damages are recoverable where the act" of defendant's servant has been com- mitted wilfully and maliciously, or in the absence of actual malice, where it has been committed under circumstances of violence, op- pression, outrage, or wanton recklessness. GoaMey v. R. R. Co., 5 Clark, 444 (1858) ; Nagle v. Midlison, 34 Pa. St., 48 (1859) ; PhUa. Traction Co. v. Orbann, supra; R. R. Co. v. Lyon, 123 Pa. St., 140 (1888). If the injury complained of was caused by the defendant's wilful misconduct, or that entire want of care which would raise a pre- sumption of conscious indifference to consequences, he is liable for exemplary damages. A corporation is so liable for the act of its servant, done within the scope of his authority, under circumstances which would give such right to the plaintiff against the servant were the suit against him. R. R. Co. v. Rosenweig, 113 Pa. St., 519 (1886). See remarks upon the subject of punitive damages for the recklessness of a servant in McFadden v. Ravsch, 119 Pa. St., 507 (1888) ; opinion of Wlliams, J. § 1901. For enforcement of illegal rule. Injury occasioned through a corporation's enforcement of an ill^al rule which it has adopted may subject such corporation to liability for vindictive damages. R. R. Co. V. Lyons, supra. § 1902. Jury to decide whether act is malicious or wanton. If is for the jury to say whether circumstances exist which will war- rant punitive damages ; but it is error to submit the question with- out evidence which would fairly justify them in so finding. Nagle V. MuUison, supra; Phila. Traclion Co. v. Orbann, supra. §1903. Evidence of motive admissible. The motive of defendant is material in determining the question of malice. R. R. Co. v. Lyon, 123 Pa. St., 140 (1888). § 1904. Act of April 4, 1868 — In pari materii with preceding legislation. The Act of April 4, 1868 (P. L., 58), is in pari ma^ terid with that of April 26, 1855, the two making one system. Its purpose was not to abrogate or limit the earlier Act, but to de- clare the judicial construction thereof, i. e., that loss by death through negligence is to be measured by a pecuniary standard of value. R. R. Co. v. Keller, 67 Pa. St., 300 (1871). § 1905. The Act is constitution^. The provision in the Act of April 4, 1868 (P. L., 58), that the right of action for injury or death to persons employed on or about railroads, etc. , shall be only such as would exist if such persons were employes, is constitu- tional. Kirby v. Pa. R. R. Co., 76 Pa. St., 506 (1874). §1906. Employe of another railroad. If one railroad company NEGLIGENCE. 775 have a right of way over the tracks of another such company, an employ^ of the latter being upon said tracks in the course of his employment is within the terms of the Act of April 4, 1868; he has no right of action against the first company for injuries re- ceived by being struck by its train while so upon the tracks, except such right as its own employ^ would have. Mulherrin v. R. R. Co., 81 Pa. St., 366 (1876). § 1907. One injured while unloading his own goods. The Act is applicable to oue injured while unloading his own goods from the cars of a railroad company, under permission granted by the agent of the company. Ricard v. N. P. R. R. Co., 89 Pa. St., 193 (1879). § 1908. Or those of his master. So it applies to a lad employed by a coal dealer in nnlpading railroad cars standing upon a siding constructed by the dealer on his own land, the lad being injured through the negligence of the railroad company's servants. Oum- mings v. R. R. Co., 92 Pa. St., 82 (1879). See Gerard v. R. R. Co., 12 Phila., 394 (1878). § 1909. Teamster hauling freight for shipper. A teamster em- ployed by a shipper in hauling freight to the railroad cars, while driving on the public street at the freight station where crossed by the company's tracks at a point practically within its yard, was struck by a moving train and injured. Held, that he was within the Act of 1868, and could not recover against the railroad com- pany if his injury resulted from the negligence of its employ^. B. S 0. R. R. Co. V. Colvin, 118 Pa. St., 230 (1888). § 1910. Business about the cars in the line of duty. If the plain- tijBF be injured in doing an act about the ears of the defendant com- pany which is clearly within the line of his duty, he comes under the terms of the Act, and he can recover only as if he were an em- ploy6. Stone v. Pa. R. R. Co., 132 Pa. St., 206 (1890). § 1911. Laborer for contractor with the railroad company. In Fleming v. Pa. R. R. Co., 134 Pa. St., 477 (1890), the railroad company defendant had agreed with a firm of contractors who were to construct a bridge upon its route. A workman was em- ployed by the contractors in wheeling bricks between the rails from the brick-pile to the bridge. While so engaged he was struck and killed by a train of the defendant company which was going at a rapid rate of speed, and without warning. In an action by his parents against the company, it was held that he was within the terms of the Act of 1868, and that the court below had therefore properly entered a non-suit. Judgment affirmed. § 1912. Uail agent held not a passenger while travelling in the course of his employment. A mail agent employed by the United 776 PRACTICE IN PENNSYLVANIA. States Postal Department, while travelling on a railroad in the per- formance of his duties, is not a passenger within the meaning of the word as used in the proviso to the Act of April 4, 1868. If he be killed by reason of the negligence of an employ^ of the railroad company, his widow has no right of action against it. Pa. R. R. Co. V. Price, 96 Pa. St., 256 (1880). Opinion by Paxson, J.; Tkunkbt, J., dissenting. See also JBrickerv. R. R. Co., 132 Pa. St., 1 (1890). § 1918. The Act does not apply to one injured while moving cars, not in the course of his employment. One employed in a mill to haul ashes from one part of the mill-yard to another, across a railway switch in the yard, is not within the Act of April 4, 1868. If in the course of such employment and while moving out of his way empty cars standing upon the switch, he be killed through the negligence of the railroad company's employes, his widow may maintain an action against the company. Richter v. Penna. Go., 104 Pa. St., 511 (1883). Otherwise, if it be part of his dnty to shift the cars. Slone v. R. R. Co., 132 Pa. St., 206 (1890). § 1914. Nor to newsboy on street passenger car by permission. A boy selling newspapers by permission upon a street passenger car is not precluded by the Act &om recovering against the car company for injuries sustained through the negligence of its employe. PMla, Tractum Co. v. Orbann, 119 Pa. St., 37 (1888).