Olnnt^U ICam irl^nnl Htbrary iHaraljall lEquttg (Unllerttott (gift of S. 3. iiarabaU. iC.iC. 1. 1394 CORNELL UNIVERSITY LIBRARY 3 1924^84 263 320 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084263320 PRACTICE EQUITY PRACTICE IN PENNSYLVANIA embracing EQUITABLE PROCEDURE UNDER THE FORMS OF LAW AND EQUITY PRACTICE PROPER UNDER THE RULES OF THE SUPREME COURT OF PENNSYLVANIA WITH FORMS BY WILLIAM F. JOHNSON OF THE PHILADELPHIA BAR VOL. 4 PHILADELPHIA EEES WELSH & CO., Law Publishers 901 SANSOM STREET 1913 PRACTICE EQUITY PRACTICE IN PENNSYLVANIA embracing EQUITABLE PROCEDURE UNDER THE FORMS OP LAW AND EQUITY PRACTICE PROPER UNDER THE RULES OF THE SUPREME COURT OF PENNSYLVANIA WITH FOEMS BY WILLIAM F. JOHNSON OP THE PHILADELPHIA BAB VOL. 4 PHILADELPHIA EEE8 WELSH & CO., Law Publisheks 901 SANSOM STREET 1913 Gb7 5^1 Entered according lo Act of Congress, in the year 1913, bj" REES WELSH & CO., in the office of the Librarian of Congress, at Washington, D. C. PEEFACE. The subject matter, arrangement and distribution, in this volume may by some be deemed an innovation in a work on Equity Practice. But it will be borne in mind that the first two volumes were devoted especially to jurisdiction of Courts in Pennsylvania and to Practice in Actions at Law, properly so called, viz. : those at the Common Law, as being commenced by summons, capias or attachment, whilst Vol. 3 was devoted ex- clusively to practice in the Orphans' Court. There naturally re- mained a large and increasing body of practice, instituted by petition or complaint, besides the proper Equity practice upon a bill. Hence to produce a homogeneous and complete series of prac- tice books it was thought appropriate to divide this volume into two parts ; the first laying down the practice in those proceedings, partaking of Chancery principles as well as legal, and which are cognizable in the Law side of the Common Pleas; while the second part is devoted strictly to practice upon a Bill in Equity filed in the Equity side of the Common Pleas, and carried for- ward step by step in accordance with the rules of the Supreme Court of Pennsylvania and the principles of Equity in England, from which country we have derived the body of our Practice. The publishers acknowledge themselves indebted to F. F. Brightly, Esq., of the Philadelphia Bar, for the very lucid, logical and complete chapter on the practice in Divorce, in the Courts of Common Pleas of Philadelphia. CONTENTS VOLUME IV PRACTICE IN EQUITY PRACTICE IN EQUITY IN PENNSYLVANIA. CHAPTER I. PAGC ASSIGNMENTS, VOLUNTARY AND INVOLUNTARY, FOR THE BENEFIT OF CREDITORS— EQUITABLE PRO- CEDURE l-4(> 1. Assignment law of 1901. 2. What constitutes an assign- ment. 3. Transfer must be absolute. 4. By whom assignment may be made. 5. Estate which passes by as- signment. 6. Formalities of the instru- ment. 7. Acknowledgment and sched- ules. 8. Form of oath of assignor. 9. Form of deed of assignment. 10. Form of acknowledgment. 11. Recording and effect. 12. Acceptance by assignee. 13. Form of acceptance. 14. Form of oath. 15. Form of bond. 16. Delivery of assets and du- ties of insolvent. 17. Right of insolvent to his ex- emption. 18. Preferred claims. 19. Notice — meeting of cred- itors. 20. Notice to creditors to prove claims. 21. Form of notice to creditors. 22. Inventory — examination of insolvent and witnesses. 23. Reward for discovery of se- creted property. 24. Unlawful preferences as acts of insolvency. 25. Collusion of creditor — pre- sumption. 26. Assignment of assets by member of partnership, etc. 27. Vacation of attachments, ex- ecutions, etc. 28. Stipulation of conditions. 29. Effect of assignment. 30. Executions and attachments. 31. Foreign assignments. 32. Rights and powers of as- signee. 33. Powers of assignee under act of 1901. 34. Right to bill of discovery, etc. 35. Duties, credits and compen- sation. 36. Litigation, rights in. 37. Practice in suits by assignee. 38. Liability for mismanage- ment, etc. 39. Liability for interest. CONTENTS. PAGE 40. Rent of premises. 66. 41. Liability of sureties. 67. 42. Claims of creditors. 43. Effect of adverse proceed- 68. ings. 69. 44. Agreements by creditors with 70. assignor. 71. 45. Claims — amount and time to 72. present. 73. 46. Power of assignee as to claims and debts. 74. 47. Sale of property at public or private sale. 75. 48. Effect of sales upon liens. 76. 49. Purchase by assignee, by 77. leave of court. 50. Time and manner of sale. 78. 51. Alias order and stay of exe- cution. 79. 52. Mechanics' liens preserved. 53. Title of purchaser. 54. Effect of sale. 80. 55. Deposit of money, etc. 81. 56. Form of agreement of lien creditors, authorizing as- 82. signee to sell discharged from liens. 83. 57. Affidavit of claim on fund 84. and form. 58. Notice by assignee of filing 85. account. 86. 59. Advertisement — confirma- tion, etc. 87. 60. Assignees' and trustees' ac- counts, Phila. 88. 61. Accounts of assignees, etc., Allegheny county. 89. 62. Reference to auditor of un- adjusted matters. 90. 63. Objections to claim. 64. Date of claim — liability — 91. collateral security. 65. Claim tainted by fraud and collusion. Distribution by an auditor. Mortgages in the distribu- tion. Partnership property. Preferences in distribution. Allowance of interest. Costs and expenses. Dividends and subrogation. Judgment creditors, rights and liabilities. Estoppel and laches — effect of. Right of appeal. Form of triplicate release. Discharge of insolvent — ex- ceptions. Release of persons seconda- rily liable. Manner of securing exemp- tion for after-acquired es- tate. Restoration to insolvent. The rights and relations of the assignor. Proceeding to compel invol- untary insolvency. Who is deemed an insolvent. Petition by creditor of in- solvent. Rule, notice and order. When a receiver will be ap- pointed. Law applies to farmers and wage earners only. Form of petition for a re- ceiver. Form of order for rule to show cause. Filling vacancy in office of assignee. Removal or discharge of as- signee or receiver. CHAPTER IL BANKRUPTCY 50-57 1. Power of Congress to enact a general bankruptcy law. 2. Powers of the state courts. 3. What constitutes bankruptcy. 4. Preferences. 5. Effect on Hens, 6. Proceedings to contest liens or conveyances. CONTENTS. 7. Petition and proof of claims. 8. Rights and duties of trustee. 9. Actions by trustee. ID. Actions against the bank- rupt. u. Exemptions of bankrupt. 12. Rule as to attorneys. PAGE CHAPTER III. DIVORCE 58-101 1. Causes of divorce, a vinculo matrimonii. 2. Causes of divorce occurring abroad. 3. Incestuous marriages voida- ble. 4. Fraud, force or coercion. 5. Cruelty and indignities of wife toward husband. 6. Causes while domiciled be- yond the state. 7. Divorces for disappointed American heiresses. 8. Divorce on conviction of cer- tain crimes. 9. Annulment of marriage on false rumor of death. 10. Divorce a mensa et thoro, and alimony. 11. Divorce a mensa et thoro, for adultery. 12. Libellant must be a citizen or resident. 13. Petition or libel, etc. 14. Jury trials or masterships. Act of 1911. 15. Act 191 1, applied to pending cases. 16. Alias subpoenas. 17. Petition for desertion after six months. 18. Petition for annulment of void marriage. 19. Petition of lunatic wife by next friend. 20. The libel, character and con- tents. 21. Allowance of subpoena. 22. Form of libel for adultery. 23. Form of affidavit. 24. Form of averment of deser- tion. 25. Form of averment of intol- erable conduct. 26. Form of averment of fraud and coercion. 27. Form for decree of annul- ment. 28. Form for sentence for crime. 29. Form for impotence or or- ganic obstruction. 30. Form of subpoena. 31. Personal service of sub- poena. 32. Return of non est inventus. 33. Form of notice by publica- tion. 34. Proof of publication. 35. Amendment of libel. 36. Rule for bill of particulars. 37. Form of rule for bill of par- ticulars. 38. Discontinuance. 39. Respondent's answer. 40. Form of answer to libel for adultery. 41. Recrimination and condona- tion. 42. Form of answer to charge of intolerable conduct. 43. Cruel and barbarous treat- ment of wife. 44. Cruel and barbarous treat- ment of husband. 45. Desertion. 46. What is not desertion in law. 47. Proof of desertion. 48. Defense as to desertion. 49. Impotency as a cause. 50. Indignities to the person of the wife. 51. Turning wife out of doors. 52. Alimony pendente lite and counsel fees. 53. Form of petition for sup- port, etc., pendente lite. 54. Form of order of court granting rule. 55. Form of decree of support. 56. Form of replication and re- quest for a jury. 57. Framing issue for jury. CONTENTS. S8. Power of court to hear and determine. 59- Master, appointment and du- ties. 60. Proceedings before commis- sioner, examiner or mas- ter. 61. Evidence. 62. The master's report. 63. Decree — rule to show cause. 64. Granting and entering de- cree. 65. Vacation of decree. 66. Permanent alimony. 67. Alimony and collection in divorce a mensa et tkoro. 68. Rule to pay alimony. 69. Enforcement of decree. 70. Appeal — recognizance — in forma pauperis. 71. Consideration on appeal. 72. Costs. 73. Paramour not to marry. 74. Adulteress cannot alien, when. 75. Effects of divorce. 76. Agreements to separate. PACE CHAPTE-R IV. CORPORATIONS— INTRODUCTORY. 102, 103 1. Blackstone's Division. 2. The civil law. 3. Dissolution. 4. Vested rights. 5. Corporations as persons — due process of law. 6. Po\yer of Congress to incor- porate. CHAPTER V. EMINENT DOMAIN— AGENCY OF ITS EXERCISE— PUB- LIC USES— PUBLIC NECESSITY 104-118 1. Definition. 2. On what its exercise de- pends. 3. Distinctions. 4. Extent of power. 5. Inalienable. 6. Legislation. 7. Objects of creation. 8. Doctrine of U. S. Supreme Court. 9. Private use, not allowable. 10. Legislature judge of use. 11. Condition precedent. 12. Agency, not delegation. 13. Public use for private gain. 14. Mandamus to compel per- formance of functions. 15. Restriction of exercise, by courts. 16. Municipalities confined to charters. 17. Examples of use. 18. Railroad purposes. 19. Incidental power. 20. Lease. 21. Surveyed line. 22. Limited by constitution. 23. Conditions precedent. 24. Strict construction. 25. State's power not to abridged. 26. Public uses illustrated. 27. Electric railways. 28. Gas companies. 29. Water companies. 30. Pipe lines. 31. Mills. 32. Logging booms. 33. Irrigation. 34. Municipality. 35. Special uses. 36. Foreign corporation. 37. Not transferrable. 38. Fruition of use. 39. Limitation. 40. Loss of privilege. be COXTENTS. CHAPTER VI. PROPERTY THAT MAY BE TAKEN UNDER EMINENT DOMAIN —NECESSITY— ABANDONMENT AND RE- VERSION 1 19-129 1. Property that may be taken. 2. Right of way, nature of. 3. What passes as appurtenant. 4. Description — calls for high- way. 5. Abandonment of canal. 6. Another use. 7. Implication defined. 8. Use confined to purposes, g. Appurtenant rights. 10. Subjacent minerals. 11. Subordinate rights. 12. Streets and highways. 13. Corporate property. 14. Necessity for taking— dele- gation. 15. Water rights affected. 16. Position of former owner. 17. No contract or vested rights. 18. Incidental rights. 19. Water courses. 20. Private waters. 21. Riparian rights. 22. Assessment of damages. 23. Diversion from natural course. 24 Compensation. 25. Quantity of property. CHAPTER VII. EMINENT DOMAIN— WHAT CONSTITUTES A TAKING- EXEMPTION OF DWELLINGS, ETC.— COMPENSA- TION, RIGHT OF INDIVIDUALS AND CORPORA- TIONS 130-14S 1. What is a taking. 2. Appropriation by the legisla- ture. 3. When the right attaches to the land. 4. Divestiture by giving bond. 5. Municipality need give no bond. 6. Vacation of proceedings. 7. Township roads. 8. Equity power over location. 9. Change of route. 10. Underlying coal. 11. Water supply. 12. Exemption of dwelling, etc. 13. Width of road. 14. Evidence of ancient docu- ments. 15. Right of possession. 16. Right of pipe line. 17. Abandonment and rever- sion. 18. Revocation of charter. 19. Limitation of improvement. 20. Compensation, definition. 21. Annexation to city. 22. Consequential damages. Taking by municipality. Streets, etc. Particular injuries. Remedy against gas com- pany. Abutting owner, rights of. Adjacent owner, rights of. 29. Corporation, right of. 30. Railroad right of way. Street servitudes. Sidewalks. Change of grade. Abutter's right. Servitude defined. Street railways. Public roads. Pipe lines. Discharge of water on prem- ises. Riparian right. Title by prescription. Limitation does not apply. How title may be acquired. 44. Reason of the law. 45. Discordant note, overruled. 46. Revision of the court. 23- 24. 25- 26. 27. 28. 31. 32. 33- 34. 35. 36. 37- 38. 39. 40. 41. 42. 43 CONTENTS. CHAPTER VIII. PACE CONSTITUTIONAL AND STATUTORY PROVISIONS IN PENNSYLVANIA 146-179 1. "Privilege," not right. 41- 2. Exercise of right by state. 3. Compensation. 42. 4. Limitations upon corpora- tions. 43. 5. Power to alter or revoke. 44. 6. Railroads and canals. 7. Consolidation prohibited. 45. 8. Discrimination prohibited. 9. Passes restricted. 46. 10. Acceptance of constitution. 47. 11. Consent of municipalities. 12. Revocability of charters. 48. 13. Con. Amendment of 1857. 49. 14. Turnpikes, public roads, 50. etc. SI- IS. Railroads. S2. 16. Reserved power of the state. 17. State ownership of public S3. utilities. 54. 18. Reservation of power to SS- control. S6. 19. Obligation -to repair canal 57. bridges. S8. 20. Sale of canals. 21. Review of early railroad 59. charters. 60. 22. Columbia etc. R. Co. 61. 23. State railroad. 62. 24. State loan and the panic. 63. 25. The Penna. R. Co. incor- porated. 64. 26. Width of right of way. 27. Assessment of damages. 65. 28. New view. 66. 29. Paramount right of public 67. roads. 68. 30. Lateral roads. 69. 31. Resumption and purchase reserved. 70. 32. Examination and forfeiture reserved. 71. 33. Valuation, how to be ascer- 72. tained. _ 73. 34. Assessment, when title is in 74. dispute. 75. 35. Water supply for Penna. Railroad. 76. 36. Oiifer to sell state railroads 77. and canals. 37. Conditions of sale. 78. 38. Public works embraced. 79. 39. Price to be realized. 40. Public highway declared. Privilege of eminent do- main. Damages, how to be ascer- tained. The Phila. & Erie R. Co. The Phila. & Rea^ding R. Co. Power to survey and fix route. Right of entry. Right to enter for mate- rial. Public roads paramount Causeways for landowners. Fixing of tolls. Reservation of police power. Amendment of P. & R. charter. Sunbury & Erie. Assessment of damages. Protection of public roads. Rates fixed. Right reserved to purchase. Lateral railroads. Act of 1832. Scope enlarged. Assessment of damages. Reservation by legislature. Crossings regulated. Duty of viewers under act of i8s8. General railroad act of 1849 — ^location. Assessment of damages. Change of location. Protection of public roads. Public highways. Reservation to the legisla- ture. Approval of bond under act of 1844. Jury trial instituted. Bar as to damages. Waiver of view to assess. View of premises by jury. Consolidation of parallel lines. Grade crossings. Widening railroads and canals. Lease of lines. Land in different counties — bond. CONTENTS. 80. Bridges, changing location of. 81. The Northern Central R. Co. 82. The Cumberland Valley R. Co. 83. The Lehigh Valley R. Co. 84. Delaware & Hudson Canal Co. 8s. The Baltimore & Ohio R. Co. 86. Assessment of damages. 87. The New York & Erie R. Co. 88. The Huntingdon & Broad Top R. Co. 89. The Phila. & Trenton R. Co. 90. Pittsburgh, Kittanning & Warren R. Co. 91. The Pittsburgh & Erie R. Co. 92. The Washington & Pitts- burgh R. Co. 93. Two systems in Pennsylva- nia. 94. Reference to various acts of incorporation. 95. Railroad landings. 96. Docks. 97. Turnpike etc Co. charters. 98. Street railways, special charters. 99. General Act of 1889, as to street railways. 100. Grade crossings, etc. lOi. Procuring possession of lands condemned — notice. 102. Habere facias posses- sionem. 103. ■ Privilege conferred on school districts — excep- tions. 104. Petition for viewers, to the Common Pleas. Duties of viewers — report. Appeal from report. Payment into court. Practice upon exceptions or appeal. Costs and fees. Exercise of privilege by County Commissioners. 111. Petition for viewers — ^no- tice by publication. 112. Proceedings by the viewers — report. 113. Vacation of part of old road — ^transfer. 114. Payment of damages. 115. Appointment and pay of viewers. Exceptions to report — trial, appeal, etc. Municipalities. County board of viewers. PACE 105. 106. 107. 108. 109. no. 116. 117. 118. CHAPTER IX. EMINENT DOMAIN— MODE OF EXERCISE BY THE UNITED STATES— TELEGRAPHS AND OTHER UTIL- ITIES—LUMBER COMPANIES, ETC.— CONDEMNA- TION OF BRIDGES AND TURNPIKES— WATER SUP- PLY AND WATER COMPANIES, ETC 180-205 1. Exercise of eminent domain 7. by the U. S. 2. Abutting owners exempt ex- cept for roads, etc. 3. Payment of damages into court. 4 Filing bond when title is in dispute. 5. Appointment of guardian ad litem. 6. Act of Congress as to tele- graphs. Telegraph companies in Pennsylvania. Assessment of damages. Municipal consent. Damages to trees. Lumber companies. 12. Approval of bond. 13. Lumbering over improved land. 14. Condemnation of corporate bridges. 15. Report of viewers. 8. 9. 10. II CONTENTS. i6. Report of viewers, approval S3. of. 17. Witnesses to be heard. 54. 18. Appeal. 19. Removal of cause. 55. 20. Streams on county lines. 21. Counties authorized to con- 56. demn toll bridges. 22. Petition for view on failure 57. to agree. 23. Proceedings by the viewers — 58. oath — notice, etc. 59. 24. Time of appointment — 60. County to" pay costs. 25. Exceptions to report — ^power 61. of court — appeal. 62. 26. Bond by county — tender — approval. 63. 27. Effect of discontinuance — costs. 64. 28. Bridge to become public. 65. 29. Turnpikes — state condemna- tion. 66. 30. Petition for condemnation, 67. etc. 31. Stenographer and master. 68. 32. Oath of viewers. 69. 33. Quorum at view. 34. Compensation. 70. 35. Report. 36. Exceptions. 71. 37. Appeal. 38. Effect of adverse report. 39. Water supply for municipal- 72. ities. 40. Bond for damages. 73. 41. Viewers. 42. Appeal. 74. 43. Appeal, affidavit for. 44. Re-location of roads de- stroyed. 75- 45. Acquiring lands to prevent contamination. 76. 46. Damages, assessment of. 47. Alteration and re-location of 7T. a channel of a stream. 78. 48. County may condemn land for county buildings. 79. 49. Cities, boroughs and town- ships. 50. Acquisition of water plants 80. and systems. 51. Appraisers — time of filing 81. report. 52. Powers of appraisers — report 82. — appeal. 83. Authority to buy — ^filing consent — default. Municipality may issue bonds. Sinking fund — exemption from taxes. Appraisement where contract exists. Water companies under Act of 1874. Bond, tender of — refusal. Franchises may be taken. Exclusive privilege by con- tract. Power to take water. Exclusive privileges ended, etc. Reserved power to purchase works. Powers extended. Water companies may take fee, etc. Extension of plant. Electric power — consent of authorities. Condemnation of land, etc. Lands necessary, contiguous to streams. Revocation of privileges of gas companies. Street railways given power to locate and re-locate tracks, etc. Bond to be tendered — ap- proval — right of entry. Viewers — ^practice — rule of estimating damages. When owners are absent, etc. — Bond — approval — effect. Guardians ad litem and trus- tees. Jurisdiction when land lies in two or more counties. Order to fence private lands. Manufacturing companies under Act of 1849. Iron and steel companies — real estate, mining and manufacturing. Coke and other manufactur- ing companies. Appropriation of streams- use granted. Powers and privileges. County roads — ^viewers to be three. CONTENTS. CHAPTER X. PAGE EMINENT DOMAIN— ASSESSMENT OF DAMAGES— JU- RISDICTION— PETITION OF TAKER— PETITION OF OWNER— NOTICE 206-219 1. Proceedings in rem. 2. Jurisdiction. 3. Waiver of view. 4. Petition by taker. 5. Prerequisites. 6. Description of land. 7. Answer. 8 Petition for approval and fil- ing of bond. 9. Notice in writing. lOi Approval — ■ sufficiency of bond. 11. Petition by owner — misde- scription. 12. Cause of injury, allegation of. 13. Title, averment of. 14. Prayer for relief. 15. "Owner," dower inchoate — tenants. 16. Amendment of petition. 17. Viewers, qualifications of. 18. Notice of view. 19. Notice when indispensable. 20. Notice — mode of service. 21. Notice — time, Act 1849. 22. Assessment.by whom made. 23. Form of petition to give bond for security. 24. Form of notice of applica- tion to give bond. 25. Form of bond. 26. Averment of failure to agree. 27. Form of notice of presenta- tion. 28. Form of affidavit of tender. 29. Form of petition of owner for assessment of damages. 30. Form of order to and report of viewers, 31. Form of report of viewers. CHAPTER XI. EMINENT DOMAIN— MEASURE OF DAMAGES. .. 220-238 1. Measure when the whole is 18. taken. 19. 2. Time when value is ascer- 20. tained. 3. Measure when part of tract 21. is taken. 22. 4. Injury without taking. 23. 5 Injury to part owner. 6. Irregular taking. 24. 7. Limit of use. 25. 8. Measure to abutting owner. 26. 9. Land for bridge, etc. 27. 10. Land for pipe lines and gas companies. 28. 11. Coal underlying. 12. Railroads, right of way of. 29. 13. Canal companies — fee. 30. 14. Abandonment act. 31. 15. Damages direct and conse^ 32. quential. 33. 16. Estimates — timber, water 34. course, etc. 35. 17. Streets, abutting owner on. Injury to tract of land. Advantages to owner. Iron ore in land, and other advantages. Immaterial facts. Present use of the land. Tenants in common, mode of valuation. Experts, opinions of. Restoration, cost of. SeUing price. Offers to sell — cross-exam- ination. Danger from fire as an ele- ment. Smoke, dust and noise. Fencing right of way. Other injuries — restrictions. Incidental injuries. Improvements by taker. Ordinary use— crops. Timber, right to — tele- graph company. CONTENTS. 36. "Damnum absque injuria." ZT. Damages allowed. 38. Survey and plat. 39- Damages, when they begin. 40. Quantity of the estate. 41. Trespass, exemplary dam- ages. 42. Effect of giving bond. 43. Consequential damages. 44. Subject to constitution though exempt by charter. 45. Railroad laid on a street. 46. Embankments, cuts, etc. 47. Municpalities — sewers, etc. ^. Speculative uses. 49. Time of estimate. so. Disadvantages, obvious. 51. Interest, date from which allowed. 52. Interest after award. 53. Sale and release. 54. Agreement to give land. 55. Damages, to whom awarded. 56. Damages, enforceable by ejectment. 57. Damages, tenant for years entitled to. 58. Damages, life tenants. 59. Damages, ground rent. 60. Descent of right on death. 61. Mortgages, etc. PAGE CHAPTER XII. EMINENT DOMAIN— PRACTICE IN ASCERTAINING DAMAGES BY VIEWERS, AND ON APPEAL, BY JURY TRIAL 239-254 1. Proceedings, when may be 27. commenced. 28. 2. Title, when divested. 29. 3. Time of valuation. 30. 4. Structures after taking. 31. 5. Presumption of assessment. 32. venue. 33. 6 .Jurisdiction — c h a n g e of 34. 7. Right to condemn. 35. 8. Bar. 9. Statutory mode exclusive. 36. 10. Ejectment for illegal taking. 11. Approval of bond after suit. 37. 12. Injunction to restrain tres- 38. pass. 39. 13. Waiver of right of action. 40. 14. Nuisance by R. company. 41. 15. Exclusive remedy. 42. 16. Unconstitutional act. 43. 17. Construction of law — rule 44. of. 18. Special act. 45. 19. Finding of jury, scope of. 20. Damages, how found. 46. 21. Competent witness. 47. 22. Defendant's point, answer to. 48. 23. Separate interests, how 49. found. 50' 24. Province of jury. 51, 25. Jury, when necessary. 52, 26. Election as to remedy. 53, Special findings. Proper instructions to jury. Disagreement. Award, for money. Award, effect of. Award to joint tenants. Award, sufficient findings. Award, setting aside of. Award, reasons for setting aside. Award, referring back to viewers. Award, exceptions to. Award, confirmation of. Award, finality of. Appeal by tenant. Appeal by heirs. Appeal, time of. Appeal, affidavit for. Appeal as waiver of irreg- ularities. Motion to strike off after appeal. Viewer's fees. Discontinuance. Quashing proceedings. Costs. Issue in court, on appeal. View by trial jury. Burden of proof. Evidence — rules of. CONTENTS. 54. Verdict, how made up. 55. Power of court. 56. Judgment, form of. 57. Judgment, finality of. 58. Execution. 59. Appeal, right of. 60. Possession, right of. 6i. Presumption of payment. 62. Lien for damages. 63. Sureties on bond. 64. Judgment in trespass — lien. 65. Assessment by commission. CHAPTER XIII. EQUITABLE EJECTMENT 255-260 Nature and purpose. Practice applied to parol trusts. Act of 1846 — ^time of essence. Service of writ when land is not occupied. 5. Forms. 6. Action by vendee — ^tender. 7. Action by vendor. 8. Conditional verdict and judg- ment. CHAPTER XIV. FEME SOLE TRADERS 261-267 1. Wives of mariners and others gone to sea. 2. Certain alienations declared void. 3. Execution against absentee's estate. 4. Form of affidavit for attach- ment. 5. Additional causes. 6. Scope and effect of the act. 7. Procedure to obtain a de- cree. 8. Form of petition. 9. Form of decree. 10. Effect of decree. 11. Right of married woman to acquire and dispose of property. 12. Emancipation as to con- tracts, with exceptions. CHAPTER XV. HABEAS CORPUS 268-279 1. Jurisdiction of courts. 2. Manner of complaint — ser- vice — ^hearing, etc. 3. Form of petition — allowance. 4. Motion for writ in term time. 5. Discharge of prisoner on bail. 6. Proviso as to prisoner from another state. 7. Not applicable when de- tained by civil process. 8. Time of application, as to jurisdiction. 9. Notice of application. Vol. 4 Practice — o 10. Penalty for refusal of writ. 11. Form of writ. 12. Duty of jailer — penalty for neglect. Penalty for not delivering copy of warrant. Once liberated, not to be re- committed. Prisoner not to be removed. Purposes of the writ. Habeas corpus ad testifican- dum. 18. Return in criminal matter. 19. Subpoenas for witnesses. 13. 14- IS. 16. 17- CONTENTS. 20. Costs of witnesses and offi- 24. cers. 25. 21. The hearing on a criminal 26. charge. 27. 22. Judgment and process. 28. 23. Discharge of prisoner. The writ in civil cases. Form of petition. Appeals. Limitation of suits. Pleading in suit for penalty. CHAPTER XVI. INSOLVENTS— DISCHARGE FROM PRISON.. .280-284 1. Status of laws. 2. Prisoners, how discharged — Act of 1901. 3. Discharge by County Com- missioners — Act of 1887. 4. Proceedings to discharge one held on civil process. 5. Form of petition under Acts of 1814 and 1833. 6. Recording discharge in bank- ruptcy. CHAPTER XVII. PROCEEDINGS ON INSURANCE POLICIES .. .285-296 1. Insurance policy a contract. 2. Copy of application to be at- tached to policy. 3. Lost policy — copy. 4. Jurisdiction Of Common Pleas. 5. Previous demand — service. 6. Notice and proof of loss by fire — form. 7. Preliminary proof of loss. 8. Necessity and sufficiency of proof of loss. 9. Proof of loss and waiver. 10. Total loss — effect on bill of particulars. 11. Fraud in proofs. 12. By and to whom notice to be given. 13. Time of giving notice and proof of loss. 14. Conclusiveness of proofs. 15. Certificate of magistrate, etc. 16. Waiver of formal notice and proof of loss. 17. Limitation of time to bring suit. 18. Cancellation or renewal of policy, ig. Life policy — notice of death. 20. Accident insurance — notice. CHAPTER XVIII. PROCEEDINGS IN CASES OF LUNACY, HABITUAL DRUNKENNESS, AND WEAKNESS OF MIND.. .297-342 1. Jurisdiction of the Common Pleas. 2. Manner of exercising juris- diction in different condi- tions. 3. Petition, who may file. 4. Petition when person has no relatives in the state. S. Petition when the subject is an inmate of home, etc. 6. Form of petition for com- mission. 7. Affidavit by two or more persons. 8. Form of appointment an3 commission. CONTENTS. 9. Petitioner to be relative or person interested. 10. Affidavit and proofs. 11. Number of commission. 12. Notice to be directed by the court. 13. Venire and number of ju- rors. 14. Form of venire — return — notice. 15. Jurors to be sworn — form. 16. Scope and manner of in- quiry. 17. Testimony to be filed as part of report. 18. Finding and return. 19. Form of return. 20. Inquisition by judge and regular jury. 21. Costs when petition is with- out probable cause. 32L Compensation of commis- sioners, jurors and sher- iff. 23. Power of court over costs. 24. Traverse of inquisition. 25. Extension of time to trav- erse. 26. Form of traverse. 27. Practice upon and trial. 28. Precedence of lunacy cases on trial list. 29. Orders pending the traverse. 30. Appointment of committee. 31. Security of committee. 32. Form of bond, 33. Effect of appointment co- extensive with the state. 34. Notice to Committee of Board of Public Chari- ties. 35. Committee to make and file inventory. 36. Foreign commission non- effective. 37. Requisites of appointment in Pennsylvania. 38. Form of inventory of prop- erty. 39. Powers, duties and liabilities of committee. 40. Principal can be used only by order of court. 41. Investments by committee. 42. Sale or mortgaging of real estate. 43. Requisites of application. 44. Notice of application. 45. Form of petition for sale or mortgaging. 46. Affidavit of petitioner. 47. Statement of real and per- sonal estate. 48. Schedule Nos. I and 2. 49. Estimate of annual ex- penses. so. Form of notice of applica- tion. 51. Form of affidavit of service of notice. 52. Form of order to sell. 53k Form of order to mortgage. 54. Appointment of auditor. * 55. Form of appointment of au- ditor. 56. Form of notice of appoint- ment and meeting. 57. Form of report of auditor. 58. Requisites of order of sale. 59. Order for private sale. 60. Requisites of order to mort- gage. 61. Orders where real estate lies in different counties. 62. Return of sale — security. 63. Form of return of order of sale. 64. Form of bond. 65. Execution of deed or mort- gage. 66. Execution of deed, etc., when committee dies, etc. 67. Authority to sell timber. 68. Form of petition to sell tim- ber. 69. Form of affidavit of wit- nesses. 70. Form of order of court. 71. Sale, etc., by spouse, whose consort is of unsound mind. 72. Powers of committee in partition. "JZ- Husband as trustee for in- sane wife. 74. Powers of wife of lunatic, as to her estate. 75. Release of dower by wife. 76. Proceedings to restore sub- ject to civil rights. ^^. Scope and effect of proced- ure to restore. 78. Form of petition for super- sedeas. 79. Form of order of court. PAGE CONTENTS. 80. Effect of order of restora- tion. 81. Triennial account of com- mittee. 82. Final account. 83. Account of committee of the person 84. Form of account of com- mittee. 85. Form of notice of filing ac- count. 86. Recording account. 87. Control over committees. 88. Contracts of lunatics. 89. Commitment to hospitals for the insane. 90. Weak-minded persons. 91. Who may apply for guar- dian. 92. Notice of hearing. 93. Hearing in presence of sub- ject — testimony. 94. Demand for jury trial. 95. Decree notice of incapacity. 96. Powers and duties of guar- dian. 97. Restoration to normal status. 98. Appeals. 99. Appointment of guardian for non-resident subject. 100. Bond of guardian, loi. Powers of guardian. 102. Power of sale, mortgaging, etc., of real estate. CHAPTER XIX. MANDAMUS: ALTERNATIVE— PEREMPTORY. .. 343-358 1. Mandamus not strictly but 21. quasi an action at law. 2. Writ either alternative or 22. peremptory. 3. Jurisdiction of the Supreme 23. Court. 4. Jurisdiction of the Common 24, Pleas. 2^. 5. Jurisdiction generally, as to corporations. 26. 6. Jurisdiction of the Quarter Sessions. 27. 7. Petition for writ — ^parties — relator. _ 28. 8. What the petition must set forth. 29. 9. Form of petition. 30. 10. Form of order for alterna- 31. tive writ. 11. Form of alternative writ. 32. 12. Form of answer or return. 33. 13. Form of peremptory writ. 34. 14. Form of petition for attach- ment for disobedience. 35. 15. Form of order for attach- 36. ment. 37. 16. Form of attachment. 38. 17. When mandamus goes out. 18. Demand and refusal. 39. 19. Municipal corporation as de- 40. fendant. 41 4 20. Private corporation defend- ant — peremptory writ. Writ against incorporated body. Time and service of alterna- tive writ — return. Intervention of persons in- terested, etc. Court to direct notice. No abatement by termination of . office. No abatement by death or removal of iiduciary. No abatement by death, etc., of defendant. Defects in alternative writ amendable. Peremptory writ — service. Superseding or quashing. Motion to quash — appear- ance de bene esse. Return to alternative writ. Time to make return. Demurrer to return — effect of. Certainty required in return. Issues of fact or law. Pleadings. Damages and costs for plaintiff — ^bar. Costs for defendant. Costs when discretionary. Damages, ascertiinment — execution. CONTENTS. 42. Judgment for plaintiff — time of issuance. 43. Appeal to Supreme Court. 44. Supersedeas of peremptory writ. 45. Appeal to be heard in any district. 46. Manner of certifying original cases. 47. Powers of Supreme Court. CHAPTER XX. PARTITION AT COMMON LAW AND IN KQUITY. •359-374 1. Partition at the common law. 2. Where the action arises. 3. Bar when adverse holding 4. Jurisdiction. 5. Parties interested. 6. Right of remainderman. 7. Plaintiffs. 8. Defendants. 9. Life estates. 10. Equity jurisdiction. 11. Interest necessary to main- tain a bill. 12. Requisites of bill. 13. Answer to bill. 14. Demurrer. 15. Distinction betw.een master and referee. 16. Practice under Supreme Court rules. 17. Reference to master. 18. Functions of master. 19. Co-tenants out of possession may recover share of rentals. 20. Effect of confirmation. 21. Sale when partition cannot be made. 22. Protection of the widow. 23. Approval of sale — deed — bond. 24. Proceedings to obtain posses- sion. 25. Form of bill. 26. Form of notice to defend- ants to appear. 27. Form of notice to answer. 28. Service of bill. 29. Service beyond the jurisdic- tion. 30. Service by publication. 31. Form of order for publica- tion. 32. Form of decree pro con- fesso — quod partitio fiat. 33. Form of answer. 34. Form of master's report against division. 35. Form of rule to accept or refuse. 36. Form of order of sale. 37. Form of return of sale. 38. Form of decree confirming sale. 39. Final report of master. CHAPTER XXL PARTNERSHIPS AND ACCOUNTS 375-434 1. Kinds of partnership. 2. Filing partnership name in the Prothonotary's office. 3. Form of declaration. 4. General form of articles. 5. Land as partnership prop- erty. 6. Partnership deeds. 7! Amicable confession of judgment by partner. 8. Suit and judgment against one partner, etc. against partner- 9. Actions ships. 10. Actions between partners. 11. Judgments against partners. 12. Liability of deceased part- ner's estate. 13. Form of partnership as merchants. 14. Form of certificate of part- nership. 15. Form of notice of change of partners. CONTENTS. i6. Jurisdiction of Common Pleas in settlement of accounts. 17. Application of Chancery powers. 18. Compromise with creditors on dissolution. 19. Memorandum of comprom- ise. 20. Liability of the others to remain. 21. Copartner's liability for his share of the debts. 22. When assumpsit will lie. 23. When a receiver will be ap- pointed. 24. Dissolution by withdrawal before the end of the term. 25. Loan for share of profits, when not general part- nership. 26. Profits to employees not to constitute them partners. 27. Limited partnership under Act of 1836. 28. Purposes for which author- ized. 29. Partners designated "gen- eral" and "special." 30. Contribution of goods or merchandise by special partner. 31. Firm name and sign. 32. General partner's powers. 33. Contents of certificate 34. Form of certificate. 35. Certificate to be acknowl- edged. 36. Certificate to be recorded. 27._ Affidavit by general part- ner. 38. Form of affidavit. 39. Liability for false state- ment. 40. Recorder to furnish audi- tor general information. 41. Publication. 42. Affidavits of publication. 43. Manner of renewal. 44. Alteration of terms to be a dissolution. 45. How capital may be in- creased. 46. Increase must be certified and recorded. 47. Use of the word "com- pany." PACE 48. Suits by and against part- ners. 49. Liability — withdrawal — in- terest and profits. 50. Capital shall not be im- paired. 51. Powers of special partners. 52. Duty of general partners to account. 53. Damages for fraud. 54. Transfer, when void. SS- Transfer of individual property, when void. 56. Penalty on special partner. 57. Special partner when not to be creditor. 58. Dissolution — notice. 59. Form of notice of dissolu- tion. 60. Assignment or bequest by general partner. 61. Assignment by special part- ner. 62. Sale or transfer may be provided for in articles. 63. Insolvency of special part- ner not to dissolve the partnership. 64. Executors, etc., of special partner may continue. 65. Notice of alteration in firm. 66. Limited registered partner- ship, how formed. 67. Form of articles. 68. Notice of formation — publi- cation. 69. Form of notice. 70. Liability of special partner under Act of 1899. 71. Organization, by-laws, etc. 72. Posting list of partners and reference to record. 73. False statement a misde- meanor. 74. Character of partnership interest, etc. 75. Expiration and renewal. 76. Real estate, manner of ac- quiring, holding, etc. 77. Dissolution and liquidation — notice. 78. Suits by and against part- nership, limited. 79. Form of dissolution of gen- eral partnership. 81. Form of notice of dtssnlu- tion of general partner- ship. CONTENTS. 8i. Form of notice of dissolu- tion of limited partner- ship. 82. Executions against partner- ship property. 83. Form of praecipe to levy partner's interest. 84. Partnership property. 85. Firm name, good will, etc. 86. Interest of partner in com- mon property. 87. Good faith a,mong partners. 88. Compensation of partner. 89. When acts of one bind all 90. Receipt of money for the firm. gi. Dormant partners. 92. Married woman as partner. gs. Majority rule. 94. Contribution and subroga- tion. 95. Rights of creditors to the firm property. 96. Set-off. 97. Dissolution. 98. Notice of dissolution. 99. Effect of dissolution. 100. Remedy for wrongful dis- solution. loi. Rights and powers of liqui- dating partner. 103. 104. 105. 106. 107. 108. 109. no. III. 112. 113- 114. 115- 116. 117. 118. 119. 120. 121. 122. Rights and powers of sur- viving partners. Liability of new partner. Rights and liabilities of re- tiring partner. Rights, powers and liabili- ties of remaining part- ners. The right to account. Liability to account. Form of bill for an ac- count. Form of agreement of dis- solution. Form of answer to bill. Jurisdiction and practice. Inventory and appraise- ment. Account under special agreement. Capital and profits. Statement of account. Credits and charges. Interest. Costs and expenses. Appeals. Settlements — conclusive- ness. Injunctions. Account in other cases. CHAPTER XXII. PARTNERSHIP ASSOCIATIONS 43 S-445 1. Limited partnership associa- tions. 2. Association may adopt a common seal. 3. Capital may consist of per- sonal and real estate. 4. Liability of members lim- ited. 5. Use of the word "Limited." 6. Transfer of interests in part- nership. 7. Meetings — managers — sal- aries — debt limit. 8. Dividends. 9. Loan of credit, etc., prohib- ited. 10. Dissolution. 11. Liquidating trustees to be elected. 12. Distribution by voluntary action. 13. Renewal or continuance — proceedings. 14. Limited associations may adopt by-laws. 15. Managers to be chosen by ballot. 16. Service of process. CONTENTS. CHAPTER XXIII. QUO WARRANTO. PAGE . 446-46 J 1. Nature of the writ. 2. When the writ applies. 3. When the Supreme Court issues it. 4. Jurisdiction of the Common Pleas. 5. When attorney-general to proceed. 6. When district attorney to act. 7. Form of writ. 8. At whose instance the writ may issue. 9. Writ may issue against whom. 10. Issuing arid return of writ. 11. Rule to show cause. 12. Service — judgment by de- fault. 13. Requisites of suggestion. 14. Motion to quash. 15. Form of suggestion against a corporation. 16. Form of affidavit. 17. Form of allowance 18. Form of praecipe. 19. Form of suggestion against one usurping office. 20. Several defendants may be joined. 21. Answer of defendant — pleadings — issue. 22. Form of answer, 23. Demurrer. 24. Form of demurrer to sugges- tion. 25. Issue from Supreme Court to Common Pleas. 26. Discontinuance. 27. Judgment of ouster, with costs. 28. Form of judgment and or- der for injunction. 29. Opening judgment. 30. Enforcement by injunction. 31. Form of injunction. 32. Costs for defendant — county when liable. 33. Opening injunction on judg- ment by default. 34. Execution notwithstanding appeal. 35. Substitution of names of par- ties. 36. Judgment of ouster — new election. 37.- On ouster, trustee may be appointed. 38. After ouster of corporation, officers to hold in trust. 39. Appointment of receiver. CHAPTER XXIV. RECEIVERS ANT> RECEIVERSHIPS 463-494 1. Chancery jurisdiction. 2. Receivers defined. 3. Object sought by appoint- ment. 4. Appointment a matter of sound discretion. 5. Receivers for corporations. 6. Receivers for partnerships. 7. Receivers for limited part- nerships. 8. Receiver in lieu of trustee. 9. Receivers for mutual insu- rance companies. 10. Receivers for insolvents. 11. Bill for a receiver. 12. Notice — appearance — selec- tion, etc. 13. Form of bill for dissolu- tion of partnership, re- ceiver, and injunction. 14. Form of answer. 15. Form of order appointing receiver, etc. 16. Form ef bond by receiver. 17. Form of bond for injunc- tion. 18. Form of petition for attach- ment. 19. Security by receiver. 20. Appeal from appointment. CONTENTS. 21. Rights, duties and liabilities of receivers. 22. Receiver's right to possession — writ of assistance. 23. Form of application for writ of assistance. 24. Form of order. 25. Form of writ. 26. Right of receiver to rents. 2T. Duty of receiver to take re- ceipts and account. 28. Right of receiver to assets. 29. Action to collect insurance assessments. 30. Actions against receivers and corporations. 31. Service of process. 32. Effect of receivership. 33. Right of creditor to execu- tion. 34. Sales by receivers — effect on liens. 35. Form of petition for sale of perishable stock. 36. Payments by receivers. 37. Examination of books in the hands of receiver. 38. Receiver's certificates. 39. Nature of receiver's certifi- cates. 40. Receivers for ' foreign cor- porations. 41. Foreign receiver's rights and relations. 42. Compensation and expenses of receiver. 43. Liabilities of receiver. 44. Receiver's account. 45. Form of receiver's account. 46. Filing and passing of ac- count. 47. Removal of receiver. 48. Discharge of receiver. PAGE CHAPTER XXV. TRUSTS 495-509 1. Equity jurisdiction of trusts. 2. Jurisdiction of private trusts. 3. Equity jurisdiction to appoint trustees. 4. Procedure by petition. 5. Orphans' Court procedure adopted. 6. Citation may be returned to special court. 7. Jurisdiction over infant trustees. 8. Married woman's trust. 9. Cases in which courts may appoint trustees. 10. Exercise of power of ap- pointment. 11. Power to compel convey- ance. 12. Trustee, durante absentia, etc. 13. Trustees of bequests for ed- ucation. 14. Creation of a trust. 15. Definiteness of purpose — de- livery. 16. Parties necessary. 17. Trusts in lands must be in writing. 18. Implied or resulting trusts. 19. Evidence of resulting trust, Act of 1901. 20. Power of married woman to sue her husband. 21. Trusts ex maleUcio. 22. Kinds and nature of trusts. 23. Citation to trustee for waste. 24. Court may require security or dismiss. 25. Order concerning books, etc., on dismissal. 26. Discharge on execution of trust. 27. Discharge of trustee on his own application. 28. Filing transcript of balances. 29. Surviving trustee to execute trust. 30. Termination of trusts. 31. Cancellation of bond of trustee. 32. Form of bill to declare a resulting trust, ex male- ficio. 3S- Form of answer. 34. Form of replication. 35. Form of final decree. CONTENTS. 36. Form of bill for settlement of trust estate, discovery and termination of trust. PAGE 37. Form of answer. 38. Trustees of church prop- erty — character. CHAPTER XXVI. EQUITY JURISDICTION 512-536 1. Chancery powers of the Court of Common Pleas. 2. Subjects of equity jurisdic- tion. 3. Additional equity powers of the Court of C. P., Phila. 4. Jurisdiction of cases of fraud, accident, mistake or account. 5. Jurisdiction of accounts. 6. Perpetuation of testimony of lost records. 7. Discovery in aid of an exe- cution. 8. Corporation mortgages. 9. Courts which have jurisdic- tion. 10. Equity jurisdiction as to stockholders of corpora- tions. 11. Averment of demurrer or answer — decision. 12. Appeal — assignment of error — costs. 13. Account by tenants in com- mon in mines. 14. Right of account extended to those claiming to be tenants in common. IS- Apportionment of wharfage and dockage in Phila. 16. Jurisdiction in injun'ctions — bond pre-requisite. 17. Injunction to restrain public works. 18. Specific performance of con- tract. CHAPTER 23- 24. 25. 26. 27- 28. 29. 30. 31. 32. 33- 34- 35. 36. Z7- 38. 39- 40. 41. 42. 43- Fraud and mistake. Offer to perform. Contracts concerning stocks and bonds. Compensation, rescission, etc. Removal of clouds upon title. Reformation of written in- strument. Reformation of deeds. Adequate remedy at law. Disputed titles — ejectment bills. Rights and claims to chattels. Concurrent jurisdiction. Continuance of jurisdiction. Equity for him alone who does equity. Rule where one of two inno- cent parties must suffer. Equity abhors "laches." Equitable assignment. Notice of assignment. Contribuution. Subrogation. Marshalling assets. Constructive notice. Remedy of deserted wife at law or in equity. Proceedings in rem when husband has left the state. Dissolution of a corporation for profit. Proof of corporate existence, when necessary. XXVII. EQUITY PRACTICE S37-546 1. Parties to a bill. 2. Formal statements of parties. 3. Authority of Supreme Court to make rules. 4. Parties to a bill for aa ac- count. 5. Parties in suits concerning corporations. 6. Assignees as parties. 7. Parties complainant. 8. Parties defendant. CONTENTS. 9. When parties need not all be brought in. 10. Proceedings without preju- dice to rights of ab- sentees. 11. Bill where the demand is joint and several. 12. Trustees in suits concerning real estate. 13. Heirs at law may be made parties. 14. Parties under incapacity. IS- Statement in bill as to in- fants, etc. 16. Statement as to parties without the jurisdiction. 17. Intervention and substitu- tion. 18. Bill of revivor, supplemental bill, etc. 19. Parties under disability in Chancery. 20. Alien amy and enemy. 21. Sovereign as party. 22. Parties by representation. PAGE CHAPTER XXVIII. THE BILL IN EQUITY. • 347-560 1. Framing of the bill. 2. 'Structure of the bill — scan- dalous or impertinent matter to be expunged. 3. Division into numbered para- graphs. 4. Essential allegations. 5. Allegations of fraud. 6. Multifarious as to facts. 7. Multifarious as to relief. 8. Recital of documents. 9. Requisites of the bill of com- plaint. ID. Signing and affidavit. 11. Requisites of bill for an ac- count. 12. Allegations in bill of discov- ery. 13. Production of books and papers. 14. Bill to perpetuate testimony. 15. Principles upon which the bill lies in Chancery. 16. Form of the bill. 17. Defenses to bill. 18. Bill of review. 19. Bill of interpleader. 20. Bill must be printed and filed. 21. Requirement that defendant appear and answer. 22. Requirement that defendant answer. 23. Printing of pleadings except in forma pauperis. 24. Equity Court always open. 25. Duty of prothonotary. 26. Docketing cause — manner of appearance — 'judgment. CHAPTER XXIX. PROCESS AND SERVICE 561-568 1. Process. 2. Manner of service of bill. 3. Service on husband and wife. 4. Service on a corporation. 5. Service of process in Phila- delphia. 6. Service on non-resident mortgagees and judgment creditors. 7. Service of process on parties out of the jurisdiction. 8. Service on non-resident de- fendant. g. Form of affidavit of non-res- idence. 10. Form of order of service. 11. Service by publication. 12. No process of contempt un- der this service. 13. Form of order for publica- tion. 14. Service by publication. CONTENTS. 15- Service by publication under Act of 1862. 16. Service in other cases. 17. International jurisdiction. 18. Practice in English Court of Chancery adopted. PAGE CHAPTER XXX. EQUITY PLEADINGS 569-602 1. Pleading in Equity. 2. What Equity pleading con- sists of, 3. Exceptions for scandal and impertinence. 4. Form of exceptions. 5. Substance or necessary statements. 6. Form of pleadings. 7. Averments. 8. Demurrers and decrees pro confesso. 9. Decree pro confesso — form of affidavit and decree. 10. Motions, etc., not grantable of course. 11. Application for extension of time. 12. Expiration of time in Phila- delphia. 13. Decree when defense not taken by answer or de- murrer. 14. Demurrer to bill. 15. Demurrer — affidavit — forms. 16. Nature and effect of de- murrer. 17. Demurrer to bill of discov- ery. 18. Variance of relief — answer or demurrer. 19. Setting down cause for ar- gument. 20. Demurrer, when not to be overruled. 21. Effect of sustaining de- murrer. 22. Amendment of bill on de- murrer. 23. Amendments in Equity. 24. Effect of overruling de- murrer. 25. Answer after overruling demurrer. 26. Time to answer may be en- larged. 27. When defendant need not answer. 28. Objection as to want of par- ties — argument, 29. Consent to dismissal of the bill. 30. Opening decree pro confesso with leave to answer. 31. Answers and cross-bills — bona fide purchaser. 32. What an answer may con- tain. 33. Exceptions for scandal and impertinence. 34. Exceptions to answer. 35. Sufficiency and effect of an- swer. 36. Responsive answer. 37. Answer not responsive. 38. Rule as to proof. 39. Rules of evidence in Chan- cery. 40. Admissions by the pleadings. 41. Answers which are not equivalent to evidence. 42. Documents in possession of defendant. Defendant's right of in- spection. Admissions and waivers. Interrogatories and an- swers. When party may decline to answer interrogatories. Cross-bills for discovery not allowed. 48. Affidavits, by whom adminis- tered. 49. Exceptions to answers. 50. Hearing upon exceptions — printing. 51. Answer after allowance of exception. 52. Interrogatories to defendant in Chancery. 53. Defendant's answers. 54. Materiality defined. 55- Exception, inperspicuity or evasion. 56. Hearing of cause on bill and answer. 43- 44- 45. 46. 47- CONTENTS. 57. Answer on information and belief. 58. Answer to bill of discovery. 59. Form of interrogatories, on bill of discovery. 60. Cross-bill by defendant. 61. Replications — practice ' con- cerning. 62. No special replication per- mitted. 63. Amendment of bill after an- swer, before replication. PAGE 64. Amendment as to parties. 65. Amendment as to relief. 66. Time of allowance. 67. Amendments to the answer. 68. Filing and service of copy of amendments. 69. Amendments of course be- fore replication. 70. Amendment in lieu of bill of revivor, etc. CHAPTER XXXI. THE HEARING AND DECISION. .603-618 1. Setting down cause for hear- 21. ing. 22. 2. Hearing in Equity. 23. 3. Rules of evidence. 4. Testimony on order de bene 24. esse and by commission. 25. 5. Practice on return of com- 26. mission. 27. Final interrogatory — form. 28. Affidavits, etc., in "the first 29. person." Prodviction of witnesses in 30. open court. Q. "Examiner" abolished— tes- 31. timony by rules, etc. Practice in the High Court 32. of Chancery. 33. Evidence by witness, in Chancery. 34- 12. Interrogatories. 35. 13. Commissions de bene esse. 14. Bill to perpetuate testimony. 36. 15. Form of prayer. 16. Proof of exhibits. 37' 17. Costs against plaintiffs. i8. Records of courts. 38. 19. Proof viva voce. 39- 20. Impeaching the credit of a witness. 6. 7. 8. 10, II Form of exceptions. Suppression of depositions. Objection to evidence on the ground of impertinence. Secondary evidence. Competency of witnesses. Affidavits. Judicial notice — suo motu. Allegations and proofs. Trial in Equity — costs — con- tinuance. Stenographers to take testi- mony. Findings of law and of fact — requests. Requests for findings. Conclusiveness of findings of fact. Filing of exceptions. When objections are held waived. Exceptions to be placed on argument list; On appeal, matters excepted to only to be heard. Decree of dismissal. Re-hearing of case. CHAPTER XXXII. REFEREES, MASTERS, EXAMINERS AND ISSUES. ..619-626 1. Reference of cause to ref- eree. 2. Fees of referees. 3. Duties of referee. 4. Accountants. 5. Examiners. 6. Masters. CONTENTS. 7. Purposes of an issue for a jury. 8. Trial by jury. g. Awarding of issue. 10. Feigned issues. 11. Form of certificate of ques- tion. 12. Trial and argument lists. 13. Trial of Equity cases in Phila. 14. Equity trial list. 15. Interlocutory orders gener- ally. 16. All motions, etc., to be en- tered on Equity docket. 17. Motions, etc., of course. 18. Rule in Phila. as to referee's reports. CHAPTER XXXIII. DECREES, COSTS AND APPEALS 627-643 1. Decrees defined. 2. Entry and form of decree. 3. Drawing decree — notice and copy. 4. Minute of decree for pay- ment of money. 5. Decree dismissing bill. 6. Decree pro confesso. 7. Decree pro forma not lowed. 8. Interlocutory order and cree. g. Relation of decree to plead- ings and proofs. ID. Alternative or substituted re- lief — damages. 11. Amendment or reformation of decrees. 12. Effect of decree. 13. Petition for re-hearing. 14. Sale of property pendente lite. 15. Bills of review. 16. Process to compel obedi- ence to order or decree. 17. Final process — -attachment, how obtained. 18. Enforcement of orders. 19. Enforcement by attachment. 20. Form of affidavit for attach- ment. 21. Form of order. 22. 23- 24. 25- 26. 27- al- 28. de- 29. 30. 31. 32. 33- 34- 35- 36. 37. 38. 39. 40. 41. 42. 43. Further proceedings. Writ of assistance. Costs. When costs follow suit. When costs have been put on the winner. When costs have been di- vided. Costs of partnership ac- counts. Costs of account when not partners. Corporation costs. Costs of interpleader. Time when costs will be de- termined. Costs before final decree. Fees of accountant and ex- aminer. Fees of referee and master. Costs on interlocutory pro- ceedings. Security for costs. Collection of costs. Appeal from decree as to costs. Equity fee bills. Appeals — practice on. Courts may make further rules. Records, when taken out of prothonotary's office. CHAPTER XXXIV. JURISDICTION OF INJUNCTIONAL REMEDY . ...644-685 1. Remedy by injunction. 2. Irreparable injury — prelimi- nary injunction. 3. "Balance of injury." ,4. Plaintiff's interest and status. CONTENTS. 5. Effect of laches and estoppel. 6. Object of preliminary in- junction. 7. Element of imminent dan- ger. 8. Injunction not issuable on doubtful rights. 9. Mandatory injunctions. 10. Restraint of legal proceed- ings. 11. Restraint of foreclosure of a mortgage. 12. Injunctions against execu- tions. 13. Injunctions in other cases at law. 14. Injunctions against trespass. 15. Permanent or continuous trespass. 16. Injunction against a nui- sance. 17. Ground of Equity jurisdic- tion. 18. Restraint of dangerous or offensive business. 19. Obstructions on highway. 20. Obstruction of streams and canals. 21. Restraint of waste. 22. Injunction as to easements. 23. Division and party walls. 24. Right of way. 25. Water rights. 26. Rights of riparian owners. 27. Restraint of collection of taxes. 28. Remedy for irregular taxa- tion. 29. Injunctions against public officers. 30. Injunctions against munici- palities. 31. Enjoining municipal con- tracts. 32. Injunction to preserve the rights of individuals. 33. Restraint of increase of mu- nicipal debt. 34. Injunctions against corpora- tions and associations. 35. Injunctions to inquire into "injurious acts of corpo- rations." 36. Railroads and street rail- way agreements. 37. Injunctions against railroad discriminations. 38. Railroad not to engage in mining or manufacturing. 39. Grade crossings of railroads. 40. Unlawful working of mines. 41. Adulteration of linseed oil. 42. Injunctions as to contracts. 43. Injunction to restrain ille- gal use of trade-marks, etc. 44. Copyright and publication. 45. Injunctions against strikes and boycotts. 46J Injunctions against crimes and offences. 47. Enforcement of municipal ordinances. PAGE CHAPTER XXXV. PRACTICE IN INJUNCTIONS 686-694 1. Jurisdiction of courts. 2. The bill for an injunction. 3. Injunction affidavits. 4. Preliminary injunctions — testimony. 5. Cautionary orders in injunc- tions — security. 6. Injunction on cross-bill. 7. Bond for injunction. 8. Commonwealth, city or county not to give bond. 9. Granting, continuing and dissolving injunctions. 10. Effect of denial. 11. Clear case required. 12. Effect and enforcement. 13. Costs. 14. Appeals. 15. Index docket. CONTENTS. CHAPTER XXXVI. FORMS OF PLEADINGS. PAGE ■695-747 1. Forms as aids. 2. Form of bill for contribu- tion. 3. Form of notice. 4. Form of endorsement of bill. 5. Form of answer to bill for contribution. 6. Form of endorsement of answer. 7. Form of bill for account, discovery and answers to interrogatories. 8. Form of bill for injunction to restrain use of firm name. 9. Form of certificate of no adequate remedy at law. 10. Form of preliminary injunc- tion. 11. Form of prayer for amend- ment. 12. Form of affidavit. 13. Form of answer to bill for injunction. 14. Form of demurrer to bill. 15. Form of bill for injunction to restrain a corporation from using county bridge. 16. Form of answer to bill for injunction. 17. Form of bill for reforma- tion of deed. 18. Form of bill for account, discovery, cancellation and re-delivery of stock cer- tificate. 19. Answer to bill, supra. 20. Form of bill to cancel an in- valid deed and decree re- conveyance. 21. Form of order for service of bill. 22. Form of answer to bill. 23. Form of decree. 24. Form of final decree on de- murrer. 25. Form of writ ne exeat. CHAPTER XXXVII. FORMS AND RULES OF PRACTICE IN DIVORCE IN PHILADELPHIA COUNTY— PREPARED BY F. F. BRIGHTLY, ESQ., OF THE PHILADELPHIA BAR. . 748-760 PRACTICE EQUITY IN PENNSYLVANIA CHAPTER I. ASSIGNMENTS, VOLUNTARY AND INVOLUNTARY, FOR THE BENEFIT OF CREDITORS— EQUITABLE PROCEDURE. 1. Assignment law of igoi. 27. 2. What constitutes an assignment. 3. Transfer must be absolute. 28. 4. By whom assignment may be 29. made. 30. 5. Estate which passes by assign- 31. ment. 32. 6. Formalities of the instrument. 33. 7. Acknowledgment and schedules. 8. Form of oath of assignor. 34. 9. Form of deed of assignment. 35. ID. Form of acknowledgment. 11. Recording and eflfect. 36. 12. Acceptance by assignee. 37. 13. Form of acceptance. 38. 14. Form of oath. 15. Form of bond. 39. 16. Delivery of assets and duties of 40. insolvent. 41. 17. Right of insolvent to his exemp- 42. tion. , 43. 18. Preferred claims. ' 44. 19. Notice — meeting of creditors. 20. Notice to creditors to prove 45. claims. 21. Form of notice to creditors. 46. 22. Inventory — examination of in- solvent and witnesses. 47. 23. Reward for discovery of secreted property. 48. 24. Unlawful preferences as acts of 491 insolvency. 25. Collusion of creditor — ^presump- 50. tion. SI- 26. Assignment of assets by member of partnership, etc 52. Vol. 4 Practice — i j Vacation of attachments, execu- tions, etc. Stipulation of conditions. Effect of assignment. Executions and attachments. Foreign assignments. Rights and powers of assignee. Powers of assignee under act of 1901. Right to bill of discovery, etc. Duties, credits and compensa- tion. Litigation, rights in. Practice in suits by assignee. Liability for mismanagement, etc. Liability for interest. Rent of premises. Liability of sureties. Claims of creditors. Effect of adverse proceedings. Agreements by creditors with assignor. Claims — amount and time to present. Power of assignee as to claims and debts. Sale of property at public or private sale. Effect of sales upon liens. Purchase by assignee, by leave of court. Time and manner of sale. Alias order and stay of execu- tion. Mechanics' liens preserved. EQUITY PRACTICE IN PENNSYLVANIA. 53. Title of purchaser. 73- ,54. Effect of sale. 55. Deposit of money, etc. 74. 56. Form of agreement of lien cred- 75. itors, authorizing assignee to 76. sell discharged from liens. 7T. 57. Affidavit of claim on fund and form. 78. 58. Notice by assignee of filing ac- count. 79. 59. Advertisement — confirmation, etc. 80. 160. Assignees' and trustees' ac- 81. counts, Phila. 61. Accounts of assignees, etc., Alle- 82. gheny county. 62. Reference to auditor of unad- 83. justed matters. 84. 63. Objections to claim. 85. 64. Date of claim — liability — col- 86. lateral security. 65. Claim tainted by fraud and col- 87. lusion. 66. Distribution by an auditor. 88. 67. Mortgages in the distribution. 89. 68. Partnership property. 69. Preferences in distribution. 90. 70. Allowance of interest. 71. Costs and expenses. 91. 72. Dividends and subrogation. Judgment creditors, rights and liabilities. Estoppel and laches— efifect of. Right of appeal. Form of triplicate release. Discharge of insolvent — excep- tions. Release of persons secondarily liable. Manner of securing exemption for after-acquired estate. Restoration to insolvent. The rights and relations of the assignor. Proceeding to compel involun- tary insolvency. Who is deemed an insolvent. Petition by creditor of insolvent. Rule, notice and order. When a receiver will be ap- pointed. Law applies to farmers and wage earners only. Form of petition for a receiver. Form of order for rule to show cause. Filling vacancy in office of as- signee. Removal or discharge of as- signee or receiver. 1. Assignment law of 1901. The legislature in passing the act of June 4, 1901, P. L. 404, de- signed a code for assignments for the benefit of creditors and joined with it a distinct and separate branch of practice the discharge of prisoners or debtors on the ground of insolvency. This feature in itself was a severe strain on the constitution but the act was held to be constitutional on other grounds, the point not having been raised in the case.' However, the federal bank- ruptcy act of July I, 1898, so far as it operates upon the same sub- jects and persons has been held to suspend the operation of the act of 1901.' This suspension is also held to apply to the entire act including the repealing clauses.' It seems, therefore, that the only classes of persons on whom the act of 1901, could successfully operate are farmers and wage-earners who cannot be forced into involuntary bankruptcy and who, as classes, being generally honest, are not espe- cially in need of its saving provisions.* But where one who assigns 'Hull's Est., 10 D. R. 661. 'Potts V. Smith Mf'g Co., 25 Supr. C. 206. See I C. R. A. P. & L. Dig., col. S42 for lower court cases. 'Cassell's Est., 13 D. R. 637; Ranck's Est., 14 D. R. 496; i C R A., col. 543. *Musser v. Brindle, 23 Supr. C. 37; Citizens' Etc. Bank v. Gass, 29 Supr. C. 125; Miller v. Jackson, 34 Supr. C. 31; P. & L. Dig., i C R A., col. 544- ASSIGNMENTS. 3 claims to be a farmer, it may be shown that his chief occupation is that of a merchant and that farming is only an incident.' It has been recently held that a petition for voluntary assignment must be drawn in accordance with the act of 1901 ; ' under which the wife of a farmer cannot recover on a judgment entered against her hus- band on the same day as the assignment.' 2. What constitutes an assignment. An assignment for creditors needs no set form of words. Any writing by which property is transferred to another to be used for the benefit of creditors is an assignment; ' but if there is a condi- tion for re-conveyance it is not an assignment; ° nor is a transfer of property as collateral security, because this is conditional; " nor an assignment of partnership claims to one for a debt due him by the firm; " nor is it an assignment, where a creditor takes an abso- lute conveyance of property and afterwards assumes the payment of liens and claims against his grantor; " nor a confession of judg- ment to a trustee to protect him and certain bona fide creditors; " nor the deed of all his interest by an executor and testamentary trustee, before accounting, and the grantee reconveys subject to the trusts under the will; " nor a lease reserving the rent for the pay- ment of lessor's debts. " But an unrecorded agreement to assign money due a corporation to some creditors, is, in effect, an assign- ment, and the preference as to those not included is void." As to equivalent of an assignment, see note." 3. Transfer must be absolute. In order to constitute an assignment the transfer must be absolute to a trustee for the payment of debts generally," though it be only of a portion of assignor's property." If it is made as above stated it does not amount to an assignment for creditors.*" The form is not the essential test; it may be a contract; " a letter of attorney; or a lease when there is inability to pay debts." ' Germanton's Assigned Est., 12 Northam. 340. 'Updegrove's Case, 38 C, C. 97. ' Chubb's Est., 27 Lane. L. R. 365. "Taylor v. Paul, 6 Supr. C. 496. •Smith v. Aiman, 19 Montg. 89. "Archer v. Fuller, 4 Walker, 441; Handy's Est., 167 Pa. 552; Penn Etc. Co. V. Jones, 189 Pa. 290. "Dubois' Ap., 38 Pa. 231. "Miller v. Schriver, 197 Pa. 191. " Pauksztis' Est., 9 D. R. 80. "Harfs Est. (No. 5), 203 Pa. 503; 211 Pa. 219. "Rodel V. R. Co., 15 Leg. Int. 325. "Lloyd Co. V. Construction Co., 14 Dauphin Co. i. "Wood V. Kerkeslager, 227 Pa. 536. "Thomas v. Lowber, 14 Pa. 438. "Wallace v. Wainwright, 87 Pa. 263. "Johnson's Ap., 103 Pa. 373; Fallon's Ap., 42 Pa. 235; Burger v. Burger, 13s Pa. 499; P- & L. Dig., vol. i, cols. 1456-7-8-9-60-1-2. "Dreisbach v. Becker, 34 Pa. 152; Ahl's Ap., 129 Pa. 26; Nann v. Wakefield, 179 Pa. 398. "Watson v. Bagaley, 12 Pa. 164; Spackman v. O. H., 65 Pa. 131. "Lucas V. Sunbury R. Co., 32 Pa. 458; P. & L. Dig., vol. i, col. 1464. 4 EQUITY PRACTICE IN PENNSYLVANIA. 4. By whom assignment may be made. Section 3 of the act of 1901, provides : "Any person, persons, firm, limited partnership, joint stock company or corporation may make an assignment of his, their or its property to one or more disinterested persons as assignees, not exceeding three, for the benefit of his, their or its creditors; but, except as herein otherwise provided, all preferences or conditions therein contained shall be wholly void, and such assignment shall unconditionally inure to the benefit of all the creditors accepting a dividend, as in this act provided. An assignment of a portion of such property in trust, for the benefit of the creditors, or any of them, however expressed, shall be deemed an assignment of the whole estate, and shall be recorded in the same counties, with the same effect, as a general assignment; but a debtor may assign any part of his estate to certain creditors, or in trust for them, if at the time of so doing he be solvent, or the same be not in contravention of the other provisions of this act." A minor cannot make an assignment except as an insolvent prisoner under the act of July 12, 1842, P. L. 339,^" which is not repealed. A corporation,'^ or a foreign corporation, though forbidden in the state of its domicile, may assign." Unless the charter provides otherwise, the board of directors may make the assignment; and if the right is contested an injunction will issue until proper directors may be chosen.^' Upon assignment, the relation of an officer to the corporation is ended, but if he continues in charge he may recover for his services, if the jury find for him.™ Partnership property may be assigned by the firm as a whole, or each partner may make an assignment separately to the same trustee."" A single partner, however, in a restricted partnership, can not assign without express power,°^ nor against the protest of his co-partners." But a partner who is aware of an assignment and does not protest is held bound by it."' The stockholders of a limited partnership may at a regular meeting authorize their officers to assign. On the death of a partner the survivors may exercise the power ; "^ or where dissolved, the remaining member."" "Williams v. Ivory, 173 Pa. 536. Compare Sec. 5, Act of igoi, P. L. 407. " Dana v. Bank of the U. S., S W. & S. 223. '"Benevolent Etc. v. Sanders, 2S W. N. C. 331; Zucker v. Froraent, 5 D. R. 579; Borton v. Brines-Chase Co. 17s Pa. 209. "Lehigh Iron Co.'s Est., 2 D. R. 543; Shaw v. Central Etc. Assn., 45 Pitts. L. J. 195. "* Order of Solon v. Folsom, 161 Pa. 225; Anderson v. Eltonhead, 26 W. N. C. 95- " Potts v. Rose Valley Mills, 167 Pa. 310. ""McNutt v. Strayhorn, 39 Pa. 269. " Hammett v. Harrison, i Phila. 349. " Fox V. Curtis, 176 Pa. 52 ; P. & L. Dig., vol. i, cols. 1467-8 ; Deckert v. Filbert, 3 W. & S. 454- "Hodenpuhl v. Hines, 160 Pa. 466; Mantel Co.'s Est., 4 Supr. C. 106 P. & L. Dig., vol. I, col. 1468. " Rogers Printing Co. v. Santa Claus Co., i D. R. 388. "Farmer's Bank v. Ritter, 22 W. N. C. 128; Gratz v. Bayard, 11 S. & R. 41. "' James' Est., i Chester. Co., 462 ; Clark v. Wilson, 19 Pa. 414 ; Baker's Ap., 21 Pa. 76. ASSIGNMENTS. 5 Banks may assign," but a trustee under a will cannot unless ex- pressly authorized by it." An administrator, it has been held, may assign for the payment of debts."' 5. The estate which passes. An assignment of property personal and mixed does not cover realty." Coal already mined passes as personalty if removable with- out injury to the mine." An assignment of a father passes the right to the wages of his minor son unless the latter had been emancipated.*^ County warrants in the hands of a banking company do not pass by assignment; " but the future earnings of a railroad company pass; " also contingent interests in realty; ° and the goodwill of a licensed saloon."' But a policy of insurance on the life of assignor does not pass if not included in the inventory; " but if it is payable .to the legal representatives, etc., it does ; ' also a fire insurance policy ; " but the company may invoke forfeiture for non-payment of assessments." Money charged on land does not pass, but goes to the beneficiary in the will." A trustee cannot assign trust property;™ neither can the cestui que trust in a spendthrift trust/^ Choses in action do pass." Unless the wife joins in the deed her dower remains intact; " so, also, her separate property,™ and if she is induced to join by the fraud of her husband, it will not pass." The commissions of an executor do not pass." A trademark does." A check given before the assignment but not presented until afterward is recoverable by the assignee." Property set apart before the assign- "Sec. 2, Act April i6, 1850, P. L. 477; Fox's Ap., 93 Pa. 406; P. & L. Dig., vol. I, cols. 1470-1. "Woddrop V. Ward, 154 Pa. 307. "Lothrop V. Wightman, 41 Pa. 297. " Rhoads v. Blatt, 84 Pa. 31- " Lykens Valley Coal Co. v. Dock, 62 Pa. 232. "^Beaver v. Bare, 104 Pa. 58. " "Crawford County v. Merchant's Nat'l Bank, 164 Pa. 109. " Bittenbender v. Sunbury & Erie R. Co., 40 Pa. 269. *= Rash's Est., 2 Parsons, 160. P. & L. Dig., vol. i, col. 1473. " Devlin's Est., 12 D. R. 595- " Provident Etc. Co. v. Fidelity Etc. Co., 203 Pa. 82. " Shenk v. Miller, 10 Lane. Bar 146. " Highlands v. Lurgan Etc. Co., 177 Pa. 566. " Lycoming Etc. Co. v. Storrs, 97 Pa. 354. " Swoyer's Ap., 5 Pa. 377. "'Wolf V. Eichelberger, 2 P. & W. 346; McGuigan v. Boll, 11 York 30; Slemmon's Est., 42 Pitts. L. J. 167; P. & L. Dig., vol. i, col. i473- "'Barker's Est., 159 Pa. 518. " Evans v. Goodwin, 132 Pa. 136. °° Keller v. Michael, 2 Yeates 300; Helfrich v. Overmyer, 15 Pa. 113; Blackman's Est., 6 Phila. 160. "Roger V. Pales, 5 Pa. 154; Skinner's Ap., 5 Pa. 262; Slaymaker v. Gettysburg Bank, 10 Pa. 373. "' Fleming v. Ogden, 152 Pa. 419. " Mulligan's Est., 157 Pa. 98. "Jacobs V. Peters, S Northam. 317. "First Nat'l Bank Etc. v. Gish, 72 Pa. 13. 6 EQUITY PRACTICE IN PENNSYLVANIA. ment and in charge of a watchman is not included. " Property ac- quired by the assignor after his assignment is liable to attachment in the hands of another.'"' If the assignor retains possession, there being no fraud, it does not afifect the validity." But continued use, dealing and sale by the assignor is a fraud on creditors and the property may be levied upon nathless the assign- ment.'" A deed by partners assigning real estate, when the partner- ship had none, will pass the realty of the individual partners. " Where an individual makes an assignment it carries his interest in property of a firm of which he is a member, but no control of the partnership.'" Where a partner's interest has been levied upon, it is in custodia legis and his assignment does not dissolve the partnership."' The surplus after assignment, is subject to the attachment of the partner's indi- vidual creditors. "" If the firm is insolvent a partner's assignment of his individual property inures first to his individual creditors' benefit.*" 6. rormalities of the instrument. The instrument to be valid must name an assignee or trustee.' It is valid as to realty though the wife does not join and her interest does not pass.' The omission of a heavily encumbered piece of property is not material,' and the goods intended to be assigned may be identified by a subsequent writing.^ 7. Acknowledgment and schedules. Section 9 of the act of 1901, supra, in part, provides: "All such assignments shall be acknowledged before some person authorized to take the acknowledgment of deeds, and shall be forth- with recorded in the office of the recorder of deeds, where the debtor shall reside or his principal place of business is situate. Within five days thereafter a copy of said deed shall be filed by the assignor in the Court of Common Pleas of the said county, together with : I. A schedule of all the assets of said debtor, whether real or personal, and wheresoever situate, whether in possession, reversion, remainder or in trust, and whether presently valuable or otherwise, and stating what evidences there are or should be thereof, the present value as near as may be, and the liens or claims if any there are against ; II. A list of the creditors with the amounts of their claims, the exact addresses of the creditors ; how and where the debts arose, what "' Williams v. Bristol Etc. Co., 174 Pa. 299. '■ Lorenz v. Orlady, 87 Pa. 226. "^ Klapp's Assignees v. Shirk, 13 Pa. 589. °' Hoover v. Geesaman, 17 S. & R. 351. '^ Wharton v. Fisher, 2 S. & R. 178. "Raymond v. Schoonover, 181 Pa. 352; P. & L. Dig., vol. i, cols. 1479-80. "'Horlacher V. Bertolett, 12 Lane. L. R. 17. '" Hubler v. Waterman, z:^ Pa. 414. "" Black's Ap., 44 Pa. 503. " Reamer v. Lamberton, 59 Pa. 462. ' Breitenbach v. Dugan, 5 Clark 236. ' Fassit V. Phillips, 4 Wharton 399. ' Passmore v. Eldridge, 12 S. & R. 198. ASSIGNMENTS. 7 evidences thereof there may be, and what security or claims against other persons the creditors may have for the payment of the same or any part thereof; III. A full statement of the cause of his insolvency ; IV. A list of all the judgments confessed, or payments, pledges, assignments, transfers, conveyances or incumbrances made by him in payment of, or as security for, a pre-existing debt, or for the benefit of himself or family, or with intent to prefer one creditor to another, or Gilt of the usual and ordinary course of his business within three" months prior to his assignment, and the consideration therefor. And attached thereto shall be an oath by the insolvent in the following form" : 8. Form of oath of assignor. "I do swear (or affirm) that all the schedules above set forth are in all respects just and true; that I have not at any time, or in any manner whatsoever, since my insolvency, disposed of or made over any part of my estate for the future benefit of myself or my family, or in order to defraud any of my creditors; that I have, in no instance, credited or acknowledged a debt for a greater sum than I honestly and truly owed ; that I have not preferred or attempted to prefer one creditor over another since my insolvency, except as in said schedule set forth; that I have not withheld, concealed, intrusted, or in any way disposed of or incumbered, any of my property which should justly be delivered over for the benefit of my creditors; that I have not changed, altered or falsified any of my books or papers, but have delivered the same to my assignees for the purposes of my estate ; and that if any further assets of my estate come to my knowledge, I will forthwith disclose or deliver the same to my assignee. So help me God. [Or, And so I do affirm.] 9. Form of deed of assignment. Following is a form of assignment, which may be adjusted to the circumstances : This indenture, made the day of between Willis Reed, of the city of Reading, State of Pennsylvania, and Pearl Irene, his wife, of the one part, and Joseph Tatton, of the same place, of the other part. Whereas, the said Willis Reed, owing to sundry losses and misfor- tunes, is at present unable to discharge his just debts and liabilities, and is willing to assign all his property for the benefit of his creditors : Now this indenture witnesseth, That the said Willis Reed and Pearl Irene, his wife, as well in consideration of the premises, and for the purpose of making a just distribution of his estate and efifects among the creditors of the said Willis Reed, as also of the sum of one dollar to them in hand paid by the said Joseph Tatton, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred and set over, and by these presents do grant, bargain, sell, assign, transfer and set over unto the said Joseph Tatton, his suc- cessors and assigns all the messuages, lands, tenements and heredita- ments, wherever situate (saving and excepting all the separate estate, real, personal or mixed, of the said Pearl Irene Reed), and all ' Section i following the national bankrupt law names four months. 8 EQUITY PRACTICE IN PENNSYLVANIA. the goods, chattels and effects, and property of every kind, real, per- sonal and mixed, of the said Willis Reed (excepting and reserving from the operation of this assignment such an amount of property, real and personal, as is by law exempt from levy and sale on execu- tion and distress for rent, by virtue of the act of April 9, A. D. 1849.) To have and to hold, receive and take the same to the said Joseph Tatton, his successors and assigns, In trust, and to the intent and purpose that he, the said Joseph Tatton, shall and do, as soon as convenient, sell and dispose of, at public or private sale, and convey by proper conveyances all of the lands, tenements, goods, chattels and property of every kind of the said Willis Reed (except as reserved) and collect and recover all the outstanding claims and debts to him the said Willis Reed due, and with the moneys arising therefrom, after deducting his reason- able costs and charges, shall and do pay the creditors of the said Willis Reed their respective just demands in full, if there shall be sufficient assets to satisfy the whole, and if there shall not be sufficient assets to satisfy all the demands of the creditors in full, then ratably according to the amount of their respective demands and according to law; and in case there be a surplus after satisfying all the just and legal demands under said trust, then to redeliver and reconvey the same unto the said Willis Reed, his heirs, executors, administrators or assigns, within a reasonable time thereafter. In testimony whereof, the said Willis Reed and Pearl Irene, his ,wife, have hereunto set their hands and seals the day and year first above written. Willis Reed. [Seal.] Pearl Irene Reed. [Seal.] Signed, sealed and delivered in the presence of Stephen M. Meredith, A. L. Bertolett. Note. — If the wife wishes to retain her dower interest in her hus- band's real estate, she need not join in the deed. 10. Form of acknowledgment. State of Pennsylvania, County of Berks, ss. Before me, a , in and for the said county and state, personally appeared the above-named Willis Reed and Pearl Irene Reed, his wife, who each severally and in due form acknowledged the fore- going deed of assignment to be their act and deed, and desired that the same might be recorded as such, according to law. In testimony whereof I have hereunto set my hand and affixed my seal this day of , A. D. 19 — . , J. P. Or, N. P. The form of the schedules required by the 9th section of the act of 1901, supra, is sufficifently indicated therein and should be followed. 11. Eecording and effect. Section 10 of the act of 1901, supra, provides: "The assignment or a certified copy of the decree of the court appointing a receiver shall be recorded in the county where the ASSIGNMENTS. p insolvent resides, or his principal place of business is situate, and in every county where he owns real estate. A failure to record shall not in any manner affect the assignment; but if the assignee fails to record it within fifteen days after its delivery, his compensation as assignee shall be reduced by a sum sufficient to pay the costs, ex- penses and counsel fees of any creditor, or creditors who, in ignor- ance thereof bring suit, or proceed with one already brought, and such sums shall be paid to such creditors. Any creditor may compel the production and recording of an assignment, by petition to the proper Court of Common Pleas, at the expense and cost of the defaulting assignee, including a reasonable counsel fee to such credi- tor's attorney." Under the act of 1818, 7 Sm. L. 131, it was held that a second assignment, which is recorded, will take the property.' When a corporation assigns the county in which the record must be made is where its property lies and not that of its home office.' The time runs from the execution of the instrument.' A partial assignment must also be recorded." The act is impera- tive.'" But if no creditor sees fit to take advantage of it, the title will pass by consent or waiver." When the assignment concerns real estate it must also be recorded in the county where the real estate is situate," in order to give notice to purchasers and incumbrancers," unless actual notice is given." The recording in the domiciliary county was also required.'" Without the recording both real and personal property may be levied upon." It was long ago held that a defectively acknowledged assignment was not notice. Delivery is also an essential." It is sufficient if delivered to one assignee ; or if mailed to him,"" or by handing it to an agent to deliver to the assignee." The assignor himself may have it recorded; " or he may deliver it to an attorney and it takes effect at the time of such delivery." A fraudulent sale by the assignee is not admissible to show that a fi. fa. was issued before the delivery of the assignment."* "Huey V. Prince, 187 Pa. 151. ' Lucas V. Sunbury Etc. R. Co., 32 Pa. 458. " Johnson v. Herring, 46 Pa. 415. •Murphy's Assignment, 2 Pitts. 271. " Mitchell V. Gendell, 7 Phila. 107. " Seal V. Duffy, 4 Pa. 274, P. & L., Dig. vol. i, col. 1486-7. C. R. A., vol. I, col. 425-6. " See section Supra, under Act of May 19, 1893, P. L. 108, the time fixed was six months. " Dougherty v. Darrach, ig Pa. 399. " Follweiler v. Lutz, 102 Pa. 585. " Reigart's Ap., 4 Pa. 477 ; Dettra v. BoUman, 9 Lane. L. R. 1. " Colvin V. White, 200 Pa. 277. " Heister v. Fortner, 2 Binney 40. " Davis v. Wollerton, 2 W. N. C. 428. " Hodenpuhl v. Hines, 160 Pa. 466. ^ McKinney v. Rhoads, 5 Watts 343. '' Read v. Robinson, 6 W. & S. 329. " Marks' Ap., 85 Pa. 231. "' Wright's Est., 182 Pa. 90. "Leeds v. Comth. 83 Pa.. 453- 10 EQUITY PRACTICE IN PENNSYLVANIA. 12. Acceptance by assignee. The deed of assignment takes effect from its delivery, whether the trust is accepted or not, a subsequent acceptance relating to the time of the delivery. If the trustee declines or cannot accept, the court inay appoint one."' A subsequent renunciation does not affect the assignment."' 13. Form of acceptance. Following is a form of acceptance by assignee: , A. D. 19-7-. I hereby accept the trust specified in the foregoing deed of assign- ment. Joseph Tatton. 14. Form of oath. Section 11 of the act of 1901, provides: "The assignee or receiver shall, immediately after his appointment, take, subscribe to, and file in the proper court, an oath or affirmation in the following form: I, A. B., do solemnly swear (or affirm) that I am legally qualified to act as assignee [or receiver] of the estate of C. D., an insolvent; that I am not interested therein or adversely thereto; that I will faithfully manage said estate for the benefit of the creditors thereof, in the manner provided by law, and will fully and accurately account for all the assets. So help me God [or, so I do affirm]." 15. Form of bond, and additional bond. Section 12 of the act of 1901, supra, provides : "The assignee or receiver shall, before entering on the perform- ance of his duties, give bond, with sufficient sureties, to the common- wealth, for the use and benefit of all parties in interest, in at least double the value of the insolvent's estate, as known to him, conditioned as follows: The condition of this obligation is such that if the above bounden A. B., assignee [or receiver] of the estate of C. D., an insolvent, has discharged and shall faithfully discharge his duty as assignee, shall faithfully account for all moneys or assets received or to be received by him, or in which the estate of said insolvent is in any manner inter- ested, and has faithfully executed and shall faithfully execute the trust confided to him, in the manner provided by law, then this obligation to be void; otherwise, to be and remain in full force and efTect. If additional assets are discovered after the giving of said bond, or the assets realize much more than their estimated value, or the court shall be of opinion that any of the bonds theretofore given is, for any cause insufficient, the assignee or receiver shall give a new bond or bonds and with like conditions. Suits may be brought thereupon, as in the case of other official bonds, until the amounts thereof are exhausted; but neither said suits, nor the exhaustion of said bonds, shall in any way limit the liability of such assignee or receiver." " Wilt V. Franklin, i Binney 502. *■ Bittenbender v. Sunbury Etc. R. Co., 40 Pa. 269. " Seal v. DufTy, 4 Pa. 274. ASSIGNMENTS. „ 16. Delivery of assets and duties of insolvent. Section 13 of the act of 1901, supra, provides: "The insolvent shall forthwith deliver to the assignee or receiver all his assets; including all vouchers, notes, bonds, bills, securities, or other evidences of debt, documents, muniments of title, and writings in any way relating to, or having any bearing upon, or con- nection with his estate; all books of account, patents, copyrights, as- signments, leases, agreements and, generally, everything which re- lates to the assets, or will assist the assignee or receiver in collecting the same, or in ascertaining the true amount, due to the creditors of the estate. The said insolvent shall, from time to time, at the expense of the estate, make and execute such deeds and writings, endorse such bills and other negotiable papers, draw such checks and orders, for money deposited in banks and elsewhere, and do all such other lawful acts and things as the assignee or receiver may reasonably require, and which may be deemed useful for confirming the assignment, or to enable the assignee to demand, recover and receive all the estate and effects of the insolvent, especially any part thereof which is with- out this commonwealth. The court may by rule to show cause, followed by attachments for contempt, compel the insolvent to comply with its orders in this re- gard; but his failure or refusal so to do, either before or after such order, shall in no wise affect or impair the right of the assignee or receiver to recover any of the assets by suit, in his own name." 17. Bight of insolvent to his exemption. Section 31 of the act of 1901, as amended by act of 191 1, provides: "An insolvent shall be entitled to the same exemption out of the assigned estate as he would be, had an execution been issued against him." The act of June 19, 191 1, P. L. 1069, repealed the last clause of the above section making the exemption absolute and the cases, so hold- ing, fell with it.^ The assignor must claim his exemption in manner and form as is provided by the act of April 9, 1849, P. L. 533," which was for his own benefit under the act of 1901, and not some judgment creditor in whose favor there was a waiver.^ He may do with it what he pleases," and give it to his wife."" The real purpose of the act of 1849 w^s to exempt $300 for the use of a man's family, if he have one, and that it cannot be waived. Pennsylvania is the only jurisdiction in which the rule was made otherwise, and in one of the cases there is a dictum that if the question were squarely raised this state would follow the rule. If the assignor claims more than $300 his deed is voidable at once by his creditors." By fraudulent concealment of property he loses his right to the exemption." It was held that where a husband and wife join their separate estates in one assign- " Gilbert's Est., 29 Lane. L. R. 76. "Muckel's Est., 4 Del. Co. 386; Mulford v. Shirk, 26 Pa. 473. "Long V. Wilson, 8 York, 32. " Hildebrand v. Bowman, 100 Pa. 580. " Conard's Est., 7 York 23. "^ Johns V. Bolton, 12 Pa. 339. " Kreider's Est., 135 Pa. 578. 12 EQUITY PRACTICE IN PENNSYLVANIA. ment, each is entitled to the exemption.'" Tenants in common are entitled to one exemption only out of the common estate."" Partners who assign not only the partnership but also their individual property are each entitled."' When the assignor dies the right claimed in his deed passes to his legal representative." It cannot be claimed, it seems as against mechanic's liens,™ or as against a lien for purchase money," but in the latter case the assignor may claim it out of growing crops, at the time of assignment." It cannot be paid out of rents accruing after the assignment ; " nor can the assignor claim farm implements and stock as "household furniture.'"" A waiver of exemption in a note does not apply to an assigned estate." The assignor is bound by his election of property as his exemption." Although claimed generally in the deed, if set apart by the assignee, it will not be disturbed, *" and the assignee is bound to recognize the demand and it may be claimed specifically out of the realty." If he does not claim until after appraisement, he must take it at the ap- praised value.^ If there are liens on the realty he must have it set apart at the tinie of the appraisement." Where part only is paid, but the whole is claimed in the deed, the balance may be claimed out of a fund as soon as it becomes available.™ Confirmation was granted nunc pro tunc under the act of 1864," which is repealed by the act of 1901. The claim may be disallowed for laches in making it.'" The assignor should make a selection with due diligence and have it set apart to him in an orderly procedure."" His exemption is not demandable out of the proceeds of a "sale and book accounts cannot be treated as money for the purpose." The practice follows the forms in Vol. 2, Johnson — "Exemption." Under the act of 190 1 it has been held the assignor cannot waive the exemption." But the act does not apply to a judgment with a waiver given prior to the passage of the law. '° Reinhold's Est., 13 Lane. Bar 148. "• Delliker's' Est., 3 Del. Co. 357. "' Lippincott's Est., 8 Phila. 236. Jervis v. Gilberts, i Chester Co. 450. "' Partridge's Est., 19 W. N. C. 62. "° Wiend's Ap., 12 Lane. Bar, io6;Muckers Est., 8 Lane. L. R. 89. *° Wiley's Est., 96 Pa. 173. " Shimp's Est., 197 Pa. 128. " Bausman's Ap., 90 Pa. 178. *" Strohm's Est., i C. C. 573. *' Leibelsperger's Est., 2 Berks Co. 79. " Chubb's Est., 27 Lane. L. R. 365. ■"Morrett's Ap., i Pitts. 154; Heekraan v. Messinger, 49 Pa. 465; Delli- ker's Est., 3 Del. Co. 357. " Larkin's Est. 132 Pa. 554. " Wilson's Est, 14 L. R. 370. ■" Shaeffer's Ap., loi Pa. 45 P. & L. Dig., vol. i, col. 1496. "Peterman's Ap., 76 Pa. 116. "Harting's Est., 9 Lane. Bar 65. ™ Chileoat's Ap^ loi Pa. 22 ; Kohr's Est., s York, 183. °" McFarland's Est., 16 Supr. C. 152. " Eiehenberg v. Cooper, 20 Lane. L. R. 78. " Citizen's Etc. Bank v. Gass, 29 Supr. C. 125. " Kochenour's Est., 17 York, 116. ASSIGNMENTS. ,3 18. Preferred claims. It is provided further by Section 31 of the act of 1901, supra— "Any hen or claim for wages, for rent, of mechanics and material men, or otherwise, which by virtue of any act of assembly would be preferred in case of an execution, shall retain its preference in case of an assignment, and to the same extent. Rent accruing after the date of the assignment, and wages necessarily incurred in service rendered to or for the assignee or receiver, shall be paid as part of the expenses appertaining to the assignment. "Except as herein otherwise provided, all and every interest, claim and estate in the property shall be discharged or divested by an assignee's or receiver's sale, if it would have been discharged or divested by a sale under an execution at the time of the assignment and not otherwise." This section preserves the preferences against the assignor created by law, embracing the act of April 9, 1872, P. L. 47, which was en- larged very much as to classes, by the act of May 12, 1891, P. L. 54, which included nearly every person but a traveling salesman.' Section 13 of the act of June 4, 1901, P. L. 431, which made a mechanic's lien preferable to a purchase money mortgage has been declared unconstitutional, and as having gained no force by lapse of time.'* The act of May 26, 1891, P. L. 122, gives a landlord preference for one year's rent out of the goods on the premises and where the assignee acts for the sheriff in selling the goods a notice to him is sufficient.' The wage claimants may embrace their several claims specifying them in one notice to the officer,' but they can claim only fos wages earned within six months.* One claiming to be a creditor of a trust fund and to have a prefer- ence in such claim must trace the trust money into some specific fund, security, or account of the insolvent which has passed into the hands of the receiver or assignee. He must identify the fund either as the original or its product.** 19. Notice — meeting of creditors. Section 14 of the act of 1901, provides: "Immediately after his appointment, the assignee shall give written or printed notice to all the creditors known to him of the fact of his appointment; notifying them that on a given day and hour, not more than twenty days distant, and at a given place, particularly designated, a meeting of all the creditors will be held, for the purpose of selecting an additional assignee or assignees, if they deem the same to be necessary. At such meeting a majority in amount, of the creditors present, in person or by proxy — partnerships or joint creditors,^ how- ever, having but one vote each — may select as many more assignees 'Mulholland v. Wood, 166 Pa. 486; P. & L. Dig., vol. i, col. 1517 for cases under prior laws. '* Page v. Carr, 232 Pa. 371. 'Leidich's Est, 161 Pa. 451. ' Yeager v. Tool, i Dauphin Co. 120. * Gergenmuller v. Groff, 18 D. R. 40. *aGroff V. City Etc. Co., 46 Supr. C. 423. citing Miller's Ap., 218 Pa., 50; Comth. V. Union Etc. Co., 37 Supr. C. I79- 14 EQUITY PRACTICE IN PENNSYLVANIA. as there were assignees named in the original deed of assignment. The assignees originally named shall, by deed duly executed, acknowl- edged and recorded, transfer to those thus selected, an equal and undivided interest in said estate, and all the assignees thus named and selected shall thereafter act as joint assignees, with the same effect as if all were originally named in the original deed of assign- ment." 20. Notice to creditors to prove claims. Section 22 of the act of 1901, as amended by act of June 9, 191 1, provides : "The assignees immediately after the meeting of the creditors afore- said, and the receivers, immediately after their appointment, shall give written or printed notice to all the creditors known to them, requiring such creditors, within six months of the date of such notice, to make proof of their claims in the manner hereinafter set forth, or be de- barred from coming in upon the fund. They shall also, at the same time, advertise such notice in one weekly newspaper in said county or in one daily newspaper in said county, and in such legal periodical, if any, as shall be designated by the court, once a week for four successive weeks." 21. Form of notice to creditors. Notice is hereby given that Willis Reed, of the city of Reading, county of Berks and state of Pennsylvania, and Pearl Irene, his wife, by deed of voluntary assignment, have assigned all the estate, real and personal, of the said Willis Reed to Joseph Tatton, of said city and county, in trust for the benefit of all the creditors of said Willis Reed. All persons who are indebted to the said Willis Reed will make immediate payment to said assignee and all persons having claims or demands against said Willis Reed will promptly present and prove them to said assignee, within six months or be debarred. Joseph Tatton, Assignee of Willis Reed. 22. Inventory — examination of Insolvent and witnesses. Section 15 of the act of 1901, provides: "The receiver within twenty days after his appointment, and the assignees within twenty days after the meeting of the creditors, shall file a sworn inventory of the estate, with its then present value. For the purpose of enabling them to do so, or to file any supple- mentary inventory, they are hereby empowered to examine the in- solvent, under oath as to any matter appertaining to such assets, and by leave of the court, to call before them, by subpoena, with or with- out his books and papers, or the books and papers of any firm, limited partnership, joint stock company, or corporation with which he is connected; and examine also, under oath, on the same subject, any person who they have reason to believe has knowledge of other or further assets of the insolvent's estate, or can give them information touching the same. No objection to such examination shall be made on the ground that a disclosure would tend to bring the witness into contempt, or disgrace, or convict him of crime; but the ipformation ASSIGNMENTS. ,5 thus obtained shall not be used against him in any other proceeding Any witness may decline to answer any question, or produce any books and papers, which, aside from the foregoing, he would not be required to answer or to produce in court upon a trial involving the same question. Every witness, including the insolvent, shall be en- titled to receive, out of the insolvent's estate, the usual witness fee and mileage for his attendance for this purpose."" The provision in the above section compelling the insolvent to disclose facts tending to incriminate himself is of doubtful validity The act of June ii, 1879, providing for the examination of a de- fendant, was declared unconstitutional,' and a similar provision in the act of 1897, P. L 237, in relation to judgments confessed by fraud was doubted by the Supreme Court.' 23. Eeward for discovery of secreted property. Section 32 of the act of 1901, provides: "Any person who shall discover to the assignee or receiver any secreted property, real or personal, in the possession or control of a third party, and in which the insolvent estate has an interest, shall receive out of the proceeds thereof, for so doing, an amount, to be fixed by the court or auditor, at least equal to the commission of the assignee or receiver, in regard thereto." 24. TTnlawfTil preferences as acts of insolvency. Section i of the act of 1901, supra, provides : "That if any person, persons, firm, limited partnership, joint stock company or corporation, being insolvent or in contemplation of in- solvency, with a view to give a preference to any creditor or person having a claim against, or who is under any liability for, such in- solvent, shall procure, suffer or permit any judgment to be entered, by confession or otherwise, or any execution to be levied, or any attachment or sequestration to be made of any part of his, their or its real or personal property, or shall make any payment, pledge, assignment, transfer, conveyance or incumbrance thereof, either abso- lutely or as collateral security for a debt then existing, whether due or not, such judgment, execution, attachment, sequestration, payment, pledge, assignment, transfer, conveyance, or incumbrance shall inure to the benefit of all the creditors of such insolvent, if an assignment for the benefit of creditors be made or proceedings in insolvency be commenced within four months after such judgment, execution, at- tachment, sequestration, payment, pledge, assignment, transfer, convey- ance, or incumbrance shall have been entered, issued, commenced, made or recorded, and in the case of personal property, exclusive possession given." The same result was effected under the act of April 17, 1843, P. L. 273, with the exception of wages of labor.' ' The Act of June i, 1907, P. L. 364, fixed the fees of witnesses at $1.50 per day; but was held not to repeal local laws. The Act of 1911 remediea this. 'Horstman v. Kauffman, 97 Pa. 147. 'Page v. Williamsport Suspender Co., 191 Pa. 511. 'Hoderpuhl v. Hines, 160 Pa. 466; Dickson's E.st., 166 Pa. 134; Huey v. Prince, 187 Pa. 151 ; Heintzenreither v. DuBois Bank, 4 Supr. C. 524. i6 EQUITY PRACTICE IN PENNSYLVANIA. But that act was held not to apply to the proceeds of a life insurance policy where the beneficiary renounces; " nor to the conveyance and re-conveyance of a testamentary trustee's interest under a will." It was also held that payments of cash or a transfer by bill of sale in good faith were valid; " also judgments confessed in good faith. A judgment entered within four months of insolvency without the knowledge of the insolvent is not to be cut out _ of its preference, unless collusive and the burden of proving it so is on the creditors who contest it."* A promise of preference on renewal of a note to a bank was held subject to the act of 1843." A conveyance in good faith might be made so as to prefer a creditor in any manner except by a trust.^ A preference by judgment was not assailable, if made in good faith." Under the national bankrupt act all preferences made within four months prior to bankruptcy are void. 25. Collusion of creditor — presumption. Section 2 of the act of 1901, provides : "If any person, persons, firm, limited partnership, joint stock com- pany, or corporations, being insolvent or in contemplation of in- solvency, with a view to give a preference to any creditor or person having a claim against, or who is under any liability for, such in- solvent, shall procure, suffer or permit, any judgment to be entered, by confession or otherwise, or any execution to be levied, or any attachment or sequestration to be made of any part of his, their or its real or personal property, or shall make any payment, pledge,- assignment, transfer, conveyance, or incumbrance thereof, either abso- lutely, or as collateral security for a debt then existing or about to be created, and if the aforesaid be known to such creditor, who thereby collusively attempts to obtain for himself or other creditors, such judgment, execution, attachment, sequestration, payment, pledge, assignment, transfer, conveyance, or incumbrance shall inure to the benefit of all the creditors of such insolvent, if an assignment for the benefit of creditors be made, or proceedings in insolvency be com- menced within four months after such judgment, execution, attach- ment, sequestration, payment, pledge, assignment, transfer, convey- ance or incumbrance shall have been entered, issued, commenced, made or recorded, and in the case of personal property exclusive possession given. A presumption of such knowledge of intention shall arise, by reason of the fact of such insolvency, if the consideration be grossly inadequate, or if such judgment, execution, attachment, sequestration, payment, pledge, assignment, transfer, conveyance, or incumbrance shall not have been entered, issued, commenced, made or recorded, and, in the case of personal property, exclusive posses- ° Schaefer's Est., 194 Pa. 420. "Hart's Est., 211 Pa. 219. "Ayer's Est., S C. C. 540; Coopersburg Sav. Bank's Case, 2 Northam. 113- "Gallagher's Ap., 114 Pa. 353; Wenger's Est., 2 Supr. C. 6n. "a Graham's Ac, 20 D. R. 887. " Kittanning Etc. Co.'s Est., 210 Pa. 6. " Miller v. Shriver, 197 Pa. 191. " Huey V. Prince, 187 Pa. 151. ASSIGNMENTS. 17 sion be not given at or about the time of the creation of the debt or if the transaction shall not have been made, in the usual and ordinary course of the business of such insolvent. But nothing herein contained shall in any manner affect any judgment, payment, pledge, assignment, transfer, conveyance, or incumbrance taken in good faith, without such knowledge or intention, when a debt is created or about to be created, if entered, made or recorded, and in the case of personal property exclusive possession be given at or about that time." 26. Assignment of assets by member of partnership, etc. Section 4 of the act of 1901, provides: "Any member or members of a partnership, limited or other- wise, except the associations created under the act of second June, one thousand eight hundred and seventy-four, and its supplements, or any one or more joint, or joint and several debtors may make an assignment of the assets in which he or they are interested with others, for the benefit of their creditors, in the manner and with the effect herein provided; but any other person or persons jointly, or jointly or severally, interested in such assets, may, within fifteen days after notice thereof, upon petition to the court, and with notice to the assignors, give security to indemnify and ■ save harmless the assignors, and to pay all debts, or to obtain the release of the assignors therefrom, within such time as the court shall designate, not exceed- ing six months; whereupon the assignees shall forthwith transfer to those entering such security all the assets passing by the assignment, freed and clear of all claims upon the part of the assignors and assignee, but the rights of the creditors shall remain as if no assign- ment had been made. In case of such an assignment, the assignee shall forthwith give written notice to the other person or persons jointly, or jointly and severally interested in such assets, and shall file of record an affidavit thereof, and the. fifteen days shall be com- puted from the time of such filing. If the assignment be set aside, the costs incurred, including the reasonable expenses and the fees of the assignees, shall be paid as the court shall direct." 27. Vacation of attachments, executions, etc. Section 16 of the act of 1901, provides: "Upon application of the assignee or receiver, the court shall vacate and set aside all attachments, executions, sequestrations or other legal proceedings not wholly completed, and all money in court or in the hands of the sheriff, by virtue thereof, shall be paid to such assignee or receiver. The assignee or receiver shall pay, out of so much of the insolvent's estate was attached, sequestered or levied upon, or was received from the court or sheriff, the legal cost of such vacated pro- ceedings, as a preferred claim, if the creditor's claim is afterwards allowed in the distribution of the insolvent's estate ; and the creditor's claim shall also be paid thereout, if it shall be decided that, notwith- standing the provisions of this act, he was entitled to a preference." 28. Stipualtion of conditions. Prior to the act of 1901, it was held that an assignment m general terms reserving certain household property, without more, is valid. 'Knight V. Waterman, 36 Pa. 258; see Boker v. Crookshank, i Phila. 193- Vol. 4 Pr.\ctice — 2 i8 EQUITY PRACTICE IN PENNSYLVANIA. If the property reserved could not be taken by creditors in any event the assignment will stand.' But a stipulation that the property be re-conveyed upon payment of debts by assignor invalidates it; also that he be employed at a salary to be fixed by him; * and that the property be sold for the benefit of certain creditors, the assignor to retain possession; ° so is a stipulation to pay one creditor in full. A reservation for the benefit of his family does not avoid the assign- ment, but the property is not exempt from attachment ; \ but a reserva- tion to assignor's son of a debt which does not exist is a fraud and vitiates the whole.' He must relinquish his control of the property entirely and with clean hands. * 29. Effect of assignment. An assignment does not stop the creditor from suing the assignor and putting his claim in judgment; " nor the filing of a mechanic's lien. The property remains taxable in the hands of the assignees the same as before ; "^ but bills receivable being of uncertain value, are not taxable in the hands of the assignee." The commonwealth's claim is not postponed to other creditors; " and under the act of 190 1 tax claims are preferred."" 30. Executions and attachments. An assignment is made subject to prior executions and attachments whose status is not changed by it ;" but it is not affected by subsequent ones." However, if the assignment is attacked on the ground of invalidity or fraud a rule to set aside an execution subsequently issued will not be made absolute, pending the inquiry." Prior to the act of 1901 the court would not set aside an execution on the application of the assignee." As between an assignment and an attachment, the law takes cognizance of fractions of a day, the rule being first in time first in right." An execution levied but stayed ' Faunce v. Lesley, 6 Pa. 121. ' Whallon v. Scott, 10 Watts 237. * McCIung V. Leckey, 3 P. & W. 83. "Link's Est., 50 Pitts. L. J. 185. • Mann v. Darlington, 15 Pa. 310. 'McAllister v. Marshall, 6 Binney 338; Bradway's Est., i Ashmead 212. ' Irvin V. Keen, 3 Wharton, 347. ' Bentz V. Rockey, 69 Pa. 71 ; P. & L. Dig., vol. i, col 1501-2 ; Peters v. Light, 76 Pa. 289. " Connolly v. Prac. B. & L. Assn., 6 W. N. C. 176. "Crump v. Gill, 30 Leg. Int. 116; Clark v. Miller, 14 C. C. 227. "U. S. Bank's Ap., 5 Clark, 181; Wright v. Wigton, 84 Pa. 163. " Lancaster v. Rathvon, 30 Pa. 533. "Goodwin, Etc., Co.'s Est., 166 Pa. 296. " Act June 4, 1901. P. L. 364. "Dreisbach v. Mechanic's Natl. Bank, 113 Pa. SS4; Braden's Est., 165 Pa. 184; P. & L. Dig., vol. I, col. 1515. "Lippincott v. Barker, 2 Binney 174; Taylor v. Guarantee Etc. Co. 149 Pa. 409; P. & L. Dig., vol. I, col. 1506; Hodenpuhl v. Hines, 160 Pa. 466; Gillespie v. Keating, 180 Pa., 150. "Bunting v. McCormick, 3 W. N. C. 496; Bailey v. Grim, 2 Leg. Rec. R. 270. "Neel v. Bank of Lewistown, 11 Pa. 17. " Malvin v. Sweitzer, 2 Luz. L. Obs. 35. ASSIGNMENTS. 19 by court with the lien of the levy preserved, and a rule to open judgment, subsequently discharged, loses its grip, so that an inter- vening assignment renders an alias A. fa. irregular."' An assignment does not extend the hen of a judgment beyond the legal period of five years, without a sci. fa. to revive and continue the lien.*' Executions levied before the assignment do not lose their priority by an agreement to let the assignee instead of the sheriff sell the property.''" When the court orders that the lien of a levy made for rent shall remain, the preference thus given to the landlord is prior to the claim of the receiver for the expenses of receivership, on the fund arising from the sale.*''' Where an execution was levied in good faith, before assignment and not collusive, or with a view to gaining a preference, it takes priority, although the writ be stayed. *• Where an assignment is void and the fund is in the hands of the assignee it may be attached there; " but not after the debtor has gone into insolvency and his property is in the hands of trustees." A prior execution binds all the personalty of the debtor in the county from the time it comes into the sheriff's hands and the officer may levy upon it any time to the return day and so return his writ or sell it after the return day and his return is conclusive.'" Where the assignee takes an assignment of the judgment under which the levy was made, the proceeds of his sale go first to the assigned judgment and then to the other creditors." A fi. fa. will not be stayed except on the strongest kind of a case.'' The proper practice is for the assignee to file a petition and ask for leave to intervene.*" 31. "Eornga assignments. The act of May 3, 1855, P. L. 415, provides as follows: "Section l. That whenever any person making an assignment of his or her estate situate within this commonwealth, for the benefit of creditors, shall be resident out of this state, such assignment may be recorded within any county where such estate, real or personal, may be, and take effect from its date : Provided, that no bona fide purchaser, mortgagee or cred- itor, having a lien thereon before the recording in the same county, and not having had previous actual notice thereof shall be affected or prejudiced, and the Courts of Common Pleas may dismiss or appoint trustees under such assignment, as in other cases." This act is not repealed by the act of 1901. "Missimer v. Ebersole, 87 Pa. 109. *'Ferrance's Ap., 107 Pa. 180. ^ t, ., j ''Kent's Ap., 87 Pa. 165; Mathews' Est., 144 Pa- i39; Broadhead v. Corman, 171 Pa. 322. "a Carlenwright Etc. Co.'s Case, 44 Supr. C. 640. "b Clark's Assigned Est., 38 C. C. 227. " Mitchell V. Stiles, 13 Pa. 306. " Thomas v. Phillips, 9 Pa. 355. " Smith's' Est.. 13 D. R. 80. ^ ^ x. „ " Wetzler's Est., 3 Supr. C. 435; Machen's Est., 6 D. R. 701. " Bosworth's Assignment, 7 D. R. 410. " Lawrence v. Yard, IS W. N. C. 190. 20 EQUITY PRACTICE IN PENNSYLVANIA. If this act is not complied with, the goods are attachable; ' though notice has been held equivalent to recording.' It must be actual notice and not inferential." A creditor who has notice cannot evade the effect of it by assigning his claim to one who has not.* This act is not intended for the benefit of non-resident creditors, but for citizens of this state." In respect to assignments in other states and in this the law of comity applies.' The foreign creditor obtains no preference, although he may have a judgment against the assignee for want of a sufficient affidavit of defense.' The act of 1855 does not apply to a case where a Pennsylvania corporation has complied jvith the laws of Maryland and assigns there.' The personalty assigned is distributed according to the laws of the assignor's domicile, when the assignment has been properly re- corded under the act of 1855.° Termination of trust in another state. The act of May 3, 1905, P. L. 363, provides "that when an assign- ment has been made for the benefit of creditors, in another state, and an estate or interest in real property or lands in this state has been heretofore vested or shall hereafter vest in the assignee or other trus- tee under said assignment, the trust shall cease at the expiration of twenty-five years from the time when the trust was created, except where a shorter limitation is contained in the instrument creating the trust ; and the estate or interest in the real property or lands in this state, remaining in the trustee or assignee, shall thereon revert to the assignor, or to his heirs or assigns, as if the trust had not been created." 32. Rights and powers of assi^ee. The assignee takes over the assigned estate with powers equal to those of a receiver in case of a corporation, and may realize with the same facility." He may employ counsel to advise him in his duties." Not being a purchaser, he takes the estate just as it left the hands of the assignor with all the equities then existing." So he is bound by agreements of his assignor as to the purchase of the property." He takes only such rights as his assignor had." He cannot attack ' Steel V. Goodwin, 113 Pa. 288, P. & L. Dig., vol. i, col. 1519. " Smith's Ap., 104 Pa. 381 ; Thistle Mills v. Watson, 19 Phila. 421. ' Chemical Natl. Bank v. Tuttle, 17 W. N. C. 415. * Wells V. Hotchkiss, 23 W. N. C. 26. "Bacon v. Home, 123 Pa. 452; Long v. Girdwood, 150 Pa. 4'i3; Hilliard V. Enders, 196 Pa. 587 ; Cross v. Smith, 14 C. C. 36. 'Lewis V. Barry, 72 Pa. 18; Smith's Ap., 104 Pa. 387. ' Wing V. Bradner, 162 Pa. 72. 'DeTurck v. Woelfel (No. i), 19 Supr. C. 265; (No. 2) 19 Supr. C. 270. "Smith's Ap., 117 Pa. 30. '" Christian's Ap., 102 Pa. 184 ; Charles Etc. Co. v. Bates Etc. Co., 7 D. R. 477. " McLellan's Ap., 26 Pa. 463; Comth. v. Order of Vesta, 156 Pa. 531. "Brooks v. Western Natl. Bank, 16 W. N. C. 298; P. & L. Dig., vol. i, cols. 1524-5; I C. R. A., col. 437. '' Twelves v. Williams, 3 Wharton 485; Raid v. Kroft, 12 York 80. " McGarry v. McGarry, 9 Supr. C. 71 ; Hetzel v. Sawyer, 10 D. R. 29 ; Smith v. Equitable Trust Co., 215 Pa. 418; Barnhart's Est., 13 York 129; Crawford Etc. v. Bank, 164 Pa. 109; Kent's Ap., 87 Pa. 165. ASSIGNMENTS. 21 as fraudulent a sale made on a judgment confessed by his assignor- " nor can he defend a fraudulent transfer made by his assignor," or recover on a fraudulent contract," or challenge former assignments." He cannot have his title ascertained on a rule to show cause why an execution should not be stayed," or on a rule to restore money taken into his possession."" The title to the property which comes into his hands is affected by the conditions of the assignor's contract in refer- ence thereto." Since the assignee is entitled to the custody of the prop- erty he is also entitled to the rents, crops and profits.^ A life estate assigned cannot be sequestrated."" The title to personalty vests in the assignee at the moment of the delivery of the deed and he may then maintain suit."" He need not take the property out of the hands of the assignor then to perfect his title and it will not be liable to execution issued afterwards."" Unless authorized by the assignment he has no right to lease a farm for indefinite time for repairs and taxes, so as to en- able the lessee to secure his claim."" In realizing upon the property he will not be surcharged with the excess of the appraisement if he has realized as much as could be reasonably expected."" Where real estate is sold subject to a mortgage the assignee must not allow the bidder to deduct the mortgage from his bid."" Where the property consisted of unfinished houses, the assignee must devote the pro- ceeds of the estate to finishing them before satisfying attachment ex- ecution he bought up." He must not divert the funds to claims not entitled to participation. ™ Where there is a dispute as to whom a claim should be paid the assignee should apply to court or take a refunding bond before he pays." If he pays a claim which he ought not to pay, he will be surcharged.^"" Therefore he should pay no claim without due proof in formal writing.'' He may pay the taxes due on the property,"" and agree to pay liens,"" but his agree- ment to pay a claim for which an execution was issued illegally does "Comth. Etc. Co. V. Harrity, 9 D. R. 204; VanDyke v. Christ, 7 W. & S. 373; Jordan v. Mosser, 9 C. C. 325. " Knowles v. Lord, 4 Wharton, 500. " Patterson v. Franklin, 176 Pa. 612. ''Bullitt V. Chartered Fund Etc., 26 Pa. 108; Phillips v. Henry, 160 Pa. 24; Golden's Ap., no Pa. 581. "Oswego Etc. C. V. Delaware Etc. Co., 10 C. C. 312. "" Kuentzler's Pet., 2 Leg. Rec. R. 206. "Collins V. Houston, 138 Pa. 481; Harrah's Est., 7 D. R. 170. """ Griffiths Est., i Chester Co. 39; Robb's Ap., 41 Pa. 45- " Lewis' Est, 170 Pa. 376. " Read v. Robinson, 6 W. & S. 329- „, . o """Graeff v. Hillegas, 38 Leg. Int. 86; Mitchell v. Willock, 2 W. & S. 253- "Mcllvaine v. Souders, 15 Lane. L. R. 371. " Real Etc. Co.'s Est., 212 Pa. 304. " Devlin's Est, 12 D. R. 595- "Mann V.Wakefield, II Supr.C. 18. ^ ^ ""Wright's Est., 182 Pa. 90; Floyd's Asst., 47 Pitts. L. J. 411- "Kauffman's Est, i Lane. Bar, No. 27. " Jacoby"s Ap., i Walker 346. "" Stevenson's Ac, 7 Watts 480. "Plank's Est., 10 Lane. L. R. 201. " Osborne's Est., 5 Wharton, 267. 22 EQUITY PRACTICE IN PENNSYLVANIA. not bind him." If he pays a claim as a whole which was due only by installments he will not be surcharged;" nor where the statute of limitations had not barred the claim at the date of assignment." He can retain funds to pay part of his personal claim." A receiver for a corporation may sue for fraud practiced on its creditors, although the defense offered might have been valid as against a suit by the corporation itself.""- If an assignee makes a contract for labor, etc., to complete a building assigned he may be held personally liable."'' 33. Powers of assignee under act of 1901. Section 17 of the act of 1901, provides: "An assignee or receiver for the benefit of creditors shall be under the control of the proper court of Common Pleas; shall be the repre- sentative of the creditors of the insolvent, and entitled by proper legal steps, in his own name as assignee or receiver, to have vacated and set aside for the benefit of all the creditors any judgment, execu- tion, attachment, sequestration, payment, pledge, assignment, transfer, conveyance or incumbrance which heretofore could have been avoided by the creditors, or any of them, or by which it is attempted to give one creditor preference over another, or which, by this act, inures to the benefit of all . the creditors of such insolvent. He shall be vested with all the property of the insolvent, real or personal, which the insolvent could have sold, assigned or conveyed, or which might have been taken in execution, or otherwise made liable for his debts or engagements, or any of them, at law or in equity, including patents and copyrights, royalties, debts due to or for the insolvent, liens or securities therefor, and rights of action or redemption; and, by leave of and subject to the control of the court, may carry on any business in which the insolvent may have been engaged. Every beneficial power and the interest of any person entitled to compel the execution of a trust power, shall pass to the assignee or receiver of the person in whom such power or interest is vested." 34. Bight to bill of discovery, Etc. Said section 17 further provides: "He may, by bill of discovery, or other legal or equitable proceed- ing, obtain information of, and sue for and recover in his own name as such assignee or receiver, any assets which the insolvent might sue for and recover, or which any of his creditors might make avail- able in payment of their claims; and any recovery had shall inure to the benefit of all, in proportion to their respective demands. And he shall be liable to suit, in his representative capacity, by any per- son seeking to recover specific property, if such property could have been recovered as against the creditors of the insolvent levying an execution thereon: Provided, " Gray v. Bell, 4 Watts 410. " Tradesman's Natl. Bank's Ap., 149 Pa. 268. "Heckert's Ap., 24 Pa. 482. " Strickhouser's Est., 2 York 114. "a Lyons v. Benney, 230 Pa. 117. "b Boon v. Trust Co., 39 Supr. C. 65. ASSIGNMENTS. 23 I. That no purchase or assignment of the real or personal property of such insol'-ent, made bona Me and for a valuable consideration, before the recording of the assignment, or of the appointment of a receiver in the county where such purchase or assignment is made, by or to any person not having actual notice or knowledge of such insolvency, or of the assignment or petition, shall be invalidated or impeached thereby, unless voidable under the other provisions of this act: II. That if any person indebted to such insolvent, or having posses- sion of any of his property, shall bona Me pay the said debt or deliver the said property to the said insolvent, without having had actual notice or knowledge of such petition or assignment, he shall not be liable to pay or deliver the same to such assignee or receiver." 35. Duties, credits and compensation. The assignee's duty is to close the business and file an account at the end of the year. He cannot, without the consent of the creditors, continue the business;" but having consented, they are bound by it." In the case of a manufactory a reasonable time is allowed him to finish goods in course of manufacture." If he permits the assignor to continue the business he takes all risks and may be surcharged." But if he makes money for the estate, otherwise." The form and manner of accounting are similar to accounts of other fiduciaries, for which see Vol. 3 Johnson's Practice. In his account the assignee may claim credit for all necessary expenses and debts of the estate which he paid and not depend on the auditor to average them as was done in one case.* He may take credit for taxes legally due which he was obliged to pay," and interest, though some was alleged to have been usurious, but there was no way of ascertaining in what proportion." He is entitled to a reasonable allowance for counsel in the business of the estate" but not for his private or individual interest therein;" nor for costs of trying the assignor's right to exemption." He cannot charge for advertising in a county where the land does not lie, or notary's fees;" or small items of traveling expenses all of which are covered by his commissions." Having claimed credit for a debt un- paid, he cannot claim part of it as unpaid in a subsequent account."' Under the act of June 24, 1895, P. L. 248, he is entitled to charge a "Bowman's Est., 19 Lane. L. R. 1S2; Peters v. Light, 76 Pa. 289; Key- stone Etc. Co.'s Est., 8 Lane. L. R. 43. "Bennett's Est., 21 C. C. 609; Comth. v. Dum, 17 Supr. C. 90. " Brown's Est., 193 Pa. 281 ; Patton's Est., 2 Parsons 103. " Krodel's Est., No. i, 27 Supr. C. 419. "Real Etc. Co.'s Est., 13 D. R. 749. " Frank's Ap., 59 Pa. 190. " Robb's Ap., 41 Pa. 45 ; Fillman's Est., 4 Montg. 137. "Selser's Est., 141 Pa. 529- "Devlin's Est., 12 D. R. 595; Inland Etc. Co.'s Est, 9 Lane. Bar, 119; Weed's Est., 163 Pa. 595- „ , j. , , "Rhoad's Est., 4 Montg. 167; Wright's Est., 182 Pa. 90; Landis Ap., 11 Lane. Bar, 206. "Blecher's Est., 10 Lane. Bar, IS4- " Lane's Est., 3 D. V.. 162. »* Troth's Est., i Chester Co. 89. "Ahl'sEst., 171 Pa. 317- 24 EQUITY PRACTICE IN PENNSYLVANIA. reasonable sum paid a surety company for bond." Where the as- signee expended money to finish some houses he was allowed the amount.^ In determining the compensation of the assignee all the circumstances must be taken into consideration, time, trouble and value of the Estate.^ Commissions from 214 to 5 per cent, on the value have been allowed.' If he has mismanaged the estate and is surcharged he is entitled to no compensation.* But for a mistake in discretion he will not lose his pay." He cannot charge for property which never came into his hands ;' nor when he has done nothing.' The calculation should be based on the real value of the estate." When an auditor has found a sum as compensation for the assignee and also for the attorney, it will not be reversed, if reasonable, although not based on percentage alone.'* 36. litigation, rigfhts in. The assignee's right to sue is measured by that of his assignor;' so he may sue a bank for deposits made by an assignor after assign- ment;" or a sheriff for selling assignor's goods under an irregular levy;" or in trespass for seizure after assignment;" or trover (or trespass) for the goods wrongfully withheld from him," though he has no right to waive a tort and sue in assumpsit;'" or the assignor's agent for paying over money of the assignor after notice of the as- signment, or the indorser of notes which he had bought up prior to the assignment;" or a bank for appropriation of assignor's funds after notice of the assignment." He may bring a bill in equity against a life tenant to restrain waste." But he cannot recover a deposit in bank to assignor's credit on a note discounted before assignment;" nor sue one who had transferred his note to a debtor of the estate to " Phillips' Est., IS Supr. C. 226. ^ Messersmith's Est., i Dauphin Co. 223. 'Hamme's Est., 12 York 129; Coleman's Est., No. i, 200 Pa. 29. 'Freedley's Ap., 2 Pa. 304; Tustin's Ac, 176 Pa. 382; P. & L. Dig. of Dec, vol. I, cols. IS34-S-6. *Stehman's Ap., S Pa. 413; Devlin's Est., 12 D. R. 595; Bennett's Est., 21 C. C. 609. ' Hamaker's Ap., i W. N. C. 432. ' Gillespie's Est., i Lane. Bar, No. 26 ; Hewer's Ap., i Mona. 24: 'Fournjer v. Ingraham, 7 W. & S. 27. " Powel's Est., 163 Pa. 349. 'a Rothschild's Est., No. i, 47 Supr. C. 234. 'Persch v. Con. Natl. Bank, 13 Phila. 157; Foulke v. Harding, 13 Pa. 242. " Stewart's Assignee v. Natl. Etc. Bank, 6 W. N. C. 399. " Burchard v. Rees, i Wharton m ; Sheerer's Assignee v. Lautzer- heiser, 6 Watts 543. " McElrath v. Kintzing, 5 Pa. 336. "Jacoby v. Laussatt, 6 S. & R. 300. " Weiler v. Kershner, 109 Pa. 219. " Ben. O. of W. v. Sanders, 28 W. N. C. 321. " Guarantee Etc Co. v. Craig, 155 Pa. 343. " First Natl. Bank Etc v. Peisert, 2 Penny. 277. " Smith & Wolff's Ap., 104 Pa. 381. "Lancaster Etc. Bank v. Huver, 114 Pa. 21. ASSIGNMENTS. 25 be used as a set off, alleging it as fraudulent;"* nor after settlement and re-conveyance, can he sue one of the partner's assignors for money paid out for their use."" An assignee of a corporation may sue stockholders for unpaid subscriptions to the capital stock,"" necessary to pay the corporate debts."* As a representative of the creditors he may bring a bill against the officers to compel an accounting"^ unless the creditors have commenced a suit themselves."" When he sues for an assessment ordered to be made by the court, he must prove that notice was given the stockholders of such assessment."* As a general rule the assignee may defend every suit or proceeding in which the assigned estate is interested ;"* though in foreign attach- ment, he must give notice to the garnishees upon whom the duty de- volves to defend."" He may defend on a sci. fa stir mortgage;"" but he cannot defend against a sci. fa. to revive against him as terre- tenant of a member of a partnership;" nor can he intervene after a levari facias has issued against the assignor;"" nor object to a suit in equity after final decree. If the assignee pays to a creditor money which was justly due him from the assignor he may not recover it when such creditor can- not be placed in the same position as when he was paid."* 37. Practice in suits by assignee. It was held that when the assignee sues upon a chose in action he must bring the suit in the name of the assignor;"" though he may have leave to amend,"" even in the supreme court;"' or at any stage. But where he sues on his own contracts as assignee, e. g., for goods sold, he should sue in his own name."* But the act of 1901, authorizes him to sue in his own name as assignee. An assignment being an active trust the assignee cannot plead the statute of limitations against a creditor." On a call for subscriptions of capital stock the statute runs against the assignee from the date of assignment and not the call." The assignee cannot have costs taxed in his suit as "' Heppard v. Beylard, i Wharton 223. "" Bittner v. Hartman, 139 Pa. 632. "" Yeager v. Scranton Etc. Co., 14 W. N. C. 296 ; West Chester Etc. Co. V. Thomas, 2 Phila. 344. "•Citizens' Etc. Co. v. Gillespie, 115 Pa. 564'. "' Warner v. McMullin, 131 Pa. 370. "'Penn Bank v. Hopkins, ill Pa. 329. "' Franklin Savings Bank v. Fatzinger, 4 Atl. 912. ""Durkin v. Wymbs, 2 Lane. L. R. 257; Roberts v. Emmens, i Lack. Jur. 46. "•Elberman v. Bloom, 10 C. C. 413. "° Kisterbock v. Building Assn., 27 Leg. Int. 12. " Kepler v. Erie Etc. Co., loi Pa. 602. "" Krause v. Neidig, 3 Montg. 132. °" Brown v. Gray, 2 Kulp 136. " Paine v. Monongahela Bank Etc., 194 Pa 403- "" Osborne v. First Natl. Bank, 17s Pa. 494- "Kellogg V. Datisman, 2 Phila. ill. " Shryock V. Basehore, 82 Pa. 159. " Felty V. Deaven, 166 Pa. 640. "» Wilmarth v. Mountford, 8 S. & R. .124. " Coates' Est., 2 Parsons, 258. "Franklin Sav'g Bank v. Bridges, 8 Atl. 611. 26 EQUITY PRACTICE IN PENNSYLVANIA. a witness." In a suit by an assignee the debtor may set off any bona fide debts due him from the assignor;" and the assignee may set off against the creditor's claim any just claim of the assignor," or against the assignor his individual claim." As the date of the assignment fixes the rights of the parties, a negotiable instrument not then due cannot be offered as a set off;* nor claims brought up afterwards;" unless he can prove that the assignor is solvent." In a suit against a bank for a deposit of assignor the bank may set off his note received as indorsed before the assignment." But against the suit of the assignee for goods sold by him, the defendant cannot set off a claim against the assignor." The judgment debtor of the as- signor cannot have his judgment opened to offer as a set off claims he bought up before the assignment, not in judgment."" 38. Liability for mismanagement and neglect. An assignee who acts in good faith and under advice of counsel, as a rule will not be surcharged;''' but where he grossly mismanages the estate and seeks to profit by it, he will not only forfeit his com- pensation but be surcharged with the losses."" This rule is founded in -public policy." The claim for surcharge should be made before the auditor and not later."" The assignee cannot be charged with goods sold by the sheriff which never came into his hands"* nor with the loss of deposit of surplus in a bank."" He will not be re- moved pending charges against him."' But if he has been cited to account and neglects to do so he may be attached"" after notice and a rule to show cause." If the assignee uses ordinary prudence and care in the sale of the property he will not be liable for losses which result ;" but if he is . *■ Rhodes v. Bank, 2 Chester Co. 206. "Heppard v. Beylard, i Wharton 223; Jordan v. Sharlock, 84 Pa. 366; P. & L. Dig., vol. I, col. 1553. **Bressler's Ap., 2 York 57; Jamison's Est., 163 Pa. 143. * Foulk's Est., 7 Lane. Bar, 194. * Hurver v. Lane. Co. Natl. Bank, 3 Lane. L. R. 52 ; Chipman v. Ninth Natl. Bank, 120 Pa. 86. " Collins v. McKee, 6 Atl. 396. *" Nesbitt v. Dodson, 3 Kulp 516. " Farmer's Etc. Bank v. Penn Bank, 123 Pa. 283 ; 130 Pa. 209. ""Wilmarth v. Mountford, 8 S. & R. 124. "' Stroud's Ap., 109 Pa. 326. "Troth's Est., i Chester Co. 89; Fuller's Est., 4 Kulp 479; Waller's Ap., ISO Pa. 494; Plank's Est., 10 Lane. L. R. 201; Sewickly Dairy Co.'s Est, 198 Pa. 63. "Breiter's Est., 12 Lane. Bar, 159; Powell's Est., 7 D. & R. 27; Mc- Lellan's Ap., No. 2, 76 Pa. 235. " Bowman's Est, 19 Lane. L. R. 154. "" Sprenkel's Ap., 16 W. N, C. 402. ""Wagner's Ap., 3 Walker, 130. "' Heckert v. Fordney, 3 Lane. Bar, No. 27. "* Union Banking Co.'s Est, 12 Phila. 214. °" Hugg's Est., I Clark 237. " May's Est, 10 Lane. Bar, 22. "Hamaker's Ap., i W. N. C. 452; Blecher's Est., 10 Lane. Bar, 154; Breneman's Est., 9 Lane. L. R. 129; Model Etc. Est, 159 Pa. 496; Scho- field's Est, 167 Pa. 479- ASSIGNMENTS. 27 guilty of fraud or gross negligence he will be properly surcharged." In the first instance he is chargeable with the appraisement, and if the sale shows a deficit he may show that he realized as much as he could with due diligence."" The auditor of the account is the proper party to pass upon this question." If the appraisement was erroneous and excessive the assignee will not be discharged nor surcharged;" but his own estimate of the value may be taken and adopted ;" and if he accounts for far less than he realized he will be surcharged." Also where he exceeds his authority, and loses money invested." He cannot sell the property to the assignor himself and accept a judgment to third persons from the assignor.™ An assignee is not liable for the acts or omissions of his co-assignees if he acts in good faith himself." 39. Liability for interest. An assignee is liable for interest which he receives on funds;' or on funds which he uses for his own benefit;' or commingles with his own funds in business;' or where he entails loss by delay and neglect.' But if the delay is due to exceptions to an auditor's report he will not be cha;rged with interest;" if due to his own exceptions he will be charged in a proper case;" and also where an appeal is pend- ing and a large amount of money is tied up.' But where there has been no undue delay or neglect of duty, interest will not be charged." 40. Eent of premises. The assignee is not liable for rent of the premises after the assign- ment unless he accepts or ratifies the lease. The assignor's posses- sion of the premises does not charge the assignee with the rent.'" He is not chargeable with rent for real estate unless he receives rent for it." If he is found guilty of waste and mismanagement he will be removed." "Davis' Est, 5 Wharton 530; Blackburn's Ap., 39 Pa. 160; P. & L. Dig., vol. I, col. 1560. ,,_., "Luse's Ap., 30 Pitts. L. J. 429; Sprenkle's Ap., i Atl. 51; Wileons Est., 14 Lane. L. R. 370. •* Powell's Est, 7 D. R. 27. " Powell's Est, 163 Pa. 349. "Bailey's Est, 44 Pitts. L. J. no; 188 Pa. 590. " Allison's Est., 183 Pa. S55- "Brown's Est, 193 Pa. 281. " Ruber's Est, 21 Supr. C. 612. " Stell's Ap., 10 Pa. I49- ■ Hess' Est, 68 Pa. 454- 'Conrad"s Ap., 11 W. N. C. 521. „ „, . ^ •Wistar's Est., 6 Phila. 5S; Dyott's Est., 2 W. & S. 557- 'Truitt's Est., 10 Phila. 16; Devlin's Est., 12 D. R. 595. ' Comth. V. Anstett, 2 Northam. 192. • Comth. V. Lintner, 8 Lane. Bar, 25. ' Lane's Ap., 24 Pa. 487. ,, . , r. t t d «q ■Floyd's Assignment, 47 Pitts. L. J. 4"; Huber s Est, 21 Lane. L. K. 9». •Wemmann's Est., 164 Pa. 40S. P- & L. Dig., vol. I, col. 1565; Grant v. Gill, 2 Wharton 42. .... „ "Detwiller's Ap., 96 Pa. 323; Waller's Ap., 150 Pa. 494- " Gump's Est., 13 Phila. 495- "Ahl's Est, 192 Pa. 370. 28 EQUITY PRACTICE IN PENNSYLVANIA. 41. Liability of sureties, A final decree fixing the liability of an assignee also concludes his sureties;" and although it be misapplication of funds arising by sale of real estate under the act of Feb!y 17, 1876, P. L. 4." A surety who is promised indemnity may require the assignee to give addi- tional security." If he has some of the funds in his hands he must account to the principal and the co-surety."" He cannot be subro- gated when the claim was paid before assignment." He is entitled to claim the $300 exemption." 42. Claims of creditors. Any claim or demand on which a cause of action has accrued at the date of the assignment may be proved ;" for the rights of creditors are then fixed."" It must be shown that the debt matured before the assignment.'' In such claim interest after the assignment will not be allowed."" Where the claimant compromises his claim and ac- cepts the sum he will be held to it.^ At the assignment every creditor becomes an equitable owner of his fair proportion of the estate and this cannot be altered;" even if one subsequently attaches after- acquired property of the assignor.** Where a bailor's goods are mixed in the assignment, if they can be identified his claim must be paid in full ;^ if not, then he is entitled only to his pro rataj" Cred- itors of one who held a trust fund cannot claim on the assigned estate."' An attorney for the assignee may claim as a creditor." An assignee who buys up claims against the estate may participate, but not at a profit."" The assignor's wife may prove a bona fide claim." One who loaned money to a partner to pay partnership debts has a claim on the assigned partnership." A member of a limited partner- ship may prove a claim against the partnership."" But this is not "Little V. Comth., 48 Pa. 337; Patterson's Ap., 48 Pa. 342; Comth. v. Steacy, 100 Pa. 613. "Rhawn v. Comth., 102 Pa. 450. "Carman v. Noble, 9 Pa. 366. "Belsterling v. Prowattan, 6 Phila. 40. " Cassidy v. Keeley, 13 Phila. 112. "Comth. v. Brown, 17 Supr. C. 520. " Sweatman's Ap., 150 Pa. 369. "Patten's Ap., 45 Pa. iSi; Herbst's Ap., 90 Pa. 353; P. & L. Dig., vol. I, col. 1569. ™ Jordan's Ap., 107 Pa. 75. ""Jamison's Est., 150 Pa. 143. (Boyer's Est., i York 193.) "' Penn Bank's Est., 165 Pa. 548. "Miller's Ap., 35 Pa. 481. "° Fister's Est., 14 D. R. 881. "Jordan's Ap., 10 W. N. C. 37. " Weaver's Est., 3 Lane. Bar. 13. "William's Ap., loi Pa. 474. ""Sallade's Ap., 36 Pa. 429. For other cases see P. & L. Dig., vol. i. col. 1572. " Hermstead's Ap., 60 Pa. 423; Ralston's Ap., 169 Pa. 254; Scheffy's Ap., 97 Pa. 317; Bnce's Ap., 95 Pa. 145; Bowman's Est., 19 Lane. L. R. 154. " Ziegler's Ap., 84 Pa. 342 ; Waller's Ap., 150 Pa. 494. "Davis' Est., S Wharton 530. ""Globe, Etc., Est., 151 Pa. 558. ASSIGNMENTS. 29 so of a general partnership."* A stockholder as such cannot claim upon the assigned estate of a corporation;"" but if he have an independent claim he can prove it."" Officers and directors may prove bona Me claims." Directors who advance funds to the corporation are preferred creditors."* 43. Effect of adverse proceedings. One who claims adversely to the assignment is not entitled to share in the distribution."" But if he claim a preference as a cestui que trust, he may take pro rata. His adverse action must amount to an estoppel in order to exclude him." So one who claims under an assignment must not take other and adverse proceedings.*' A lien creditor cannot enforce his claim by attachment; he must bring it before the auditor." A creditor who after assignment takes new notes does not thereby release his claim on the estate." 44. Agreements by creditors with assignor. After assignment the creditors may agree with the assignor to continue the business.* If they all agree they must abide by it." 45. Claims, amount and time to present. A creditor is not concluded by the assignment as to the amount of his claim." He cannot claim for part of the debt that has been paid." The test is the actual debt due at assignment." After an auditor's report and decree it is too late to present claims; unless there is a second account.™ Until an assignee has filed an account and had it adjudicated, a creditor cannot bring assumpsit for his claim." When a claim has been awarded, if it is not paid a rule may be taken to show cause why an attachment should not issue.''^ The act of 1901, supra, requires all claims to be presented within six months after notice. "Mill Etc., Est., 4 Supr. C. 106. " National Etc., Est., 9 W. N. C. 79. "° Craig's Ap, 92 Pa. 396; Reading, Etc. Est., 149 Pa. 182. "Hammond's Ap., 123 Pa. 503; Inland Etc. Ap., 9 Lane. Bar 119; Trevose, Etc., Est, 159 Pa. 496. "Atkinson's Ap., ii Atl. 239. " Geist's Ap., 104 Pa. 351 ; Machen's Est., 6 D. R. 701 ; Robb v. VanHorn 150 Pa. 508. " Jefferis' Ap., 33 Pa. 39. "Wylie's Ap., 92 Pa. 196; Merrick's Ap., 150 Pa. 508. " Guiterman v. Landis, i W. N. C. 622 ; Ralston v. Johnson, S Phila. 444; Kendall v. McClurfi Coke Co., 182 Pa. i; Perot v. Harrison, 13 Montg. 214; P. & L. Dig., vol. i, col. 1579. "Taylor v. Guarantee, Etc., Co., 149 Pa. 409. ** Reiser's Ap., 81 * Pa. 375. " Bingaman v. Kicking, 115 Pa. 420. "Smith's Est, 2 Del. Co. 442; P. & L. Dig., vol. i, cols. 1580-1; i C. R. A., col. 452. " Browne v. Weir, 5 S. & R. 401. *' Smith's Ap., 74 Pa. 191. "Bolt's Est., 133 Pa. 77; P. & L. Dig., vol. i, cols. 1582-3. ""CroU's Est., 2 Woodward 128. "Gray v. Bell, 4 Watts 410; Vanarsdale v. Richards, i Wharton 408; Boyd v. Moir, 7 Montg. 50; Rush v. Good, 14 S. & R. 226. •^Eberly's Est., 22 Lane. L. R. 278. 30 EQUITY PRACTICE IN PENNSYLVANIA. 46. Power of assignee as to claims and debts. The first clause of section i8, act of 1901, provides: "The assignee or receiver, within one year after his appoint- ment, unless the court upon cause shown shall extend the time, shall collect all the moneys due to the insolvent," etc. And, by the first two clauses of section 19 of the same act: "An assignee or receiver may compound or compromise any debt or claim due to the insolvent if done in good faith and after proper inquiry; and upon payment of the amount due, may require all mortgages, conditional contracts, pledges and liens, of or upon any real or personal property of the insolvent, to be satisfied, cancelled or assigned to him, as he may deem best, or he may sell the property subject thereto." 47. Sale of property at public or private sale. It is provided by section 18 of the act of 1901, that the assignee or receiver, shall within one year, unless the court extends the time, "sell at public or private sale all the stocks, bonds, mortgages, evi- dences of debt and other like property of the insolvent and shall sell at public sale the real and other personal property, of the insolvent, unless upon cause shown, the court shall authorize a private sale. After the expiration of that time the court may, upon cause shown, authorize a public or private sale of all the assets, of whatever kind or character the same may be, and wherever situate. All sales shall be for cash unless the court shall otherwise authorize. The purchaser from the assignee or receiver may maintain any action, regarding the property purchased, in his own name, or continue any action already brought to his use, with the same rights and to the same effect as the assignee or receiver might or could do, but shall be liable for all costs accrued and to accrue in case of an unsuccessful issue." (See act of May 11, 191 1, P. L. 261, as to sales by a receiver.) 4S. Effect of sales upon liens. It is provided by part of section 19, act of 1901 : "Where any realty is subject to liens or claims which, under existing laws would be discharged by a judicial sale, such liens and claims shall be unaffected by a private sale of such realty; but a public sale may be made thereof, freed and clear of such liens or claims, by leave of court, after notice to the claimants; and the fund realized shall take the place of the liens or claims, and be distributed on the settlement of the account of the assignee or receiver, to the parties found entitled thereto. Executions issued on such liens or claims may be stayed by the court, to enable the property to be sold by the assignee or receiver. If a creditor purchases property upon which he has a lien or claim, he shall, after payment to the assignee or receiver of all the costs and expenses of the sale, and the amount of all prior liens or claims discharged by the sale, if any, be entitled to receipt to the assignee or receiver to the extent of his lien or claim, upon giving security, to be approved by the court, con- ditioned to make good the amount receipted for, if it shall afterwards be made to appear that, for any cause, he should not be allowed such preference." ASSIGNMENTS. 31 49. Purchase by assignee, by leave of court. Section 20 of the act of 1901 provides: "No assignee or receiver shall purchase,' directly or indirectly, any part of the assets of such insolvent, except by leave of court after notice to all the known creditors; nor shall he employ any person as manager or attorney who is related to the assignor, or has any interest, individually or as attorney, for any particular creditor or in opposition to an equal distribution of the whole of the assien'or's estate among all his creditors." 50. Time and manner of sale. The act of 1901, which repeals sections i and 2 of the act of Feb'y 17, 1876, P. L. 4, does not enact anything in their place, but leaves the matter, seemingly, to the court to supply it in the order of sale. This hiatus was supplied by one judge, holding that the act of 1876 was still in force.' Section i of said act is as follows: " That in all assignments for the benefit of creditors it shall and may be lawful for the several Courts of Common Pleas of this Commonwealth, upon application of the assignees of insolvent debtors, setting forth that the personal estate is insufficient for the payment of the debts, and the real estate encumbered with liens to such an extent as to render it dif- ficult to determine whether the same can be sold for enough to pay all the liens as aforesaid, to grant an order, where the said court shall deem it for the manifest interest of all parties, authorizing and empowering the said assignees to make public sale of such real estate, or so much thereof as shall be deemed necessary, at such place and upon such terms as the said court shall direct; of which sale notice shall be given twenty days prior thereto, by handbills and publication in at least two newspapers in the county where said lands are situated, should two newspapers be pub- lished in said county, one of which may be German, if such be published in the county ; which sale or sales, after being confirmed by said court, shall discharge all liens against the real estate so sold, excepting that where the lien of a mortgage upon real estate is or shall be prior to all other liens upon the same property, except other mortgages, ground rents and the purchase money due the Commonwealth, the lien of such mortgages shall not be destroyed or in any way affected by any sale made by virtue or authority of any sale made under the provisions of this act; and the proceeds arising therefrom shall be appropriated to liens extinguished by virtue of such sale according to their priority: Provided, before said sale is authorized the assignee or assignees shall file a bond, with two ap- proved sureties' in double the estimated value of said real estate, con- ditioned for a faithful appropriation of the proceeds thereof. And pro- vided further, that the court shall require such proof of notice of such in- tended application to have been given to the lien creditors or their at- torneys, as said court shall deem sufficient to give said lien creditors an opportunity to be heard touching said order of sale." The assignee's duties were fixed by this section and it is still in- structive, in the light of the interpretations by the courts. When an assignee sells on time, he should take approved security.' It was held that he might agree with execution creditors -who release their liens, to pay them out of the proceeds by preference.* He may convey validly by an attorney in fact" In the absence of evidence of ^Cassell's Est, 13 D. R. 637; I C. R. A. (P. & L.), col. 543- ' A surety company may be accepted under act of 1885. » McKesson's Est, 142 Pa. S38. ' Steam's Est., I Susq. L. C. 4: Leidich's Est., 161 Pa. 451. ° Blight V. Schenck, io Pa. 285. 32 EQUITY PRACTICE IN PENNSYLVANIA. fraud the retention of the property by the assignor after sale did not vitiate the sale.' Under the act of Feb'y 17, 1876, P. L. 4, it required twenty days' notice, and a sale made with less did not bind the purchaser. Where the assigfnee sells realty as a whole for less than was bid for it in parcels the sale may be set aside on the peti- tion of creditors.' If the sale be absolute an agreement of the pur- chaser to reconvey, by parol is of no effect." 51. Alias order and stay of execution. Section 2 of the act, supra, provides: "Whenever said court shall grant an order of sale as aforesaid, said court may order a stay of execution on all liens that may be divested by such sale by the assignee, until said order shall be expended or revoked : Provided, that it shall be lawful for said court to extend any order of sale granted as aforesaid, or to award an alias or pluries order of sale." 52. Mechanics' liens preserved. The proviso of section 3 of the act, supra, is as follows : "That the liens of mechanics and material men shall not in any way be invalidated or impaired by any of the provisions of this act, but the same shall in all cases be entitled to receive out of the proceeds of sale whatever sum they may be legally entitled to, according to right and priority of lien." Section 56 of the Mechanics' lien law of 1901 does not embrace wage claimants who might have filed liens. '" 53. Title of purchaser. The title which a purchaser takes will not be avoided because the assignee failed to comply with stipulations in the assignment as to notice and release;" nor if the appointment was illegal but the money was properly used." If the court sets aside a sale the vendee retains no title, although a part of the purchase money was paid to the as- signee." The purchaser takes a tainted title if he prevents a fair sale by misrepresentations." A widow who assigns may affect the purchaser with notice of her dower interest so as to retain it." The notice of an attorney that the dower will pass by the sale as a mere expression of opinion and the purchaser must take notice of the fact that the wife did not join in the assignment." A private sale by the assignee without an order of court does not discharge any liens, and therefore the lien creditors do not participate." A purchaser who refuses to comply, causing a re-sale, is not liable for the dif- ference, if the terms of sale are different." "Fitler v. Maitland, 5 W. & S. 307; Dallam v. Fitler, 6 W. & S. 323. ' Ramsay v. Hersker, 153 Pa. 480. ' Glenn v. Mickey, 130 Pa. 586. ° Fogel v. Schall, 4 Atl. 339. "Langbein's Est., 15 D. R. 961; Hytovitz's Est., 56 Pitts. L. J. 141. " Baldwin v. Patton, 10 Watts 60. " Reinhard v. Keenbartz, 6 Watts, 93 ; Okie v. Kelly, 12 Pa. 323. " Scott's Est., 4 Supr. C. 567. " Sheesle/s Est., 30 C. C. 577- "Close's Ap., 13 Atl. 824. "Snyder v. McLanahan, 203 Pa. 55. " White's Est., 209 Pa. 627. "Ramsay v. Hersker, 153 Pa. 480; Weast v. Derrick, 100 Pa. 509. ASSIGNMENTS. 33 54. Effect of sale. The act of Feb'y 17, 1876, supra, was not confined to the sale of a single tract," and under it the court did not stay executions and order a sale, unless for the manifest interest of lien creditors as well as unsecured ones."" A sale under this act did not divest the dower in- terest of a wife unless she has joined in the assignment;" nor a charge for maintenance reserved in a deed.""" Where notice is given that certain prior liens will be divested the holders will participate in the distribution." A purchaser who buys with knowledge of defects in the title cannot afterwards avoid the sale,^ but the rule of caveat does not apply to a private sale, with respect to the title." If he buys subject to a mortgage he may perfect his title by pur- chasing the mortgage." If he buys at a less price knowing that an incumbrance has been discharged, he will be held to make good." Under the act of 1876, supra, the court had power to stay execution notwithstanding a waiver;" and a sale may be ordered of an interest under a will where personalty and realty are blended.™ If the estate is encumbered largely in excess of its value the court will refuse the order to sell.^ It is largely in the discretion of the court.'' When the sale is ordered the court may permit the purchase money to be paid in installments.'^ A mortgagee may consent to a sale which discharges the lien of his mortgage and he will then be entitled to priority." The order of preference is fixed on the day of the con- firmation of the sale under this act ;" and the lien owners are entitled to interest up to that date.'" But where there are debts due in install- ments and a second account interest is allowed up to the date of the last installment." A sale under this act will be set aside for a false return;" but not for failure to make a regular return within the time specified by the court." Where everything is regular a sale will not be set aside because the trustee of the wife of the assignor offered to bid more than was real- ized." Creditors have a standing to move to set aside a sale, but " Barr's Est. 21 C. C. 222. "Myer's Est!, 192 Pa. 458; Bosworth's Asst., 7 D. R. 410. '^ Mills V. Ritter, 197 Pa. 353. '^ Bonebrake v. Summers, 193 Pa. 22. '^ Smith's Est., 18 Supr. C. 329- ''Leard's Est., 164 Pa. 435- "^ Adams v. Humes, 9 Watts 305. *Bryar v. Beckett, 30 Pitts. L. J. 12; P. & L. Dig., vol. i, cols. 161 1-2. =" Kalle v. Heft, 154 Pa. 470. " Pauley's Est, 149 Pa. 196. " Handy's Est., 167 Pa. SS2. , ^ ^ '"Kleckner's Est., 150 Pa. 519; P- & L. Dig., vol. i, col. 1616. "^ White's Est., 178 Pa. 280. " Pauley's Est., 149 Pa. 196. " Love's Est., 4' Supr. C. 556. r, 1 > tt * '^ Tomlinson's Ap., 90 Pa. 224; Herbst's Ap., 90 Pa. 353; Rancks tst., ^'^"Burkholder's Ap., 94 Pa. 522; P. & L. Dig., vol. i, col. 1620; Wil- helm's Est., 182 Pa. 281 ; i C. R. A., col. 461. "Brownsville Etc. Ap., 96 Pa. 347. "Davis V. Michener, 106 Pa. 395- "Baker's Est, 4 Montg. 113. "' Myer's Est., 192 Pa. 458. Vol. 4 Practice— 3 34 EQUITY PRACTICE IN PENNSYLVANIA. should not wait until the sale has been confirmed nisi." On a rule against the occupant to deliver possession the court will not inquire into the title, but only the regularity of the sale." An assignee's sale under an order of court is a judicial sale and the doctrine of caveat emptor applies to the purchaser.*" Proceedings for possession, in such case are now regulated by the act of 1905." 55. Deposit of money, etc. Section 21 of the act of 1901, provides: "The assignee or receiver shall as soon as may be, after receiv- ing any money belonging to the estate, deposit the same in some bank or trust company in good standing, in his name as assignee or receiver, and shall, as far as practicable, keep all the assets of said estate separate and apart from his own, or designated by appro- priate marks, so that they may be easily and clearly distinguished as the property of the insolvent's estate." 56. Form of agreement of lien creditors authorizing assignee to sell discharged from liens. This agreement made the day of , 19 — , between Joseph Tatton, assignee of Willis Reed and Pearl Irene his wife, in trust for the benefit of creditors of said Willis Reed, of the one part and George H. SmuU, Charles R. Kurtz and Mary A. Meyer, judgment and lien creditors of the said Willis Reed of the other part. Whereas, the real estate of the said Willis Reed is insufficient to pay and discharge all liens by judgment or otherwise claimed against it, and whereas, in our opinion, it will be to the advantage of all persons interested, that the said real estate should be sold by the assignee rather than by the sheriff of the county; and whereas, at our request, the said assignee has agreed to proceed and make sale of the same upon our agreeing to release our respective liens against the said real estate and look to the fund produced, for our respective liens;' Now this agreement witnesseth, that for and in the consideration of the premises, and of the assignee so agreeing to proceed and make sale of the said real estate, we the said George H. Smull, Charles R. Kurtz and Mary A. Meyer do hereby covenant, promise and agree, to and with the said Joseph Tatton, assignee, that we and each of us shall and will, upon the said Joseph Tatton, assignee as aforesaid, making a contract of sale of said real estate, forthwith or as soon as required, after such contract of sale is made, enter or cause to be entered, full and complete release and discharge of said real estate from our said liens respectively, whether by judgment or otherwise, so that said assignee may make a conveyance of the same to the purchaser or purchasers, free and clear of incumbrance. It is further agreed that the money arising from said sale, after defraying the costs and expenses incident to the said sale and as- " Barr's Est., 21 C. C. 222 ; P. & L. Dig., vol. i, col. 1622. " Kegerreis' Est., 9 York 41. "Sayers v. Phillips, 5 Supr. C. 343. " Sec. 3 of the Act of 1876 supra regulated the mode of procedure. Mc- Farlin v. Lehder, 17 Supr. C. 319. 'Shunk's Ap., 2 Pa. 309. ASSIGNMENTS. 33 signment shall be paid to the respective lien creditors of the said Willis Reed, in the order of their respective liens, so far as the proceeds of the said sale, after deducting said expenses, shall extend to pay the same, each lien having seniority, according to law. In witness whereof, we have hereunto set our hands and seals the day and year first above written. Signed, sealed and delivered in presence of Joseph Tatton. [Seal.' George H. Smull. [Seal.' Charles R. Kurtz. [Seal.^ Mary A. Meyer. [Seal.' 57. Affidavit of claim on fund and form. Section 23 of the act of 1901, provides: "No claim against the insolvent's estate shall be allowed unless the claimant, or some one for him, if he cannot do so, shall furnish to the assignee or receiver, a statement of his claim, together with a copy of any book entries appertaining thereto, or any note or other writing evidencing the same, verified by an affidavit in the following form: I, G. H., do solemnly swear [or affirm], that the above is a true statement of my claim against the insolvent estate of E. F. ; that there are no credits or allowances thereagainst, except as therein set forth; that I have not directly or indirectly made or entered into any bar- gain, arrangement or agreement, express or implied, to take or re- ceive, directly or indirectly, any money, property, or consideration whatever, to or for myself, or to or for any other person, firm or corporation whatsoever, other than my dividend as a creditor of said estate, and that there is no collateral security for said indebted- ness, or any part thereof, held by me or anyone else, other than as above set forth. So help me God [or, and so I do affirm]. If such claim and affidavit be in proper form, and the balance claimed agrees with the amount stated by the insolvent, or upon consultation between the creditor and the insolvent, the amount is agreed upon, the claim shall be allowed as if presented before the filing or audit of the account, unless objected to in the manner here- inafter set forth." 58. Notice by assigfnee of filing account. Section 24 of the act of 1901, provides: "As soon after the expiration of said year as the assets shall have been collected, or whensoever thereafter required by the court, the assignee or receiver shall file his account, and a list of the claims proven before him, in the proper count, duly sworn to by him as correct in all particulars; and if there are no claims remaining un- adjusted, he shall give a written or printed notice to the insolvent and all the creditors known to him, in the following form: You are hereby notified that my acount and a list of the claims proven before me has been filed in the Court of Common Pleas of county, as of term, 19 — , Number , and that said account will be allowed, and distribution of the balance shown thereby will be made among the creditors therein named, according to their respective claims, on ^ the day of , 19—, unless objections be filed thereto or to any of said claims, before that time." 36 EQUITY PRACTICE IN PENNSYLVANIA. 59. Advertisement, confirmation, etc. Section 25 of the act of 1901, supra, provides: "The time fixed in said notice shall be between three and five weeks distant from the date thereof; and if there shall be unrepre- sented creditors, whose addresses, are unknown, an advertisement thereof shall be inserted in one newspaper, published in the county, and in the legal periodical, if any, designated by the court, once a week for three successive weeks prior to the time of meeting. On the date fixed, if no objections have been filed, the account shall be confirmed absolutely; the assignee or receiver shall prepare a schedule of distribution, which shall be approved and filed, and shall distribute the assets in his hands in accordance therewith." 60. Assignees' and trustees' accounts, Phila. Section i of rule 6, Phila., is as follows: "Assignees for the benefit of creditors and receivers shall, after they have entered security, give notice of their appointment by publication once a week for three successive weeks in the Legal Intelligencer and one daily newspaper in the city of Philadelphia. Section 2. A notice of the filing of all accounts of assignees, receivers, trustees, committees and guardians shall be published once a week for three full weeks consecutively in the Legal Intelligencer, and once a week for three full weeks, in two daily newspapers of the city of Philadelphia, setting forth that the account has been filed and will be presented to the court at a certain time, to be stated in the notice, for such action as the court may deem expedient." (Examine your rules of court as to assignees and trustees.) 61. Notice of filing: accounts of assignees and trustees, Alle- gheny county. Rule 3 of Allegheny county is as follows: "Notice of the filing of all accounts of assignees and trustees shall be published once a week for three weeks consecutively in the Pittsburg Legal Journal and in one daily newspaper of the county of Allegheny, setting forth that the said accounts will be allowed by the court, at a certain day to be stated in said notice not less than twenty days from filing of the account, unless cause be shown to the contrary; and upon due proof being made of said publication, the account shall be confirmed nisi, on the day named, unless exceptions be filed thereto; but the ac- count shall be open to exceptions for ten days thereafter, when, if no ex- ception be filed, the same shall be confirmed absolutely." 62. Reference to auditor of unadjusted matters. Section 26 of the act of 1901, provides: "If, at the time of filing the account and list of proved claims, there are claims which remain unadjusted, or if objections be filed,, the court shall hear and decide the disputed matters, or, in its discretion, may appoint an auditor for that purpose. The court, or the auditor, shall fix a time and place for the hearing, of which three weeks' notice shall be given by the assignee or receiver to the insolvent and all the creditors known to him, in the following form: You are hereby notified that the court will [or, I. J. has been ap- pointed auditor to] audit, settle and adjust my account as assignee [or receiver] of the estate of E. F., an insolvent, and make distribu- ASSIGNMENTS. 37 tion among the creditors of said estate, and that a meeting for that purpose will be held at in the of , on the day of , 19—. when and where you may be heard if you so desire. If there shall have been no advertisement of the filing of the ac- count, said notice shall be advertised, also in one newspaper published in the county, and in the legal periodical, if any, designated by the court, once a week for three successive weeks, prior to the meeting." 63. Objections to claim. Section 27 of the act of 1901, provides : "The hearing before the court or auditor, in case of objections filed, shall be confined thereto, unless the court, upon cause shown, shall give leave to file other objections. If objections be made to any claim duly verified, as aforesaid, whether upon objections filed or otherwise, express notice and an opportunity to defend the same shall be given to such creditor. The costs before the court or auditor shall be charged upon the fund,, or against any party appearing, ac- cording to equitable principles." 64. Date of claim — liability — collateral security. Section 28 of the act of 1901, provides : "All claims shall be made as of the date of the distribution of the fund, interest being allowed or discount being made to that time. A creditor having a claim for which the insolvent is primarily liable, and others secondarily, may prove for his whole claim; but, if the insolvent is only secondarily liable, the value of the liability of the primary debtor shall be adjusted between the creditor and the as- signee; or, if the valuation cannot be agreed on, the same shall be submitted to the appropriate tribunal, and a dividend shall only be awarded to the creditor on the difference between such value, so determined, and the amount of his claim. In like manner, any col- lateral security held by any creditor for his debt shall be valued by said tribunal, and if the security be retained by the creditor his dividend shall be on the difference between his claim and the value of his security, so ascertained : Provided, That the creditor shall have the right to surrender his security, and take a dividend on his whole debt. If such creditor refuses to have his security valued or sur- render the same, he shall be excluded from participation in the fund." 65. Claim tainted by fraud and collusion. Section 29 of the act of 1901, provides: "Any creditor who shall, upon such distribution, present a claim, whether in judgment or otherwise, which shall be so largely in excess of that which is actually due as to be fraudulent and collusive, or shall assist others in so doing; or shall collude with the insolvent to hinder, delay or defraud his creditors, or any of them ; or shall have received a preference from the insolvent in violation of the provi- sions of this act, and shall not voluntarily surrender the same to the assignee or receiver, shall be postponed to all other creditors on the distribution of the insolvent's estate." 66. Distribution by an auditor. . The appointment of an auditor is for the purpose of distnbutmg the balance stated in the account as in the hands of the assignee among those who claim under the assignment and he can only recog- 38 EQUITY PRACTICE IN PENNSYLVANIA. nize such claims as are duly presented.^ He cannot travel outside of this relation." To give the auditor jurisdiction it is not necessary that the fund be paid into court.' A creditor is not estopped from presenting his claim to the auditor, pending an appeal from an award.' The auditor need not impound funds claimed in a suit by a creditor who has not made a claim before him.° A bill of sale in Pennsylvania is not a lien so as to entitle the holder to preference." The death of the assignee does not prolong the lien of an unrevived judgment.' A lien creditor who fails to revive his lien comes in only pro rata' Lien creditors were permitted to come in pro rata as to personalty and proceed against the realty for the balance.* The auditor must keep separate the funds derived from personalty and those derived from realty, where there are lien creditors concerned.'" Where land of the assignor lies partly in adjoining counties, sub- ject to liens in each, the distribution will be based on the value and not the quantity of the land;" whatever basis is adopted for a com- mon incumbrance must be followed as to the remainder of the estate." Liens which are divested by a sale without an order of court draw interest to the day of distribution." 67. mortgages in the distribution. A mortgage is preferred out of rents, even over labor claims;" it is entitled to a pro rata share of the personalty, although enforced against the realty which it covers.'" The owner of a first mortgage cannot be ruled to proceed against personalty in aid of the other lien creditors." One who has the second mortgage and buys and takes an assignment of the first mortgage will not come in on the assets by such purchase." The court cannot decree satisfaction of a mortgage under the act of May 25, 1887, P. L. 270, on petition of some of the creditors." 68. Partnership property. Where partners assign not only firm property but their individual estates, each will be distributed to its particular creditors." This ' Schfoeder's Ap., 14 W. N. C. 537. ' Okie's Ap., 9 W. & S. 156. ' Child's Est., 13s Pa. 214. * Schue's Est., 6 York 13. "Stubb's Est, II Lane. Bar 115. "Klinker Etc. Est., i Lehigh V. L. R. 196. 'Fulton's Est., SI Pa. 204. ' Stirk's Ap., 2 W. N. C. 673 ; Laidle/s Ap., 2 Chester Co. 485. "Shunk's Ap., 2 Pa. 304; P. & L. Dig., vol. i, col. 1587; Emig's Est, 18 York, 97; Keim's Ap., 27 Pa. 42. ^"Ruber's Est., 16 Lane. L. R. 45. " Oberholtzer's Ap., 124 Pa. 583 ; Smith's Est., 2 Supr. C. 67. " Gibble's Est., 134 Pa. 366. " Reist's Est., No. 2, 14 Lane. L. R. 7. "Wolf's Ap., 106 Pa. 545. "Morris v. Olwine, 22 Pa. 441; Groff's Est, 139 Pa. 169; P. & L. Dig, vol. I, col. 1589. " Smith's Est., 3 Lane. L. R. 105. " Cooley's Ap., i Grant 401. "Guaranty, Etc., Co. v. Powell, 150 Pa. 16. "Andress v. Miller, 15 Pa. 316; Black's Ap., 44 Pa. 503; P & L Die vol. I, col. 1591. ■ *■' ASSIGNMENTS. 3g right belongs to the partners and not their creditors." Where there is a conveyance to a partner without disclosing the interest of the partners a judgment creditor of that partner will be preferred."' Where a creditor has a lien on two funds arising out of an assigned estate he may be required to exhaust that fund in which the other creditors cannot participate.^" The rule that personalty is primarily liable for all debts applies to an actual fund and not one created by lien-holders."' The auditor may marshal the assets so as to do no injustice."* 69. Preferences in distribution. A creditor who claims a preference must clearly show on what ground it rests."" General creditors will be preferred to an assignee with notice who holds a judgment confessed by one joint assignor to the other."" Where an assignor has mingled trust funds with his own and they cannot be distinguishable the cestui que trust is not to be preferred."' Deposit creditors without special agreement are entitled to preference over general creditors, it seems."* Owners of consigned goods are entitled to the proceeds when they can be ascertained;"* also a claim for material furnished the assignee to complete a contract.™ 70. Allowance of interest. Section 28 of the act of 1901 allows interest up to the date of dis- tribution." A due bill at four per cent, was allowed at the rate of six per cent, from the date of assignment."" Before the act of 1901 interest was allowed only to the date of assignment."" A general creditor may not contest the right of a judgment creditor to have interest." 71. Costs and expenses. Non-residents who petition for the removal of an assignee may be ruled to give security for costs."^ Petitioners for dismissal must pay costs on failure where groundless only."" An execution creditor whose writ is stayed by the court to enable the assignee to sell is entitled to the costs of his writ."' The costs of the assignment should ""Baker's Ap., 21 Pa. 76; P. & L. Dig., vol. i, col. 1591. "' Gunnison v. Erie, Etc., Co., IS7 Pa- 303- "" Moss' Est., 138 Pa. 646. "" Scott's Ap., 8 Atl. 402. "* Harris' Est., i Chester Co. 81. ^ Freiburg v. Stoddard, 161 Pa. 259. "» Mifflin v. Hill, 3 Rawle 483. "' Solicitor's Etc. Est., 3 Supr. C. 244 ""Criswell's Ap., 100 Pa. 488; P. & L. Dig., vol. i, col. iS94 "•Farrell's Est., 17 Supr. C. 240. "°Mann v. Wakefield, 11 Supr. C. 18. ".Eraig's Est, 18 York 97. "" Floyd's Assignment, 47 Pitts L. J. 41 1- ""Jamison's Est., 163 Pa. 143. " Powell's Est, 163 Pa. 349- "* Selser's Est., 141 Pa. 529. "= Tyndall's Est, 6 W. N. C. 562. "' Powell's Est., 163 Pa. 349. " McDannel's Est., i Chester Co. 494- 40 EQUITY PRACTICE IN PENNSYLVANIA. be equitably divided between the realty and personalty. An excep- tion as to costs is too late after confirmation of the auditor's report and payment." If an audit of the assignee's account is made neces- sary by the assignee's acts he may be charged with the costs." Where the fund is increased by the efforts of a creditor's attorney his fees may be allowed out of the fund." 72. Dividends and subrogation. Where the assignee and creditors mutually agree upon a dividend the right of each creditor is vested to his proportion." Where two indorsers of a note make assignments a dividend on the whole amount of the note can be claimed on each assignment." Dividends paid by the assignee will be applied to the creditor's claims ratably." Un- claimed dividends will be held for unpaid creditors or if not reached, for the assignor." Where the assignee had paid a sum to a mortgagee before assign- ment he is entitled to subrogation;*" also a surety who pays the bond of the assignor.*" A purchaser of land subject to a mortgage who pays the .mortgage cannot be subrogated as to the personalty of the assignor." Prior to the act of 1901, supra, it was held that a creditor may exhaust his collateral security and still claim on the fund for the amount of his claim.*' If a Hen creditor is paid in full, his collateral, if any, will inure ratably to the benefit of the general creditors." An assignee who also holds collateral, but realizes in full on it, cannot so shift the claims as to grasp interest to the date of distribution." 73. Judgment creditors — ^rights and liabilities. A judgment creditor who permits his lien to expire before the con- firmation of the sale by the assignee, loses his preference and comes in pro rata only." The lien of a prior judgment will follow the sur- plus funds on re-conveyance to the assignor." The rents and profits belong to judgment creditors who have a lien.°° The auditor has ju- risdiction, on complaint of general creditors, to inquire whether a judgment was given for one purpose and used for another, though not as to whether it was fraudulent." But the court has jurisdiction " Emig's Est., 18 York, 97. ™ Bennett's Est., 21 C. C. 609 ; Hamme's Est., 12 York 129. "Mann v. Wakefield, 11 Supr. C. 80; Krodel's Est., No. 2, 27 Supr. C. 421. "Latimer's Est., 2 Ashmead 520. *" Perit V. Pittfield, 5 Rawle, 166. « Crawford v. Bent, 21 W. N. C. 185. ■" Ralston's Ap., 169 Pa. 254. "Brice's Ap., 95 Pa. 145. " Miller v. Ord, 2 Binney 382 ; Downing v. Kintzing, 2 S. & R. 326. " Sheffy's Ap., 97 Pa. 317. *'Brough's Est., 71 Pa. 460; P. & L. Dig., vol. i, col. 1599. "Hatfield's Est., 2 D. R. 17. But see Section 28, Act 1901. "Wilhelm's Est., 182 Pa. 281. " Snively's Est., 9 C. C. 422. '" Lane's Est., i Susq. Leg. Chron. 3s. ■* Wolfs Ap., 106 Pa. S4S; P. & L. Dig., vol. i, cols. 1601-2; Temple's Est., 22 Lane. L. R. 377; Ruber's Est., 16 Lane. L. R. 45. " Stark's Ap., 128 Pa. 545. ASSIGNMENTS. ., of an allegation of fraud in such judgment ;■= but the claim may be made before the auditor that a judgment is fraudulent," and the privilege of the objector to have an issue to try the question of fraud is not thereby waived." The awarding of an issue is discretionary with the court. However, see act of 1897 as to judgments alleged to be fraudulently confessed. (Vol. 1 Fraudulent Debtors' Attach- ment.) A subsequent execution creditor may ask for an issue," but prior lien creditors cannot." A judgment obtained in a suit against the assignor after assign- ment is prima facie entitled to participate in the distribution." Not- withstanding the assignee has paid a judgment under indemnity by the creditor its validity may be attacked by other creditors." Those creditors who attack a judgment successfully are entitled to counsel fees and expenses, but must share the fund with the rest who did not join." 74. Estoppel and laches, effect of. Whatever is waived before the auditor cannot be raised by ex- ceptions to his report." One who accepts a dividend is estopped from challenging the assignment."" A wife who joins in the assign- ment with her husband is estopped from objecting after distribution." An assignor who urges one to buy at the sale cannot complain of inadequacy of price."' So a secured creditor who advises an assign- ment and approves of acts of the assignee which result in loss cannot be heard to complain."" So if he assents to acts jvhich result in waste."" 75. Bight of appeal. The assignee has no standing to appeal from the decree of distribu- tion." But when assignee for two distinct parties he may on behalf of one as creditor of the other;" and he may appeal from a judg- ment in attachment affecting the right of the assignor;" he has a right to protect his interests. Section 39 of the act of 1901 provides : "Any final judgment, order or decree, or any order or decree re- sulting in imprisonment, made under the provisions of this act, may "Ritter v. Brendlinger, 58 Pa. 68. "Wenger's Est., 2 Supr. C. 611; Wright's Est., 182 Pa. 90. "'Barrett's Ex's Ap., 71 Pa. 317. " Frank's Ap., 59 Pa. igo. " Steinmetz v. Fraley, I Phila. 202. "Hogan's Est., 181 Pa. 500. " Pittsburg, Etc., Appeal., 2 Grant 151. "Johns V. Erb, S Pa. 232. "Israel's Est., 8 D. R. 368. "Frank's Ap., 59 Pa. 190. " Adlum V. Yard, I Rawle 163. "Jennings v. Langdon, 11 Atl. 212. " Seybert's Asst., 5 Kulp. 172. " Gran's Ap., 9 Atl. 282. "Ellis V. Martin, 170 Pa. 129. r- ay r? ^ '•Mellon's Ap., 32 Pa. 121; Singmaster's Ap., 86 Pa. 169; Orotts iist, 146 Pa. 41s; Ahl's Est., IS Supr. C. 224. '* Jordan's Ap., 107 Pa. 75. " Bletz V. Haldeman, 26 Pa. 403. " Huber's Est., 21 Lane. L. R. 98. 42 EQUITY PRACTICE IN PENNSYLVANIA. be appealed from to the Supreme or Superior Court, as in other cases." 76. Form of triplicate release. Section 30 of the act of 1901, provides: "At the time of receiving his dividend in case of a voluntary as- signment, each creditor shall sign triplicate releases in the following form : The undersigned creditors of E. F., an insolvent, for and in con- sideration of the sum of money set opposite our respective names, and received by us from A. B., assignee of the estate of E. F., an insolvent, do hereby release the said E. F. from any and every debt, demand and liability which we had or may have had against him, at the date of his assignment, on the day of , 19 — .whether due or not ; and hereby agree that no suit, action or execution shall be maintained for or by reason of such debt, demand, or liability, reserving, however, to ourselves the right to avoid this release, upon showing any of the matters or things which, under the insolvent laws, shall entitle us to retain our respective claims against said insolvent, notwithstanding our participation in the settlement of his estate. Witness our hands, the dates set opposite our respective names. One of said releases shall be filed in court. One shall be retained by the assignee and one shall be delivered to the insolvent." 77. Dischargee of insolvent — exceptions. Section 33 of the act of 1901, provides: "Nothing in this act shall be taken or understood as discharging an insolvent from liability to such of his creditors as do not choose to exhibit their claims, or who, before the schedule of distribution is made or filed, withdraw their claims; but with respect to creditors who exhibit their claims before a voluntary assignee, or an auditor appointed in such case, and do not withdraw them as aforesaid, they shall be wholly debarred from maintaining afterwards, by suit, ac- tion, execution or otherwise, any claim existing at the time of the assignment, whether due or not, unless he shall aver and prove : 1. That said action is founded on the actual force, fraud, malice or deceit of the insolvent; or, 2. That said action is founded on the embezzlement or malfeas- ance of the insolvent; or, for libel, slander, malicious prosecution, conspiracy, seduction or criminal conversation; or, 3. That such action is founded on the purchase by the insolvent of real or personal property, on credit and without security therefor, iWhen he had reasonable cause to believe that he would not be able to pay therefor; or, 4. That such insolvent has willfully sworn falsely in any material fact appertaining to the settlement of his estate, or has failed and refused to make all neccessary conveyances to enable the assignee to speedily and effectively settle the same; or, 5. That such insolvent fraudulently secreted, altered, injured, de- faced or destroyed any part of his estate; or any books, documents, muniments of title, or writings appertaining thereto, or permitted the same to be done; or has secreted, conveyed or incumbered any part of his property, for the benefit of himself or family; or has ASSIGNMENTS. 43 collected and retained any of the assets of the assigned estate; or, in contemplation of insolvency, has failed to keep the books of account and papers usually kept by him in his business ; or, 6. That such insolvent has made any promise of future advantage to any creditor, or has knowingly permitted others to do so, to in- duce any creditor to participate in the settlement of the assigned estate, and has failed to disclose the same to the complaining creditor; or, 7. That such insolvent while knowingly insolvent or in contempla- tion of insolvency, has in any manner preferred or attempted to pre- fer one creditor to another, or permitted such preference to be obtained by judgment, execution, attachment, sequestration, or other- wise; or, 8. That such insolvent has knowingly permitted a false or exag- gerated claim to be made against said estate; or, 9. That such insolvent has absented himself or concealed his prop- erty to avoid an execution; or, 10. That the insolvency arose from losses by gambling, or in the purchase of lottery tickets; or, 11. That such insolvent has previously been an insolvent, and • obtained a release of his debts, under the provisions of the insolvent laws. But the benefits of this section shall not apply in favor of any in- solvent who was forced into the hands of a receiver by the action of his creditors." This section is considered as containing all the elements to defeat the main intention of an assignment law. 78. Release of persons secondarily liable. Section 34 of the act of 1901, provides: "In cases where the insolvent is primarily liable for a claim proved against his estate, a discharge of that liability, by the creditor ac- cepting a dividend under this act shall not operate to release or dis- charge any person secondarily liable for the same debt, contract, engagement or other liability, if the participating creditor shall have given such third party written notice and an opportunity to purchase the claim and subrogate himself to the rights of such creditor; but in that event, such secondary liability shall remain, in like man- ner as if such discharge had not taken place ; but, if the creditor does not give such notice the discharge of the insolvent from primary liability shall also operate to discharge from liability the party sec- ondarily liable." 79. Manner of securing exemption for after acquired estate. Section 35 of the act of 1901, provides: "Whenever a majority in number and value of the creditors of an , insolvent, who has made a voluntary assignment for the benefit of his creditors, shall consent in writing thereto, it shall be lawful for the court, upon application of such debtor, and notice thereof given to all undischarged creditors, in the manner hereinbefore provided for giving notice of the meeting of creditors, to make an order that the estate and effects which such insolvent may afterwards acquire shall be exempted, for the term of seven years thereafter, from ex- 44 EQUITY PRACTICE IN PENNSYLVANIA, ecution, for any debt contracted or cause of action existing pre- viously to such assignment; and if, after such order and consent, any execution shall be issued for such debt or cause of action, it shall be the duty of any judge of the court, from which such execution issued, to set aside the same, with costs." 80. Restoration to insolvent. Section 36 of the act of 1901, provides: "If any such insolvent or his legal representative shall satisfy the undisputed claims of his creditors, and shall give security, to be approved by the court, to pay those which are disputed, the court shall order his estate and effects, not sold, to be restored to him or his legal representatives; and he shall, by virtue of such order, be seized and possessed thereof as of his former estate and title thereto ; and if, upon the final settlement of accounts by the assignee or re- ceiver, there shall be a surplus, after payment of all the claims pre- sented and allowed, the same shall be paid to such insolvent or his legal representatives." 81. The rights and relations of the assignor. After all the debts are discharged, if there is any surplus, it belongs to the assignor and it is the assignee's duty to pay over to him or his legal representatives, which duty may be enforced by a petition and rule from the court having jurisdiction of his account. An at- tachment will not lie in the first instance ;' nor can the assig;nor bring assumpsit against his assignee.'' After twenty years, or less even, there is a presumption that all assignor's debts were paid.' The as- signor who claims a re-investiture of title must prove it.* The act of May 4, 1864, P. L. 762 (Sec. 2) provided the mode of petitioning the court for a re-assignment. It was held that the peti- tioner should give the same notice by advertisement as the assignee is required to give when he files his account." This seems to be the only method by which the assignor may be re-invested with his prop- erty rights.' The court may in its discretion appoint an auditor or decline to do so, when a creditor objects to the re-assignment.' The assignor has no right to sue in his own name for a claim due before the assignment ;' nor can he appeal from the disallowance of a creditor's claim ;' but he may move for dissolution of an attach- ment issued prior to his assignment.'" A corporation is not dis- solved by assignment and may issue a call for unpaid subscriptions." ' Caldwell V. Coates, 78 Pa. 312. 'Hirst V. Freeman, 3 D. R. 261. •Potter's Est., S4 Pa. 46s; P. & L- Dig., vol. i, col. 1624; Bole v. Mc- Kelvy, 189 Pa. SoS- ■•Morningstar v. Jamieson, 4 Atl. 527. "Harris' Est., 2 W. N. C. 335- • Bloom V. Miller, i D. R. 87. ' Hopper's Est., 192 Pa. 287. • Stoever v. Stoever, 9 S. & R. 434- •Dewees' Ap., 2 Penny. 247. "Holland v. Atzerodt, i Walker 237. " Germantown, Etc., R. Co. v. Filler, 60 Pa. 124. ASSIGNMENTS. 4o A court of equity may entertain a bill for the removal of the as- signee of an insolvent corporation." Where there has been one distribution and after that other funds of an insolvent beneficial association are recovered and the certificate holders are required to make new proofs, the dividends of those who fail to submit new proofs, do not go to the other certificate holders after seven years' absence of the former, but they escheat to the commonwealth. * 82. Proceeding to compel involuntary insolvency. Thus far, this chapter has dealt with voluntary assignments for the benefit of creditors. There remains another feature viz.: to compel one who by conveyance seeks to prefer a creditor or some creditors, to come under the insolvency acts. It was said by Mestrezat J. :" "The proceeding to compel an involuntary insolvency is statutory, and the statute having designated the facts .which are required to be averred and proven in order to give the court jurisdiction, a petition must comply strictly with the provisions of the statute before he can invoke the authority of the court to place the debtor's estate in the hands of a receiver. We think there is no difficulty in determining the prerequisites of a sufficient petition under the statute or the proofs necessary to sustain the petition. The act of 1901 is not obscure or doubtful; on the contrary, the language is clear and certain, and the statute provides specifically what is requisite to give the court juris- diction to appoint a receiver of an insolvent's estate. By the seventh section of the act the creditor must aver in his petition that the debtor (a) is insolvent, (b) has not made an assignment for the benefit of his creditors, (c) is resident or is carrying on business in said county, (d) and has committed one or more of the acts en- umerated in the eight following paragraphs of the section. These are the acts of insolvency which must be averred in the petition in order to give the court jurisdiction. It will be observed that the debtor must not only be insolvent but he must have com- mitted at least one of the several acts named in the separate para- graphs of the section." 83. Who is deemed an insolvent. Section 41 of the act of 1901, provides: "A person shall be deemed insolvent within the provisions of this act whenever the aggregate of his property, exclusive of any prop- erty which he may have conveyed, transferred, concealed or removed, or permitted to be concealed or removed, with intent to defraud, hinder or delay his creditors, shall not at a fair valuation be sufficient in amount to pay his debts." 84. Petition by creditor of insolvent. Section 7 of the act of 1901, provides: "Any creditor of an alleged insolvent may, in the Court of Com- mon Pleas of the county where the alleged insolvent resides or his principal place of business is situate, by petition, under oath, aver " Failey v. Stockwell, 2 D. R. 197. "a- Adv. B. O. Assigned Est., 48 Supr. C. 197- "Steinruck's Insolvency, 225 Pa. 461. 46 EQUITY PRACTICE IN PENNSYLVANIA. I that such person, persons, firm, limited partnership, joint stock company or corporation is insolvent, has not made an assignment for the benefit of his, their ori^its creditors, is resident or is carrying on business in said county, and: 1. Has called a meeting of his creditors for the purpose of com- pounding with them, or has exhibited a statement showing his in- ability to meet his liabilities, or has otherwise acknowledged his in- solvency; or, 2. Has absconded or is about to abscond, With intent to defraud any creditor, or to defeat or delay the remedy of any creditor, or to avoid being arrested or served with legal process, or conceals him- self within or remains out of the commonwealth, with like intent; or, 3. Secretes or is about to secrete any part of his estate or effects, with intent to defraud his creditors, or to defeat or delay their de- mands, or any of them ; or, 4. Has assigned, removed or disposed of or is about to assign, re- move or dispose of, any part of his property, with intent to defraud, defeat or delay his creditors, or any of them ; or, 5. Has been actually imprisoned for more than thirty days, in a civil action, or being arrested therefor, has escaped from custody; or, 6. Has refused or neglected to comply with any order, judgment or decree for the payment of money, and an execution therefor has been returned unsatisfied; or, 7. Has suffered or permitted any attachment or sequestration to remain against any of his property, without attempting to dissolve, by rule taken for that purpose, or upon entering security for a period of thirty days, or having taken a rule to dissolve which has been dis- charged by the court, has not entered security within twenty days thereafter; or, 8. Has made any pledge, assignment, transfer, conveyance or in- cumbrance of the whole or a large part of his stock in trade or property, without being able to meet his liabilities and without the consent of his creditors, either in payment of, or as security for a debt then existing, or with the intent to prefer one creditor to an- other, or out of his usual course of business, or for the benefit of himself or family." 85. Bule, notice and order. Section seven, supra, continues: "Whereupon, the court shall grant a rule to show cause why a receiver should not be appointed for the estate of such alleged in- solvent, and all legal proceedings thereagainst, if any, vacated and set aside. Notice of said rule shall be given to the alleged insolvent and all other persons interested. If the facts averred are not denied, under oath, the court shall make such order as the facts averred or shown may require. If they are denied, testimony shall be taken at the bar of the court or by a law judge thereof, and the court shall make such order or decree as the facts found will justify, and may enforce the same by attachment of the person or sequestration of the property of the party in default. Any person, without foundation, maliciously invoking the action of the court under this section, shall be liable for a sum equal to double the injury actually sustained by the alleged insolvent." ASSIGNMENTS. 47 86. When a receiver will be appointed. Section 8 of the act of 1901, provides : "In such proceeding, as soon as the fact of insolvency be made to appear, the court shall forthwith appoint a disinterested person as receiver, unless the insolvent has made an assignment for the benefit of his creditors, or has given security to pay petitioner's debt. Prop- erty of a perishable nature or likely to deteriorate in value may be sold by leave of court, the proceeds thereof to be substituted in lieu thereof." A bill for a receivership is imperfect which does not embrace the parties whose executions are anticipated, as the grounds of the ap- plication. The court, under act of 1901, will direct notice to be given to the defendant and other creditors before appointing a receiver." 87. Law applies to farmers and wage earners only. The courts have felt constrained to keep the act of 1901 alive and in operation as to farmers and wage earners, though it be a dead letter to all the rest of the world, since these people cannot be forced into bankruptcy, under the act of Congress. Said Henderson J.:" "It is supposed that the action of the court below is inconsistent with Potts V. Smith Mfg. Co., 25 Pa., Supr. Ct. 206. Such is not the case, however. It appears that the assignor here was a farmer. He was therefore within the exception of the fourth section of chapter 3 of the act of Congress of July i, 1898. Wage earners and persons engaged chiefly in farming or the tillage of the soil cannot be sub- jected to the provisions of the act without their consent, and as to such persons the act of June 4, 1901, P. L. 404 is in force. This statute is only suspended as to persons who can be made subject to the provisions of the federal bankrupt act." 88. Form of petition for receiver. The following form was sustained by Judge Little, on a motion to dismiss, in the nature of a demurrer, in a cogent opinion filed in the case: In re Insolvency of John C. Rifenbury. In the Court of Common Pleas of Susquehanna County. No. 80, January Term, 191 1. To the Honorable, R. B. Little, President Judge of said Court. The petition of J. W. Mott respectfully represents: Pirst — That your petitioner is a resident of Montrose Borough, Susquehanna County, Pennsylvania. Second — That the above-named John C. Rifenbury is by occupation a farmer, or one who is principally engaged in the tilling of the soil; and said Rifenbury's principal place of business and residence is in the Township of Auburn, County of Susquehanna and State of Penn- sylvania. "Frye v. Allen, 59 Pitts. L. J. 58. " Frye v. Allen, 59 Pitts. L. . 58. " Hoover v. Ober, 42 Supr. C. 308. " Citizens' Natl. Bank v. Gass, 29 Supr. C. 125. 48 EQUITY PRACTICE IN PENNSYLVANIA. Third— That your petitioner is a creditor of the said John C. Rifen- bury to the amount of eight hundred ($800.00) dollars. Fourth— That the said John C. Rifenbury has not made an assign- ment for the benefit of his creditors. Fifth^-That the said John C. Rifenbury has disposed of, or is about to dispose of, all of his property with intent to defraud, defeat, and delay your petitioner from collecting and realizing upon a certain proceeding instituted in your Honorable Court as of No. 85, January Term, A. D. 1910, wherein your petitioner is plaintiff and the said John C. Rifenbury is defendant, and which proceeding is an action of assumpsit for certain goods sold and delivered by your petitioner to said John C. Rifenbury upon which there is a balance of $597.09 with interest thereon from December 27, 1904, making a total of over $800.00 due thereon from said Rifenbury to your petitioner at the present time. Sixth — That the said John C. Rifenbury has made, executed and delivered, transfers, conveyances and incumbrances of the whole of his real estate and the whole or a large part of his personal property, without being able to meet his liabilities, and without the consent of his creditors, with intent to prefer one creditor to another, out of his usual course of business and for the benefit of himself and family. Seventh — That said transfers, conveyances and incumbrances were made within four months last past, and consisted in the making, signing, sealing, executing and delivering of a warranty deed in which the said John C. Rifenbury granted and conveyed a fee simple estate in all of his real estate to his son Walter E. Rifenbury, by deed dated October 26, A. D. 1910, and recorded in Deed Book No. 122 at page 263, in the office of the Recorder of Susquehanna County at Montrose, Pa., said real estate consisting of two pieces of land situated in the Township of Auburn, County of Susquehanna and State of Pennsylvania, containing a total of upwards of sixty-seven and one-half acres of land, and of the value of upwards of two thou- sand dollars, and the transfer and giving of other property and be- coming indorser, maker and surety on certain notes for the benefit of divers persons and creditors, whereby a preference has been given by the said John C. Rifenbury to divers persons and creditors, to the prejudice of your petitioner, and all in view of and with the in- tent to hinder, delay, and defeat the whole or greater part of the lawful claim of your petitioner aforesaid. Eighth — That the said John C. Rifenbury has not sufficient prop- erty or money to pay his lawful debts, and is insolvent, and your petitioner will be deprived of all rights to collect his lawful claim against said Rifenbury unless a receiver is appointed and the said conveyances and transfers aforesaid be set aside and declared void. Wherefore your petitioner prays your Honorable Court to grant a rule upon said John C. Rifenbury to show cause why ( i ) a receiver should not be appointed for the estate of the alleged insolvent, and, (2) the deed of conveyance made to Walter E. Rifenbury should not be declared void and set aside, and the same inure to the benefit of your petitioner. And your petitioner will ever pray, etc. [Sworn to truth.] J. W. Mott. ASSIGNMENTS. 49 C. L. Van Scoten, Att'y pro pet. Montrose, Pa. [Rifenbury's Insolvency, 39 C. C. 71.] If the petition does not confer jurisdiction, it cannot be conferred by amendment." 89. Form of order for rule to show cause. Now, Dec. 19th, A. D. 1910, upon reading the within petition and upon motion of C. L. Van Scoten, Esq., pro-petitioner, the court grants a rule upon the within named John C. Rifenbury, to show cause why a receiver should not be appointed for his estate, agreeably to the act of June 4, 1901. Returnable to Argument Court, Monday, January 9, 191 1, at 10 o'clock A. M. By the Court, R. B. Little, P. J. Upon return of the service of the rule the proceedings are the same as in other equitable rules, by motion, demurrer or answer ; and upon hearing the rule is discharged, or made absolute and a receiver ap- pointed, as provided in the act. 90. Fillingf vacancy in office of assignee. Section 38 of the act of 1901, provides: "Any creditor, may, in case of a vacancy in the office of assignee or receiver, petition the court for the appointment of a new assignee, whenever he may have reason to believe that there are assets of the assigned estate that have not yet been collected, or that any duties appertaining to the office remain unperformed; and such appointment shall be made by the court with the same effect as in a case of the original appointment." 91. Bemoval or discharge of assignee or receiver. Section 37 of the act of 1901, provides: "Any creditor may, by petition, move the court to discharge any assignee or receiver for dereliction of duty, incompetency or other reason affecting the estate; or the assignee or receiver may volun- tarily petition for his own discharge; and if the court shall be of the opinion that the interests of the estate will be conserved by the ap- pointment of some other person in his place or stead, it shall grant the prayer of such petition, and appoint a new assignee or receiver, with like powers and duties as the one removed, upon entering se- curity as in the case of the original assignee; but such removal shall be without prejudice to all claims upon said assignee or receiver and their securities, growing out of their performance of duty. The assignee or receiver thus removed shall remain under control of the court, for the purpose of compelling him to make all necessary trans- fers of the assets of the insolvent estate to his successor or any others interested therein, or to give needed information and assistance in the settlement of the estate. If the assignee removed be the one selected by the creditors, the new appointee shall be selected in like manner." "Rothrock v. Walker, 38 C. C. 575. Vol. 4 Practice — 4 CHAPTER II. BANKRUPTCY. 1. Power of Congress to enact 7. Petition and proof of claims, a general bankrupt law. 8. Rights and duties of trustee. 2. Powers of the state courts. 9. Actions by trustee. 3. What constitutes bankruptcy. 10. Actions against the bank- 4. Preferences. rupt. 5. Effect on liens. 11. Exemptions of bankrupt. 6. Proceedings to contest liens 12. Rule as to attorneys, or conveyances. 1. Power of Congress to enact general bankrupt law. Congress having power to pass a general bankruptcy law and hav- ing exercised that power co-extensive with its jurisdiction, it is in- competent for any state legislature to pass a law of similar import applicable to the same subjects and the same persons.^ The act of June 4, 1901, P. L. 404 is essentially a bankrupt law' and being later in date than the act of Congress is inoperative as such.' The act of Congress of 1898 is constitutional although it recognizes state exemption laws which are not uniform.'^ 2. Powers of state courts. To the extent of its jurisdiction a state court is bound to carry into effect the provisions of the national bankruptcy act and not to obstruct or endeavor to defeat them.* Where a state court by its legal process brings in money it has power to distribute it notwith- standing the demand of the trustee in bankruptcy." The Common Pleas has jurisdiction of an action by a trustee to recover money or property which it is alleged the bankrupt fraudulently transferred.' It may grant a stay of execution against a bankrupt.' The amend- ment of Feb. 5, 1903, 33 Stat. 797 gives a bankruptcy court concurrent not exclusive jurisdiction of an action to set aside a lien claimed to be fraudulent. The authority to preserve liens of pending actions under sub div. f of section 67 extends to causes of action under state laws and is cumulative and not in abrogation of rights under the laws of a state.' It deprives the lienor of no remedy he has under the laws of his state.' ' Potts V. Smith Mf g Co., 25 Supr. C. 206. ' Hull's Est., 10 D. R. 661. See i C. R. A., col. 542 ; West Co. v. Lea, 174 U. S. 590. ° Potts V. Smith Mf'g Co., Supra. °a Hanover Natl. Bank v. Moyses, 186 U. S. 181. ' Crawford v. Hoffecker, S Lack. L. N. 379. "Furth V. Stahl, 205 Pa. 439. "Breckons v. Snyder, 21 1 Pa. 176. ' Rothermel v. Moyer, 24 Supr. C. 325. 'Frank v. Volkommer, 205 U. S. 521. "Miller v. New Orleans, Etc., Co., 212 U. S. 496. "* Hiscock v. Varick Bank, 206 U. S. 28. 50 BANKRUPTCY. gi 3. What constitutes bankruptcy. "Insolvency" and "bankruptcy" seem to be used interchangeably though technically there is a difference. One may be insolvent or unable to pay his debts and yet exempt from involuntary bankruptcy. So it has been held that farmers, owing less than $i,ooo, may not be forced into bankruptcy under the act of 1898." It seems that to turn an insolvent into a bankrupt it is necessary that he do some act which constitutes a preference of some creditor or other person. For example, a voluntary conveyance to his children without con- sideration." Poverty is not insolvency." Very slight preferences have been held to be acts of bankruptcy; e. g., allowance of overdue wages on purchase money of property." But where one endorses notes that of itself is not to be taken as insolvency — there must be some evidence of inability to pay." An assignment more than a year before the petition in bankruptcy is filed is too remote.'" 4. Preferences. The test of an act of bankruptcy seems to be the giving of a pref- erence within four months of the petition, with intent to prefer a particular creditor or creditors, of which intent he or they must have had knowledge at the time." It is necessary that the latter should know that the former was insolvent." If there was a debt justly due at the time of the alleged preference the burden of showing that it was an act of bankruptcy rests upon the trustee." When the trustee seeks to recover in an action against the transferee his statement must aver every material fact and ingredient to bring the case within the act of Congress, especially Sec. 6ob.^ An affidavit of defense will be sufficient which sets forth the facts and avers good faith and want of knowledge of insolvency.^ Evidence of the good faith of the parties may embrace transactions extending over a period of time before the transfer."^ It is not every transfer that can be construed into an act of bankruptcy or an intentional prefer- ence.'" Where the transfer is within four months but on a contract and consideration long past, it is no preference." Before the amend- "Blain's Pet, 16 York 167; Climax, Etc., Co. v. Sheesley, 13 D. R. 649. "Joy V. Cossart, 2 Dallas 126. Making a deed of general assignment constitutes an act of bankruptcy per se, and is repugnant to the general policy of bankrupt laws. West Co. v. Lea, 174 U. S. 590. " Shaf er's Pet., 12 D. R. 216. "Bristol V. Mills, 14 Supr. C. 107. "Beckmeyer's Est., IS York, 157. " Fister's Est., 14 D. R. 881. "Peck V. Connell, 21 Supr. C. 22; Gamble v. Elkin, 205 Pa. 226; Keith V. Gettysburg Nat'l Bank, 23 Supr. C. 14. " Crawford v. Rumpf, 205 Pa. IS4 ; Eau Claire Nat'l Bank v. Jackman, 204 U. S. 522. "Keith v. Gettysburg Nat'l Bank, 23 Supr. C. 14; Netter v. Refowich, 12 D. R. 196. '° Peck v. Connell, 21 Supr. C. 22. '' Gamble v. Elkin, 205 Pa. 226. '" Tredway v. Kaufman, 21 Supr. C. 256. ^'Furth v. Stahl, 205 Pa. 439. ^■^ Craft v. Morrow, 25 C. C. 487. 52 EQUITY PRACTICE IN PENNSYLVANIA. ment of the bankruptcy act, in 1903, a deed executed and delivered more than four months before but not recorded until within the four months was valid against the trustee.'" A bill of sale made more than four months before petition filed, though later endorsed with a statement that the debt is still due and possession is delivered, will not be a preference.*" Where a wife comes to the rescue of her em- bezzling husband with her separate estate the fund cannot be re- covered by a trustee in bankruptcy." Declarations of defendants are competent evidence and the case is for the jury."* The trustee may maintain a bill to cancel a conveyance made in fraud of cred- itors, under Sec. 7oe;''' or he may bring suit to recover the asset." Payments made on open account are not preferences."" The trustee is bound by the agreement between the receiver and vendor of goods relative to their disposition."' Where an advance payment is made on coal yet to be mined the trustee takes it subject to delivery of coal to cover the advancement. Equity looks at substance, not form." One who is bound to relinquish his preference may prove his claim with the other creditors."" Where a creditor is preferred he may be held for interest from the time of such preference." 5. Effect on liens. It has been held that the power given to Congress to enact a uni- form bankruptcy law also gave it the power to impair the obliga- tion of contracts, and so executions may be stayed notwithstanding the waiver of stay in the judgment."" Where there are illegal prefer- ences by confession of judgment clause f of Sec. 67 seems to control the question."" Under that clause it makes no difference whether the bankruptcy be voluntary or involuntary;"' if the party is declared a bankrupt all the legal proceedings and liens during the four months may be annulled."" The four months begin to run from the date of entry of judgment on a warrant of attorney."" The question is whether the intention was to create an illegal preference;" and if en- tered more than four months before the petition is filed it does not " Miller v. Shriver, 197 Pa. 191 ; Sees. 60b and 67e; Heitshu v. PfeiflFer, 18 Lane. L. R. 290. A deed held in escrow and not delivered until within four months is held to be preferential. Page v. Rogers, 211 U. S. 575. ^"Christ v. Zehner, 212 Pa. 188; Smith v. Corbett, 49 Pitts. L. J. 434. " Fry V. Penna. Trust Co., 192 Pa. 343. "'^.Horine v. Luria, 49 Supr. 171. " SheafiFer v. Hershey, 21 Lane. L. R. 385. ^Breckons v. Snyder, 211 Pa. 176. ""Wild V. Provident Trust Co., 214 U. S. 292; Yaple v. Dahl Etc. Co., 193 U. S. 526. " Bryant v. Swoffard Bros., 214 U. S. 279. " Hurley v. A. T., Etc., R. Co., 213 U. S. 126. ""Keppel v. Tiffin Savings Bank, 197 U. S. 356. " Kauffman v. Tredway, 195 U. S. 271, reversing same, 21 Supr. C. 256. "" Rothermel v. Moyer, 24 Supr. C. 325 ; clause f, sec. 67. ""Wallace v. Camp, 200 Pa. 220; Beckmeyer's Est., 15 York 157. "' Peck Etc. Co. v. Mitchell, 8 D. R. 203 ; Mencke v. Rosenberg, 202 Pa. 131- ""Beckmeyer's Est., 15 York 157. ""Fergfuson v. Greth, 195 Pa. 272. "Couch V. Kennedy, 31 C. C. 326; Mencke v. Rosenberg, 202 Pa. 131: Jones V. Rash, 8 D. R. 714. ^ BANKRUPTCY. S3 matter that the judgment creditor knew defendant was insolvent." An attachment under Sec. 28 of the mechanics' lien law of 1901, comes within the prohibition;" so of a foreign attachment." The trustee may recover from the constable and attaching creditors." The lien obtained by an attachment is valid, but the plaintiff loses his preference under Sec. 67 f." In order to invalidate a convey- ance for fraud, actual fraud must be shown."" 6. Proceedings to contest liens or conveyances. The state and federal courts have concurrent jurisdiction of pro- ceedings of an equitable character, to set aside a conveyance made in fraud of creditors;" or to strike off a judgment which gives an illegal preference, but when the jurisdiction of the state court has once attached, the rules of that court must prevail." A judgment, although entered within four months of bankruptcy, will not be stricken off for that reason when the defendant denies insolvency at the time. The court can only open the judgment and pass the ques- tion of fact to a jury."" Where a lien was acquired upon a boat more than four months before bankruptcy, it is not vacated by the proceed- ings, although process issues upon it within four months.™ But when process issues on a judgment confessed within the four months, the sheriff must pay the funds to the trustee." Where liens of a sub contractor for work or materials upon a building have become fixed before the adjudication and the owners paid the liens, they are en- titled to a set-off against the claim of the trustee of a bankrupt con- tractor."^ A trustee cannot claim anything on account of a liquor license granted the bankrupt after he has been adjudicated a bank- rupt.™ Where a suit is pending in the state court, the same may be stayed after adjudication in bankruptcy." 7. Petition and proof of claims. A voluntary petition, with a schedule annexed, brings all the bank- rupt's property into court for distribution.'"' A plaintiff in a judg- ment who did not include it in his assets in bankruptcy was held to have claimed nothing on it.™ The presumption of payment will be supported against a mortgage under similar circumstances." One who has a claim which is preferred, as re'nt, and proves it without " Mott V. Mott, 21 Montg. Co. no. " Tennessee Etc. Co. v. Grant, 14 D. R. 453- ■" Keeler v. Fort, Etc., Co., 23 C. C. 637. ** Wallace v. Camp, 200 Pa. 220. * First Natl. Bank v. Staake, 202 U. S. 141. * Coder v. Arts, 213 U. S. 223, on Sec. 67 C. " Phillips V. Kleinman, 58 Pitts. L. J. 151 ; 57 Pitts. L. J. 267. "Exier V. Box Co, 226 Pa 384. ■" Exler V. Box Co., 226 Pa. 384. ™ Woods V. Klein, 223 Pa. 256. " Citizens' Natl. Bank v. Kehl, 25 Montg. Co. 55- ™ Wagner v. Burnham, 224 Pa. 586. ^'Whitlock's License, 39 Supr. C. 34. "Beckley v. Pub'g Co., 37 C. C. 681. ■"Rothermel v. Moyer, 24 Supr. C. 325. "Lyon v. Phillips, 106 Pa. 57. "' Sawyer v. Link, 193 Pa. 424. S4 EQUITY PRACTICE IN PENNSYLVANIA. disclosing his right to priority will be held to have waived it." The state courts will not interpose where the trustee and creditors make a composition under authority of a court of bankruptcy.™ If creditors are omitted from the schedule or improperly described in it, the claims will not be released by a discharge of the bankrupt, unless they are served with notice or have actual knowledge of the pro- ceeding.™ The status of creditors is fixed as of the time of filing the petition and subsequent creditors are not affected by the discharge of the bankrupt."' A debt waiving the benefit of exemption and bankrupt laws is provable;"'' so is the obligation of a guarantor of a note in case the maker becomes insolvent. The liability becomes fixed before the debtor files his petition.'^ Where individual members of a partnership are discharged, the firm nevertheless, as such re- mains liable for partnership debts." A discharge will defeat a pre- existing debt, although there are allegations of false pretences."* A discharge must be pleaded against a debt claimed to have been barred by it." In a case of judgment for damages, where there is nothing to show that the injury was "willful and malicious," execu- tion after discharge will be stayed." Under the act of 1867 a sen- tence in a fornication and bastardy case was not released by dis- charge in bankruptcy."* If damages are for willful and malicious injuries, they are not discharged." A certification of proceedings in bankruptcy must comply with the act of Congress regulating the subject.™ 8. Rigfhts and duties of trustee. As to the assigned estate the trustee acquires no higher right than the bankrupt had, where there is no fraud." If he were entitled to ■''Turrell v. Ball, 26 C. C. 36. "Brown's Case, 11 D. R. 685. A provable claim may be based on the breach of an express warranty. F. L. Grant Shoe Co. v. Laird, 212 U. S. 445. One who chooses to waive a tort and prove his claim will be barred by the discharge. Cfawford v. Burke, 195 U. S. 176; Tindle v. Birkett, 205 U. S. 183. "■Fifth Etc. Assn. v. Goldberg, 22 Supr. C. 197. " People's Trust Co. v. Ehrhart, 6 Justice of the Peace, 135. Sees. 17 and 63. The bankruptcy court may call upon all interested parties to ap- pear and assert their rights. Wood & Henderson, in re. 210 U. S. 246. " Miller V. Black, 10 D. R. 2S5. "' Pattison v. Cobb, 212 Pa. 572 ; Div. 4, Sec. 630. "Iron Co. V. Mercur, 13 D. R. 458. The proof of a claim is prima facie evidence of the truth of its allegations. Whitney v. Dresser, 200 U. S. 532. "'Quaker Etc. Co. v. Lamoreaux, 21 Supr. C. 493. See Sec. 17 and Schooley v. Frankel, 10 Kulp 426. ""Conrad v. Groff, 17 Lane. L. R. 205. "'Walser v. Gottlieb, 12 Luz. L. R. 21; Weisfield v. Beale, 44 Supr. C. 386. •"Comth. V. Erisman, 5 Lane. Bar, No. 29. ""Hottenstein v. Miller, 12 Northam. 282. ™Sec. 21, Act 1898; Grant v. Levan, 4 Pa. 393; Fehley v. Barr, 66 Pa. 196; Hewit V. Berhn, Etc., Works, 194 U. S. 296; York Mf'g Co. v. Cassell, 201 U. S. 344; Thomas v. Taggart, 209 U. S. 385; Bryant v Swoffard Bros., 214 U. S. 279. "Ephrata Natl. Bank v. Sheaffer, 18 Lane. L. R. 385 BANKRUPTCY. 55 the property he is also entitled to the money or proceeds," subject to the rights of execution creditors." The beneficial interest vests in the trustee." If the interest has passed years before the assign- ment the trustee has no claim on it." It was held that a retail liquor license is an asset which the trustee may dispose of.™ The benefits on death of a member of a beneficial society which are directed to be paid to his sister instead of mother do not pass to the trustee on the assignment of the mother although the certificate had named her as beneficiary." Trust property does not pass to the trustee." A sheriff's deed duly acknowledged, under a testatum A. fa. cannot be attacked for an irregularity by the trustee.™ A trustee may elect whether or not he will take unprofitable property.™ 9. Actions by trustee. In an action by a trustee it will be presumed that he has com- plied with all the requirements of law to qualify him to act as such.' Trespass is the proper form of action against a constable and attach- ing creditors for levying and selling bankrupt's property which he claims.' "Surrender" in Sec. 57g act of 1898 means both voluntary and involuntary.' The trustee will be personally liable for insurance on property not owned by the bankrupt.* A trustee cannot main- tain a bill to restrain the bankrupt husband and his wife, who are tenants by entireties, from alienating the property they so hold.'* The act of June 8, 1893, P. L. 344, does not abolish tenancy by en- tireties.*'' The trustee cannot require security for his protection in the alternative that the husband, bankrupt, survives.*'' 10. Actions against the bankrupt. The fact that defendant is a bankrupt does not relieve him from the necessity of filing an affidavit of defense when sued or when a sci. fa. sur mortgage issues." A respondent in divorce who pleads bankruptcy need not pay alimony pendente lite, but he may be ordered to pay counsel fees. When the defendant wishes to plead bank- " Bristol V. Mills, 14 Supr, C. 107; Crawford v. Hoffecker, 5 Lack. L. N. 379. "Reese v. Winton, 47 Pitts. L. J. 97. '* Rosenberg v. Mencke, 208 Pa. 331. "Eslen's Est., 211 Pa. 215. "Snyder v. Bougher, 14 D. R. 757. Also membership in the Phila. Stock Exchange. Page v. Edmunds, 187 U. S. 596. " Schomaker v. Schwebel, 204 Pa, 470. " Merrick's Est., 5 W. & S. g. "Mencke v. Rosenberg, 202 Pa. 131. "First Natl. Bank v. Laseter, 196 U. S. 115. 'Laubach v. Penna. R. Co., 28 Supr. C. 247; Breckon's v. Snyder, 211 Pa. 176. 'Wallace v. Camp, 200 Pa. 220. ° Keppel V. Tiffin Savings Bank, 197 U. S. 356. * Simpson v. Kerkeslager, 41 Supr. C. 347- *a Weiss v. Beihl, 232 Pa. 97. *>> Meyer's Est., No. i, 232 Pa. 89; Hoover v. Potter, 42 Supr. C. 21; McCurdy v. Canning, 64 Pa. 39. 'o Meyer's Est., No. 2, 232 Pa. 95. 'Neiman v. Shoolbraid, 47 Pitts. L. J. 301- 'Ives V. Ives, 12 Luz. L. R. 19. S6 EQUITY PRACTICE IN PENNSYLVANIA. ruptcy, he should plead his discharge; it is insufficient to set up that he was "declared" bankrupt.'*^ But if he pleads discharge definitely and the statement does not bring the case within the exception, the plea is sufficient."'' A discharge is personal and does not relieve the surety of the bankrupt.'" 11. Exemptions of bankrupt. The exemption which the law allows a bankrupt must be set apart by the trustee and he cannot make the claim against an attachment on a judgment waiving the right to exemption.' The trustee is only concerned with allowing it to the bankrupt, after which he has no control as to process against it.' The bankrupt's right depends on the law of the state." The assignee of a claim of wages for less than $300, the assignment having been made before the proceedings began, is entitled to priority under Sec. 64a." Taxes and license fees of any state are preferred under Sec. 64a act of 1898." The trustee will not be subrogated to the rights of the holder of a judg- ment with a waiver entered within four months." When the exempt property is levied upon before the discharge, it is immaterial that the sale takes place after the discharge." An exe- cution with waiver may be levied on the exempt goods before dis- charge."^ The claimant of a debt with a waiver of exemption must present it to the trustee, or he cannot, after discharge, proceed against the goods set aside as exempt." After discharge the moral obligation still rests upon the bankrupt to pay the obligation which he is no longer legally bound to pay. But this moral obligation is sufficient consideration to support a definite, promise to pay and re- new the legal remedy which was barred by the discharge ; if the new promise is averred in the plaintifif's statement.^" A judgment for crim. con. is not released by a discharge ;" nor for malicious assault." A claim for unliquidated damages resulting from injury to prop- erty, not reduced to judgment and in which there is no element of contractual liability is not provable in bankruptcy, under clause b. Sec. 63 U. S. bankrupt act or its amendment." '^Elec, Etc., Co. V. Chappel, 12 Lack. Jur. 361. °b Althouse V. Baker, 29 Lane. L. R. 106. ""^ Frank v. Stone, 12 Lack. Jur. 363. ' Sharp v. Woolslare, 2$ Supr. C. 251. ' Wagenseller v. .Gemberling, 13 D. R. 716; Tyler v. Parliman, 14 D. R. S17; I C. R. A., col. 578. ° Smalley v. Langenour, 196 U. S. 93. " Shropshire Co. v. Bush, 204 U. S. 186. " New Jersey v. Anderson, 203 U. S. 483. "Rose V. Weidenfeld, 19 D. R. 653. " Gilmore v. Smith, 31 C. C. 113. "a Zeigler v. Weil, 21 D. R. 809. " Claster v. Soble, 22 Supr. C. 631 ; Miller v. Black, 10 D. R. 255. "Bolton V King, 105 Pa. 78; Breit v. Osner, 2 W. N. C. 601; Bernhard V. Hoffman, 12 D. R. 765. " Tinker v. Colwell, 193 U. S. 473. "Hottenstein v. Miller, 20 D. R. 667. "Weisfield v. Beale, 231 Pa. 39, citing Brown v. Button Co., 149 Fed. R. 48. BANKRUPTCY. 57 After exemption set aside a state creditor may have execution against it, on a judgment wherein the exemption has been waived." 12. Attorneys, rule of court. The U. S. District Court for the western district of Pennsylvania recently made the following rule as to attorneys: "Rule 5. Unless specially authorized by the court, receivers and trustees in bankruptcy shall not retain as their attorney the attorney of the bankrupt, of the petitioning creditors, of the person applying for the appointment of a receiver, or of any creditor, and trustees shall not retain as their attorney any attorney who has obtained proxies or voted upon the election of such trustee, or who is an attorney for persons holding such proxies. Per curiam from the report. William G. Lindsey, Clerk." "McGowan v. Haberstroh, 38 C. C. 702, following First Natl. Bank, Etc., V. Bartlett, 35 Supr. C. 593; Lockwood v. Exchange Bank, 190 U. S. 294. CHAPTER in. DIVORCE. [Practice in Divorce in Philadelphia by F. F. Brightly, Esq. ch. 36, p. 748.] See 1. Causes of divorce, u vinculo matrimonii. 2. Causes of divorce occurring abroad.. 3. Incestuous marriages void- able. 4. Fraud, force or coercion. 5. Cruelty and indignities of wife toward husband. 6. Causes while domiciled be- yond the state. 7. Divorces for disappointed American heiresses. 8. Divorce on conviction of cer- tain crimes. 9. Annulment of marriage on false rumor of death. 10. Divorce a mensa et thoro, and alimony. 11. Divorce a mensa et thoro, for adultery. 12. Libellant must be a citizen or resident. 13. Petition or libel, etc. 14'. Jury trials or masterships, Act 191 1. 15. Act 1911, applied to pending cases. 16. Alias subpcenas. 17. Petition for desertion after six months. 18. Petition for annulment of void marriage. ig. Petition of lunatic wife by next friend.. 20 The libel, character and con- tents. 21. Allowance of subpoena. 22. Form of libel for adultery. 23. Form of affidavit. 24. Form of averment of de- sertion. 25. Form of averment of intol- erable conduct. 26. Form of averment of fraud and coercion. S8 27. Form for decree of annul- ment. 28. Form for sentence for crime. 29. Form for impotence or or- ganic obstruction. 30. Form of subpoena. 31. Personal service of sub- poena. 32. Return of non est inventus. 33. Form of notice by publica- tion. 34. Proof of publication. 35. Amendment of libel. 36. Rule for bill of particulars. 37. Form of rule for bill of par- ticulars. 38. Discontinuance. 39. Respondent's answer. 40. Form of answer to libel for adultery. 41. Recrimination and condona- tion. 42. Form of answer to charge of intolerable conduct. 43. Cruel and barbarous treat- ment of wife. 44. Cruel and barbarous treat- ment of husband. 45. Desertion. 46. What is not desertion in law. 47. Proof of desertion. 48. Defense as to desertion. 49. Impotency as a cause. 50. Indignities to the person of the wife. 51. Turning wife out of doors. 52. Alimony pendente lite and counsel fees. 53. Form of petition for sup- port, etc., pendente lite. 54- Form of order of court granting rule. 55- Form of decree of support. 56. Form of replication and re- quest for a, jury. 57. Framing issue for jury. DIVORCE. 59 58. Power of court to hear and 67. Alimony and collection in determine. divorce a mensa et thoro. 59. Master, appointment and 68. Rule to pay alimony, duties. 69. Enforcement of decree. 60. Proceedings before commis- 70. Appeal — recognizance — in sioner, examiner or master. forma pauperis. 61. Evidence. 71. Consideration on appeal. 62. The master's report. 72. Costs. 63. Decree — rule to show cause. y^- Paramour not to marry. 64. Granting and entering de- 74. Adulteress cannot alien, when, cree. 75. Effects of divorce. 65. Vacation of decree. 76. Agreements to separate. 66. Permanent ulimony. 1. Causes of absolute divorce — statutory provisions. Section i of the act of March 13, 1815, 6 Sm. L. 286, provides: "When a marriage hath been heretofore or shall hereafter be con- tracted and celebrated between any two persons, and it shall be judged in the manner hereinafter mentioned, 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 violation of the previous vow he or she made to the former wite 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 time and space of two years; or when 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 condition intolerable and life burthensome, 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 bonds of matrimony." 2. Causes of absolute divorce occurring abroad. Section i of the act of April 28, 1903, P. L. 236, as amended by the act of April 13, 191 1, provides: "That the several Courts of Common Pleas of this Commonwealth shall entertain jurisdiction of all cases of divorce from the bonds of mat- rimony for the cause of wilful and malicious desertion on the part of either the husband or wife, and absence from the habitation of the other, without a reasonable cause, for and during the term and space of two years, as provided for in the act of assembly to which this is a supple- ment; or for the adultery of either husband or wife; or for the cause of personal abuse; or for such conduct on the part of either husband or wife, as to render the condition of the other party intolerable and life burdensome; or when any husband shall have, by cruel and barbarous treatment, endanger his wife's life, or offered such indignities to her person as to render her condition intolerable and life burdensome and thereby forced her to withdraw from his house and family; notwith- standing the said causes of divorce have occurred or shall hereafter occur in a foreign country, state or territory subject to the jurisdiction of the United States: Provided, that no application for such divorce shall be made, unless at the time the said cause or causes of divorce occurred, the applicant therefor was a citizen of this Commonwealth: Provided fur- ther, that the said applicant shall have resided therein for the term of one year, as provided for by the existing laws of this Commonwealth: And provided, that if the procedure shall be otherwise correct, and a jury shall have rendered a verdict in favor of the libellant, or, when the case shall have been heard without a jury trial, and the court shall be satisfied that the evidence warrants the granting of a divorce, then in such cases a decree to that effect shall be made by such court." 6o EQUITY PRACTICE IN PENNSYLVANIA. This clumsily worded enactment has been construed to apply only to causes enumerated in it which occurred abroad at a time when the applicant was a citizen at Pennsylvania, and that one year must have elapsed from the time the applicant returned to Pennsylvania if abroad before the application can be filed; or if he (or she) had not been abroad the one year's bona fide residence is still necessary, and where the respondent is not personally served the libellant is incompetent to prove such residence.' 3. Incestuous marriages voidable. Section 5 of the act of March 13, 1815, Sm. L. 286, is as follows: "All marriages within the degree of consanguinity or affinity, accord- ing to the table established by law^ are hereby declared void, to all in- tents 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 sub- ject to the like penalties 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 either the husband or wife." Whilst this section declares such marriages "void," the saving clause makes them only voidable ;" nor does the status change because a prosecution may lie under Sec. 39 of the penal code. The nullity must first be established according to law.* 4. Fraud, force or coercion as causes. Section i of the act of May 8, 1854, P. L. 644, provides that the court of Common Pleas may grant an absolute divorce, "Where the alleged marriage was procured by fraud, force or coercion and has not been subsequently confirmed by the acts of the injured party." It has been held, under this section, that duress by false accusa- tion and arrest is sufficient cause ;° but the threats must be sufficient to overpower the judgment and coerce the will." It has been held to be a fraud, such as can be laid for cause of divorce when the 'Lyon V. Lyon, 13 D. R. 623; Reed v. Reed, 14 D. R. 109; Zeno v. Zeno, S Lack. Jur. 140; Hull v. Hull, 8 D. R. 420; Paponthei v. Paponthei, 2 Berks Co. 362; 37 C. C. 656. See Lyon v. Lyon, supra, for a complete re- view of the divorce laws by Sulzberger, P. J. ' Section 39, Act of March, i860, P. L. 393. By Act of June 24, 1901, P. L. 597, marriages of first cousins are declared void, if contracted within this State (McClain v. McClain, 40 Supr. C. 248). But Judge Pennypacker decided in Sarah Batty Schofield v. Charles Schofield that a marriage of first cousins in Delaware though by residents of Penn- sylvania, who went there to make the yoke easy, was valid under the law there and here also. The lex loci controls the question. '*■ 'a Schofield v. Schofield, 20 D. R. 80S. ' Parker's Ap., 44 Pa. 309. * Walter's Ap., 70 Pa. 392 ; Griffith v. Smith, i Clark 479. ' Collins v. Collins, 2 Brewster 515 ; Pyle v. Pyle, 10 Phila. 58 ; Brant v. Brant, 17 Phila. 655; Cronise v. Cronise, 54 Pa. 255. "Todd v. Todd, 149 Pa. 60; Davis v. Davis, 24 York, 63; Rapp v. Rapp, 2 Berks Co. 63; Reifsnyder v. Reifsnyder, 3 Berks Co. 68; Davis v. Davis, 26 Montg. Co. 109. DIVORCE. 6i woman concealed the fact that she was at the time of marriage pregnant with another man, but not that she had previously lain with a man.' But a representation by the woman that she was preg^nant by him, when she was not, especially where he himself was incontinent, is not sufficient, unless he was thereby compelled by a sense of duty, and not to avoid prosecution, to marry her.' A prosecution commenced is not sufficient of itself." In a unique case, particularly for the reasoning by which the Justice arrived at his conclusion, by comparison of a woman with a cow, for domestic uses, it was held to be a fraud on the man for a woman to conceal a latent defect which would prevent the consummation of her mar- riage, when she refused to have the obstacle removed.'" This doc- trine, however, is very old in English law, as a cause celebre was that of Lady Frances Howard v. Robert, Earl of Essex," in which the declaration avers with great particularity the fact of the plain- tiff's virginity and the persistent impotency of the defendant, which was unknown to her at the time of marriage, and which continued, unyielding to every form of excitation employed by the plaintiff. 5. Cruelty and indignities by wife towards husband. The act of June 25, 1895, P. L. 308, amending the acts of May 8, 1854, P. L. 644, and the act of 1815, supra, provides for an abso- lute divorce for the husband, "Where a wife shall have, by cruel or barbarous treatment or indig- nities to his person, rendered the condition of her husband intolerable, or life burdensome; Provided, that in case of divorce under this act, if the application shall be made on the part of the husband, the court granting such divorce 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 it was enough to show that the treatment of the husband was such as to render his "condition intolerable and life burdensome," thus enacting the decisions into positive statute law." But not every act of anger" or sequestration of family rights," is a cause for divorce. It has even been held that a retort by the wife, in kind, is not a ground for separation.'^ The proviso in relation to alimony makes the allowance discretionary with the court, under the circumstances," there being 'no legal reason why a man should reward his wife for going. Before this act a man could be compelled to pay ali- ' Allan's Ap., 99 Pa. 196. 'Todd v. Todd, 149 Pa. 60; Bartholomew v. Bartholomew, 14 C. C. 230; Hoffman v. Hoffman, 30 Pa. 417. ' Richards v. Richards, 19 C. C. 322. "Gring v. Lerch, 112 Pa. 244. ■"English State Trials, vol. i, p. 307. "Heilbron v. Heilbron, 158 Pa. 297; Heidenreich v. Heidenreich, 9 D. R. 123 ; Miles v. Miles, 76 Pa. 357 ; Jones v. Jones, 66 Pa. 494. " Rochelle v. Rochelle, 28 C. C. 4S8. ^ ^ " Magill V. Magill, 3 Pitts. 25 ; Hexamer v. Hexamer, 42 Supr. C. 236. '"Reister v. Reister, 11 D. R. 99. " Graham v. Graham,' 30 C. C. 612. " Scott v. Scott, 9 Kulp, 442. 62 EQUITY PRACTICE IN PENNSYLVANIA. mony when he got a divorce, but not the costs ;" and it was enforcible by n. fa. or attachment but not capias ad sat." It may be enforced by attachment at any stage of the case." 6. Causes while domiciled beyond the state. Under the acts of April 26, 1850, P. L. 591 ; Mar. 9, 1855, P. L. 68, and April 22, 1858, P. L. 450, the Common Pleas was authorized to grant an absolute divorce (a vinculo matnmotm), though the causes arose beyond the state while the parties were there domiciled, such causes being deserting, adultery and personal abuse or such conduct on the part of either the husband or wife, as to render the condition of the other party "intolerable and life burdensome.' The only pre-requisite in each case was a bona Me residence of one year within the state. This act only enlarged the jurisdiction of the court and introduced no new cause. 7. Divorces for disappointed American heiresses. The act of June 20, 1893, P. L. 471 provided similar jurisdiction and proceedings for those unfortunate Americans who married abroad for gilded baubles and empty titles and when so abroad were duly plucked and kicked out sans ceremonie, sans centimes, but not sans reproche. The proceedings are the same as under the act of 1815, supra, and as affected by the later act of 1903, supra, much for the same reason. 8. Divorce on conviction of certain crimes. Section 2 of the act of March 9, 1903, P. L. 19, amending the act of 1854, supra, provides for divorce: "When either of the parties shall hereafter, either within or without this state, be convicted as principal, or as accessory, either before or after the fact, of the crime of arson, burglary, embezzlement, forgery, kid- napping, larceny, murder, either in the first or second degrees, voluntary manslaughter, perjury, rape, robbery, sodomy, buggery, treason, or mis- prision of treason, and be sentenced by a competent court having juris- diction, to imprisonment 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." The time cannot be computed by adding the sentences on different indictments,'" and the sentence must exceed two years, whether within or without the state.™ Section 4 of the act of March 13, 1815, supra, provides that: "When either party shall have been convicted and sentenced for adultery, the records of the said conviction shall be received in evidence on any application for a divorce by the injured party."** '* Shoop's Ap., 34 Pa. 233. '" Elmer v. Elmer, 150 Pa. 205. "Hih v. Hilt, 9 D. R. 169. " Schlichter v. Schlichter, 10 Phila. 1 1 ; Gordon v. Gordon, 48 Pa. 226. ^ Kauffman v. Kauffman, 24 Supr. C. 437. '"Frantz v. Frantz, 11 C. C. 467. " Harrison v. Harrison, i Phila. 389. "a Heiter v. .Heiter, 4 Berks Co., 144. DIVORCE. 63 Imprisonment added to desertion, within two years, does not break the continuity of the desertion."* 9. Annulment of marriage on false rumor of death. Section 6 of the act of 1815, supra, provides: "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 retnrn, to insist to have his or her former wife or husband restored, or to have his or her marriage dissolved, and the other party to remain with the second husband or wife ; and in any suit or action instituted for this purpose within six months after such return, the court may and shall sentence and decree accord- ingly." The second marriage is void but may be ratified at the election of the absentee.'^ 10. Divorce from bed and board and alimony. Section i of the act of Feb. 26, 1817, 6 Sm. L., 405, provides: "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 intol- erable 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 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 profit or income of his estate, or of his occu- pation 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 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 pro- tection of the court, discharge and annul the same according to their dis- cretion; 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. 11. Divorce a mensa et thoro, for adultery. This probational form of divorce was once in vogue and the act of April II, 1862, P. L. 430, added adultery as a cause, thus: "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 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 re- spective 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 "a Heiter v. Heiter, 4 Berks Co. 144. ""Kenley v. Kenley, 2 Yeates 207, under prior act Sept. 19, 1785; 2 Dallas Laws 387. "Act of 1815, supra. 64 EQUITY PRACTICE IN PENNSYLVANIA. addition thereto, to his said wife, the one-half of the value of all money and property, 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 decree the said court shall have the power to enforce, suspend or discharge and annul, in the same manner as the said court may now en- force, suspend or discharge and annul its decrees under and by virtue of the said acts or either of them." 12. Libellant must be a citizen or resident. Having now set forth in order the status declaring the causes foi- and the kinds of divorce, the proceedings to obtain a divorce are in order. Only a citizen is eligible. Section ii of the act of 1815, jM^m, provides : "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 of his or her petition or libel." But by the second section of the act of May 8, 1854, P. L. 644, it was enacted that the word "citizen" "shall not be so construed as to exclude any party who shall, for one year, have had a bona fide resi- dence with this commonwealth, previous to the filing of his or her petition or libel." This act was in encouragement of divorce practice where the causes occurred in adjoining or other states. So a married woman could gain a residence here independently of her husband's domicile else- where."' But a divorce obtained without personal service and only by publication, wjiile it may be binding in the state where decreed, it is held, is not elsewhere under the "faith and credit" article of the U. S. Constitution.^ Under Section 6 of the act of April 26, 1850, P. L. 590, a divorce can be obtained in Pennsylvania, by a libellant, on the ground of desertion, who at the time of such desertion was a resident of another state, having married and resided there, and the respondent never having lived in this state.''^ 13. Petition or libel, affiadvit, etc. Section 2 of the act of 1815, supra, as amended by act of 1905, P. L. 293, provides : "If any person hath been or shall be injured as aforesaid, the husband in his own proper person, or the wife by her next friend, may exhibit his or her petition or libel to the judges of the Court of Common Pleas of the proper county where the injured party resides, in term time, or to one of the judges of the same court in the vacation (at least 30 days be- fore the return day), setting forth particularly and specially the causes of his or her complaint; and shall, together with such petition or libel, also exhibit an affidavit, on oath or affirmation, taken before one of the same judges or a justice of the peace of the proper county (or under act of DIVORCE. 65 May 22, 1895. P- L- lOS. a prothonotary, clerk of the court or notary public), 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. And thereupon a subpoena shall issue from the said court signed by one of the judges thereof, directed to the party so complained against, commanding him or her to appear at the next or any subsequent Court of Common Pleas (which subpoena may be made returnable to the next or any subsequent quarterly or monthly return day, provided the time to which it is made returnable be at least thirty days after the awarding of the sub- poena; Act of 1905); to answer the said petition or libel and upon due proof, at the return of the said subpoena that the same shall have been served personally on the said party wherever found, or that a copy had been given to him or her fifteen days before the return of the same, the said court shall and may make such preparatory rules and orders in the cause, that the same may be brought to a hearing and determined at the term to which the said process may be made returnable, or afterwards, at which hearing, the court may determine the same ex parte, if necessary." The remainder of the section is changed by act of April 20, 191 1, P. L. 71, known as the "Scott Act." 14. Jury trials or masterships. The act of 191 1, supra, provides in Section i, as follows:" "But either of the parties who shall desire any matter of fact, that is affirmed' by the one and denied by the other, to be tried by a jury, may take a rule upon the opposite party, to be allowed by a judge of the Court of Common Pleas, to show cause why the issues of fact set forth in the said rule shall not be tried by a jury, which said rule shall be served upon the opposite party or his or her counsel. Upon the return of said rule, and after hearing, the court may discharge it or make it absolute, or frame issues itself, and only the issues as ordered by the court shall be tried accordingly; but such rule shall not be made absolute when, in the opinion of the court, a trial by a jury cannot be had without prejudice to public morals. When neither of the parties takes a rule as aforesaid, or when after hearing, the rule is discharged, the court may proceed to hear the cause; or may upon motion of either party, appoint a master to take the testimony and return the same to the court, together with a report of the pro- ceedings had before him, and his opinion of the case, — and may upon the application of either party, and upon such terms as it may order, authorize and direct the master to take testimony of witnesses in any other country, state or territory, subject to the jurisdiction of the United States, or in any foreign country. And the said court shall ™ The constitutionality of this act was questioned in the Mellon divorce suit, Allegheny County, on various grounds. The constitution of 1874 preserved the right of trial by jury as it then existed, and the right to de- mand a jury trial was then fixed, and the section taking away the right in a pending cause, where the demand had been made is clearly unconstitu- tional. The title does not give notice of the purpose to substitute a travel- ing mastership abroad, in other and foreign jurisdictions, for trial in the jurisdiction of the court. The English legal authorities are said to have ignored this ambulatory vehicle of our system. See act June 8, 191 1, P. L,. 709, for taking testimony abroad by an examiner. Vol. 4 Practice — 5 66 . EQUITY PRACTICE IN PENNSYLVANIA. have power to adopt rules regulating the proceedings before the master and fixing his fees." 15. Declared applicable to pending cases. Section 2. From and after the passage of this act, all cases of di- vorce novif pending or hereafter begun shall be proceeded with, only in accordance with the provisions hereof. Section 3 repeals the act of March 10, 1899, by title, which relates to appointment of masters in divorce. The Court of Common Pleas No. 3, Allegheny county, Evans, J., held that the act of April 20, 191 1, P. L. 71, is both constitutional and retroactive, and although respondent demanded a jury trial by her answer filed, before the passage of the act, she must file her petition for such trial under the act passed subsequently,"^ This she did, and a jury trial and roving mastership both were awarded. This act only relates to jury trials. ° 16. Alias subpoenas. Section 3 of the act of 181 5, supra, provides: "If upon the return of the said subpoena, proof shall be made that the said party could not be found in the said county, an alias subpoena shall issue, returnable the first day of the next or any subsequent term and be served personally in manner aforesaid, and if so served, the same pro- ceedings shall be had as are directed and authorized in the 2nd section of this act. And if, on the return of the said alias subpoena proof shall be- made that the said party could not be found in the said county, the sheriff of the same shall cause notice to be published in one or more news- papers printed within or nearest to the said county for four weeks suc- cessively prior to the first day of the then next term of said court, re- quiring the said party to appear on the said day, to answer to the said complaint, at which term, or any subsequent term, the same proceedings shall be had as are authorized and directed by the 2nd section of this act." By the act of April 22, 1905, P. L. 293, supra, alias and pluries subpoenas may be made returnable on monthly or quarterly return days in the discretion of the court provided that, in case of publica- tion, every proclamation shall be published at least once a week for four consecutive weeks. By the act of April 26, 1905, P. L. 309, where husband and wife reside in different counties of the state, the libel may be filed in either county and service made in the other, as provided in the latter act. 17. Petition for desertion, after six months from the act. Section 5 of the act of April 26, 1850, P. L. 591, provides: "The jurisdiction of the several Courts of Common Pleas of this Commonwealth shall hereafter extend to all cases of divorce from the bonds of matrimony, for the cause of wilful, malicious and continued desertion by either of the parties from the habitation of the other, without reasonable cause; and it shall be lawful for either party to make applica- tion in such case, by petition or libel, to the proper court, in accordance with the provisions of the several acts of assembly now in force, 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 bond of matrimony aforesaid, until after the expiration of two years from the time at which such desertion took place." "a Mellon V. Mellon, S9 Pitts. L. J. 650. " Gumbert v. Gumbert, 38 C. C. 562. DIVORCE. 67 Section 6 of this act confers jurisdiction notwithstanding the parties were at the time of the cause, domiciled in another state, if the petitioner has resided for one whole year in this state prior to filing the petition. 18. Petition for annulment of void marriage. The act of April 14, 1859, P. L. 647, provides: "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 Courts 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, accord- ing to the principles and forms which are or shall be prescribed by law for cases of divorce from the bonds of matrimony." Prior to the passage of this act it was held that a conviction and sentence for bigamy in itself was a decree of annulment.' And some cases were to the effect that the second marriage when not made under absence of two years and circumstances which gave rise to a rumor of death, was absolutely void.' But it was also held that the wife of the second marriage could not treat it as a nullity in a suit against her de facto companion;' nor could they re-marry without a dissolution.'' The above act provided the manner of securing it. 19. Petition of lunatic wife by next friend. Section 8 of the act of April 13, 1843, P. L. 235, provides: "In cases where the wife is a lunatic or non compos mentis, the courts of Common Pleas of this Commonwealth are invested with authority to re- ceive a petition or libel for a divorce which may be exhibited by any re- lative or next friend of the wife : and the a£Sdavit required by the act con- cerning divorces may be made in the manner required by the act, by such relative or next friend; and all the provisions of the several acts relating to divorces shall apply to all applications made under the directions of this section: Provided that the fact of the lunacy of the wife and such circumstances as may be sufficient to satisfy the mind of the court as to the truth of the allegation shall be set forth in the petition ; and upon the hearing of the case before the court, or upon an issue to be tried by the jury, the question of lunacy, with every other matter of fact that is affirmed by one party and denied by the other shall be heard and investi- gated in the manner prescribed by the provisions of the several acts con- cerning divorces." The act of April 18, 1905, P. L. 211, attempted so to amend the above as to give the husband of a lunatic wife the right to get a di- vorce on the ground of such lunacy, but it was held not to effectuate that purpose, but only to provide the same procedure for acts done by a lunatic which were causes for divorce before its passage." Void 'Harrison v. Harrison, i Phila. 389. 'Heffner v Heffner, 23 Pa. 104; Rumpff v. Vichestein, 3 Pitts. 148; Klaas v. Klaas, 14 Supr. C. 550. ' Griffith v. Smith, i Clark 479. 'Thompson v. Thompson, 10 Phila. 131, following Howard v. Lewis, 6 Phila. 50. ° Baughman v. Baughman, 34 Supr. C. 271 ; Johnston v. Johnston, 34 Supr. C. 606. 68 EQUITY PRACTICE IN PENNSYLVANIA. marriages by divorcees under said act who remarried were later validated by act of assembly. 20. The libel, character and contents. Under the act of 1815, supra, it was necessary for a woman to sue by her next friend, but since the act of emancipation, June 8, 1893, P- L. 344, it is no longer necessary." The libel must state that libellant is a resident of the county in which the application is made ;' or, under act of April 26, 1905, P. L. 309, that the respondent is a resident of that county and libellant a different county. The matter of residence has been held to be amendable.' It must aver an actual marriage, not a mere agreement to marry,' and should give the date, if possible. It must aver the one year's residence in the common- wealth, preceding the application." Where libellant has acquired a domicile with her husband in another state, and returns to this state, she must reside here one full year before she can maintain a libel for cruel, etc., treatment, nor can she amend to cure the defect.'°a Jurisdiction cannot be conferred by consent on this point of resi- dence."b Divorces are not granted by agreement of the parties.^c nor where there is "collusion" ;"d for definition of which see Loomis V. Loomis, 20 D. R., 731. But a voluntary appearance to defend is not to be construed as collusion."e Both parties having resided in the same county when the cause occurred, the jurisdiction under the act of April 26, 1905, P. L. 309, is in the county where libellant re- sides."* After the filing of the petition, the removal of libellant does not affect the jursidiction."g It must set forth clearly and particularly the grounds of divorce; for, if this is not done, they cannot be supplied by the proofs.'^ And the requisites of the cause or causes must be fully averred as stated in the act authorizing it." Several causes, if clearly defined, may be joined in the same libel," although seemingly contradictory." If a meritorious cause appears from the averments the libel will not be 'Everett v. Everett, 16 C. C. 599. 'Crtjuld V. Gould, 14 C. C. 185; Gambe v. Gambe, 22 C. C. 23; Logan V. Logan, 10 D. R. 738 (See rules of court). 'Richardson v. Richardson, 8 D. R. 242. •Brinckle v. Brinckle, 10 Phila. 7 (Gulp's Ap., 4 Walker 131). ^Williams v. Williams, 12 Luz. L. R. 347 (See Sec. 2, Rule 14, Luzerne County Rules) ; Heath v. Heath, 44 Supr. C. 118; Werneka v. Werneka, 12 Lack. Jur. 366. "a Earning v. Earning, 46 Supr. C. 291. "bYardley v. Yardley, 38 C. C. 556. "0 Pietz V. Pietz, 38 C. C. 538. "a Wheeler v. Wheeler, 20 D. R. 723; Ash v. Ash, 10 Lack. Jur. 105. "»Dusenberry v. Dusenberry, 20 D. R. 678. "*'McConnell v. McConnell, 21 D. R. 781; Ashton v. Ashton, 21 D. R. 611. "e Del Vecchio v. Del Vecchio, 21 D. R. 564. " Schlicter v. Schlichter, 10 Phila. 11. "Stewart v. Stewart, 34 C- C. 543; Wilck v. Wilck, i Berks Co. 3; Lenhart v. Lenhart, 35 C. C. 4S8; Schmidt v. Schmidt, 12 Luz. L. R. 100; Sites V. Sites, 9 D. R. 192. "Eraun v. Braun, 194 Pa. 297. "Clark v. Clark, 14 D. R. 270; Trotter v. Trotter, 47 Pitts. L. J. 109. DIVORCE. 69 dismissed for lack of precision." It need not charge adultery with the formality of an indictment." If the name, place and date, as near as possible, be given it is sufficient." But the averment must be positive and not information and belief, etc." Each county has its own code of rules, which, obviously, cannot be given, here, and each court has its own interpretation thereof, some being liberal and some being averse to laxity. In Philadelphia they are inclined to strict pursuance of the rules, as to last known residence of respon- dent;" as well as the averment of cause." The petition must pray for a decree of divorce, either absolute" or from bed and board;" though if the language is equivalent to such prayer and a divorce is granted, it will not be vacated on a technicality.^ It must be signed by the libellant," and it must be sworn to by the libellant in an affi- davit embracing the words of the act of 1815, supra, or it will not confer jurisdiction." This affidavit can only be taken by one of the persons authorized by law, supra, and it is improper for an attorney to take it who afterwards appears for the respondent,'" or by libel- lant's counsel acting as notary public;" or by a justice of the peace of a different county;"" or the mayor of a city;^ or a notary beyond the state."^ 21. Allowance of subpoena. If the petition be presented in term time, its allowance will be by the court and not a single judge,*" which is done by an order endorsed per cur. on the back of it, or following it; and an adjourned session is term time for this purpose." If awarded by a judge in vacation, care must be taken to allow thirty days between the return day and the ■time of issuing it,'' especially since the act of 1905. If the libel complies with the law a subpcena will be awarded. But if it is defective it will not be allowed." The judge does not need to sign his name where he writes an order awarding it, which is handed "Davis V. Davis, so Pitts. L. J. 399. " Richardson v. Richardson, 8 D. R. 242. "Runkle v. Runkle, 18 York 122. "• Trotter v. Trotter, 47 Pitts. L. J. 109. "Baylis v. Baylis, 16 D. R. 283. =" Garrett v. Garrett, 27 C. C. 237. "Grissom v. Grissom, 8 W. N. C. 484. ^ Dawes v. Dawes, 8 Lack. Jur. 87. " Shields V. Shields, 17 D. R. 745. ''Schumann v. Schumann, 6 Phila. 318; Wanamaker v. Wanamaker, 2 Pearson 166. '^ Roberts v. Roberts, 5 Kulp 528 ; Fritzinger v. Fritzinger, 5 Kulp 507 ; Hoffman v. Hoffman, 30 Pa. 417. "Wilhelmi v. Wilhelmi, 9 D. R. 685. "Walker v. Walker, 13 D. R. 278. '^ Helt v. Halt, 7 D. R. 746. "Gambe v. Gambe, 22 C. C. 23. ""a. Bush v. Bush, 21 D. R. 744. "Crocker v. Crocker, 19 C. C. 156. "^Wetmore v. Wetmore, 17 C. C. 11. "^ Best v. Best, 19 C. C. 155. "Shepard v. Shepard, 18 Supr. C. 467. "Johnson v. Johnson, 3 D. R. 166. 70 EQUITY PRACTICE IN PENNSYLVANIA. to the prothonotary, and who thereupon makes a minute of it and issues the subpcena."" Failure to proceed for eight years after filing a libel is not in itself abandonment of the cause. * 22. Form of libel for adultery. To the Honorable the judges of the Court of Common Pleas of County : The petition and libel of respectfully represents that is a resident of said county and hath for the last year and upwards been a resident and citizen of the Commonwealth of Pennsylvania; that on the day of A. D. . a marriage was contracted and celebrated between the said , libellant and at ; and although by the laws of God as well as by their mutual vows in this behalf, they were bound to that constancy which belongs to the married state, yet so it is that the said , in violation of his said vows and said laws, did on or about the day of A. D. , at , within said State (or at in the state of ) and at sundry other times, before this date, commit adultery with one , and with other persons to the petitioner unknown, Wherefore, your petitioner, being a citizen of this Commonwealth (and if the causes occurred abroad, was a citizen of this commonwealth when said cause or causes occurred) prays that a subpoena may issue from the said court to the said commanding to appear at the next court of Common Pleas of said county to answer said complaint, and that said libellant be divorced from the bond of matrimony aforesaid as if the same had never been contracted (or from bed and board, in case libellant be a woman, and that she be allowed due alimony). And will ever pray, etc.. Signature of libellant. . 23. Affidavit, Form of. county, ss. being duly sworn says that the facts set forth in the foregoing petition or libel are true to the best of knowledge and belief; that the said complaint is not made out of levity or collusion between libellant and , and for the mere purpose of being freed and separated from each other, but in sincerity and in truth for the causes mentioned in said petition and libel. Sworn to, etc. (This affidavit is required in every case, and for whatever cause.) 24. Averment of desertion, Form. After setting out residence and marriage as above, continue : has wilfully and maliciously deserted the libellant and absented from — habitation for more than six months last past, to wit, since the day of A.D. . Therefore, etc. 25. Form of averment of intolerable conduct. After setting out residence, marriage, etc., as above and any special requirements of the rules of court, continue : "^ McQuaide v. McQuaide, 8 Montg. Co. 150. "a Wright v. Wright, 20 D. R. 1004. DIVORCE. 71 Yet so it is that the said in violation of said laws and vows, was on or about the day of 19 — , and at divers other times heretofore, at , and other places, guilty of such cruel and barbarous conduct towards and treatment of this libellant, as to render con- dition intolerable and life burdensome, to wit: (the mode and manner may be particularized briefly here, and conclude with prayer for relief as above.) 26. Averment of fraud or coercion. That on the — — day of A. D, , an alleged marriage was cele- brated between libellant and , which was procured by fraud (or coercion) on the part of the said , in that (here state par- ticularly the facts constituting the fraud or coercion which induced libel- lant to submit to the alleged marriage) and that said alleged marriage has not at any time since been affirmed by the acts of libellant. 27. Form for decree of annulment. That on the day of A. D. 19 — , a supposed marriage occurred between libellant and , which was void for the reason that the said had a (husband or wife) living at said time, from whom was not lawfully divorced, which fact was then wholly unknown to the petitioner, wherefore, your petitioner prays that your honorable court may enter a decree declaring said supposed marriage to be null and void, etc. 28. Form where party has been sentenced for crime. That the said was on the day of A. D. 19—, con- victed in the court of in the county of state of , of the crime of (name the offense which must be one within the act supra), and was thereupon by said court sentenced to undergo a term of im- prisonment therefor, for the period of years, and that the said thereupon entered into said term of imprisonment and still so con- tinues, at (name place of prison). Wherefore, etc. 29. Form of petition on the ground of impotence or organic obstruction. That the said was at the time of the said marriage and still is by nature impotent and incapable of procreation (or by reason of a natu- ral obstruction or deformity which at that time was fraudulently con- cealed and to libellant unknown, was incapable of consummating the marriage conjunction) and that said respondent is incurable (or if curable, refuses to have such obstacle removed or such deformity cured). Wherefore, the libellant showing that has been always since said marriage and is now capable of consummating the lawful purposes of said marriage and has used every reasonable means to secure such con- summation, prays, etc. 30. Form of subpoena. Luzerne County, ss. The Commonwealth of Pennsylvania. To GREETING [Seal.] Whereas, did, on the day of , 19 — , prefer Petition to the Judges of our Court of Common Pleas for the County of Luzerne, pray- ing for the causes therein set forth, that might be divorced from the bonds of matrimony entered into with you . 72 EQUITY PRACTICE IN PENNSYLVANIA. We do therefore command you, the said , that, setting aside all other business and excuses whatsoever, you be and appear in your proper person before our Judges at Wilkes-Barre, at a Court of Common Pleas, there to be held for the County of Luzerne, on the day of next, to answer the petition or libel of the said and to show cause, if any you have, why the said your should not be divorced from the bonds of matrimony, agreeably to Acts of General Assembly in such case made and pro- vided. /T.nd hereof fail not. Witness the Hon. John Lynch, President Judge of our said Court, at Wilkes-Barre, the day of , A. D., one thousand nine hundred and T. M. Powell, Prothonotary. 31. Personal service of subpoena. If the respondent resides in the state, service may be made upon him personally in any county by deputizing the sheriff of that county.' The act of 1815, supra, does not require service by the sheriff, but where a rule of court so requires, as in Philadelphia, it is a very proper rule to follow.' In the absence of such rule any one who knows how, can serve it.° If a sheriff of another county is deputized, he must make return under oath showing how he served it, or that after diligent search he failed to find respondent in his baliwick.* When respondent lives in the state, he must be served personally with the subpoena and notice of meeting." ' Although respondent is a non- resident, service upon him in the county in which the subpoena issued is legal." But service cannot be made on respondent's attorney.' Per- sonal service in another state is void;' so is acceptance of service in another state, when no defense is made.' The act of June 20, 1893, P. L. 471, provides in addition to publication, the sending of a copy of the subpoena by registered letter to respondent's last known place of residence. This applies only to Pennsylvania Calypsos who have married abroad. Where a respondent is a lunatic service may be made on the committee or guardian." Where collusion appears in the service, it will be set aside." When the cause occurred here and a divorce was granted in Chicago, it has no effect, without personal service."* A subpoena can be served up to and on the very day of its return ; ' Fillman's Ap., 99 Pa. 286. 'Timney v. Timney, 21 Supr. C. 538; Wilhelmi v. Wilhelmi, 9 D. R. 685. Phila. ; Fackner v. Fackner, 9 D. R. 739. ' Edson v. Edson, 1 1 Kulp 268 ; Roberts v. Roberts, i Berks go. *Jansen v. Jansen, 16 D. R. 408. ° Bailey v. Bailey, 48 Pitts. L. J. 147. ° Adgate v. Adgate, 4 Del. Co. 265. ' Newberry v. Newberry, 22 C. C. 361 ; Brog v. Brog, 34 C. C. 263. 'Ralston's Ap., 93 Pa. 133; Briggs v. Briggs, 6 Kulp 490; Ormsby v. Ormsby, 47 Pitts. L. J. 272; Clark v. Clark, 17 D. R. 761; Davenport v. Davenport, 17 D. R. 1005. •Bittinger v. Bittinger, 4 D. R. 441. "Davis V. Davis, 25 C. C. 495; act of April 18, 1905, P. L. 211. " Green v. Green, 17 D. R. 150. "»Dusenberry v. Dusenberry, 59 Pitts. L. J. 133. DIVORCE. 73 and if a return of n. e. i. is made nineteen days before the return day, it does not furnish a valid basis for a divorce. If it has been served within fifteen days of the return day, then the hearing is put over to the next term; but if fifteen days have elapsed, the hearing may be had at any time."'' The act of April 6, 191 1, validated service and return of subpoena n. e. i. which had been irregularly made. 32. Return of nou est inventus. When the sheriff returns non est inventus, if he does not show by whom search or return was made and that the respondent could not be found in the county, it will be set aside." This must be strictly complied with." An order discharging a rule to set aside the service is interlocutory and no appeal lies from it." The return of an alias, non est inventus, before the return day is fatally defective.'" In the absence of facts warranting an inference of collusion, an appearance for respondent after one return of n. e. i. will give jurisdiction." Where there is neither personal service nor a legal advertisement, the proper motion is to quash and not a rule to discontinue." After a return of n. e. i. to the alias, publication must be made in a newspaper as well as the local legal journal;" and publication will be sufficient although respondent resided in another county of the state." However, where the residence of the respondent is known, since the act of 1905, the libellent has the option of either county and personal service is contemplated. 33. Form of notice by publication. May Jardyne i In Court of Common Pleas of Luzerne V. ■? county, No. , Term, ig — . James Jardjme. ( Subpoena sur libel for divorce. To James Jardyne, Respondent, in the above mentioned case. You are hereby notified in pursuance of the order of the court of Com- mon Pleas of the said county of Luzerne to be and appear in the said court on the Monday of next, being the day of said month, to answer the petition or libel heretofore preferred by the libellant May Jardyne, your wife, and show cause if any you have why the said May Jardyne should not be divorced from the bond of matrimony entered into with you (or from bed and board with allowance of alimony as therein prayed for), agreeably to the Acts of Assembly in such case made and provided. Hereof fail not, under the penalty of having the said petition heard and a decree of divorce granted against you in your absence. July 29, 1910. Sheriff. "•> Chadwick v. Chadwick, 38 C. C. 199 ; Parker v. Parker, 58 Pitts. L. J. 353. "Frazier v. Frazier, 32 Pitts. L. J. 222. "Edson V. Edson, 11 Kulp 268. "Tobin V. Tobin, 32 Supr. C. 186. "Jansen v. Jansen, 16 D. R. 418. "Everhart v. Everhart, 16 D. R. 791; Bertrand v. Bertrand, 17 D. R. 693. " Seiple V. Seiple, 21 C. C. 559- "Ferguson v. Ferguson, 9 D. R. 250. "Gill V. Gill, 13 D. R. 10. 74 EQUITY PRACTICE IN PENNSYLVANIA. Such notice must be published in a newspaper, and the legal pub- lication, if there be one, for four successive weeks and at least thirty days before the return day. If the last publication falls on the re- turn day it will not be a compliance with the law." Under the act of 1905, supra, personal service shall be had if respondent can be found, but if not it may be by publication." Upon a return of n. e. i. to the subpoena, an alias will issue on praecipe which should fix the return day, and upon return of the same n. e. i. the publication is made. The libellant may issue as many alias and pluries subpoenas as he likes, but the notice required by the act must be given.^ 34. Proof of publication. Where a rule of court provides the manner of return and proof of publication such rule must be followed. But if there is no rule, the sheriff should return the fact of service by publication, with a copy of the publication and the affidavit of the publisher or publishers, or his or their principal clerks, showing the date of each publication, and the costs of advertisement. 35. Amendment of libel. Libellant may, with leave of court, amend the libel so as to em- brace additional allegations to make out the cause assigned,*" or even so as to add a new cause.°* But by rule 14, Luzerne county, no new cause will be allowed by amending. The practice differs some in dif- ferent jurisdictions. An amendment before charging the jury has been allowpd." But an omitted cause proved cannot be added after the verdict." Amendments not going to the cause may be made on a motion for a new trial." Libellant may amend so as to pray specifically for a divorce," or changing the prayer from a mensa to a vinculo," or vice versa;'^ or by adding the required affidavit." The appellate court will not allow an amendment to substitute a different ground of divorce." A new ground has been allowed after demand for jury trial but before issue framed;" and after motion to quash.°° An amendment adding adultery to other causes, made without objection, has been " Powell V. Powell, 3 Del. Co. 206. " See Austin v. Austin, 4 C. C. 368, before the act of 1905, supra. ^ Banks v. Banks, 189 Pa. ig6. "Perkins v. Perkins, 16 W. N. C. 48. "Toone v. Toone, 10 Phila. 174; Hancock v. Hancock, 13 W. N. C. 29; Clayburgh v. Clayburgh, 15 W. N. C. 365; Dasey v. Dasey, 13 C. C. 612; A. v. B., 2 D. R. 393 : But see Mathews v. Mathews, 6 W. N. C. 147. '' Myers v. Myers, 9 Kulp 173. *Fay V. Fay, 27 Supr. C. 328. " Sites V. Sites, 9 D. R. 192. " Kulp V. Kulp, 34 C. C. 338. '" Shields v. Shields, 17 D. R. 745. " Long V. Long, i C. C. 572. "Tiedemann v. Tiedemann, 5 C. C. 77. ""Cumpston v. Cumpston, 4 W. N. C. 184. " Power's Ap., 120 Pa. 320. " Getz V. Getz, 14 D. R. 69. '^ Greenogle v. Greenogle, 8 D. R. 516. DIVORCE. 75 sustained.™ But, after the libellant has closed an amendment will not be allowed to respondent, setting up recrimination, which should have been done in the answer." The verdict of a jury in divorce unlike in equity, is binding upon the conscience of the court."* ' 36. B,Tile for bill of particulars — ^non pros. The act of May 25, 1878, P. L. 156, provides: "That in any suit or action in divorce, now pending, or that shall here- after be brought, it shall and may be lawful for the respondent at any time after the return day of the subpoena, to enter a rule upon the libellant to furnish a bill of particulars of cause of action, as set forth in the libellant's petition filed, and if the same be not furnished by the libellant, within thirty days after service of notice of rule entered, it shall be the duty of the court to enter a judgment or decree of non pros.: provided that the court may, upon cause shown, extend the time in which to file a bill of particulars." Prior to this act a rule for a bill of particulars could be taken, to specify the time of the commission of the act charged;* or when the alleged desertion began;" or when and where the alleged adultery was committed;' or the date, etc., of an alleged marriage;* but if the demand is not made before trial, it will be held waived." If no bill is furnished the evidence on the trial will be confined strictly to the averments in the petition.' A bill of particulars must be specific, and a rule for a more specific bill may be invoked.' A bill of particulars having been furnished, if upon the trial, it does not come up to the requirement, the court may in its discretion, permit an amendment.' A non pros, for want of a bill of particluars will not be granted where the respondent is in default on an order to pay counsel fees." A bill may also be refused, requiring libellant to name the witnesses relied upon." Failure to specialize should be taken advantage of by de- murrer or rule for bill of particulars and not motion to quash." If adultery is charged in general terms respondent may demand a bill of particulars and if not furnished evidence of particular acts will be excluded."a " Ryan v. Ryan, 19 D. R. 856. "Jackson v. Jackson, 49 Supr. C. 18. "Jackson v. Jackson, 49 Supr. C. 18. ' Butler V. Butler, i Parsons 332 ; Holt v. Holt, i W. N. C. 3- ' Raff V. Raff, 25 W. N. C. ISS- 'Garrat v. Garrat, 4 Yeates 244; Hancock's Ap., 64 Pa. 47°- *Brinckle v. Brinckle, 10 Phila. 144. ° Breinig v. Breinig, 26 Pa. 161. 'Light V. Light, 17 S. & R. 273; Realf v. Realf, 77 Pa- 3i- 'Lord V. Lord, 16 W. N. C. 496; Shisler v. Shisler, 19 W. N. C. 139. 'Melvin v. Melvin, 130 Pa. 6. "Jones V. Jones, 23 W. N. C. 370- „ .,,.10 " Runkle v. Runkle, 18 York 122 ; see Musser v. Musser, 16 York 181. " Shellenberger v. Shellenberger, 6 C. C. 287. ""Weimer v. Weimer, i Pearson 539. 76 EQUITY PRACTICE IN PENNSYLVANIA. 37. rorm of rule for bill of particulars. James O. Parker f j^^ ^j^^ ^^^rt of Common Pleas of Ly- Hattie jine Parker. I '^^"''"S ''°'"''^' ^°- '"""• '^ Issue rule upon libellant in this case to furnish a bill of particulars of his alleged cause of action, to wit, cruel and barbarous conduct, within thirty days from service of notice hereof, or judgment of non pros. sec. leg. To , Esq., Attorney for respondent. Prothonotary. July 29, 1901. 38. Disooutinuauce. A party may discontinue on payment of the costs, and if the pro- thonotary fails to enter a discontinuance and libellant brings a second suit, the court will order the discontinuance to be entered nunc pro tunc rather than turn the wife out of court." Aj a rule, however, a discontinuance without consent of the re- spondent and leave of court, will be discountenanced." And where the legality of the marriage is attacked or where the charge is adultery, discontinuance will be refused generally." Where a libel is pending in one county it may be ground for demurrer to a libel in another county for the same and an added cause." Where a case is settled the court may give leave to withdraw all the papers." 39. Respondent's answer. The practice is so much regulated by rules of court that the prac- titioner must be cautious and consult the local rules all the way through, the acts of assembly having given power to the courts to establish such rules not in conflict with them. Where the respondent has been served personally the court should not proceed, ex parte, but the respondent should be ruled to file an answer within a given time." An appearance where service was made beyond the state has been allowed nunc pro tunc where respondent had authorized such appearance, but it was not entered." But if an answer be not filed before the taking of testimony, it may not be filed nunc pro tunc;" unless good reasons be presented for delay.'" The allowance of an answer to be filed nunc pro tunc before the commissioner's report is filed, with an order directing the commis- sioner to take testimony for respondent, is in the discretion of the " Harris v. Harris, i Phila. 442. " Murphy v. Murphy, 8 Phila. 357 ; Clyraer v. Clymer, ig Phila. 83. " Wurst V. Wurst, 14 D. R. 682. " Clark V. Clark, 14 D. R. 270. "Coolidge V. Coolidge, 4 C. C. 374. "Leith V. Leith, 19 C. C. 656; King v. King, i Chester Co. 17. " Brink v. Brink, 8 Kulp 367. " Shay V. Shay, 9 Phila. 521 ; Schneider v. Schneider, 9 W. N. C. 253 ; Bradley v. Bradley, i W. N. C. 201. " Paulding v. Paulding, l W. N. C. IS9 ; Clawson v. Clawson, 2 W. N. C. 49- DIVORCE. 77 court." But if respondent desires to offer testimony he should file an answer and thus make up an issue.^ The answer should be responsive to the libel.^' It should be positive and unequivocal ;"" statements having no relation to the cause for divorce need not be answered." It may be stricken out as surplusage." If it be a special plea, one to the country, and the other with a verification, an amendment is in order, and a replication, whereupon an issue to be tried by a jury."' If both a demurrer and an answer be filed the demurrer will be stricken off.'" Where a hus- band in his answer offers to take bafck his wife and treat her as a good husband ought to do, it will not prevent a decree — a mensa et thoro — but may have effect on the question of alimony."' The bring- ing of a suit by one party will not stop the other from bringing a suit." But where a case is suspended for non-payment of alimony pendente lite, if the wife brings a suit in another county she waives her rights in the first." If the retrospective act of April 20, 1911, is sustained by the courts a jury trial may not be demanded in the answer, as formerly. 40. Form of answer to libel for adultery. To the honorable the judges of the Court of Common Pleas of county. , The answer of to the petition or libel of , respect- fully shows : That true it is that on the day of A. D. re- spondent was lawfully married to the libellant , and that has ever since demeaned , toward , the said libellant as a true and lawful was bound to do, and that respondent has lived free from all kinds of adultery and incontinence, or any suspicion thereof, and he expressly denies the allegations thereof in said petition or libel. All of which this respondent is ready to maintain. (If an issue to be tried by a jury is demanded, conclude: and this he prays may be in- quired of by the county. But the act of 1911, supra, changed this practice.) Sworn to, etc. A divorce will not be granted for adultery where the offence was brought about by temptations into which respondent was lured by libellant with a view to procure one;^ nor where she was placed in such a position as to expose her to lewd company and endanger her;" nor where her offence was condoned;" as where he admitted her thereafter to his conjugal embraces." But acting on mere suspicion is not a basis of condonation, if afterwards evidence be- "Daugherty v. Daugherty, 28 Supr. C. ^7- ""Oxley v. Oxley, 191 Pa. 474. "Thompson v. Thompson, 2 Dallas 128. "Jordan v. Jordan, 13 W. N. C. no. "Moore v. Moore, 7 Phila. 308. " Butler V. Butler, i Parsons 329. " Keller v. Keller, 2 Woodward 483- "Ewing V. Ewing, 2 Phila. 371. "Anon. 2 T. & H. Pr. Sec. 2353. "Zieger v. Zieger, 14 W. N. C. 122. " Lacy V. Lacy, 13 Pliila. 193. " Best V. Best, 161 Pa. 515 ; Yocum v. Yocum, 3 D. R. 615. "Heidrich v. Heidrich, 22 Supr. C. 72; Happy r. Happy, 54 P'tts. L. J. 46. "Costello v. Costello, 191 Pa. 379. "Best V. Best, 161 Pa. 515. 78 EQUITY PRACTICE IN PENNSYLVANIA. comes "strong as holy writ."" Having separated, adultery com- mitted afterward is ground for divorce. Condonation once made, ends the pending suit,"* but does not prevent suit by respondent for subsequent adultery of his wife.'*^ It was held in an early case that adultery committed by a wife, while she was insane, was cause for divorce." Where the charges of adultery are denied and the evidence is quite contradictory, and the incriminating notes are dis- puted by handwriting experts on both sides, until the rule of simu- lation is also lost in the shufifle, viz. : that little variances in the letters when the general hand is the same are evidences of genuine- ness — a divorce will be refused; and the appellate court will not take original jurisdiction, nor remit the case to be heard anew, on after-discovered evidence which is only cumulative." The wife's character for chastity is not admissible." If the husband communi- cates a venereal disease to his wife, it is evidence of adultery.*" It may be proved by circumstances;" but these must be convincing** and necessarily satisfy a jury or court.* 41. Recrimination and condonation of adultery. Section 7 of the act of 1815, provides: "In any action or suit commenced in the said court for a divorce for the cause of adultery, if the defendant shall allege and prove that the plaintiff has been guilty of the like crime; or has admitted the defendant into conjugal society or embraces, after he or she knew of the criminal fact; or that the said plaintiff (if the husband), allowed of the wife's prostitutions, or received hire for them, or exposed his wife to lewd com- pany, whereby she became ensnared to the crime aforesaid, it shall be a good defense and a perpetual bar against the same." The first clause means adultery before the suit, not after.*" Cruel and barbarous treatment is not within the act.*' Condonation is a complete defense as to either party.*' Co-habitation being once shown to have been meretricious will be presumed to continue.** 42. Form of answer to charge of intolerable conduct. Yet this respondent protests that the said Hortense Delmaine, libellant has not demeaned herself as a dutiful and affectionate wife, but by the indulgence of a. violent temper and by various malignant acts and annoy- '" Gosser v. Gosser, 183 Pa. 499. "Gee V. Gee, 2 D. R. 773. "Bronson v. Bronson, 7 Phila. 405. ^^ Talley v. Talley, 215 Pa. 281 — reversing 29 Supr. C. 535. ""Matchin v. Matchin, 6 Pa. 332. ""Hartje v. Hartje, 35 Supr. C. 14. *' Talley v. Talley, 29 Supr. C. 535. *^Kulp v. Kulp, 34 C. C. 338. *°CapwelI V. Capwell, 8 Lack. Jur. 136. **Kappner v. Kappner, 35 C. C. 199. *" McCune v. McCune, 31 Supr. C. 248. *°Mendenhall v. Mendenhall, 12 Supr. C. 290; Leidig v. Leidig, 13 C. -C. 29; Vellis v. Vellis, 4 C. C. 100. *' Larson v. Larson, 3 Kulp 215 ; Schlott v. Schlott, 14 Lane. L. R. 201. *' Bloom V. Bloom, 8 D. R. 563. *'Comth. V. Brown, 28 Lane. L. R. 65. DIVORCE. 79 ances has embittered his life. And the resjiondent further avers that he has always since said marriage conducted himself as a husband ought to do, towards said libellant, and he wholly denies that he ever beat or abused the said libellant, or that by barbarous or cruel treatment, or by offering indignities to her person, he rendered her condition intolerable or her life burdensome; or that he ever gave her any just cause or obliged her to depart from his house and family; but that the said libellant left his abode (where this is set up) without any just cause and of her own free will. Wherefore he prays that the said libel may be dismissed, and this re- spondent allowed his reasonable costs in this behalf. Horace Delmaine; Sworn to, etc. 43. Cruel and barbarous treatment of wife. The law has made a distinction between "cruel and barbarous treat- ment" and "indignities to the person of the wife." In order that the wife may be divorced on the first ground, she must show that the treatment endangered her life,* or that it tended to shorten it.' A single act of assault on her person is not sufficient.* If no overt acts of assault are shown, the evidence must be very strong. But it may consist of acts causing mental suflCering and humiliation.' It may consist of obscenity, vulgarity and accusations of want of chastity;' or where he contracted syphilis and gave it to his wife and forced her to withdraw from his house.' Condonation may be shown.'* 44. Cruel and barbarous treatment of husband. The act of May 8, 1854, P. L. 644, supra, gave a husband the same right to a divorce which was previously given the wife, on the ground of cruel and barbarous treatment, although it did not en- danger his life;' but he must show actual violence and not such conduct as rendered his condition intolerable and life burdensome, as the opium habit and neglect of home duties;' or drunkenness;" or bad temper and refusal to speak;" or to refuse him access to her sexually;" this being refined but not "legal cruelty";" or that she 'Atkinson v. Atkinson, i Lehigh V. L. R. 149; Garrett v. Garrett, 11 Del. Co. 273; Cole v. Cole, 20 C. C. 138; Hoats v. Hoats, 12 Northam. ; 186; Souricker v. Souricker, 39 Supr. C. 652; Simon v. Simon, 34 Supr. C. 182; Warren v. Warren, 9 Lack. Jur. 85. 'Dickenson v. Dickenson, i Del. Co. 239. ' Richards v. Richards, i Grant, 389 ; May v. May, 62 Pa. 206. 'Russell V. Russell, 37 Supr. C. 348; Preston v. Preston, 11 D. R. 97; Lucas v. Lucas, 2 Berks Co. 311. 'Braun v. Braun, 194 Pa. 287. ■ McMahen v. McMahen, 186 Pa. 48S ; Kulp v. Kulp, 34 C. C. 338. •aGauntt V. Gauntt, 16 D. R. 135; Hill v. Hill, 32 C. C. 466. 'Barnsdall v. Barnsdall, 171 Pa. 625; Jones v. Jones, 66 Pa. 494; Shaw V. Shaw, 36 Supr. C. 122. Act of June 25, 189S, P. L. 308 covers indig- nities to the person (Stoner v. Stoner, 2 Berks Co. 53). 'Holland v. Holland, 4 Leg. Gaz. 372. "Bean v. Bean, 11 Lane. Bar, 138. "Harris' Ap., 2 W. N. C. 331; Schulze v. Schulze, 33 Supr. C. 325; Finch V. Finch, 9 Lack. Jur. 89; Ottenberg v. Ottenberg, 32 C. C. 208. "Magill V. Magill, 3 Pitts. 25. "Piatt v. Piatt, 38 Supr. C. 551. See also Hexamer v. Hexamer, 42 Supr. C. 226. 8o EQUITY PRACTICE IN PENNSYLVANIA. slapped him once and kicked him another time, denied him her bed and wrote him abusive letters, etc." Mere threats are not sufficient and the evidence of actual violence must be strong and clear." These authorities, however, seem to be based on a strained senti- ment rather than on the philosophical cause of marital woes, and later cases have established a more liberal rule for the "hen-pecked husband,"" so that when he hath caught a Tartar he need not resort to a breach of the peace and compel her to sue for divorce. The wife may retort in kind, by way of defense and show his general and specific worthlessness.'" Where the marriage was bigamous, libellant having been previously married, no divorce will be granted on this ground;" nor where the respondent was at the time insane." But subsequent cohabitation is not a defense to prior cruelty it seems." Adultery of libellant since the alleged cruelty is not admissible by way of defense." An offer to receive his wife back and treat her right, will not prevent a divorce from bed and board;'" and the wife may elect whether she will bring suit a mensa or a vinculo.^ 45. Desertion. The desertion which is ground for divorce must be wilful and malicious and is proven where one without cause leaves his or her home, establishes another and refuses to return;''' or wh^re the hus- band establishes a new home and business and the wife refuses, without cause to live with him;" or, after a separation, where the husband asks his wife to return and live with him but she prefers to live with a different sort of man;" or where she refuses to return after a reconciliation;'" or where she admits that she went away and never intended to return." But if the husband's conduct is such that the wife is forced to go away on peril of life or health, the desertion is not hers but his and this is cause for divorce for her,'* although she withdraws only to another part of the same house.^^ " Seiple v. Seiple, 4 Northam. Co. 105 ; Rochelle v. Rochelle, 12 D. R. 297- " Edwards v. Edwards, 3 Pitts. 333 ; Phillips v. Phillips, 6 Kulp 14. '° Jones v. Jones, 66 Pa. 494; Heilbron v. Heilbron, 158 Pa. 297; Fay v. Fay, 27 Supr. C. 328; Bauerle v. Bauerle, 48 Pitts. L. J. 262. " Riester v. Riester, 11 D. R. 99. " Hoodmacher v. Hoodmacher, 4 Kulp 352 ; Heinzman v. Heinzman, IS C. C. 669; Jones v. Jones, 4 D. R. 223. ''Hansen v. Hansell, 3 D. R. 724. "HoUister v. Hollister, 6 Pa. 449; Steele v. Steele, 11 W. N. C. 21. '" Schlott v. Schlott, 14 Lane. L. R. 201. ""Kinsey v. Kinsey, i Yeates 78. "^ Light v. Light, i Watts 263. " Rosenberry v. Rosenberry, 180 Pa. 221 ; Nungesser v. Nungesser, 32 C C. 383; Hollister v. Hollister, 54 Pitts. L. J. 7. "' Beck v. Beck, 163 Pa. 649. ^ Schwab V. Schwab, 19 Phila. 338. ""Hubbard v. Hubbard, 8 C. C. 189. Desertion and "abandonment" are equivalent. Marshall v. Marshall, 17 D. R. 833. " Allen V. Allen, 194 Pa. 419. '^Howe V. Howe, 16 Supr. C. 193. '"a Augenstein v. Augenstein, 45 Supr. C. 258. DIVORCE. 8i The causes which justify her in leaving are only such as would entitle her to a divorce."' 46. What is not desertion, in law. When the parties separate by mutual consent a libel for desertion will not lie.™ Desertion in its inception may, by mutual consent to live apart, become separation without desertion, and it need not be in writing, but may be inferred from the acts of the parties." To be desertion it must be wilful and malicious,"^ and not a forced leaving;*" or a virtual shut out; ** or illness and inability to support libellant;" or failure in business, removal and want of support.'' It is not desertion where the wife offers to return to a drunken husband." There is no desertion where they continue to live in the same home up to the time of the filing of the libel f nor where the absence is involuntary, as in case of imprisonment.^ Where the husband has been arrested for desertion, he cannot afterwards be divorced from her because she refuses his offer to return." One whose wife did not accompany him to this country must prove something more than her refusal to come here to live;" so, also, where she went on a visit and he then left and came to this state." Offers to renew cohabitation will be scrutinized to ascertain whether made in good faith or only to Burke the cause." So also of constructive desertion, as where the husband claims to have been forced to leave ;" or where the wife leaves on account of her mother- in-law ;*' or because of mal-treatment of her child ;" or returns to her former home and fails to be supported there." Desertion means =* Golden v. Golden, 36 Supr. C. 648; Daile/s Ap., 10 W. N. C. 420; Casey v. Casey, 21 D. R. 70s ; Border v. Border, 21 D. R. 7491. A wife is not obliged to live with her domineering mother-in-law (Benscoter v. Ben- scoter, 37 C. C. 276). "■ Cooper V. Cooper, 37 Supr. C. 246 ; Hagraan v. Hagman, 38 Supr. C. 519; Chase v. Chase, 16 D. R. 448. "King V. King, 36 Supr. C. 33; Loomis v. Loomis, 2 Berks 56; Eckert V. Eckert, 3 Berks Co. 113; Olsen v. Olsen, 27 Supr. C. 128; Carey v. Carey, 26 C. C. 452. "Merrick v. Merrick, 43 Supr. C. 13; Ferree v. Ferree, 19 C. C. 67. °° Graham v. Graham, 153 Pa. 450; Davis v. Davis, S9 Pitts. L. J: 99. "Bowers v. Bowers, 5 York 182; Hardis v. Hardis, 162 Pa, 227; Mus- grave v. Musgrave, 185 Pa. 260. "Broughton v. Broughton, i Del. Co. 273; Neely v. Neely, 131 Pa. 552. "Bell v. Bell, 11 W. N. C. 156. ^ Burns v. Burns, 38 Supr. C. 221. " Powers' Ap., 120 Pa. 320. "Frantz v. Frantz, i D. R. 241; Hess v. Hess, 8 D. R. 451; Collins v. Collins, 28 C. C. 47; Shannon v. Shannon, 7 D. R. 552. " Smalley v. Smalley, 2 Northam, 338 ; Chambers v. Chambers, 20 C. C. 41. "Bishop V. Bishop, 30 Pa. 412; Shipman v. Shipman, 5 Kulp 370. "Denio v. Denio, 6 Kulp 197. " McClurg-s Ap., 66 Pa. 366. " Smith v. Smith, 4 D. R. 397. *Rodenbaugh v. Rodenbaugh, 17 C. C. 477. "Bullv. Bull, S York 69. "Grimes v. Grimes, 12 Lane. L. R. 23. Vol. 4 Practice — 6 82 EQUITY PRACTICE IN PENNSYLVANIA. actual abandonment of cohabitation and withdrawal without cause or consent, persisted in for two years."* 47. Proof of desertion. When there was no personal service on the husband the wife was held incompetent to prove desertion." But the act of June 8, 191 1, P. L. 720, makes the libellant competent. It is as follows : "Section i. Be it enacted, &c., that in all proceedings for divorce on the ground of desertion, the libellant shall be fully competent to prove the fact of desertion, and the efforts, if any, made by him or her to induce the respondent to return and resume the marital relation, though the respondent may not have been personally served with the subpoena or with a rule to take depositions, and may not be residing within this commonwealth, but has been served by publication only." The proof must consist of such facts and circumstances as show wilful and malicious desertion, or from which it can be reasonably inferred." The inferences and conclusions of witnesses are not evidence.™ The mere fact of leaving home is insufficient, unless the evidence shows there was no agreement to separate," or that the intention was to leave permanently;" or clearly makes out a case."" An order of support in the Quarter Sessions in itself is insufficient evidence." If the testimony of the parties is contradictory no divorce will be granted." The Equity rule requiring two witnesses to over- come an answer responsive does not apply here."* Where the pro- ceedings are ex parte a higher quality of proof is necessary."* Where the wife leaves her husband and sues him. she cannot get a divorce when he asks her to return and did not wish her to leave;" or where she prefers to live with her people and will not go where her husband has employment ;™ or where she leaves without legal justification f or where, after a quarrel, she repelled his efforts to make up and be good." Where there is nothing to show wilful and malicious de- sertion by the wife a decree of divorce will be reversed." If the husband goes away and the wife remains, the mere fact of her so remaining is not desertion.*" He has the right to change the domicile and it is her duty to abide with him, but where he has maltreated her "*Eckert v. Eckert, 3 Berks Co. 113. " Penny v. Penny, 34 Supr. C. 88; Gilbert's Ap., 15 W. N. C. 466; Miles V. Miles, IS D. R. 796. ""Williams v Williams, I Woodward 308; Jayne v. Jayne, 4 Kulp 74; Detrick v. Detrick, 6 Kulp 164; Hedderson v. Hedderson, 35 Supr. C. 629. "Barry v. Barry, 4 Lack. Jur. 6; Heath v. Heath, 44 Supr. C. 118. "Crawford v. Crawford, 25 C. C. 289; Llewellyn v. Llewellyn, ?i C. C 670; Biddle v. Biddle, 17 D. R. 748. "'Pote v. Pete, 8 D. R. 660; Durland v. Durland, 7 D. R. 514. "Edmiston v. Edmiston, 8 D. R. 679; Lesher v. Lesher, 9 D. R. 69; Gable v. Gable, 13 Luz. L. R. 382; Cerone v. Cerone, 15 D. R. 817. "Carey v. Carey, 25 Supr. C. 223; Barrall v. Barrall, 6 Kulp 319. "Winter v. Winter, 7 Phila. 369; Mueller v. Mueller, 18 C. C. 400. "* Carman v. Carman, 38 C. C. 219. "Gearing v. Gearing, i D. R. 418; Hassett v. Hassett, 18 C. C. 269. "Hansbury v. Hansbury, 25 C. C. 508. " Horst V. Horst, 22 Lane. L. R. 107. "McKinley v. McKinley, i Lehigh Co. 112; King v. King, 36 Supr. C w " Peifer v. Peifer, 22 C. C. 593. " Hull V. Hull, 14 Supr. C. 520. " Horn V. Horn. 1,7 Supr. C. 486. DIVORCE. 83 and not provided a proper home for her she is not obliged to follow him.°° Nor will he be divorced where he fixes a time for her to come and she is delayed with good reason." Nor where he had not estab- lished a home for her, but lived at her parents' house and proposed to rent, but she asked him to come to her home.°° An offer of a home must be bona fide and not a mere pretext." 48. Defenses to desertion. It is a good defense by the wife when charged with desertion to show such conduct as would entitle her to a divorce;" but not other- wise.™ Mere meanness and parsimony are not excuses to leave home,™ or the refusal of the husband to have coition;" or her weak- ness and inability to perform household duties;' or when he failed to pay her the price of his board, having procured family supplies otherwise;* or that his children by a former marriage treated her unkindly and were not reprimanded." Separation by consent is a good defense,' although respondent refuses to cohabit subsequently" and breaks the agreement to separate.' If the husband has remitted his wife a regular allowance he cannot make out a case of desertion.' But the husband's suit will not be defeated by evidence that he permitted his wife to take her clothes when she deserted him;' or by paying her a small sum for work done by the children." Where after separation the wife would return only if allowed to raise the children in her church, it is equivalent to a desertion by her, for which the husband may have a divorce.'" Where the charge is desertion it is no defense that libellant was subsequently guilty of adultery." But if the libellant wife has a paramour with whom she is enciente and who finances the proceed- ■" Baker v. Baker, 13 D. R. 348. •* Heaton v. Heaton, 8 D. R. 6^8. •'Hannigan v. Hannigan, 14 York 18. « Ball v. Ball, 8 D. R. 678. " Cattison v. Cattison, 22 Pa. 275 ; Golden v. Golden,* 36 Supr. C. 648 ; Daugherty v. Daugherty, 28 Supr. C. 327 ; Herr v. Herr, 17 Lane. L. R. 209 ; Mendenhall v. Mendenhall, 12 Supr. C. 290. "Cutler V. Cutler, 2 Brewster 511; Hardie v. Hardie, 162 Pa. 227. "Detrick's Ap., 117 Pa. 452; Martin v. Martin, 6 Kulp 155. "Eshbach v. Eshbach, 23 Pa. 343; Klopfer's Ap., I Mona. 81. This doc- trine is tabooed in Lerch v. Gring, 112 Pa. 244; also in the late case of the Countess of Yarmouth v. the Count of Yarmouth in England. * Clark v. Clark, 2 Chester Co. 38. ' VanDyke v VanDyke, 135 Pa. 459. ' Paley v. Paley, 6 Montg. Co. 58. 'Butler V. Butler, i Parsons 329; Thomas v. Thomas, 4 Kulp 328; Mem- man v. Merriman, 40 Pitts. L. J. 173; IngersoU v. IngersoU, 49 Pa. 249; Middleton v. Middleton, 187 Pa. 612. ° Eisenberg v. Eisenberg, 18 Phila. 329. • Murray v. Murray, i Kulp 3S. ' Ralston's Ap., 93 Pa. 133 ; Seiple v. Seiple, 4 Northam. 105. " Paley v. Paley, 6 Montg. Co. 58. 'Raver v. Raver, i D. R. 177. " Lindsay v. Lindsay, 4 Del. Co. 45. " Ristine v. Ristine, 4 Rawle 460 ; Shoemaker v. Shoemaker, I York 133 ; Leidig v. Leidig, 2 D. R. 529; Larson v. Larson, 3 Kulp 215. 84 EQUITY PRACTICE IN PENNSYLVANIA, ings, a divorce will not be granted." The husband respondent who charges adultery before his wife filed her libel, must be corroborated by other testimony than his own.'" One who sues for desertion and marries another before the two years are up and divorce granted, is not entitled to a divorce at all. In order to defeat a divorce for desertion an offer made in good faith to resume marital relations is sufficient; but on the question of good faith the court may submit the evidence to a jury; and when in issue before the jury, it is error to take it away from them unless the evidence is insufficient to sup- port a finding that the offer was made in good faith.'' Where a hus- band has been bound in the Quarter Sessions to support his wife, he cannot procure a divorce because she left him." But if he offers her a home and she then refuses the sentence is not a bar." In case it appears that there was connivance, subterfuge or chicanery the court will not lend itself to the proceeding." But appearance without legal service is not in itself sufficient evidence of collusion." After separation and suit for divorce by the hus- band who has amply provided for his wife and given notice in the newspapers to the public not to sell her anything on his credit, a tradesman cannot recover from the husband."* 49. Impotency as a cause. A libel alleging impotency by reason of malformation is defective which does not allege that it is incurable;'" or that respondent re- fused to submit to an operation to remove the obstacle." A divorce will not be granted on facts stated in the libel and admitted in the answer alone, without some corroboration ;'^ though a physical ex- amination does not seem requisite^" If the impotence be due to age, the rules will be strictly construed against the application." It seems that when the husband voluntarily castrated himself after marriage, the wife has no remedy.'" Where the husband alleges in- curable impotency, the court has appointed examiners to ascertain the truth of the libel.'" 50. Indignities to the person of the wife. It has been seen, supra, Far. 41, that cruel and barbarous treat- ment is a cause distinct from indignities to the person of the wife, "Vellis v. Vellis, 4 C. C. 100. "" Blank v. Blank, S York 67. " Eichert v. Eichert, 3 W. N. C. 290. "" Gordon v. Gordon, 208 Pa. 186. "Vanleer v. Vanleer, 13 Pa. 211. "Bauder's Ap., 115 Pa. 480; Rosenberry v. Rosenberry, 180 Pa. 221. " Kunz v. Kunz, i Lack. Jur. 454 ; Angier v. Angler, 63 Pa. 450 ; Merri- man v. Merriman, 2 D. R. 282; Romich v. Romich, 3 D. R. 617; Lat- show V. Latshow, 18 Supr. C. 465. "English V. English, 19 Supr. C. 586. "a Allen V. Rieder, 41 Supr. C. 534. " Roe V. Roe, 29 Pitts. L. J. 319. '^ Gring V. Lerch, 1 12 Pa. 244. '^ Daniel v. Daniel, i Pearson 242. " Christman v. Christman, 7 C. C. 595. '^ Fulmer v. Fulmer, 13 Phila. 166. See Supra Par. 4. '' Berger v. Berger, 23 C. C. 232. "■A. C. v. B. C, II W. N. C. 479- DIVORCE. 8S rendering her condition intolerable and life burdensome. To sus- tain this cause violence to the body is not necessary. It may consist of conduct humiliating, degrading and insulting the wife;" such as frequent drunkenness, profanity, abuse, neglect to provide home necessaries, etc.;'* or inordinate venery, wrecking her health and causing her to withdraw from his abode ;^° or calling her vile and in- famous names and threatening her life;" or calling her child a bastard, habitually;*" or continual abuse, and attempts to have her commit promiscuous intercourse as he himself boasted, and his having taken a venereal disease therefrom.'* It must be a continued course of such conduct which makes the relation unbearable; there- fore single acts are insufficient.^' Where the wife has deserted and lives apart, failure to support her does not come under this head."' It is necessary to allege and prove that she has been forced to with- draw by such continued conduct.'" But the after-discovered fact that he had infected her with syphilis will condone an insufficient libel.'' Witnesses to prove a case of "indignities" must specify them. It is not enough to use general terms. The court must know the nature of the acts themselves." The husband must show more than mere scolding, nagging, etc. He being "the stronger vessel," in theory, at least, must prove actual violence." It is doubtful whether even Socrates could have sustained a case against Xantippe in Lancaster county under this law. Even after an agreement to live apart it is held the wife may maintain a suit for "indignities" which antedated the agreement, and have a divorce a mensa et thoro^ The violence of an insane person is not a cause of divorce where he has been confined in an asylum." Under act of June 25, 1895, P. L. 308, a husband cannot get a divorce for intolerable treatment because his wife is not a good cook ; refused to copulate with him, and went out with a German professor " Melvin v. Melvin, 130 Pa. 6 ; Brubaker v. Brubaker, 4 D. R. 185 ; Schlott v. Schlott, 14 Lane. L. R. 201 ; Downing v. Downing, 8 Kulp 463 ; Elmes v. Elmes, 9 Pa. 166 ; Russell v. Russell, 37 Supr. C. 348. See Wile V. Wile, 48 Supr. C. 494, for circumstances not amounting to ground for divorce. "Doan V. Doan, 3 Clark 7; Mason v. Mason, 131 Pa. 161; Smith v. Smith, 19 Phila. 389. "Krug V. Krug, 22 Supr. C. 572. '" Oxley V. Oxley, 191 Pa. 474. ''Richards v. Richards, 6 Luz. L. R. 83; Hartman v. Hartman, 11 Lack. Jurist 285. "Baker v. Baker, 195 Pa. 407. But proof is necessary, not mere sus- picion. Simon v. Simon, 34 Supr. C. 182; Kelly v. Kelly, 56 Pitts. L. J. 87; Hampson v. Hampson, 15 D. R. 348. "Richards v. Richards, 37 Pa. 225; May v. May, 62 Pa. 206; Carter v. Carter, i Kulp 359; Edmond's Ap., 57 Pa. 232; Roth v. Roth, 15 Supr. C. 192; Selly V. Selly, 9 D. R. 752; Davis v. Davis, 52 Pitts. L. J. 316. " Roth v. Roth, IS Supr. C. 192. ^ Sites v. Sites, 9 D. R. 192. "Fitzgerald v. Fitzgerald, 22 C. C. 490. "Davis V. Davis, 52 Pitts. L. J. 316. "Yost V. Yost, 21 Lane. L. R. 307; Johnson v. Johnson, 31 Supr. C. 53; citing Eshbach v. Eshbach, 23 Pa. 343; Aquilar v. Aquilar, i Haggard, 776 Eng. Ec. " Fritzinger v. Fritzinger, 5 .Kulp 507. 85 EQUITY PRACTICE IN PENNSYLVANIA. to such booze joints for both sexes as Philadelphia boasts of, etc."* In this case nearly all phases of marital infelicity not divorcible figure in the learned opinions both below and above. 51. Turning wife out of doors. An alien whose wife follows him to this state and who refuses to receive her thereby turns her out of doors and she can maintain a divorce a mensa et thoro.*^ But a demand and absolute refusal must be proved." It is no cause to turn her away, that she had deserted or ill-treated her step-children, if she had not been gone two years." Personal indignities to the husband will not justify his turning her out of doors. 52. Alimony pendente lite and counsel fees. The wife whether libellant or respondent will be entitled to alimony pendente lite and reasonable counsel fees, in the discretion of the court commensurate with the circumstances. She cannot sue in forma pauperis when her husband has means." Upon a rule for alimony pendente lite and counsel fees, generally the court will not go into the merits of the case.*° But where the answer to the rule shows that she is living in adultery no alimony, but only counsel fees will be allowed;" or where, without just cause, she refuses to leave her parents and live with her husband." It is no answer that the husband is not of sound mind, when he is man- aging his father's business and earning money." The court may allow additional counsel fees even after judgment on the verdict, but will not if the husband is unable to pay more." If the husband is libellant, he will be ordered to pay the wife's counsel fees whether able or not and proceedings will be stayed until they are paid,"' and such order will be entered even where he obtains leave to discontinue his suit." Where there has been an agreement to live apart with an "a Hexamer v. Hexamer, 42 Supr. C. 226. " McDermott's Ap., 8 W. & S. 251 ; Springer v. Springer, 15 D. R. 133. "Sower's Ap., 89 Pa. 173. " Grove's Ap., 37 Pa. 443. " Gordon v. Gordon, 48 Pa. 226. "Black J. in Breinig v. Breinig, 26 Pa. 161 followed in Hartje v. Hartje, 39 Supr. C. 490. See P. & L. Dig., vol. 5, col. 7173; i C. R. A. 1821. Power's Ap., 120 Pa. 320; Jones v. Jones, 37 Supr. C. 442. See 3 C. R. A., col. 702-3. Beckner v. Beckner, 37 C. C. 333; Yetter v. Yetter, 11 Lack. Jur. 211. "Kline v. Kline, i Phila. 383; Brooks v. Brooks, 18 W. N. C. 115; Schireman v. Schireman, 7 C C. no; Sutton v. Sutton, a6 W. N. C. 398; Downing v. Downing, 7 Kulp 138. "Miller v. Miller, 2 Kulp 309; Pratz v. Pratz, 11 C. C. 252; Brenner t. Brenner, 5 Kulp 6; Scott v. Scott, 8 D. R. 548; Horst v. Horst, 18 Lane. L. R. 14. See C. R. A., vol. i, col. 1823. " O'Hara v. O'Hara, 12 C. C. 603 ; Wait v. Wait, 7 Leg. Gaz. 382. " Ames v. Ames, 7 Supr. C. 456. °° Rieder v. Rieder, 21 Supr. C. 488, or at refusal of decree, King v. King, 36 Supr. C. 33. "Herr v. Herr, 17 Lane. L. R. 211. "^ Deemer v. Deemer, 7 C. C. 554 ; Churchill v. Churchill, 25 C. C. 23 ; Clark V. Clark, 28 C. C. 503; Humphreville v. Humphreville, 29 Lane. L. R. 102. ^ Borckman's Ap., 2 Walker 285. DIVORCE. 87 allowance, no more alimony will be allowed, but counsel fees and costs will be added." Where counsel fees agreed upon are inadequate the court may order additional fees.°° The wife's expenses for examiner and stenographer may also be ordered paid where she has no means." The court will be largely guided by the needs of the wife and the means of the husband. If she has ample means to carry on her suit, they will be disallowed." Alimony will be refused where the husband's wages is insufficient." But the fact that the wife has a small income will not prevent giving her a proper allowance.' Her income and not the principal of her property is the test." If the husband is bank- rupt no alimony, but counsel fees will be allowed,' and the alimony already awarded may be reduced where he is embarrassed.* A hus- band cannot claim alimony and counsel fees from his wife." Alimony will be refused the wife, although she disputes the charge of adultery, where she takes all the furniture." If she absolutely refuses to live with her husband, she will not be given alimony ;' nor where she has condoned the offense ;" nor where she released for a settlement.' While an agreement of separation may cut out alimony it will not counsel fees and costs." An order to pay alimony may run concurrently with an order for support in the Quarter Sessions." An appeal from an order as to counsel fees lies to the Superior Court although they amount to more than $1500."* 53. Form of petition for support, etc., pendente lite. Fannie Marshal) ( In the Court of Common Pleas of V. < Wyoming County, William Marshall. ( No. , Term . 19— IN DIVORCE. The petition of Fannie Marshall, libellant, respectfully represents, that upon her petition filed in your honorable court on the day of A. D. , averring that she was on the day of A. D. 19 — . lawfully married to said William Marshall and that on the day of , A. D. 19 — , he was guilty of (insert charge), and praying a divorce therefor, thereupon a subpoena was duly awarded against the said "Bloom V. Bloom, 17 C. C. 478; Shepherd v. Shepherd, 18 C. C. 614. "Beers v. Beers, 4 Lancaster L. R. 154. " Pauli V. Pauli, S D. R. 62. " Clark V. Clark, 8 Kulp 361 ; Forry v. Forry, 2 Lane. L. R. 34S ; Mc- Andrews v. McAndrews, 31 Supr. C. 252; 3 C. R. A., col. 704- " Bucher v. Bucher, 25 C. C. 513. "Phillips V. Phillips, 26 C. C. 182; Wolf v. Wolf, 13 Lane. Bar. 59- " Sitzberger v. Sitzberger, 21 Lane. L. R. 309- 'Seads v. Seads, 11 D. R. 689. ' Ives V. Ives, 12 Luz. L. R. 19. * Murphy v. Murphy, 9 Kulp 183. ' Runkle v. Runkle, 18 York 121. •Salsberg v. Salsberg, 10 Kulp 378; Davis v. Davis, 12 Luz. L. R. in. 'Eroh V. Eroh, 4 Kulp 521. ' Ives V. Ives, 12 Luz. L. R. 19. * Diffenbaugh v. Diffenbaugh, 19 Lane. L. R. 73- '° Bennett v. Bennett, 28 C. C. 507. „ - ^ ^ "Nogic V. Nogic, 25 C. C. 397; Eckert v. Eckert, 38 C. C. 625. "a Hartje v. Hartje, 222 Pa. 371. 88 EQUITY PRACTICE IN PENNSYLVANIA. William Marshall returnable , and the respondent has appeared thereto and confessed said marriage, but otherwise has answered and con- tests said libel. Your petition further represents that she has no income adequate for her support and for the maintenance of this action and that the said respondent has ample means; therefore she prays that your hon- orable court allot to her the sum of dollars for her support during said action and the further sum of dollars for expenses and counsel fees necessary to maintain it, and that respondent be ordered to pay the same and she will ever pray. Fannie Marshall. Sworn to, etc. 54. Form of order of coxirt granting rule. And now , the within petition being presented and con- sidered on motion of Joseph M. Piatt, Esq'., attorney for libellant, the court grants a rule upon William Marshall, the respondent, to appear and show cause why he should not pay the said libellant the sum of dollars, for her support during the pendency of this action and the further sum of dollars for costs and expenses and attorney's fees in that. behalf, returnable next . Per cur. Chas. E. Terry, P. J. 55. Form of decree of support. And now, , 19 — , after hearing the parties to the rule to show cause, etc., heretofore granted in this cause, and upon due consideration thereof the court hereby orders and directs William Marshall, the respon- dent, to pay to Fannie Marshall, the libellant, the sum of dollars for her support and to Joseph M. Piatt, Esq., her counsel of record, for the costs and charges of suit and for his attorney's fees the further sum of dollars. Per cur. Chas. E. Terry, P. J. 56. Form of replication — and request for a jury. Bonnie Love C ^^ ^^^ ^^^^^ ^^ Common Pleas of Schuylkill County. Jack Love. ( ^o. . Term, 19-. IN DIVORCE. Now, to wit, , the libellant by her attorney, J. A. Noecker, Esq., comes and says that, protesting all and singrular the matters and things in the respondent's plea alleged in bar of her libel and prayer are not true, she is ready to verify the said matters and things by her in her said libel and prayer set forth; and prays that a jury may be called to inquire thereof as in this behalf provided by the act of assembly. If the act of 191 1, supra, is sustained by the courts, this form be- comes useless. 57. Framing issue for jury. A replication as above constituted a joining of issue for a jury trial and the issue was framed accordingly. Prior to the act of 191 1, supra, the- demand for an issue might be made in the answer, but if it was not made until after the appointment of a commissioner or a master, it was held too late under rules of court." But a libel- " Lathrop v. Lathrop, 2 Northam. 9 ; Piscetelo v. Piscetelo, 37 C. C. 660 ; Reinbold v. Reinbold, 15 C. C. 335; Johnson v. Johnson, 4 D. R, 46a (Compare rules.) Brotherhead v. Brotherhead, 17 D. R. 264. DIVORCE. 89 lant was permitted to amend so as to include the demand." It was in time when the answer was filed a few days after the term." There being no rule of court to the contrary, an issue was framed on demand even after the appointment of an examiner if he had not proceeded far" on payment of examiner's costs;'" or even after a number of meetings where respondent was unable to pay the ex- penses." After a master's or examiner's report had been filed it was held too late." Although the libel and answer raised every question of fact, the issue was framed by the court in the manner of a feigned issue," with the aid of counsel of the parties.™ The right to an issue was held not to be waived by appearance of counsel before the com- missioner.''' An issue was demandable where the application was for a divorce a mensa et thoro^ Where the application was filed after six months an issue could be demanded but it could not be tried until after two years from the desertion alleged."' After issue joined the respondent will not be ruled to furnish the names of witnesses." Coverture of the plaintiff cannot be pleaded after a plea in bar.^ If there is no answer filed an issue will be refused." A demand for an issue should not be made to the master, but to the court," wihich alone can frame it.°' As this is a matter of practice regulated by rules of court, reference must be had to them.'" (This paragraph must be read in reference to the late act making issues dependent upon the will of the judge, which is a most unusual, arbitrary and arrantly presumptuous piece of retrospective legislation.) 58. Power of court to hear and determine. Section 10 of the act of 1815, supra, provides: "That it shall and may be lawful for the said courts, after hearing any cause, commenced before them, by virtue of this act, to determine the same as to law and justice shall appertain, by either dismissing the petition or libel, or sentencing and decreeing a divorce and separation from the nuptial ties or bonds of matrimony, or that the marriage is null and void, and that after such sentence, nullifying or dissolving the marriage, all and every the duties, rights and claims accruing to either of the said parties at any time theretofore, in pursuance of the said marriage, shall cease and determine, and the said parties shall be at liberty to marry again in the like manner as if they never had been married." "Magill's Ap., 59 Pa. 430; Widger v. Widger, 13 Luz. L. R. 34. "Kendig v. Kendig, 2 Lane. Bar, No. 21. ''Cain v. Cain, 6 C. C. 366; Derringer v. Derringer, 8 Phila. 269; Musser V. Musser, 16 York 181 ; DeLong v. DeLong, 19 D. R. 771. '"Fougeray v. Fougeray, 5 W. N. C. 38; Beaumont v. Beaumont, i Chester Co. 304. " Stuard V. Stuard, i C. C. 504. See P. & L. Dig., vol. S, col. 7i54- "Allison V. Allison, 46 Pa. 321; P. & L. Dig., vol. S- col. 7154- '° Bedloe v. Bedloe, 40 Leg. Int. 46 ; Pfeil v. Pfeil, 16 D. R. 764. '° Waldron v. Waldron, SS Pa. 231. " Keller v. Keller, 2 Woodward 483. " Schlott V. Schlott, 14 Lane. L. R. 201. ^Winpenny v. Winpenny, 16 Phila. 24. ''Mullison V. Mullison, 13 W. N. C. 314. ^ Rumpflf V. Vichestein, 3 Pitts. 148. ^Walukas v. Walukas, 9 Kulp 332. "Deacon V. Deacon, 11 D. R. 112 (Phila.) ""Mcllhenny v. Mcllhenny, 40 Leg. Int. 446. See Sec. 15, Rule 16, Phila. "See also i C. R. A, P. & L., col. 1810. 90 EQUITY PRACTICE IN PENNSYLVANIA. 59. Master, appointment, duties. The act of March lo, 1899, P. L. 8, provides: "That in all suits of divorce now pending or hereafter to be brought, in any court of Common Pleas in this Commonwealth, it shall and may be lawful for the court, when the case is ready to be proceeded with, either upon answer not demanding a trial by jury or ex parte, to appoint a master, who shall take the testimony and return the same, together with a report of the proceedings before him and his opinion of the case, to the court." "Section 2. The said courts shall have power to adopt rules regulating the proceedings before the master and fixing his fees." [This act was repealed by the act of 191 1, supra, but since that most dubious and pernicious piece of legislation to meet a particular case, may not be approved by any court of justice in a free state, it is well to let this paragraph stand here.] The formal approval of a master's report is not a pre-requisite to the entering of a valid decree under this act." The opinion of the master is only advisory and not binding on the court, nor does it usurp the place of either a jury or the judge sitting as a chancellor." His report should state not only his opinion upon the law ef the case, but the findings of fact from the evidence. He is not to sum up' the evidence, but to give what he finds from the evidence to be the facts akin to a master's report in Chancery .°^ If it is deficient in this respect, it will be recommitted." Where there is a sharp conflict in the evidence his findings will have the force of an auditor's or a master's in Equity." Irregularity in apppointing the master is waived by appearance and proceeding.^ 60. Proceedings before an examiner or master, or commissioner. In procuring testimony it is not necessary to have a master. A rule to take depositions may be taken even before the return of the subpoena.** But a commissioner will not be appointed until after actual or constructive service, the latter meaning a return of publi- cation sec. leg^ If a rule be taken, notice must be given to the re- spondent."' There can be no reference of a divorce case under the local acts of April 6, 1869, P. L. 725, and March 23, 1870, P. L. 540." A commissioner to take testimony has no judicial power. His busi- ness is to take the testimony of the witnesses as they give it in their own language and not reform it to be responsive to counsel in nar- rative form. Depositions should not contain initials and blanks in '° English V. English, 19 Supr. C. 586. "Edgar v. Edgar, 23 Supr. C. 220. "Moore v. Moore, 26 C. C. 604. See Sees. 23 and 24, Rule 16 Phila. Common Pleas. "Campbell v. Campbell, 26 C. C. 671. ""Totten V. Totten, 27 C. C. 312. "aMcCune v. McCune, 31 Supr. C. 248. ""Anon, I Yeates 404. " Richards v. Richards, 2 Chester Co. 108. "Lacy v. Lacy, 21 Pitts. L. J. 29; Freeby v. Freeby, 9 Kulp 373. " Greeby v. Greeby, 27 C. C. 95. "" Davis v. Davis, 52 Pitts. L. J. 316. See vol. i, Ch. 39, P. 632, for prac- tice and forms. DIVORCE. 91 the body." Where an examiner is appointed, the practice is regu- lated by rule of court to which reference must be had. Such rules fix the time when interrogatories or cross-interrogatories may be filed, iand if not so filed they will not be allowed nunc pro tunc."' The respondent may propound his cross-interrogatories at any time before the case is closed," unless otherwise fixed by rule of court. Each court has its own practice in this respect." Hence the importance of following the rule of the particular court. The duties of masters and examiners respectively were discussed by Dean J. in a late case," in which it was held the law authorized no master in divorce, but only an examiner to take evidence and report it to the court. Since the act of 1899, •f«/"'o, and the new rules of court, the prac- tice is general to have a master appointed and in some counties a deposit (in Luzerne it is $50) is required when the libel is -filed, to meet partial expenses. Where the rule requires notice of hearing, and if the respondent cannot be found, then by posting in the Prothon- otary's office for five days, proof of posting is not sufficient without proof also that the respondent could not be found." In Pittsburgh ten full days must intervene between the notice and the hearing." In Phila. see rule 16, which is a code of practice in itself. (Compare your rules of court.) Where an appearance was special to move to dismiss the action and the court treated it as general, the respon- dent was entitled to notice of the discharge of the rule and of the taking of testimony." 61. Evidence. Under Sec. 5 of the act of May 23, 1887, P. L. 185, amendatory of the act of March 4, 1870, P. L. 36, when the respondent has not been served personally or does not appear, the libellant is competent to prove only the fact of the marriage." The cause must be established by other testimony in such case." There is some conflict between the courts on this rule, for which see Vol. 5, P. & L. Dig., Col. 7162. The act of June 8, 191 1, supra, makes libellant competent to prove de- sertion. A verdict of a jury on such evidence was allowed to stand;" especially where libellant's testimony is corroborated by circum- stances. The causes of divorce must be proved by facts and not "Campbell v. Campbell, 11 D. R. 253. "Gudbub V. Gudbub, 2 W. N. C. 126; P. & L. Dig., 3 C. R. A., col. 699. " Bell V. Bell, 14 Phila. 144. "Zane v. Zane, i W. N. C. 123. See P & L. Dig., vol. S, col. 7158- " Middleton v. Middleton, 187 Pa. 612, Oct. 17, 1898, followed by the act of 1899, supra, citing Angier v. Angier, 63 Pa. 450 and other cases. "Cope v. Cope, i Lehigh Co. 79; Rhoda v. Rhoda, i Lehigh Co. in. « Shook v. Shook, 48 Pitts. L. J. 147. "Smith v. Smith, 15 Swpr. C. 366. * Ramsey v. Ramsey, 5 Leg. Gaz. 53 ; Shipman v. Shipman, S Kulp 370 ; Penny v. Penny, 34 Supr. C. 88; Grimes v. Grimes, 12 Lane. L. R. 23; Brown v. Brown, 13 D. R. 484; Lyon v. Lyon, 13 D. R. 623; Zeno v. Zeno, 5 Lack. Jur. 140; Brown v. Brown, 13 D. R. 484; Davenport v. Davenport, lo Luz. L. R. 48; i C. R. A., col. 1815; 3 C. R. A., col. 700. "Gilbert's Ap., 15 W. N. C. 466; Burke v. Burke, i Lack. Jur. 12; Koup V. Koup, 7 Kulp, 342; Weichel v. Weichel, 15 C. C. 606. "Flattery v. Flattery, 88 Pa. 27; Loomis v. Loomis, 2 Berks Co. So; Yeager v. Yeager, 2 Berks Co. 61 ; Carl v. Carl, 12 Northam. 156. "Matchin v. Matchin, 6 Pa. 332. '"Edmond's Ap., 57 Pa. 232. 92 EQUITY PRACTICE IN PENNSYLVANIA. mere inferences;"" or opinions of witnesses.™ The construction of abusive language is for the jury." Where the respondent is served personally or appears the libellant is competent to prove facts and ad- missions. If the respondent resides in another state but is served personally in this state and notice of the first meeting is given by registered letter, the libellant is competent;' or where respondent is represented by counsel and makes no denial;" and even where contested, if the wife's testimony is corroborated by the facts in the case ;' or where libellant appeals from a decree in her favor because the court had no jurisdiction.* But a divorce cannot be sustained on ex parte affidavits prematurely taken." Where there is ground for suspicion of collusion the court will scrutinize libel- lant's testimony very closely." Where the charge is desertion, evi- dence of adultery by libellant some years after the desertion, is in- admissible.' The libellant may call the respondent as if on cross- examination.' 62. The Master's Beport. The master's report should be made like a master's report in Chancery, with separate findings of fact and conclusions of law. It should not be mere resume of the evidence or quotations from it.* If his report is imperfect it will be referred back to him." As seen above, his opinion is only advisory," and the rule of conclusiveness which applies to an auditor's report does not apply to a master's re- port in divorce." A divorce will be refused when the depositions were not read to the witnesses or signed by them."* 63. Decree — Rule to show cause. Before a divorce will be decreed it is necessary to issue a rule to show cause why a final decree should not be granted and entered, and such rule must be served personally or by publication; and under rules of court a certificate must be presented showing that the costs have been paid." This is so, as well on a verdict of a jury upon the feigned issue, as upon a master's report. The finding of the master being filed and approved by the court, the rule may issue forthwith, "' Richards v. Richards, 37 Fa. 225 ; Bishop v. Bishop, 30 Pa. 412. " Breinig v. Breinig, 26 Pa. 161. ""Seitz v. Seitz, 170 Pa. 71. 'Faunce v. Faunce, 20 Supr. C. 220. 'Baker v. Baker, 195 Pa. 407; Howe v. Howe, 16 Supr. C. 193. °Krug v. Krug, 22 Supr. C. 572. * English V. English, 19 Supr. C. 586. See this case on jurisdiction. " Smith V. Smith, 15 Supr. C. 366. ' Olson V. Olson, 27 Supr. C. 128. ' Mendenhall v. Mendenhall^ 12 Supr. C. 290. The act of May, 1911, applies only to criminal charges, which see. * Costello V. Costello, 191 Pa. 379. "Moore v. Moore, ii D. R. 253; Campbell v. Campbell, 26 C. C. 671; Pomeroy v. Pomeroy, 11 D. R. 299; Nungesser v. Nungesser, 32 C. C. 383. '"Matheson v. Matheson, 11 D. R. 289; Miles v. Miles, 15 D. R. 796. "Edgar v. Edgar, 23 Supr. C. 220; Garrett v. Garrett, 11 Del. Co. 273. " Hedderson v. Hedderson, 35 Supr. C. 629. "a Llewellyn v. Llewellyn, 31 C. C. 670; Askew v. Askew, 17 D. R. 680. "Matheas v. Matheas, i Lack. Jur. 4; Llewellyn v. Llewellyn, 31 C. C. DIVORCE. 93 notwithstanding the record does not show anything more as to con- sideration by the court." Where the respondent resides abroad the affidavit need not show any effort to get personal service."' 64. Granting and entry of decree. A divorce will not be granted on the admissions of the answer alone." Where exceptions are filed the court should dispose of them by a discussion and opinion, and not merely dismiss them and confirm the report ;" or refuse a decree without assigning any reason ;" or enter final decree upon the judge's recollection of a lost report." This proceeding being in Equity, the court must see that equity is done. Every available source of information should be exhausted to reach the truth and equities of the case;^° and a report which does not satisfy the conscience of the court may be recommitted to take further testimony.^ After the finding of the facts by a jury, where there was ample time to take depositions, the court will not reopen the case on an ex parte affidavit.'^ Where the libed prayed for a decree a vinculo matrimonii and alimony, the court may grant a divorce a mensa et thoro and alimony;"' but not where alimony was not prayed for.'" Where the decree is made, but not to be entered until all record costs and the master's fee are paid, libellant's mar- riage before the costs were paid was held valid. * The marriage of a lunatic is void and a decree in divorce merely establishes judicially the fact, which may be established in any proceeding where the ques- tion pertinently arises."*" 65. Vacation of decree. A decree may be vacated and set aside where fraud or imposition has been practiced, but this is discretionary with the court, and it will not be done where the respondent was guilty of gross laches.^" A decree was opened after thirty-three years and the death of libellant for fraud."^ The decree will be opened where the averment of resi- dence was false;'" or the testimony false;" or where there was a "English v. English, 19 Supr. C. 586. "Baldwin v. Baldwin, 17 W. N. C. 222. See Webster v. Webster, 19 D. R. 181, for practice on answer and depositions. These matters are largely regulated by the local rules, which must be consulted. "Wood V. Wood, 2 Brewster 447. "Howp. V. Howe, 16 Supr. C. 193; Hedderson v. Hedderson, 35 Supr. C. 639. " Shoemaker v. Shoemaker, 25 Supr. C. 183. " Rishel V. Rishel, 24 Supr. C. 303. '"Edmiston v. Edmiston, 8 D. R. 383. ^Akers v. Akers, 8 D. R. 419; Deacon v. Deacon, 11 D. R. 112. ^ Fay v. Fay, 27 Supr. C. 328. "" Klingenberger v. Klingenberger, 6 S. & R. 187. "Clayton v. Clayton, i Ashmead 52. "a Confer's Est., 17 D. R. 742, citing Baker v. Baker, 26 Supr. C. 553 and cases in other states, that the condition is a nullity. "bNewlin's Est., 11 Del. Co. 409; 24 York 145. ='Catts V. Catts, 35 Supr. C. 293; 37 Supr. C. SPS; Nagle v. Nagle, 43 Supr. C. 442. '''<>■ Rogers v. Rogers, 21 D. R. S69- ^ „, ., "" Fitch V. Fitch, i C. P. R. 46 ; Nickerson v. Nickerson, 16 Phila. 154. "Keeseman v. Keeseman, 2 Pearson 186. 94 EQUITY PRACTICE IN PENNSYLVANIA. wrong address in the publication the fault of libellant;" or where there was a fraud on the respondent;" or where the parties lived together for two years after the decree,™ or other fraudulent and collusive practices. But the application must be made without un- due delay. But re-marriage and birth of issue will not prevent open- ing of a decree at the succeeding term for fraud, although the issue is bastardized thereby." Every presumption of regularity in the proceedings will be given, especially after lapse of years. The party has his remedy by appeal. But if there was no jurisdiction lapse of time cannot supply it.°° Where the subpoena was for divorce A. V. M. and the decree was A mensa, etc., on application of re- spondent the decree will be opened.*"^ Where illegal notice was given to conceal the suit and defraud the respondent, lapse of time will not prevent vacation of the decree." The practice is by petition setting forth in detail the fact relied upon and asking for a rule to show cause, etc. But a bill in equity may. be filed."" However, the petition has the same force as a bill and is more convenient. After the term a decree will not be opened to take additional testimony."* 66. Permanent alimony. Under the acts of May 8, 1854, P. L. 644 and June 25, 1895, P. L. 308, the wife may have alimony where the divorce is a vinculo ma- trimonii.^ It is discretionary with the court."' But unless the court hears testimony and ascertains the ability or respondent to pay ali- mony it will be reversed." The petition or depositions must show the husband's ability to pay;" the unsupported affidavit of the wife being insufficient evidence.*" The amount is for the court to fix after hearing the testimony." The wife may lose her alimony by resum- ing conjugal relations." ™Wanamaker v. Wanamaker, 2 Pearson 166. ™ Boyd's Ap., 38 Pa. 241. '"Fidelity Ins. Co.'s Ap., 93 Pa. 242. '' P. & L. Dig., vol. S, col. 7170. ^ Firmin v. Firmin, 16 Phila. 75. '"Allen v. Maclellan, 12 Pa. 328. "^ Given v. Given, 25 Supr. C. 467. " Gambe v. Gambe, 22 C. C. 23; Weir v. Weir, 22 Lane. L. R. 84; Smith V. Smith, 3 Phila. 489. '"i-Treskon v. Treskon, 60 Pitts. L. J. 192. "" King V. King, 28 C. C. 313 ; Moffett v. Moffett, 29 C. C. 658. "'Wilt V. Wilt, 2 Dauphin 100. "a Egolf V. Egolf, 4 Berks Co. 183. ""Shoop's Ap., 34 Pa. 233; Elmer v. Elmer, 150 Pa. 205; Parker v. Parker 35 Supr. C. 341 ; Faux v. Faux, s Kulp 354. Permanent alimony is purely statutory nor does it depend on the wife's necessities. Dawes v. Dawes, 8 Lack. Jur. 87. "Graham v. Graham, 14 D. R. 608; Heidenreich v. Heidenreich, 9 D. R. 123. *■ Miles V. Miles, 76 Pa. 357. " Walter v. Walter, 3 Kulp, 39. * Lilly V. Lilly, i W. N. C. 160. " Half erty v. Halferty, 6 D. R. 613 ; Ba/s Ap., 6 Atl. 9 ; P. & L. Dig., vo. S, col. 7181 ; Tubbs v. Tubbs, 25 C. C. 26. "Tiffin V. Tiffin, 2 Binney 202. DIVORCE. 95 67. Alimony and collection, in divorce a mensa et tkoro. The act of April 15, 1845, P- L. 455, provides: "Upon a decree a mensa et thoro, and the allowance of alimony shall have been made by any of the courts of Common Pleas of the respective counties 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, until the same is satisfied, for the full ajnount 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 shall be of opinion that the said lien is not sufficient for the full or permanent security of payment of said decree, it shall have power and authority on satisfactory proof being made that the respon- dent is possessed of sufficient estate, to order, decree and require that security, such as shall be determined and approved by said court, shall be given for the due pajonent of the said alimony according 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 Common- wealth, to the use of the party entitled to said alimony, or by the de- posit of money, to be invested as the court may deem proper, as may seem to the court sufficient to secure the payment of said alimony, as the same may fall due." "Section 2. 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 defendant, as the facts of the case may justify." The lien on the land thus created is a charge continuing and not divested by a private sale ;' but it does not apply to alimony pendente lite. Under the act of 1817, alimony a mensa et thoro cannot exceed one-third of the husband's income." In this form, an order fixing alimony pendente lite continues in force pending a motion for a new triar and an appeal by respondent." Where a wife returns to her husband alimony is suspended, but if by cruel treatment she is forced to leave him again, it is revived.' The court may suspend alimony where the husband makes a bona Me offer to receive his wife.' 68. Eule to pay alimony. Alimony being allowed a rule to pay the same based on the order of the court must be served personally, service by leaving a copy 'Melizet V. Melizet, 3 Clark 45. But see Kerr v. Kerr, 216 Pa. 641, as to the alimony under act of 1854. The lien above is in case of divorce a mensa only. ' Grove's Ap., 68 Pa. 143. •McClurg-s Ap., 66 Pa. 366. * Schlott V. Schlott, 14 Lane. L. R. 269. 'McNeil V. McNeil, 19 C. C. 93; Middleton v. Middleton, 19 C. C. 353. 'Nathans v. Nathans, 2 Phila. 393. 'Breinig v. Breinig, 26 Pa. 191. 96 EQUITY PRACTICE IN PENNSYLVANIA. at the husband's residence being insufficient.' This is necessary to found a motion for an attachment.' But where a certified copy of the decree was left with an adult member of his family and notice of argument upon a motion for an attachment was also served in the same manner and upon his counsel of record it was held sufficient." Where the rule is served in another state, it confers no jurisdiction." 69. Enforcement of decree. Under this act an execution may issue against personalty as well as real estate and in form of attachment as well as A. fa.; nor can it be evaded by an assignment." If the wife die, her administrator may collect what is due." Alimony and costs may be enforced by attach- ment before as well as after decree," but not by capias ad sat." An attachment will not be executed where it appears as a fact that the defendant is unable to comply with the order," and if there is a dis- pute about it, the court may order depositions to be taken and pre- sented." An attachment cannot issue against a spendthrift trust," nor in a case where the husband applied for a divorce and was re- fused." If the attachment is returned by the sheriff "non est in- ventus" the husband's property may be sequestrated to pay the ali- mony and costs.*" It was held that where the party was imprisoned for non-compliance with a decree to pay alimony he could not be discharged under the insolvent laws." A divorced wife may com- pel her husband to contribute to the support of their minor child, al- though she received alimony for her own support."^ The order to pay, when the proper grounds are laid, may be enforced by attach- ment whether the husband be respondent" or libellant," or a minor appearing by next friend.^ But the petition for the attachment for costs and counssl fee must aver that he is financially able to pay.* An attachment will not issue where no copy was served and the husband was not present when the order was made."* Courts differ ' Bogia V. Bogia, i W. N. C. 96. •Waltram v. Waltram, 19 W. N. C. 181; Chase v. Chase, 15 D. R. 131. "Tobin v. Tobin, 12 C. C. 374. " Russell V. Russell, 15 Phila. 168. " Bouslough V. Bouslough, 68 Pa. 495. " Clark V. Clark, 6 W. & S. 85. "Hilt V. Hilt, 23 C. C. 422; Wallen v. Wallen, i D. R. 684; West v. West, I D. R. 699; P. & L. Dig., vol. V. "Elmer v. Elmer, 150 Pa. 205. " Gilbert v. Gilbert, 30 C. C. 418. " Robinson v. Robinson, 2 W. N. C. 273. "Thackara v. Mintzer, 100 Pa. 151. " Parfrey v. Parfrey, 2 C. P. R. 257. "Mintzer v. Mintzer, 15 Phila. 161. " Heise v. Heise, 10 Lane. Bar 20. "^ Comth. v. Edgar, 44 Supr. C. 496. ''"Ormsby v. Ormsby, i Phila. 578; Dipple-v. Dipple, IS D. R. S47. ^Mann v. Mann, 7 W. N. C. 507; Mclnall v. Mclnall, 17 W. N. C. 312; Fehl v. Fehl, 17 D. R. 331. "West V. West, 11 C. C. 254. ■" Fletcher v. Fletcher, 7 D. R. 476; Uhrich v. Uhrich, 2 C. C. 133; Gilbert V. Gilbert, 14 D. R. 534. '" Luther v. Luther, 25 C. C. 16. DIVORCE. 97 some as to whether section 2 of the act, supra, applies to any kind of divorce but o mensa et thoro;" but, independently of that act, the court, sitting in equity as it does in a divorce case, may enforce its decrees by attachment and even assist a decree of another state."' It may be enforced by sequestration, on a return of non est inven- tus f or by an attachment execution where he made a void assign- ment." But the order gives no lien on real estate," where husband obtains a divorce for cruel and barbarous treatment under act of 1854. A sci. fa. is not necessary after five years, in case a mensa et thoro.'^^ 70. Appeal — recognizance — ^in forma pauperis. Section i of the act of June 11, 1891, P. L. 295, provided: "That either of the parties in any suit or action for divorce now pend- ing or that shall hereafter be brought, after the iinal sentence or decree, may appeal therefrom to the Supreme Court of the proper district, upon entering into a recognizance before the prothonotary of the Court of Common Pleas in which the cause shall have been tried, with at least one good surety, in a sum double the amount of the costs incurred, con- ditioned to prosecute the said appeal with effect ; and the said appeal shall be prosecuted in the usual manner, and the judges of the Supreme Court shall transmit the record with their judgment thereon, with all the pro- ceedings as in other cases, to the court below to be carried into effect: Provided, that where the respondent in any proceeding for divorce files with the prothonotary of the said court, an affidavit that such appeal is not intended for delay but because he or she believes injustice has been done, and that by reason of his or her poverty said respondent is unable to furnish the required recognizance aforesaid, such respondent shall be entitled to take such appeal the same as if the recognizance aforesaid was given." The Superior Court took this appellate jurisdiction by the act of May 5, 1899, P. L. 248 ; and the affidavit that appellant has "suffered injustice by the sentence, order, judgment or decree," is a pre-re- quisite. One who has obtained all he asked in the decree has suf- fered no injustice and cannot appeal."' 71. Consideration on appeal. Upon appeal the. view of the case by the judge below will have great weight;" and where the evidence was heard by a jury, it will not be considered in the appellate court." The discretion of the court below in the matter of counsel fees and expenses will be reviewed only for manifest injustice." An order overrulitig a de- murrer and granting leave to libellant to amend the decree is inter- "Blane v. Blane, 7 D. R. 317; P. & L. C. R. A. i, col. 1827. ''Miller v. Miller, 21 C. C. 252. '"Mintzer v. Mintzer, is Phila. 161. "Bouslough V. Bouslough, 68 Pa. 495. "Grove's Ap., 68 Pa. 143; Kerr v. Kerr, 216 Pa. 641. "aDeibert v. Deibert, 3 Schuylkill 193. "English V. English, 19 Supr. C. 586. "King V. King, 36 Supr. C. 33; McMillin v. McMillin, 183 Pa. 91; Reed v. Reed, 30 Supr. C. 229; Hedderson v. Hedderson, 35 Supr. C. 629. '" Shaw V. Shaw, 36 Supr. C. 122 ; Fay v. Fay, 27 Supr. C. 328. '"Power's Ap., 120 Pa. 320; Fernald v. Fernald, 5 Supr. C. feg. Vol. 4 Practice — 7 98 EQUITY PRACTICE IN PENNSYLVANIA. locutory only.™ An appeal lies where the decree is void on the face of the record, for want of jurisdiction."' Where there has been no jury trial the appellate court will con- sider the entire record, including the evidence in all its phases, not- withstanding there has been a master's report below." One who accepts partially the decree loses her right to appeal as to the whole."* No appeaJ lies from an order refusing to open or vacate a decree granting a divorce."'' 72. Costs. Section 12 of the act of 1815, supra, provides: "That the said court may award costs to the party in whose behalf the sentence or decree shall pass or that each party shall pay his or her own costs, as to them shall appear to be reasonable and just." The rules of court now provide for a sufficient deposit at the filing of the libel to secure the officers' fees. This obviates the necessity for discussion of the matter. Under the above act and its amendment of Feb. 26, 1817, 6 Sm. L. 405, costs follow suit;" but in divorce a vinculo matrimonii, where the husband succeeds, the costs cannot all be put on him." Costs should not be put on the libellant when the divorce is granted."* If the wife is respondent and without means the costs are in the discretion of the court." The stenographer's fees are allowable as costs," and the fees of a notary in taking depositions." The rule to pay the master's fees should not be called up until his report is approved." Section 17 of rule 16, Phila., requires a deposit of $50, on filing a motion for the appointment of a master. A second suit may be maintained although the costs of a previous suit have not been paid. This is in the discretion of the court." The costs may be collected by A. fa. after a libel is dismissed*; or by attachment where they are divided ;' or by action of assumpsit by the wife.' But without an order of court suit cannot be maintained by a third per- son for boarding her.* The allowance of her traveling expenses is discretionary with the court." The costs have been placed on the respondent, although he was the successful party."* "" Richardson v. Richardson, 193 Pa. 279. " English v. English, 19 Supr. C. 586. "Middleton v. Middleton, 187 Pa. 612; Olson v. Olson, 27 Supr. C. 128; P. & L. Dig., I C. R. A., col. 1829. "*Agnew's Ap., 3 Walker 320. "^Kepner's Ap., 94 Pa. 74. "Brinckle v. Brinckle, 6 W. N. C. 123. " Shoop's Ap., 34 Pa. 233. "a Heiter v. Heiter, 4 Berks Co. 144. " Simmons v. Simmons, i W. N. C. 3 ; Thomas v. Thomas, 4 Kulp 305. "Kuntz v. Kuntz, i Lack. Jur. 454; Pauli v. Pauli, 17 C. C. 147. "Vanriper v. Vanriper, 3 Lane. L. R. 155. " Davidson v. Davidson, 18 W. N. C. 63. * Smith V. Smith, 15 Supr. C. 366. '■ South V. South, 1 Pitts. 187. ' Calhoun v. Calhoun, 19 Phila. 399. 'Harter v. Harter, 4 D. R. 211. * Graves v. Cole, 19 Pa. 171. ' Fernald v. Fernald, 5 Supr. C. 629. Sa Garrett v. Garrett, 20 D. R. 757. DIVORCE. 99 73. Paramours not to marry. Section 9 of the act of 1815, supra, provides: "The wife or husband who shall have been guilty of the crime of adultery, shall not marry the person with whom said crime was committed, during the life of the former wife or husband; but nothing herein con- tained shall be construed to extend to or affect, or render illegitimate, any children born of the body of the wife during coverture." This ban will be observed, although the guilty party removes to another state, marries there and returns to Pennsylvania,' and the widow so-called can claim no exemptions here.' 74. Adulteress cannot alien, when she cohabits with paramour. Section 10 of the act of 1815, supra, provides: "When any woman shall be divorced as aforesaid, and shall afterwards openly cohabit, at bed and board, with the person named in the petition or libel and proved to be partaker in her crime, she is hereby declared to be incapable to alienate, directly or indirectly, any of her lands, tenements or hereditaments; but all deeds, wills, appointments and conveyances thereof, shall be absolutely void and of none effect, and after her death, the same shall descend and be subject to distribution in like manner as if she had died seised thereof intestate." This law seems to discriminate against the aterrent wife and make her an outlaw and outcast; while there is no such law against the recusant husband. 75. Effects of divorce. Among other legal effects of divorce is that it bars the wife's dower where it is a vinculo matrimonii,' and all the husband's claims upon her choses in action up to the time of divorce.' But where a husband has created a trust fund for her whether covert or sole, it is not affected.'" If the trust is to terminate on her survivorship, divorce is equivalent to death." A woman who is divorced a mensa et thoro is not entitled to the widow's exemption of $300."° However, where she begins proceedings and remains domiciled here, whilst her husband goes to another state and obtains an ab- solute divorce there, she is still his wife in Pennsylvania and may take out ancillary letters of administration upon his estate," his di- vorce being of no effect here and not entitled to any credit by our courts," even if personal service was made here, the wife being in- sane at the time." Divorces beyond the state are not binding in Pennsylvania." A divorce does not change a tenancy by entireties into a tenancy in common."* •StuU's Est., 183 Pa. 625. 'Immendorfs Est., 21 C. C. 268; 190 Pa. 590. 'Miltimore v. Miltimore, 40 Pa. 151. 'Wintercast v. Smith, 4 Rawle 177. "McGrath v. Penna. Ins. Co., 8 Phila. 113; Fry's E«it., 2 W. N. C. 662. " Koenig's Ap., 57 Pa. 352. "Hettrick v. Hettrick, 55 Pa. 290. "Hein's Est., 22 Supr. C. 31. " Haddock v. Haddock, 201 U. S. 562 ; Comth. v. AUport, 10 D. R. 659. "Comth. V. Stevens, lo D. R. 652; Comth. v. McCracken, 25 C. C. 512. "Comth. V. Sperling, 11 Kulp 193; l C. R. A. 1830; MuUinix v. MuUinix, 16 D. R. 977, vol. I. P & L., cols. 7203-4-S-6. "» Alles V. Lyon, 216 Pa. 604; Hilt v. Hilt, No. 94, April i, 1912, Supr. C. 100 EQUITY PRACTICE IN PENNSYLVANIA. A final decision in one county is a bar to a suit for the same cause in another county." The record of a divorce suit on the ground of desertion is conclusive as to desertion, but does not affect the legitimacy of a child born after desertion." The settlement of a pauper who is divorced is in the township where her husband then resided," but a married woman may gain a settlement of her own after divorce a mensa et thoro." She may sue her late husband for arrears in Quarter Sessions." The record in a divorce suit is not conclusive evidence in crim. con. suit." 76. Agreements to separate. References have been made in this chapter to agreements to live apart. It was long since said that Chancery will not lend itself to the execution of such agreements.' But when made and executed they are valid and binding upon the parties both in law and in equity.' If based on a good consideration and reasonable terms each may relinquish his or her statutory rights to curtesy or dower and having executed the deed they are each bound to it as the law of the case." And the stipulations will be enforced." Subsequent correspondence with and visitation of the wife by the husband do not vitiate the deed." A subsequent divorce between the parties does not necessarily affect the agreement, if they do not revoke it, nor is it a bar to divorce." Where the support is to. run for the wife's life the husband's death does not terminate it.' Where the agreement is only for the wife's support and there is no relinquishment, she may still come in on her husband's personal estate;' nor does the husband lose the right on his wife's estate by merely living apart by agree- ment.' Having agreed to make monthly payments to his wife for her support and that of the children and carried it out for twelve years he cannot then rescind." If the payments are to be made from coal royalties each month, the deficiency of one month must be made up out of another month's royalties. Where the parties resume marital relations again it is equivalent to annulling the agreement." "Kershaw v. Kershaw, 5 D. R. 551. "Kleinert v. Ehlers, 38 Pa. 439. ''Lake Dist. Overseers v. South Canaan Overseers, 87 Pa. 19. "" Williamsport v. Eldred Twp., 84 Pa. 429. " Comth. V. Foltz, 33 April T., 1912, Supr. C. •"Ehrhart v. Bear, 15 Oct. T., 1911, Supr. C. ' McKennan v. Phillips, 6 Wharton 571 ; Smith v. Knowles, 2 Grant 413. *Lehr v. Beaver, 8 W. & S. 102; Hutton v. Hutton, 3 Pa. 100; Dil- linger's Ap., 35 Pa. 357 ; Speidel's Ap., 107 Pa. 18 ; Agnew's Ap., 12 Atl. 160; Comth. V. Richards, 131 Pa. 209; Rodenbaugh v. Rodenbaugh, 17 Supr. C. 619; Niblock's Est., 27 C. C. 193. ' Scott's Est., 147 Pa. 102. * Biery v. Steckel, 194 Pa. 445 ; Frank's Est., 195 Pa. 26 ; 19 Supr. C. 396. "Hitner's Ap., 54 Pa. no. 'Blaker v. Cooper, 7 S. & R. 500; McGrath v. Penna. Etc. Co., 8 Phila. 113; Eby v. Eby, 17 C. C. 269. ' Elmerdorf v. Whitney, 153 Pa. 460. * Boor's Est, 2 Lane. L. R. 51. "Charlton's Est., 3 W. N. C. 305. "Adams v. Adams, 32 Supr. C. 353. " Claxton v. Townsend, 13 Luz. L. R. 227. '^Batzle V. Trumbower, 22 Supr. C. 487. DIVORCE. loi Such reconciliation is a good defense to a set. fa. on a judgment entered under a bond given for the performance of the conditions." A deed of separation made freely on a good consideration is now valid and will bar the wife's dower interest in her husband's lands although it is not acknowledged separately as was required by act of Feb. 24, 1770, I Sm. L., 307." In a suit to enforce an agreement the husband may offer as a setoff an independent claim arising from a parol extemporaneous agreement with his wife." Where a hus- band deeded to a trustee one-half of his estate, to have, hold, possess and enjoy, for her separate use, it conveyed only a life estate," and after her death reverted to him and his heirs. Contractual cove- nants are to be enforced against any other covenant." Mutual separa- tion does not invest the wife with the right to sue her husband in an action at law." An agreement to separate when properly made and executed is valid at law and in equity." " Tappan v. Tappan, 8 Lack. Jur. 243. "Kaiser's Est, 199 Pa. 269, reversing 14 Supr. C. 155. "Everson v. Fry, 72 Pa. 326. "Osterstock v. Sigman, 4 Penny. 302. " Shimp V. Gray, 41 Supr. C. 542. "' Bear v. Bear's Exs., 4 Berks Co. 164, " Singer's Est., 233 Pa. 55. CHAPTER IV. COKPORATIONS— INTKODUCTOEY. 1. Blackstone's Division. 5- Corporations as persons— Due 2. The civil law. process of law. 3. Dissolution. 6. Power of congress to incor- 4. Vested Rights. porate. 1. Blackstone's division. Corporations are divided by Blackstone as follows: As to form, aggregate and sole; aS to object, (a) for profit and (b) elemosynary or charitable. "Corporations aggregate consist of many persons united together into one society and are kept up by a perpetual succession of members so as to continue forever." (Book i, p. 483.) "Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had." Their creation is by virtue of a sovereign act of legislature and their term, rights and duties exist and are determined solely by the act of their creation and subject to the supreme power in the state. 2. Civil law. By the civil law, which in many respects, accords more with the spirit of our laws, than the English system does, no corporation was created or allowed, except upon the express condition and with the limitation that it would do nothing in opposition to the laws of the state. And this is implied in every charter of incorporation granted in the United States. The debates of the Federal Constitutional Convention indicate that the power to create corporations was withheld from Congress. There is no contract on the part of the state, except the implied one, that the state will protect the corporation in its legal existence as such, when acting within the scope of its lawful authority, and not adversely to the public weal. (See infra., E. D., par. 12.) 3. Dissolution of a corporation. Dissolution of a corporation is wrought in four ways, of which the last is thus stated by Blackstone: "By forfeiture of its charter, through negligence or abuse of its franchises; in which case the law judges that the body politic has broken the condition upon which it was incorporated, and thereupon the incorporation is void. And the regular course is to bring an information in nature of a writ of quo warranto, to inquire by what warrant the members now exercise their corporate power, having forfeited it by such and such proceedings." (Book i, p. 488, Bl. Com. Lewis Ed.) CORPORATIONS. 103 4. Doctrine of "vested rights." Vested rights there are none, as against the people in a republic. Only where the divine right of kings is recognized can such a doctrine thrive. By the very declaration in our constitution, the people can at all times amend or abolish their system of govern- ment and establish a new system. Rights granted by the state are wholly relative and subject to the general welfare. The only absolute rights are those reserved to the individual. 5. Corporations as "persons" — "due process of law." That corporations are "persons" within the constitutional protection of "due process of law," admits of no doubt.' But their rights are no more sacred than those of natural persons, and no less subject to the police power. That they represent great wealth is no greater shield than the humblest citizen possesses in the constitution. But "the owners may not be deprived of it by the arbitrary enactment of any legislature, state or nation, without any right of appeal to the courts." ' 6. Power of congress to incorporate. It is said the Federal Constitutional Convention voted down a proposition to empower Congress to grant charters of incorporation. But by act of Feb. 5, 1791, Ch. 34, a bank was incorporated. This was undertaken and defended by General Hamilton, under the im- plied power and as necessary to the exercise of other express powers of the government for these reasons:' "i. The augmentation of the active and productive capital of the country; by making gold and silver the basis of a paper circulation ; 2, affording gteater facility to the government, in procuring pecuniary aids; especially in sudden emergencies ; 3, the facility of the payment of taxes in two ways, by loaning to the citizen and enabling him to be punctual; and by in- creasing the quantity of circulating medium, and quickening circula- tion by bank bills, easily transmitted from place to place." * County V. R. Co., 118 U. S. 394: Pembina Mining Co. v. Penna., 125 U. S. 181; R. Co. v. Beckwith, 129 U. S. 26; Turnpike Co. v. Sanderson, 164 U. S. 521. 'R. Co. V. Tompkins, 176 U. S. 172. 'McCulloch V. Maryland, 4 Wheaton 332, CHAPTER V. EMINENT DOMAIN— AGENCY OF ITS EXEKCISE— PUBLIC USES— PUBUC NECESSITY. I. Definition. 20. Lease. 2. On what its exercise depends. 21. Surveyed line. 3. Distinctions. 22. Limited by constitution. 4. Extent of power. 23. Conditions precedent. 5. Inalienable. 24- Strict construction. 6. Legislation. 25- State's power not to be 7. Objects of creation. abridged. 8. Doctrine of U. S. Supreme 26. Public uses illustrated. Court. 27. Electric Railways. 9. Private use, not allowable. 28. Gas companies. 10. Legislature judge of use. 29. Water companies. u. Condition precedent. 30. Pipe lines. 12. Agency, not delegation. 31- Mills. 13. Public use for private gain. 32. Logging booms. 14. Mandamus to compel per- 33. Irrigation. formance of functions. 34. Municipality. 15. Restriction of exercise, by 35- Special uses. courts. 36. Foreign corporation. 16. Municipalities confined to 37. Not transferrable. charters. 38. Fruition of use. 17. Examples of use. 39- Limitation. 18. Railroad purposes. 40. Loss of privilege. 19. Incidental power. 1. Definition— origiii— civil liberty. Eminent domain is the inherent inalienable right of the sovereign people, in their political capacity, to take private property for a public use, with or without the consent of the owner, upon just com- pensation and by due process of law.^ The basis of this power is the fundamental idea of the original proprietorship of all the soil, by all the people.' Its origin may be traced to the common law as expressed by Blackstone (Com. Vol. i, p. 48) : "The community should guard the rights of each individual member, and (in return for this protection) each individual should submit to the laws of the community." Again (p. 125) : "But every man who enters so- ciety, gives up a part of his natural liberty, as the price of so 'See Bridge Co. v. Dix, 6 Howard (47 U. S.), 529-36; Bonaparte v. R. Co. I Baldwin C. C. 205; Baring v. Erdman, 14 (Pa.) Hazard Reg. 129; Garrison v. City, 88 U. S. 196 (21 Wall.), and U. S. v. Jones, 109 U. S. J13. 'Gilmer v. Lime Pomt, 18 Cal. 229; Lamb v. Schottler, 54 Cal. 319; Boom Co. V. Boom Co., 32 Wash. 586; Justice Daniel in Bridge Co. v. Dix, 6 Howard (47 U. S.) 533. ' 104 EMINENT DOMAIN. 105 valuable a purchase; and, in consideration of receiving the advan- tages of mutual commerce, obliges himself to conform to those laws, which the community has thought fit to establish." * * * "Political, therefore, or civil liberty, which is that of a member of society, is no other than natural liberty so far restrained (and no farther) as is necessary and expedient for the general advantage of the public." In our constitution this phrase is used: "the general welfare." It must be for a public purpose, "either mediately or immediately" of benefit to the public' 2. Exercise depends on what. The exercise of this power depends solely upon the public exigency and purpose for the general welfare; and it makes no difference whether the property to be affected is corporeal or incorporeal, such as a franchise.* 3. Distinguished from police power. It is a different power from the police power and that of taxation, which is a constitutional impost upon the individual or his property as a just share of his burthen in the support of the common govern- ment. It always implies just compensation for the property taken.' However, where in its exercise, property is taken by the state or a municipality, the question of benefits for the improvement to the abutting property enters into the proceedings for adjustment of values and the levying of assessments upon the property abutting, on the theory of special benefits, is a power similar and yet distinct.' It has been said that a negligent exercise of police power cannot be shielded under cover of eminent domain.'^ 4. Extent of power — agency of exercise. Herr Grotius says in Book 3, Ch. 20, Sec. 7 : "The state, or he who acts for it, may use or even alienate or destroy such property, not only in cases of extreme necessity, in which even private persons who have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way." ' Says Lowrie, C. J.: "It is not of grace, but of right, that society exercises such functions. It is not of grace, but of duty, that indi- vidual rights yield to social ones." 'Lance's Ap., 55 Pa. 16; Rittenhouse v. Creasy, 12 Luz. L. R. 14; Mc- Master v. Comth., 3 Watts. 292 and Mack v. R. Co., 10 D. R. (Pa.) 102; Jacobs v. Clearview Water Supply Co., 220 Pa. 388, citing Deemer v. R. Co., 212 Pa. 491. * Woodbury J. in Bridge Co. v. Dix, 6 Howard 527. "Washington Ave., 6g Pa. 352; see Bierly on Police Power, State and Federal. •R. Co. V. County, 16 Wallace 667 (83 U. S.). 'Huidekoper v. Meadville, 83 Pa. 156; Beaumont v. Wilkes- Barre, 142 Pa. 198; City V. Black, 132 Pa. 568; Church's Ap., 165 Pa. 47s; City v. Jackson, 172 Pa. 86; Cowley v. Spokane, 99 Fed. R. 840; Emery v. Gas Co., 28 Cal. 346; Walsh v. Mathews, 29 Cal. 123; Chambers v. Satterlee, 40 Cal. 497; Banaz v. Smith, 133 Cal. 102. '* Betham v. Phila., 196 Pa. 302. " See Patten v. R. Co., 33 Pa. 426. io6 EQUITY PRACTICE IN PENNSYLVANIA. It IS a power not absolutely and irrevocably delegated by the state, which merely appoints the manner of its exercise by the agencies it selects, generally or specially." No restriction in the exercise of this right by a state, is laid upon it by the United States." It must be expressly conferred by the legislature," or by necessary im- plication." 5. Power inalienable — ^license revocable. It is inalienable. The legislature cannot divest the state of it, nor is the contract clause of the U. S. Constitution invocable against it." Nor will a special act of the legislature vest a right so that a general act may not operate." Thayer, J., in Twenty-second Street, said, tacitly combatting Dart- mouth College v. Woodward, 4 Wheaton, 418: "A contract is property. Its obligation is not impaired, but it is recognized when compensation is provided for its infringement," which was approved by the Supreme Court. The licensee necessarily takes such license subject to the right of the state to revoke it whenever the public good requires it." But where a municipal corporation grants a water company a right by contract to furnish water, it is incompetent, to put in water works of its own, pending the contract." Any property may be condemned that is deemed necessary by the sovereignty for its own use, but no more and not for other pur- poses." The only constitutional limitation is that just compensation be made to the owner. The United States may exercise this power within its territories, a state or several states," and the consent of a state is not a condition precedent." But it is confined to its own proper use, and may not be exercised for another."" It may limit the appropriation and take only a part ;" or take a site for a public build- ing, conditioned upon relinquishment by the state."* The primal as well as the ultimate title to the land being in the state, it has the right of eminent domain, from which it never parts," and when it takes the land, it takes the fee." When it delegates the • Wier V. R. Co., 18 Minn. 155-63 ; Bonaparte v. R. Co., i Baldwin C. C. 205. "Comth. V. R. Co., 62 Pa. 286; Bridge Co. v. Dix, 47 U. S. 507 (6 Howard 529). ° Lance's Ap., 55 Pa. 16; Phillips v. R. Co., 78 Pa. 177; Bank v. Shoen- berger, iii Pa. 95. "Telegraph Co. v. R. Co., 123 Fed. R. 33. "Bridge Co. v. Dix, 47 U. S. 507; Boyd v. Alabama, 94 U. S. 645; Stone V. Mississippi, loi U. S. 814; R. Co. v. New York, 176 U. S. 335. "Twenty-second Street, 102 Pa. 108. " Branson v. City, 47 Pa. 329. "Water Company v. Boro, 200 Pa. 453. "Darlington v. U. S., 82 Pa. 382; Kohl v. U. S. 91 U. S. 367 (i Otto). "U. S. V. R. & N. Co., 16 Fed. R. 524; League Island, l Brewster 524; People V. Folsom, 5 Cal. 373; Backus v. Depot Co., 169 U. S. 557. "Grant v. U. S., i C. of C. 41; Mfg. Co. v. U. S. (112 U. S. 64s). "Kohl V, U. S. 91 U. S. 367. "U. S. V. Gettysburg R. Co., 160 U. S. 668. " Ex Parte, U. S. 24 Pitts. L. J. 105. " Gilmer v. Lime Point, 18 Cal. 229. °*Delosier v. Canal Co., 11 Atlantic R. 400. See Penna. cases infra. "canals." EMINENT DOMAIN. . 107 power generally to a municipality, it does not surrender its right to control it, as to establish a grade." The control need not remain with the local authorities." 6. Legislation— public use — railways. To call this right into activity, it requires legislation," and its exercise will be strictly limited to the language of the statute.^' The use must be a public one." The legislature may not confer it for a private use, even upon compensation.^ The only ground, on which the right may be invoked for a rail- way or other highway is public use; nor does taking tolls make it a private use.°' If the right of a railway company to use eminent domain is chal- lenged in a bill in equity, under the act of 1871, P. L. 1360, the burden of proving the use to be private is upon the complainant.*^ Justice Davis, in the People vs. New York Central & H. R. R. R. Co. (28 Hunter, 543), thus discussed the right of the state, through her attorney general, to compel the corporate creature to exercise its useful functions: "As bodies corporate, their ownership may be and usually is alto- gether private, belonging wholly to the holders of their capital stock, and their management may be vested in such officers or agents as the stockholders and directors under the provisions of law, may appoint. In this sense they are to be regarded as trading or private corpora- tions, having in view the profit or advantages of the corporators. But these conditions are in no just sense, in conflict with their obli- gations to the public." 7. Objects of creation of railways. "The objects of their creation are from their very nature, largely different from those of ordinary private and trading corporations. Railroads are, in every essential quality, public highways, created for public use, but permitted to be owned, controlled and managed by private persons. But for this quality the railroads of the respon- dents could not lawfully exist." Their construction depended upon the exercise of the right of eminent domain, which belongs to the state, in its corporate capacity alone and cannot be conferred except upon a 'public use.' " "The state has no power to grant the right of eminent domain to any corporation or person for any other than a public use. Every attempt to go beyond that is void by the constitution; and although the legislature may determine what is a necessary public use, it cannot " Brand v. County, 38 Ore. 79. "Lancey v. County, 15 Wash. 9. "U. S. V. Raners, 70 Fed. R. 748; Tacoma v. State, 4 Wash. 64. " Goddard v. R. Co., 202 111. 362. ^R. Co.'s Ap., 79 Pa. 257; Secombe v. R. Co., 90 U. S. 108. (23 Wallace.) "Lumber Co. v. Morris, 33 Wash. 490. "Sharpless v. Mayor, 21 Pa. 147; Lance's Ap., SS Pa. 16; Olcott v. Supervisors, 16 Wallace (83 U. S.) 678; Bloodgood v. R. Co., 18 Wendell (N. Y.) 9. Deemer v. R. Co., 212 Pa. 491. io8 EQUITY PRACTICE IN PENNSYLVANIA. by any sort of enactment divest of that character any portion of the right of eminent domain which it may confer." 8. Doctrine of U. S. Supreme Court. The U. S. Supreme Court in Olcott v. The Supervisors (i6 Wallace, 678) enforced the same doctrine, saying "that railroads, though constructed by private corporations and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early the question arose whether a state's right of eminent domain could be exercised by a private corporation, created for the purpose of constructing a railroad. Clearly it could not, unless taking land for such a purpose by such an agency, is taking land for public use." 9. Eight not for private use by a private corporation. "The right of eminent domain nowhere justifies taking property for private use. Yet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean, if not that building a railroad, though it be built by a private corporation, is an act done for a public use? And the reason why the use has always been held a public one is that such a road is a highway, whether made by the government itself, or by the agency of corporate bodies, or even by individuals, when they obtain their power to construct it, from legis- lative grant." "Whether the use of a railroad is a public or a private one, depends in no measure upon the question who constructed or who owns it. It has never been considered a matter of any importance that the road was built by the agency of a private corporation. No matter who is the agent the function performed is that of the state. Though the ownership is private, the function is public. * * * The owners may be private companies, but they are com- pellable to permit the public to use their works, in the manner in which such works can be used." The uses and purposes were thus stated by the court in New Jersey, in Messenger v. The Penna. R. R. Co. (36 N. J., 407, 7 Vroom) : "Although in the hands of a private corporation, they are still sover- eign franchises, and must be used and treated as such; they must be held in trust for the general good." 10. legislature the judge of a public use. The legislature is in general the judge of the public use and ex- pediency of putting this power into action, in any case, where the use is public in its nature." But where the constitution vests the power in the courts, the ultimate determination is for them." ^Pittsburgh v. Scott, i Pa. 309; Smedley v. Irwin, 51 Pa. 445. "Constitution of Louisiana, Appl. of R. Co., 66 N. Y. 407; R. Co. v. Faribault, 23 Minn. 167 ; Powers' Ap., 29 Mich. 504 ; Company v. Johnson, 3 Ore. 205; Company v. Garbade, 32 Ore. 582; Company v. Morris, 33 Wash. 490; Talbot v. Hudson, 16 Gray (Mass.) 417. EMINENT DOMAIN. 109 A public use has been held to be what concerns the whole public rather than an individual,'" and it must be more than an incidental utility°° and must not only be of advantage to the public," but under its control de jure." It must satisfy a reasonable public demand" and necessity for it must appear to be imperative." The use of lands for streets in an incorporated town is an undoubted public use." So is an irrigation system;*" or a lateral railroad." The necessity for this use is more a political than a judicial question, of which the legislature is the judge." The mode of exercising it is also in the discretion of the legisla- ture, unless the organic law provides a limitation." 11. Condition precedent. Compensation, or proper provision of a constitutional mode of ascertaining and making it, is a condition precedent to its exercise." But, it has been held that a law which makes no provision may be validated by one that does." 12. Agency not delegation. Delegation of power which is inseparable from sovereignty, seems like a contradiction of terms. What is meant by delegation or in- vestiture, is that the power is exercised by the agency created by the law, not as a private indivfdual but as a servant of the law. Hence no contractual relation exists between the state and its agency. It is strictly a legal obligation arising from the law creating it, as to the manner of its exercise, whether the servitor be an individual, an association, a corporation or a combination of any or all, in a so- called trust." However, it is proper to note that a different view has been fostered. Because the peerless Webster once wept for his alma mater, in the Dartmouth College case," and the illustrious Chief Justice sympathized "Gilmer v. Lime Point, 18 Cal. 229; ig Gal. 47; Nash v. Clark, 27 Utah 158; U. S. v. R. & N. Co., 16 Fed. R. 524. "Warehouse Co., 96 N. Y. 42; Weidenfeld v. R. Co., 48 Fed. 615. " Seeley v. Sebastian, 4 Ore. 25. "Gaylord v. Dist., 204 111. 576; Company v. Johnson, 30 Ore. 205. ■* Stewart v. R. Co., 65 Minn. 515. "Gooley C. J., in Ryerson v. Brown, 35 Mich. 333. "Santa Anna v. Harlin, 99 Cal. 538; Robins v. R. Co., 31 Pitts. L. J. 181. "Irrigating Dist. v. Brandon, 103 Cal. 384. "Harvey v. Lloyd, 3 Pa. 331. "R. Go. V. Moss, 23 Cal. 324; Sherman v. Buick, 32 Cal. 241; Smedley V. Irwin, 51 Pa. 445. * Secombe v. R. Co., 23 Wallace 109. * McClinton v. R. Co., 66 Pa. 404. "Bonaparte v. R. Co., i Baldwin C. C. 205. "Lamb v. Schottler, 54 Cal. 319; Moran v. Farley, 21 Pac. 549; Moran T. Ross, 79 Cal. 159; Pool V. Simmons, 134 Cal. 621. See Sec. 1238, Code Civ. Pro., of Calif. Under the act of 1849, P. L. 75, a right of way is obtained only for railroad uses, and a railroad company cannot grant to a private telephone company the right to erect poles, etc., upon it. The owner may maintain trespass against the telephone company. (Pittock v. Tel. Co., 31 Supr. C. 589.) "Dartmouth College v. Woodward, 4 Wheaton 418. See Wagner v- Phila., 132 Pa. 612, limiting that case to irrevocable charters. 110 EQUITY PRACTICE IN PENNSYLVANIA. with the Federalist board of trustees, a sentence of spurious law was injected into our jurisprudence, which is at variance with its spirit, and has tended to raise the corporate servant above its master. The false doctrine of that decision created a precedent in conflict with the Bill of Rights and the unwritten law of the republic aS' well, the slavish following of which has formed a sentimental shield for multifarious encroachments upon the general welfare of the people and an armor of defense for every corporate monopoly and private trust, as against common right. 13. Public use for private gain — use in another state. Thus the complex situation arises of a public use being employed for private gain.™ And the doctrine has been carried so far, that a corporation has been held to be armed with the rights and immunities "of a citizen, so that its power granted by one state might be carried into another state, whenever permitted by the constitution and laws of the state, whose police protection it must have." 14. Mandamus to compel performance of public uses. A corporate agent, so invested with an agency of the state, may by it be compelled in mandamus proceedings, to discharge the duties for which it was created, and the functions with which it was armed. Justice Davis, in the N. Y. Central case quoted above, said: "The writ of mandamus has been awarded to compel a railroad company to operate its road as one continuous line. (Union Pacific v. Hall, 91 U. S. 343) ; to compel the running of passenger trains to the terminus of the road. State v. R. R. Co., 29 Conn. 538) ; to compel a company to make fences and cattle guards. (People v. R. R. Co., 76 N. Y. 294) ; to build a bridge, (70 N. Y. 569) ; to construct its road across streams so as not to interfere with navigation, (9 Richardson 247) ; to run daily trains (i P. & B. 667) ; to deliver grain at a particular elevator, (56 111. 365) ; completion of its road, (17 Am. Law Register, 266) ; the grading of its track so as to make crossings convenient and useful, (58 N. Y. 152; 12 Hunter 195; 37 Ind. 489) ; the re-establish- ment of an abandoned station, (37 Conn. 154) ; replacement of its track taken up in violation of its charter, (Rex v. Severn & Wye Ry. Co., 2 Barn & Aid. 646) ; to prevent abandonment of a road once completed, (Talcott v. Pine Grove, i Flippin 145) ; to compel a company to exercise its franchise, (24 N. Y. 261). These are all express or implied obligations arising from the charters of the railroad companies, but not more so than the duty to carry freight and passengers. That duty is indeed the ultima ratio of their exist- ence, the great and sole public good for the attainment and accom- plishment of which all the other powers and duties are given or imposed." 15. Eestriction of exercise, by the courts. In Palairet's Ap., 67 Pa., 479, Judge Sharswood, declaring the act of 1869 for confiscation of ground rents, unconstitutional, thus limited the power of the state: "It is contended that the property of the appellants has been taken in the exercise by the commonwealth, of ™Secombe v. R. Co., go U. S. (23 Wallacs) 108; Wier v. R. Co., 18 Minn. 155. " Gray v. R. Co., 81 Mo. 126. EMINENT DOMAIN. in her right of eminent domain, which she may exercise herself or confer upon corporations or individuals. * * * No doubt the right of eminent domain, being for the safety and advantage of the public, overrides all rights of private property. But for what public use has this estate of the appellants been taken and applied? * * * But if this is the kind of public use for which a man's property can be taken, there is practically no limit whatever to the legislative power. It would result that whenever the legislature deem it ex- pedient to transfer one man's property to another upon a valuation, they can effect their object. * * * It is not necessary to define what is a public use — it is quite sufficient to say that the object as set forth in the preamble of this act is not a public use, within the right of eminent domain." t6. municipalities confined to their charters. Municipal corporations are given, by the constitution and laws, the use of this power with respect to their highways, alleys, parks and other improvements necessary and useful for the enjoyment of life in the same. But such grant is strictly confined to the act of the legislature defining the mode of exercise and enumerating the purposes. Liberal power is usually given in the charter. But no right by implication is granted a municipality to part with its regula- tive power over a public highway to a steam railway company.'' But the legislature may authorize it directly.* It must be conferred by law.' The mere authorization to make public improvements, such as streets, alleys, etc., has been held insufficient to confer it.' But in California, Sec. 1238 of Code expressly confers it for roads, streets and alleys in general terms and this has been held to carry it to a city by implication.* 17. Examples of conferrence on municipalities. The following are instances of such conferrences to municipalities: For public and private roads;' but a township of the second class in Pennsylvania has not been invested with the privilege.* A turnpike company has.' It may be invoked at the instance of private persons under legislative authority.' "R. Co. v. Richmond, 96 U. S. 521. ' R. Co., 6 Wharton 25. 'Warner v. Gunnison, 2 Colo. 430; Dallas v. Hallock, 44 Ore., 246; Penna. R.'s Case, 213 Pa. 373. 'Tacoma v. State, 4 Wash. 64. In Illinois it is implied. R. Co. v. Cicero, 154 111. 656. *San Francisco v. Kiernan, 98 Cal. 614. Same as to canals and water- works. Santa Cruz v. Enright, 95 Cal. 105. 'Bouvier v. Phila. 24 Leg. Int. 340; Pocapson Road, 16 Pa. 15; Davis V. Smith, 130 Mass. 113. ' Wagner v. Township, 132 Pa. 636 ; Shoe v. Providence, 3 Supr. C. 138 ; Richards v. Twp., 10 D. R. 274. As to townships of the first class see acts of 1899, P. L. 104, 1901 ; P. L. 294 and 298, see infra. 'Turnpike Road, 20 Supr. C. 173. 'Waddell's Ap., 84 Pa. 90 declared unconstitutional the act of June 13, 1874, as to private ways to mines. 112 EQUITY PRACTICE IN PENNSYLVANIA. 18. Conferrence for railroad purposes. Railroad corporations are by their charters, or under general laws, given the privilege of eminent domain, to enter upon and take as much land as is necessary for their tracks, depots, yards and other purposes, necessary to ingress, egress and the proper use and enjoy- ment of the license by the state," but not to any other corporation for the same use or for a private purpose." Upon the question as to whether it is a public or a private use, raised under the act of June 19, 1871, P. L. 1360, a railroad company chartered under the act of April 4, i868, P. L. 62, which shows an intention to complete and operate the road will not be enjoined."* 19. Incidental power. Incidental power necessary to exercise the main power will be im- plied, as, e. g. the taking of land necessary for the abutments of a bridge;" and a pumping station for a water company;'^ or land for the widening of a railroad j*" or for necessary side tracks." It is confined to the public use of the grounds, within the legislative declaration and the privilege does not extend to the private con- venience of the taker;"* nor does it take a spring within the right of way, though there be coal underneath.'"* 20. Lease — consolidation — sale. The power of eminent domain does not pass with a lease of the railroad company, unless the law expressly provides for it." The company is merely the quasi agent of the legislature, restricted by the law. Where a constitution permits consolidation of railroad companies, the power follows such consolidation, however." A transfer of fran- chises cannot be made without authority for it in the charter." Under the constitution of Pennsylvania, the consolidation of parallel com- peting lines is prohibited and this article is binding and self-executing, without any legislation." But where the legislature authorizes a sale the exercise of this power follows the purchase." "Phila. Etc. R. Co. v. Williams, 54 Pa. 103; Cleveland Etc. R. Co. v. Speer, 56 Pa. 325 ; Cumberland V. R. Co. v. McLanahan, 59 Pa. 23 ; Lodge V. Phila. Co., 8 Phila. 345. " Phila. Etc. R. Co.'s Pet., 203 Pa.- 354. "a Vinton Colliery Co. v. R. Co., 226 Pa. 131. " Linton v. Bridge Co., i Grant 414. " Keller v. Water Co., 161 Pa. 422. " Hespenheide's Ap., 4 Penny. 71. "Lauderbrun v. Duffy, 2 Pa. 3^; Pittsburgh v. R. Co., 48 Pa. 355; Cleveland Etc. R. Co. v. Speer, 56 Pa. 325; Black v. R. Co., 58 Pa. 249; Getz Ap., 10 W. N. C. 453; Lewis v. R. Co., 16 Phila. 608; Waddell's Ap., 84 Pa. 30; Rudolph v. R. Co., 166 Pa. 430; Coal Co. v. Coal Co., 24 C .C. 104. " Phila. Etc. R. Co. v. Williams, 54 Pa. 103. "aDilts v. Plumville R. Co., 222 Pa. 516. "Mayor v. R. Co., 109 Mass. 103. " N. C, V. R. Co., 83 N. C. 489; Tel. Co. v. R. Co., 23 Utah 474. " Canal Co. v. Bonham, g W. & S. 27. "Comth V. South Penn. R. Co., i C. C. 214; Penna. R. Co. v. Duncan, 129 Pa. 121; III Pa. 352; 132 U. S. 75. "R. Co. V. Lunstrum, 16 Neb. 254. EMINENT DOMAIN. 113 21. Line surveyed but not adopted. Where a railroad company had surveyed a route and the map was returned to the offices but not adopted by the board, there was no such title acquired as would prevent another railroad company from legally appropriating land for its roadway, even though owned by plaintiff."' 22. Privilege limited by the constitution. Use of power by other corporations, or by individuals for public purposes, is governed by constitutional definition alone. If the consti- tution permits the passage of a special law or a general law applicable to all alike, there can be no good reason why a private corporation, an association, a partnership, or an individual, may not be the agent of the state for these purposes.*" 23. Conditions precedent to use. General or specific laws (except where prohibited by the state con- stitution as in Pennsylvania) may be employed to define the time and manner of the use of such power. If there be conditions precedent fixed in the legislative act, these must be followed ;°° such as where the parties must first meet and endeavor to agree upon the price of the property." 24. Strict construction — no doubtful rights exist. Statutes will be construed strictly against the grantees and liberally in favor of the public, not so as to defeat the public use, intended, but to hold the power free from abuse, nor may they be carried beyond the plain purpose, by implication. "A doubtful right under a charter does not exist. Whatever is doubtful is against the right." " To restrain the abuse of this power, the state, on relation of a private individual, who shows his interest, or on complaint of the attorney general, can invoke the machinery of the law. (See Con. of 1874.) 25. Constitutional provision, self-executory. Section 3 of Article 16, constitution of Pennsylvania, provides: "The exercise of the right of eminent domain shall never be abridged or so construed as to prevent the general assembly from taking the property and franchises of incorporated companies, and subject- ing them to public use, the same as the property of individuals; and the exercise of the police power of the state shall never be abridged or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the state." The foregoing is a most remarkable command from the people to those who construe laws, charters and constitutions, and was born of the vice of that time — a corporation pass-ridden state, as evi- '"Williamsport Etc. R. Co. v. Phila. Etc. R. Co., 141 Pa. 407. '"Bridge Co. v. Dix, 47 U. S. 507 (6 Howard) ; Crittenden v. Wilson, 5 Cowan (N. Y.) 165. "" Canal Co. v. R. Co., 16 N. J. Eq. 419. " R. Co.'s Case, 7 Phila. 461 ; act Mar. 17, 1869. See other acts infra. "Pittsburgh Etc. R. Co. v. Bruce, 102 Pa. 23 and cases cited; Comth. v. R. Co., 27 Pa. 339; Mayor v. R. Co., 26 Pa., 355; Woods v. Gas Co., 304 Pa. 606; Tel. Co. v. R. Co., 123 Fed. R. 33- Vol. 4 Practice — 8 114 EQUITY PRACTICE IN PENNSYLVANIA. denced by this restrictive section in Article 17: "No railroad, rail- way or transportation company shall grant free passes, or passes at a discount, to any person except officers or employees of the company." When this was inserted, it could not be conceived by any virtuous mind that any officer of the state or servant of the people would ever become transformed into either of the classes named : "officers or em- ployees of the company !" Other features of the constitution of 1874 are still further restric- tive of corporate powers and self-executing, except where plainly exigent, by the terms of the instrument itself, depending upon legis- lation for its enforcement. This was decided in Duncan v. R. Co., Ill Pa. 352, in an exhaustive opinion, the railroad end of the bench dissenting, but the U. S. Supreme Court affirmed it in a concise opin- ion in R. Co. V. Miller, 132 U. S. 75, reported in 129 Pa. 121." 26. Public uses illustrated. The state legislatures have declared many enterprises invested with public uses. The chief ones are here enumerated: Railroads, canals, ferries and telegraphs and telephones;" but neither telegraph nor telephone companies have the right of eminent domain in Pennsylvania, over private lands or property under the act of 1874, P. L. 92.^ But in some states it is otherwise,'" and in the U. S. see act of Congress, 1866, p. 221 Statutes.*" Lateral rail- roads;*^ turnouts and sidings;"" branch railroad to iron works;" branch to factory;" but a private owner of coal mines lying on both sides of a river, is not entitled under act June 13, 1874. 27. Electric railways and light companies. Electric railways are affected with a public use; but under act of 1889, P. L. 21.1, the corporation may not use a public road when the abutting owner objects. However, under act of 1889, P. L. 136, a ™ I C. C. 214; Tampa Water Works v. Tampa, 199 U. S. 241. "Comth. V. Fisher, i P. & W. 462; Tel. Co. v. Oshkosh, 62 Wis. 32; Tel. Co. V. Keesey, 5 D. R. 366. "Pfoutz V. Tel. Co., 27 C. C. 609; Tel. Co. v. Hoover, 24 Supr. C. 96; affirmed 209 Pa. 555. =°Tel. Co. V. R. Co., 114 Fed. R. 787; Tel. Co. v.' Irwin, 49 Fed. R. 113; Lockhart v. R. Co., 139 Pa. 419; as to electric street railways, and see act of June i, 1907, P. L. 368, infra. " But this act gives a telegraph company no privilege to enter upon the right of way of a railroad company. (Western Union T. Co. v. Penna. R. Co., 195 U. S. 540, 594. See 123 Fed. 33.) "Harvey v. Thomas, 10 Watts 63; Harvey v. Lloyd, 3 Pa. 331; Shoen- berger v. MulhoUan, 8 Pa. 134; Hays v. Risher, 32 Pa. 169; Boyd v. Negley, 40 Pa. 377 ; Brown v. Corey, 43 Pa. 495 ; Pittsburg v. R. Co., 48 Pa. 355 ; Ice Co. v. R. C, 15 Phila. 48. " Phila. Etc. R. Co. v. Williams, 54 Pa. 103 ; Slocum's Ap., 12 W. N. C. 84 (contra as to private corporations, Edgewood R. Co.'s Ap., 79 Pa. 257- " Dobson v. R. Co., 6 Montg. Co. 109. "'Rudolph V. R. Co., 166 Pa. 430. '"Waddell's Ap., 84 Pa. 90. "' Penna. R. Co. v. R. Co., 167 Pa. 62 ; Barker v. Steel Co., 129 Pa. 551 ; Elec. Co. V. Simon, 20 Ore. 60. EMINENT DOMAIN. 115 bond was allowed to be filed for compensation;" and see acts of 1907 infra. Eminent domain will not shield an electric company, when it com- mits a nuisance."^ Under the act of June 2, 1887, P. L. 310, an electric company could not take private lands."'' The act of June i, 1907, P. L. 368, applies to a street railway company and it must comply with its requisites."" 28. Gas companies. Gas companies by act of 1885, P. L. 29, may lay pipes in streets, which a city cannot restrain, but may regulate." Natural gas com- panies have the power, under act of 1885;™ and this covers foreign or trans-state companies which have been granted permission to do business in Pennsylvania." After laying pipes they may be with- drawn, but subject to payment of damages caused to the owner of land, thereby." An injunction will lie to restrain the laying of a pipe line, where the law is not observed." 29. Water companies. Water companies also have the power, though an incorporated one, it has been decided, cannot, under the act of 1874, P. L. 73, take the spring and stream of an unincorporated one, although it might take its works." If for a private use, however, the privilege may not be conferred," and where the community is sparsely settled the use has been declared a private one." The fact that toll is levied for the use of the water does not make it private." The right of a riparian owner may be taken for a public use ;" and so a railway company chartered under the acts of Feb. 19, 1849, P. L. 79, or April 9, 1856, P. L. 288, cannot enjoin the taking of a stream by a water company." The damages of a lower riparian owner of a water course are limited in proportion to the quantity of water taken by a municipality." One condemnation by a water company does not exhaust its priv- ilege which is limited only by necessity.™ It has no exclusive privilege, "Zanziger v. E. L. Co., 6 D. R. 577. "^•Ganster v. Electric Co., 214 Pa. 628. "b Middle Creek Elec. Co. v. Hughes, 34 C. C. 270. " be taken." In Pennsylvania, under the act of 1889, P. L. 226, a water company may not take the rights of a canal company."* However, it has been held that a railway company may not, by purchase, acquire a ■water right and then claim that it is exempt from seizure under eminent domain by a water company invested with the power." A water company chartered March 16, 1854, cannot be compelled to move its pipes by a city to give way to a sewer, without compensa- tion." "Comth. V. Canal Co., 66 Pa. 41 and cases cited; R. Co. v. R. Co., 54 U. S. 71; Turnpike Co. v. R. Co., 35 Md. 224; Lock Haven Bridge Co. v. Clinton County, 157 Pa. 379, under bridge act of Penna., 1876, p. 1. 131 and 1878 p. 1. 41. "'Packer v. R. Co., 19 Pa. 211. "' Reading v. Davis, 153 Pa. 360. '° Bridge Co. v. County, 157 Pa. 379. ""a Jackson v. Pittsburg, 36 Supr. C. 274; Brine v. Insurance Co., 96 U. S. 627. "^ R. Co. V. R. Co., 121 Mass. 125. '"R. Co.'s Case, 31 N. J. L. 205 (2 Vroom). '' Pound V. Turck, 95 U. S. 459, and cases cited ; Barney v. Keokuk, 94 U. S. 324; Davidson v. R. Co., 57 Mass. 91. ''Pine v. New York, 112 Fed. R. 918. '"Water Co. v. Canal Co., 4 D. R. 637. " P. & R. R. Co. V. Water Co., 182 Pa. 418. "Water Co. v. Scranton, 11 D. R. 671. EMINENT DOMAIN. 127 20. Private waters— rule of relative rights. As to non-navigable streams, a different rule applies from that laid down for navigable waters." Diminishing the volume of a stream entitles the riparian owner to compensation." The relative rights of the higher and lower owner, in case of obstruction to surface water, under the rule of the civil law are cogently stated by Lowrie, J., in Martin v. Riddle, 26 Pa. 415.'° A water company may take a spring or stream, but only after hav- ing made or secured compensation." An incorporated water com- pany may take the works, etc., of a private water company, but not the spring and stream which are the source of supply. The owner of a spring below high-water mark is entitled to com- pensation.*' A dam and water power on a small stream may be taken;" also wharves by compensation."" In dispute as to water rights, it has been held that the power is not limited by topography as to water sheds, etc." There is no right to condemn a private way over or under a navi- gable stream," but a public road may be laid out, even between low and high water mark," and other improvements such as piers and embankments, if necessary," or a railroad, under it." 21. Riparian rights. When a water right is taken under eminent domain, the right of the owner as a riparian ceases." The owner may not use the land for private purposes, though it does not interfere with the public use. The spring of an owner in fee may not be diverted by the drain of a railroad company.^' A water right cannot be claimed by prescription when lost by non-user;" nor for a different use than that for which taken." 22. Assessment of damages for water rights. The act of 1874, P. L. 93, amended 1887, P. L. 310, contemplates one taking and assessment for a stream ;" and the measure of damages to a water power is the actual depreciation in value to the owner or ^Whitaker v. Canal Co., 87 Pa. 34; Poor v. McClure, ^^ Pa. 214. "Penna. R. Co. v. Miller, 112 Pa. 34. ^ See also Hays v, Hinkleman, 68 Pa. 324. °'Lord v. Water Co., Meadville, 135 Pa. 122; Scheep v. Reading, 2 Woodward 460; Borough's Case, 21 C. C. 89. ^ Water Co. v. Water Co., 7 C. C. 476. "L. V. R. Co. v. Trone, 28 Pa. 206. " Barclay R. Co. v. Ingham, 36 Pa. 194. "R. Co. v. Renwick, 102 U. S. 180; Walnut St. Bridge, 191 Pa. 153. " C. & N. Co. V. Water Co., 6 D. R. 291. " Coal Co. V. Waddell, 8 Leg. Gaz. n. " Balliet v. Comth., 17 Pa. 509. '" R. Co. V. Renwick, 102 U. S. 180. "Kerr v. R. Co., 127 N. Y. 269. "Finn v. Water Co., 99 Pa. 631. See State v. Supr. C, 31 Wash. 445. "Reading v. Davis, 153 Pa. 360. " Road Co. V. Braden, 172 Pa. 460. "Jessup V. Loucks, 55 Pa. 350. " Pittsburg Etc. Co. v. Bruce, 102 Pa. 23. ■"Miller v. Water Co., 148 Pa. 429; Bowers v. Water Co., 162 Pa. g. 128 EQUITY PRACTICE IN PENNSYLVANIA. purchaser." The location and use are important factors.'" And where a house is taken with the land its value and not the cost of removal is the measure.* The manner in which water is taken from a creek which furnishes power to a mill is an element for the jury to consider.™ Conse- quential damages to the residue as well as the value of that which is taken, may be awarded." 23. Diversion of water. Where a stream was diverted from a farm on which there was ore, but undeveloped, the measure of damage was the difference be- tween the values before and after the taking, regardless of the prob- able use to the owner for washing ore." 24. Compensation for water rights. All water rights are subject to compensation if taken or impaired." Among those entitled are the owner of a dam;" the riparian owner on a non-navigable stream, to its centre" and for the right of access ;" also the owner of a wharf or dock f or of flats on tide- water." 25. Quantity — ^necessity — ^width of railroad. All the property necessary to the public use may be taken," but not all need be taken at once, or in a direct line, leaving something to the reasonable judgment of the taker when done in good faith;' but subject to the viewers and court as to the necessity.' Where more than necessary is taken the whole proceeding is vitiated, un- less the owner consents.'' In the case of a roalroad right of way the act of 1846, P. L. 319, fixes the width at sixty-six feet for a general route in Pennsylvania." Where a railroad took land thirty years '"Lee V. Water Co., 176 Pa. 223; Finn v. Water Co., 99 Pa. 631. *" Miller v. Water Co., 148 Pa. 429 ; Bowers v. Water Co., 162 Pa. 9. "Finn v. Water Co., 99 Pa. 631. ™ Lewis V. Water Co., 176 Pa. 230. " Finn v. Water Co., 99 Pa. 631. "'Water Co. v. Iron Co., 84 Pa. 279. "' Belting Co. v. Boston, 152 Mass. 307 ; Reservoir Co. v. Fall River, 154 Mass. 30s ; Fleming's Ap., 65 Pa. 444 ; U. S. v. Alexander, 148 U. S. 186 ; Fredericks v. Canal Co., 148 Pa. 317; Doremus v. Patterson, 63 N. J. Eq. 60s. ■^Comth. V. Canal Co., 66 Pa. 41. =" Hecksher v. Wa,ter Co., 2 Leg. Chron. 273 ; Water Power Co. v. Canal Co., 142 U. S. 254. ™ Scranton v. Wheeler, 179 'U. S. 141 ; Gibson v. U. S., 166 U. S. 269. "Lewis v. Portland, 25 Ore. 133; Walnut St. Bridge, 191 Pa. 153. •^ Gunter v. Geary, i Cal. 462. " Cleveland Etc. R. Co. v. Speer, 56 Pa. 325. ' Hays V. Risher, 32 Pa. 169 ; Lodge v. R. Co., 8 Phila. 345 ; Phila. Etc. R. Co. V. Williams, 54 Pa. 103; Sharon Etc. R. Co.'s Ap., 122 Pa. 511; Pittsburg Etc. R. Co. v. Peet, 152 Pa. 488; Phila. v. Ward, 174 Pa. 45. 'Brown v. Peterson, 40 Pa. 373; see R. Co. v. R. Co., 8 Fed. R. 858. ^ State V. R. Co., 46 N. J. L. 289 (17 Vr.) ; Embury v. Connor, 3 N. Y. Sii- ° Robinson v R. Co., 161 Pa. 561. EMINENT DOMAIN. 129 ago and occupied twenty-six feet, it will be confined to that width by injunction, unless it gives compensation or security for the ad- ditional strip. (Leidich v. R. Co., 215 Pa. 342.) A canal com- pany is also restricted to land needed for public purposes." The statute governs.'^ "Jones V. Tatham, 20 Pa. 398; Harris v. R. Co., 9 Atl. 174. •a Cumberland V. R. Co. v. McLanahan, 59 Pa. 23; Bank v. Shoen- berger, iii Pa. 95. Vol. 4 Practice — 9 CHAPTER VII. EMINENT DOMAIN— WHAT CONSTITUTES A TAKING— EX- EMPTION OF DWELLINGS, ETC.— COMPENSATION, RIGHT OF INDIVIDUALS AND COR- POEATIONS. 1. What is a taking. 24. Streets, etc. 2. Appropriation by the legislature.zs. Particular injuries. 3. When the right attaches to the26. Remedy against gas company. land. 27. Abutting owner, rights of. 4. Divestiture by giving bond. 28. Adjacent owner, rights of. 5. Municipality need give no bond. 29. Corporation, right of. 6. Vacation of proceedings. 30. Railroad right of way. 7. Township roads. 31. Street servitudes. 8. Equity power over location. 32. Sidewalks. 9. Change of route. 33. Change of grade. 10. Underlying coal. 34. Abutter's right. 11. Water supply. 35. Servitude defined. 12. .Exemption of dwelling, etc. 36. Street railways. 13. Width of road. 37. Public roads. 14. Evidence pf ancient documents.38. Pipe lines. 15. Right of possession. 39. Discharge of water on premises. 16. Right of pipe line. 40. Riparian right. 17. Abandonment and reversion. 41. Title by prescription. 18. Revocation of charter. 42. Limitation does not apply. 19. Limitation of improvement. 43. How title may be acquired. 20. Compensation, definition. 44. Reason of the law. 21. Annexation to city. 45. Discordant note, overruled. 22. Consequential damages. 46. Revision of the court. 23. Taking by municipality. 1. What is a taking. A taking of property does not necessarily mean a disseisin, for it may be done by sacrifice, as by flooding, or placing accretions thereon, or isolation, so as to impair or destroy its value to the owner.' It has been decided that an act is void if it imposes a burden of main- taining a fish way, without compensation." Dispossession of any part of a franchise is a taking pro tanto.' 'East Penna. R. Co. v. Schollenberger, 54 Pa. 144; Pumpelly v. Co., 80 U S. 166, 13 Wallace; R. Co. v. Church, 108 U. S. 317; U. S. v. Lynah. 188 U S. 44S; Pearsall v. Co., 74 Mich. 588; Brinton v. Comth., 178 Mass, 199. ' Comth. V. Canal Co., 66 Pa 41- ^„ 'Trust Co. V. R. Co., S3 Fed. R. 687. 130 EMINENT DOMAIN. 131 2. Taking by the legislature — dominion. The legislature may appropriate property by law,* but the intention must clearly appear." The taking by a railroad company is not com- plete until the final adoption of the route.' But any act which exer- cises dominion oyer the property is a taking.' Building an arch over a water course is not a taking of it;' but discharging sewage upon land or into a private stream is;* so also is a diversion of water.'" If by a sewer, a well is drained dry, although it be not on the land affected by the taking, it will be a taking of the water." So the re- moval of lateral support is a taking;" or obstructions on a street pre- venting enjoyment of an easement." 3. When right attaches — evidence of title. Whenever the line has been surveyed, marked on the ground, and adopted by the corporate authorities, the right, under eminent do- main, attaches so as to exclude others from taking it." The adoption by the board of directors, of the line as surveyed, constitutes an ap- propriation of the land;" and this fixes the right of the owner to compensation." If the company partly constructs the road a subse- quent lessee is not entitled to damages." One who relies upon title by eminent domain must show that all the requisites of condemnation have been complied with, before he can offer it in evidence." In California, a bona fide purchaser of land, without notice of proceedings for condemnation, at the time of purchase, is not affected unless notice of lis pendens has been filed." But this does not apply in Pennsylvania. *Smedley v. Erwin, 51 Pa- 445; Phila. v. Lennard, 97 Pa. 242; Chestnut St., 118 Pa. 593. " School Dist. V. Seminary, 12 Atl. 857 ; Brown v. Phila., 142 Pa. 350. •Franklin St., 14 Supr. C. 403; Kaufman v. R. Co., 210 Pa. 441. ' Strasburg v. Bachman, 21 W. N. C. 462. ' Jeannette v. Eschalier, 7 D. R. 268. 'Good v. Altoona, 162 Pa. 493; Peterson v. Santa Rosa, 119 Cal. 387. "Heilman v. Canal Co., 50 Pa. 268; Canal Co. v. Stump, 81* 255; Leiby V. Water Co., 205 Pa. 634; but see DeBaker v. R. Co., 106 Cal. 257 and Green v. State, 73 Cal. 29, where it was remote. " Trowbridge v. Brookline, 144 Mass. 1391 ^ Cabot V. Kingman, 166 Mass. 403 ; Costigan v. R. Co., 54 N. J. L. 233. "Shepherd v. R. Co., 130 U. S. 426; Cumberland V. R. Co. v. Rhoad- armer, 107 Pa. 214; Gibson v. Bridge Co., 192 Pa. 55; Jones v. R. Co., 151 Pa. 30 ; Transfer Co. v. Seattle, 27 Wash. 520. "Titusville Etc. R. Co. v. R. Co., 2 Sch. L. R. 253; Warren Etc. R. Co. v. Land Co., 54 Pa. 28 ; New Brighton Etc. R. Co. v. R. Co., 105 Pa. 13 ; Williamsport Etc. R. Co v. R Co., 141 Pa. 407; Kaufman v. R. Co., 210 Pa. 440; Dilts v. Plumville R. Co., 222 Pa. 516. " Pittsburg Etc. R. Co. v. Comth., loi Pa. 192 ; Jones v. R. Co., 144 Pa. 639; Johnson v. Gallery, 173 Pa. 129. " Bate V. R. Co., i Montg. Co. 47. "Davis V. R. Co., 114 Pa. 308; as to leased land, see Heise v. R. Co., 62 Pa 67. "Jones V. Tatham, 20 Pa. 398. " Bensley v. Water Co., 13 Cal. 307. 132 EQUITY PRACTICE IN PENNSYLVANIA. 4. Divestiture by giving bond. When the bond is filed and approved by the court, the title of the owner is divested and the right of possession passes to the taker."* The owner then has his remedy on the bond; nor may the taker plead abandonment, or discontinuance, to escape damages;" nor a former agreement and discontinuance.'" He will not be allowed to take advantage of his violation of a plain contract." It is usual to provide in the bond that it shall cover all the damages, even if in excess, of the amount therein named. (See form infra.) By the act of May 22, 1895, P. L. no, it is provided: "That in all cases in which any railroad or canal company is or shall be required to give security to the owners of lands through which any railroad or canal may pass or be located, any one of the judges of the Court of Common Pleas having jurisdiction in respect to the approval of such security, shall have the power at any time during vacation, or when such court shall not be in session, to receive the application and approve the bond and the security offered, and direct such bond to be filed in the said court for the benefit of the parties entitled to receive the damages: Provided, That not less than ten days' notice shall first be given to the owners of such land, or to their known agent or attorney, of the time and place when and where such bond and security will be offered to the judge and the names of the sureties to be offered." Upon approval of the bond the corporation may take possession by force if necessary."^ An injunction will not lie to restrain it."*" When damages are found by a jury, their payment into court has the same effect as the filing of a bond."^ But there can be no right of entry without compensation or security therefor as provided by law," except by a municipal corporation which is not required to give security. The act of May 14, 1889, P. L. 211, as to street railways, vests title on payment into court, notwithstanding an appeal be taken. Section 14 was held constitutional;" also the act of 1901, P. L. 514." No appeal lies from an order approving a bond." 5. municipality need not give bond. A municipality need not give bond or tender compensation,' the "Fries v. R. Co., 85 Pa. 73; Scott v. Cent. V. R. Co., 33 Supr. C. 574; Fischer v. R Co., 175 Pa. SS4; Katharine v. Water Co., 32 Supr. C. 94; Comth. v. Shaffer, 32 Supr. C. 375. '''Hoffman's Ap., 118 Pa. 512; Williamsport Etc. R. Co. v. R. Co., 141 Pa. 407 ; Wadhams v. R. Co., 42 Pa. 303. =" Wood V. State Hospital, 164 Pa. 159; Dilts v. Plumville R. Co., 222 Pa. 516; Penna. R. Co.'s Case, 33 C. C. 251. "Fischer v. R. Co., 175 Pa. 554. " Semple v. R. Co., 172 Pa. 369. "^a. Comth. v. Shaffer, 32 Supr. C. 375; Scott v. R. Co., 33 Supr. C. 574. "■b Dyer v. R. Co., 28 Montg. Co. 18. " Schuler v. R. Co., 3 Wharton 555. " Sec. 8, Art. 16, Con. Penna. Colgan v. R. Co., 3 Pitta. 394, 19 Pitts. L. J. 152. " Road Co. V. R. Co., 177 Pa. 585. " Comth. V. R. Co., 203 Pa. 608. " Blandburg Water Co.'s Condn., 233 Pa. 230. 'County's Ap., 119 Pa. 159; R. Co. v. New York, 176 U. S. 33s; Cherry V. Co., 2S Ore. 487. EMINENT DOMAIN. • 133 power of taxation being ample security.' But where the constitution requires prepayment, municipalities are not excepted.' It is then a condition precedent to the taking,* and payment must be made in lawful money.° If the verdict be in dollars and cents the court can- not enter judgment for gold coin," Prepayment may be waived by ac- quiescence.' It has been held in California that the tender of security is sufficient.' In the case of a city, it is held, also, that the tender of its warrants is sufficient,' and a tender to the owner's attorney is a tender to the owner." The land of a railroad company may be taken for a street."^' 6. Vacation of proceedings. Where the law fixes the time within which payment must be made, after final judgment, failure to comply entitles the owner to have the proceedings vacated." 7. Township roads — allowance. The opening of a township road in Pennsylvania, except in town- ships of the first class, is a proceeding in which eminent domain does not enter, and no damages are awarded under the constitution of 1874." The original proprietors, as well as the commonwealth, gave every grantee of land six per cent, for roads and highways, which he holds in trust for the benefit of the public, until the road or high- way is required, said Burnside, J., in Harvey v. Lloyd, 3 Pa. 330. Under the State Highway law it has been held that a county has no right of eminent domain and an appeal does not lie from the Court of Quarter Sessions to the Common Pleas in such road cases."* Un- der the act of June i, 1907, P. L. 308, the consent of a municipality having been given to a railroad company, the consent of a private owner is not requisite."** 8. Equity will not interfere with location, when. A court of equity will not interfere with the location of a road, un- less it be shown to be made in capricious or wantom violation of a right." Otherwise the location is discretionary with the corpora- 'Keene v. Bristol, 26 Pa. 46; Bromley v. Phila., 8 C. C. 600; Lancaster Etc. Turnpike Case, 26 Lane. L. R. 6; Manheim Bore's Case, 229 Pa. 177. 'Steinhart v. Co., 137 Cal. 575; Martin v Tyler, 4 N. D. 278; Askani V. Co., 9 Wash. I. See act 1893, P. L. 158 as to water works. *Bensley v. Water Co., 13 Cal. 307; Gillan v. Hutchinson, 16 Cal. 153; Fanning v Giililand, 7 Ore. 369. ° R. Co. V. Schweikart, 10 Colo. 178. •R. Co. V. Reynolds, 50 Cal. 280. 'Kaufman v. R. Co., 11 Wash. 632. ' Vilhac v R. Co., 53 Cal. 208. ' Gaston v. Portland, 41 Ore. 373. " R. Co. v. R. Co., 54 N. J. Eq. 142. "* Penna. R. Co. v Edgewood Boro, 220 Pa, 45. " County V. Johnston, 129 Cal. 404. "Wagner v. Twp., 132 Pa. 636. "a Prager v. Armstrong County, 48 Supr. C. 140. "b Dyer v. R Co., 28 Montg. Co. 18. "Ahspach v. R. Co., 5 Phila. 491; Davis v. Southwest Etc. Lines, 34 Supr. C. 438. 134 • EQUITY PRACTICE IN PENNSYLVANIA. tion." A city has a right to locate a street across the tracks of a railroad though numerous and near a terminal." An injunction against a water company will not be made permanent where it files a bond subsequent to its issuance and the bond is approved."* 9. Change of route. Having once located a route, it may be changed before the damages are assessed and the road is opened. But when the damages are as- sessed the right of the landowner thereto is fixed." In California the code permits relocation." It is otherwise if the charter provides for no damages." A change or route after award will not cut out the landowner.™ 10. Effect of underlying coal. The right of way is not affected by the rights of subsequent lessees of the underlying coal." As to subjacent minerals see Par. lo Ch. VI., supra. The coal under a state canal goes with the fee.'"' 11. Eailroad taking water supply. When a railroad company takes water from a stream which it crosses, it is not by virtue of its power of eminent domain, but as a riparian owner, and it must have due regard for the co-equal rights of other riparian owners.''' The owner of a water right when con- demnation proceedings commenced is the one entitled to damages.'" For late legislation, giving power to railroad companies to take water, see act 1905, P. L. 264. 12. Exemption of dwelling house, etcj — Does not apply to widening, etc. Under Sec. 10, act of 1849, P- L- 79; no railroad shall pass "through any burying ground or place of public worship, or any dwelling house in the occupancy of the owner or owners thereof, without his, her or their consent." So the dwelling house with as much land as is necessary for its enjoyment must not be invaded. The courts have restricted this exemption to necessity and not mere convenience. The constitution of 1874 did not annul this provision."* An owner "Hays V. Risher, 32 Pa. 169; R. Co. v. Young, 33 Pa. 175; Turnpike Co. V. R. Co., S4 Pa. 34S; Cleveland Etc. R. Co. v. Speer, 56 Pa. 325; Struthers v R. Co., 87 Pa. 282 ; Hoffman v. R. Co., 143 Pa. 503. '' R. Co. v. Phila., 9 Phila. 563. "^ Bland v. Water Co., 222 Pa. 285. "Hagner v. R. Co., 154 Pa. 475. " Neal V. R. Co., 31 Pa. 19. "R. Co. V. Field, 67 Cal. 429. " Roberts v. R. Co., i Phila. 262. "•Beale v. R. Co., 86 Pa. 509. As to lateral roads see Lance's Ap., 55 Pa. 16; Boyd v. Negley, 53 Pa. 387. "Lawrence's Ap., 78 Pa. 365. " Coal Co. v. Price, 81 Pa. 156. ^Penna. R. Co. v. Miller, 112 Pa. 34. "Heilman v. Canal Co., 50 Pa. 268. ""Swift's Ap., Ill Pa. si6; Damon v. R. Co., 119 Pa. 287; Lyle v. R. Co., 131 Pa. 437; Milroy v. R. Co., 44 P. L. J. 377; Kelly v. R. Co., 7 Montg. Co. 29; Stahl v. R. Co., 155 Pa. 309; Rudolph v. R. Co., 166 Pa. 430; Wiegold v. R. Co., 208 Pa. 81. EMINENT DOMAIN. 133 who moved into one of several small houses, after location, was evicted." The act of March 17, 1869, P. L. 12, relating to the widen- ing, straightening and otherwise improving a railroad, contained no such exemptions,' and a graveyard was invaded by a railroad cor- poration."* Straightening refers to the roadbed and does not apply to a stream of water for the purpose of straightening it;""^ but to straighten a railroad line the land of a water corporation is not sacred and immune if the corporate entity is.'"'> To take a dwell- ing it may have a writ of assistance.^° Where the consent of a muni- cipality was not first obtained and a bill for an injunction was filed, on the obtaining of such consent, the bill will be dismissed.^'^ A petition for approval of a bond, under the act of 1869, is defective which does not set forth the purpose of the railroad corporation to "straighten, widen or otherwise improve." "^ The petition should state the facts fully, to give jurisdiction."' The act has been con- strued in the alternative and to mean either to widen or straighten and not to straighten by making it wider." And in so straightening the road it may depart from the arc line 2500 feet or more, and take a dwelling house in the base line."*^ This act applies to railroad com- panies which have been merged or consolidated."'' It also applies for the purpose of securing water tanks."'' However, a dwelling may not be taken for another purpose than above stated."* The privilege extends to a lessee of a corporation.^" but it does not cover the use of ground for a terminal, on which a house stands." Exemption of churches, etc. The act of April 25, 1907, P. L 122, provides: "That it shall be unlawful for the board of directors or controllers of any school district in this commonwealth, in behalf of the district, to enter upon and occupy, for the erection of schoolhouses thereon or any other purposes connected with the public schools of said dis- trict, by condemnation proceedings or otherwise, without the consent of the owner or owners, land or property owned by any church, re- "Hagner v. R. Co., 154 Pa. 475. "Marlor v. R. Co., 166 Fa. 524; Dryden v. R. Co., 208 Pa. 316. See Brockett v. R. Co., 14 Pa. 241 as to the Ohio & Penna. R., under act of 1848, P. L. 1849, p. 754. " New Brighton R. Case, 30 Pitts. L. J. 22. "a. Hoffman v. R. Co., 43 Supr. C. 19. ^'bScranton Gas & W. Co. v. R. Co., 8 Lack. Jur. 161. "<= Pitts. Etc. R. Co. V. Guth, 38 C. C. 583. "^ Chapman v. P. & R. T. Co., 224 Pa. 612. "e Wilson v. R. Co., 34 Supr. C. 575; Phila. Etc. R. Co.'s Bond, 31 C. C. 340. "'Lehigh Coal Etc. Co.'s Ap., 10 Northam. 359. "Bierly v. P. & E. R. Co., 225 Pa. 182; Dryden v. R. Co., 208 Pa. 316, explained. *a Snyder v. R. Co., 210 Pa. 500; Bierly v. R. Co., 225 Pa. 182. "b Yeingst v. R. Co., 40 Supr. C. 106. "fe Wilson v. R. Co., 222 Pa. 541. "d Glaser v. R. Co., 208 Pa. 328. "Snyder v. R. Co., 210 Pa. 500. "O'Leary v. R. Co., 210 Pa. 522. 136 EQUITY PRACTICE IN PENNSYLVANIA. ligious society, college or other educational institution, which is in actual use by said church, religious society, college or educational institution, including all church houses, parsonages, rectories, and all similar buildings, with the grounds immediately adjacent thereto and within the curtilage of such buildings." The act of May lo, 1907, P. L. 196, exempts from seizure, etc.: Land and buildings used during the colonial or revolutionary period by the assembly, council, executive, etc. 13. Width of road — ^presumption of location. When the charter fixes the width of the road and there is no evi- dence of a contrary intention, it will be presumed that the full width was condemned ;"" except where it was laid upon a public street by consent of a city;" or where it was shown that a fence delimited the strip for , forty years." If the true lines can be shown with certainty, acquiescence in other boundaries will not affect them." Enjoyment of an easement for twenty-one years raises a conclusive presumption of a location.* Under the act of February 19, 1849, P. L. 83, infra, the width of a railroad right of way is sixty feet; * but where embankments must be cut, more width is allowed."'' 14. Evidence — ancient map,. An ancient map of a location of a canal on file in the proper de- partment at the State Capitol, which is over sixty years old, is com- petent evidence of the extent of the appropriation by the state." 15. Right to possession. Upon approval of the bond, the right to possession of the land condemned passes into the taker exclusively." If actually taken, the land cannot be released to the owner without his consent."* The owner of the fee may not negligently allow his cattle to stray upon the right of way.'' For the land so taken the railroad com- pany may maintain ejectment," or may enter forcibly and take pos- session of the land."^ Equity will relieve for a right to access. It was suggested by Mitchell, J., that a (R. Co.) had more than an easement, a sort of "base fee," to be ended when the use ceases; but the correct view is that of Trunkey, J., in Hasson v. R. Co., 8 Phila. S56 — ^viz. : That it is an exclusive easement for the public purpose created by law, terminable when that purpose ceases. •" Jones v. R. Co., 144 Pa. 629; Marshall v. Penna. Co., 44 Supr. C. 68. °° Jones v. R. Co., 169 Pa. 333. " P. & R. R. Co. v. Obert, 109 Pa. 193 ; R. Co.'s Case, 13 Atl. 214. '"Canal Co. v. Dunkle, loi Pa. 103; Fisher v. R. Co., 2 Atl. 878. "Zahn V. R. Co., 184 Pa. 66. "a Snee v. R. Co., 210 Pa. 480. ™»>Col. & E. R. Co. V. Baker, 34 C. C. 28; Curtis v. R. Co., 34 C. C. 52. " Smucker v. R. Co., 188 Pa. 40 ; Canal Co. v. Harris, loi Pa. 80. "P. & R. R. Co. V. Hummel, 44 Pa. 37s; Railroad v. Norton, 24 Pa. 46s ; Mulherrin v. R. Co., 81 Pa. 366 ; Junction R. Co. v. Phila., 88 Pa. 424. "a Penna. R. Co.'s Case, 33 C. C. 251. "• N. Y. & E. R. Co. V. Skinner, 19 Pa. 298. *" Pittsburg Etc. R. Co. v. Peet, 152 Pa. 488. "a Corath. V. Shaffer, 32 Supr. C. 375 ; Scott v. R. Co. 33 Supr. C. 574. EMINENT DOMAIN. 137 It may not be used for private purposes." But the former owner cannot recover rental, if rented by the taker pending proceedings." 16. Pipe line — subjacent support. A pipe line undeir acts of 1883 and May 29, 1885, acquires no con- trol of the surface, after the pipes are laid, except for reasonable repair." But a gas company having taken land, for a pipe line, is also entitled to subjacent support." For the relative rights of a coal company to mine its coal and a gas company to subjacent support see Westmoreland Coal Co. v. Versailles Gas Co., 2 Mona, 730; Penn Coal Co. V. Versailles Gas Co., 131 Pa., 522; McGregor v. Gas Co., 139 Pa., 230. For effect of release see Wallace v. Gas Co., 147 Pa., 205. 17. Abandonment and reversion — ^title to state canals. When the land is abandoned for the purposes for which it was taken, it reverts to the owner, unless a fee was taken." So of a school lot taken under act of april 9, 1867, P. L. 51, for shcool pur- poses." See also Art. VI, act May 18, 191 1, Sec. 603. When the state took land by agreement on condemnation for permanent use as a canal — it took a fee under acts of 1826, p. 1. 55, and 1827, p. 1. 192 — and the purchasers of these highways under the acts of 1857 and 1858 — also took a fee — with the condition that they be used as permanent highways."'' This purchase act provided that the canals should forever re- main a public highway and the fee is conditioned upon this public duty. Absolute title in property is vested in the commonwealth when by its power of E. D. it takes land for a canal, and there can be no joint occupancy with it.""* Where there is disuse for twenty years after use and diversion the owner of the fee may recover in ejectment." But in the case of mere delay in opening (unless the time limit in the charter has ex- pired), a lapse of twenty years is not equivalent to abandonment." 18. Bevocation of charter. In case the legislature revokes a charter and the road is put in charge of a trustee for the state the use continues and the land does not revert. The legislature has the power to revoke a franchise for violation of the charter and abuse of rights granted." "Lance's Ap., SS Pa- 16. "Ross v. R. Co., 4 Atl. 850. "McMillan v. Phila. Co., i Supr. C. 648. See Carothers v. Phila. Co., for privilege of blanket character conferred on the Phila. Company. "Davis V. Jeflferson Gas Co., 147 Pa. 130; Penn Coal Co. v. Versailles Gas Co., 131 Pa. 522. "Lance's Ap., 55 Pa. 350; Jessup v. Loucks, 55 Pa. 350; Pittsburg Etc. R. Co. v. Bruce, 102 Pa. 23; Crescent Twp. v. Pittsburgh Etc. R. Co., 210 Pa. 334- " Lazarus v. Morris, 212 Pa. 128. "aHaldeman v. R. Co., sq Pa. 425; Robinson v. R. Co., 72 Pa. 316; Coal Go. v. Price, 81 Pa. 156; Williamsport v. R. Co., 8 C. C. 350; Penna. Etc. R. Co. V. Billings, 94 Pa. 40. *»> Rochester Boro v. Kennedy, 229 Pa. 251. " Guss V. R. Co., I Chester Co. 363. "Pittsburgh Etc. R. Co. v. Peet, 152 Pa. 488; Hummel v. R. Co., 175 Pa. 537. "Erie Etc. R. Co. v. Casey, 26 Pa. 287, opinion by Black, J. 138 EQUITY PRACTICE IN PENNSYLVANIA. 19. Limitation of time to exercise privilege. Under the act of 1871, P. L. 231, the limitation fixed was five years, but this did not relate to failure to build in the first instance, but to disuse, decay and want of repair." 20. Compensation — definition and right to. Compensation is defined as full payment for the property taken or injured, or both." When property is taken by the United States, as, in consequence of military operations, compensation is implied.™ It is a necessary condition. Where a law fails to provide for com- pensation it is not necessarily void, for the constitution of 1874 gives the owner a remedy." Before this constitution, a common lav action did not lie for consequential damages; but now any substantial and proximate injury must be compensated."* It has been held that the owner of a stall in a public market house has no right to compen- sation, when the land is taken by a railroad company." And the destruction of property to prevent spread of fire is not an exercise of eminent domain, but police power." (See infra, "Assessment.") 21. Annexation to city. In the annexation of territory to a city, the increase of taxation incident, is not a taking of property to a public use, under the con- stitution." 22. Consequential damages. Before the constitution of 1873, damages against a railroad com- pany were not allowed for any injury due to the usual and necessary operation of the road, unless as provided by law." But Sec. 8 of Art. 16, Con., provides for all consequential dam- ages." Prior to this, injuries to business growing out of the land adjacent, were considered direct and compensation awarded." If it affects the natural easement of pure air, it is to be considered; but not for noise, soot, smoke and jarring, which are necessary incidents of operation of the road." The words "damaged" and "injured" cover property not strictly seized, but are broader." ^ Pittsburgh Etc. R. Co. v. R. Co., 159 Pa. 331. See act 1873, p. 1. 126. " Hays V. Briggs, 74 Pa. 373 ; 3 Pitts. 504 ; Water Works v. San Fran- cisco, 124 Fed. 574. '"U. S. V. Russell, 80 U. S. 623. "'Water Co. v. Brooklyn, 166 U. S. 68s; Nav. Co. v. U. S., 148 U. S. 312 ; McCauIey v. Weller, 12 Cal. 500. "Rees' Ap., 12 Atlantic 427. In California, the law is held otherwise. (McCann v. Co., 7 Cal. 121; McCauley v. Weller, 12 Cal. 500; Curran v. Shattuck, 24 Cal. 427; Jennings v. Leroy, 63 Cal. 397.) In Washington, see Co. V. Gordon, 20 Wash. 80. °° Chatham Street, 191 Pa. 604. " Strickland v. R. Co., 154 Pa. 348. " Surocco V. Geary, 3 Cal. 69. " Hewitt's Ap., 88 Pa. 55. " Struthers v. R. Co., 87 Pa. 282. " Pusey V. Allegheny, 98 Pa. 522 ; Cooper v. Scranton, 21 Supr. C. 17. "R. Co. V. Steiner, 44 Ga. 559; Western Penna. R. Co. v. Hill, 56 Pa. 460. " Cleveland Etc. R. Co. v. Speer, 56 Pa. 325 ; Philips v. R. Co., 184 Pa. 537; Penna. Co. v. R. Co., 151 Pa. 334. See contra Comstock v. R. Co., 169 Pa. 582 and Walker v. R. Co., 103 Mass. 10. "Edmundson v. R. Co., iii Pa. 316; Chicago v. Taylor, 125 U. S. i6i. EMINENT DOMAIN. 139 23. Compensation by municipalities. Generally the power of taxation is a sufficient security for compen- station when a municipality is the taker and the law provides for com- pensation.' The issuance of bonds based on the taxing power is sufficient,' or certificates of indebtedness." 24. Compensation for streets, etc. In some states compensation is required in opening streets and highways.* In Pennsylvania the doctrine of benefits is commingled with that of compensation, and as to township roads, except town- ships of the first-class, eminent domain does not apply, a distinction overlooked by some eminent law publicists." However, it is to be noted that the act of June 23, ,1911, providing for county boards of viewers, not less than three nor more than nine, ostensibly and by its title applicable to roads, streets and bridges, there is a "snake" in Section 5 which extends their duties to any appropriation of land by municipalities and of other corporations having the power of eminent domain — and providing for the appointment of three viewers for such purpose. 25. Particular injuries — elevated roads. It was held early that some particular injury to the complainant must be shown, before he is entitled to compensation.' Some of these are here mentioned: Injury to the residue for want of cross- ings;' division of a farm into parts;' cuts, embankments, etc.;' grad- ing of a street ;" danger from fire, real and not merely anticipatory ;" fencing made necessary;"' negligence in use of right.* But where an elevated railroad company erected its line on its own property, sepa- rated from plaintiff by a city street fifty-one feet wide, it was decided that there was no foundation for a claim for damages under the 8th Sec, Art. 21, of the Constitution." But it seems if an elevated railroad shuts off light and air from buildings, a different rule applies." 26. Remedy against gas company. A natural gas company permitted by a municipality to lay pipe under sidewalks, need not take proceedings to condemn, under Act ' Gilmer v. Lime Point, 18 Cal. 299 ; Long v. Fuller, 68 Pa. 170 ; Yost's Report, 17 Pa. 524; Bromley v. Phila., 8 C. C. 600; Spring Garden St., 7 Phila. 393 ; United States, 24 Pitts. L. J. 105 ; Valley Forge, 14 Montg. 129. 'See. V. Ramish, 138 Cal. 120; Hansen v. Hammer, 15 Wash. 315. ' State V. Brill, 58 Minn. 132. * Scott V. Dyer, 54 Cal. 430; Co. v. Hudson, 85 Cal. 633; Olsen v. Seattle, 30 Wash. 68,'. "Feree v. Meily, 3 Yeates, 153; Hallowell v. Road, i Am. L. J. 522; Wagner v. Twp., 132 Pa. 636. " Patten v. R. Co., 33 Pa. 426. ' East Penna. R. Co. v. Hiester, 40 Pa. 53. 'Tucker v. R. Co., 118 Mass. 546. • Pittsburgh Etc. R. Co. v. Rose, 74 Pa. 362. " Pusey V. Allegheny, 98 Pa. 522. " Wilmington Etc. R. Co. v. Stauffer, 60 Pa. 374. " Penna. Etc. R. Co. v. Bunnell, 81 Pa. 414. " Pittsburgh Etc. R. Co. v. Gilleland, 56 Pa. 445. "Dooner v. R. Co., 142 Pa. 36. "Hine v. El. R. Co., 149 N. Y. 154; State v. Court, 26 Wash. 278. 140 EQUITY PRACTICE IN PENNSYLVANIA. of May 29, 1885. The abutting owner who is injured directly or consequentially may sue in trespass, or on the bond if one there be." If a gas company insists upon the right of surface support, this right must be compensated for." But not otherwise." That the land was ripe for building improvements may be shown as an element." 27. Right of abutting owner. When a street has been irrevocably dedicated and the fee is in the public no damages can be recovered by the abutting owner, from the added servitude of a railroad. To this rule are some exceptions, Colorado, e. g.^ an abutting owner's easement is the subject of compensation."' And when the fee of the street is in the abutting owner an additional burthen is imposed by a railroad thereon, which is subject to compensation." In Pennsylvania the rule was otherwise until the Constitution of 1874.^" A railroad company is entiled to compensation for property taken by a city " same as a private owner. An abutting owner has no claim to compen- sation when he erected his building on a street or alley after the same was located." 28. Bight of adjacent owner. As a rule an adjacent owner cannot claim damages.*** But damages may be recovered by one whose property does not front on the street, where a crossing is so depressed on a side street as to destroy the owner's approach by carriage." 29. Bights of corporations — ^turnpikes. A corporation is entitled to compensation for its franchise;' unless the legislature has reserved the right to rescind the charter.' A turnpike company may recover compensation,' but the abutting owners may not enjoin the use of the turnpike by agreement with a street railway company.* In California, where turnpikes become free after the statutory period, there can be no compensation." " McDevitt V. Gas Co., 160 Pa. 367 ; Provost v. Water Co., 162 Pa. 275. "Davis V. Gas Co., 147 Pa. 130; Wallace v. Gas Co., 147 Pa. 205; Coal Co. v. Gas Co., 131 Pa. 522. "McGregor v. Gas Co., 139 Pa. 230. "Wilson V. Gas Co., 152 Pa. 566. "Denver v. Bayer, 7 Colo. 113. ""Bigelow v. Ballerino, iii Calif. 559; Dooley Block v. R. Co., 9 Utah 31. ^Peddicord v. R. Co., 34 Md. 463; Jones v. Keith, 37 Tex. 394. " Reading v. Althouse, 93 Pa. 400. "P. & R. R. Co. v. Phila., 47 Pa. 325; Penna. R. Co. v. Edgewood Boro, 220 Pa. 45. "Busch V. McKeesport, 166 Pa. 57. "aOgontz Ave., 225 Pa. 126. "Mellor V. Phila., 160 Pa. 614; Tucker and Frankford Streets, 166 Pa. 336. ' Nav. Co. V. U. S., 148 U. S. 312 ; Monongahela Water Co.'s Case, 223 Pa. 323. 'Erie Etc. R. Co. v. Casey, 26 Pa. 287. ' Road Co. V. Co., 196 Pa. 21 ; Hinnershitz v. Tr. Co., 206 Pa. 91. *Heilraan v. R. Co., 145 Pa. 23. ' McMullin v. Leitch, 83 Cal. 239. EMINENT DOMAIN. 141 30. Bailroads — grade crossings. One railroad company may not overlap and use the rails of another, without compensation.' It was held that under the Act of 1889, P. L. 211, a street railway might cross a steam railway at grade, but since, and following the Act of 1901, P. L. 531, as to crossing at grade, courts have enjoined such crossings, except where there was absolute necessity.* Where land is taken to es- tablish a grade crossing it is necessary to take all the steps as for highway extension.'^ 31. Street servitudes. A city may build sewers in the streets, without its being an ad- ditional servitude, involving compensation to abutting owners.' Nor is it liable for damages for an inadequate sewer." But under the Constitution of 1874, Sec. 8, Art. 16, an owner may claim damages for change of grade made necessary by a sewer." But a gas com- pany cannot take land over which there is an open street, with- out compensation, although authorized by ordinance to dig up the streets and lay its pipes." 32. Sidewalks. A municipality has the same control over sidewalks as carriage ways; for urban uses, without compensation to abutters." But when a change of grade of a street is made, involving special injuries to the property, damages may be . recovered ;" and also when the law provides for compensation." 33. Change of grade, etc. If the change of grade is made necessary by an excavation or embankment of a railroad, compensation follows, but a view to assess damages is not the mode." The closing of a street by a city is not ' Phila. v. R. Co., 2 W. N. C. 283. 'D. L. & W. R. Co. v. R. Co., 11 C. C. 165. 'Scranton Etc. Traction Co. v.. Canal Co., 180 Pa. 636; Pittsburg Etc. R. Co. v. Lawrence County, 198 Pa. i ; B. & O. R. Co. v. Butler Passr. R. Co., 207 Pa. 406; Penna. R. Co. v. Bogert, 209 Pa. 589; D. L. & W. R. Co. v, banville & Bloomsburg R. Co., 211 Pa. 591. (See attorney's briefs in latter case.) '^ Brinker v. Boro, 11 Northam. 267. 'Michener v. Phila., 118 Pa. 535; Huddlestone v. Eugene, 34 Ore. 343. The same is true as to street railways in cities and boroughs. Lockhart v. R. Co., 139 Pa. 413; but not as to township roads. Penna. R. Co. v. Pass. R. Co., 167 Pa. 62. " Bear v. AUentown, 148 Pa. 80. "Rudderow v. Phila., 166 Pa. 241. "Mallory v. Bradford, 2 Lack. Jurist 399. " McDevitt v. Gas Co., 160 Pa. 367 ; Provost v. Wa,ter Co., 162 Pa. 275. "Curran v. Boro, 20 Supr. C. 590. "New Brighton v. Piersol, 107 Pa. 280; Chatham St., 191 Pa. 604; Lloyd V. Phila. 17 Phila. 202; Reardon v. San Francisco, 66 Cal. 492; Eachus v. Los Angeles, 130 Cal. 492. But not so, where the law does not so provide. Aicher v. Denner, 10 Colo. 413 ; Brand v. Co., 38 Ore. 79. "Ryan v. R. Co., i C. C. 650; Quinn v. R. Co., 7 Lane. Bar. 197; Cumberland Valley R. Co. v. Rhoadarmer, 107 Pa. 214. 142 EQUITY PRACTICE IN PENNSYLVANIA. the subject of compensation." But if a railroad company occupies a street it must make compensation." The narrowing of a street is not of itself any injury." But widening it involves damages for the property taken." A railroad company is entitled to damages for locating a street upon its right of way." Where a street is not owned by the public any added servitude must be compensated for.^ 34. Abutter's right. If the abutter owns but an easement he is still entitled to com- pensation for an added servitude" or a private way." 35. Servitude defined. Any new use is a servitude/" but to entitle the owner to compen- sation he must be more than inconvenienced by it.'° A street rail- way in a city has been held to be not an additional servitude for which the abutter may recover damages."' In California it has been held that compensation is due where the abutter is owner of the fee.'" In Pennsylvania, to entitle an owner, it must be for taking, injuring or destroying." In Washington, if the property has been specially though lawfully damaged."* 36. Abutters on street railways. Abutting owners have no claim to compensation for the added servitude of a street railway," or telephone poles and wires," or natural gas pipes,"" or water pipes." 37. Abutters on public roads. Rural roads laid out under the state law are easements. The proprietorship of the soil remains in the abutting owners. So an "McGee's Ap., 114 Pa. 470; Bauer v. Andrews, 7 Phila. 359. But see Chicago v. Baker, 98 Fed. R. 830, as to special injury. " Phillips v. R. Co., 78 Pa. 177. ^ Brown v. San Francisco, 124 Cal. 274. "Barbadoes St., 8 Phila. 498; Girard Ave., 44 Leg. Int. 166. ""Keim v. Phila., 2 C. C. 149. " Porter v. R. Co., 18 Pac. R. 428. ^ Trust Co. v. Hennen, 90 Fed. R. 593; Iron Works v. R. Co., 26 Ore. 224; McQuaid v. R. Co., 18 Ore. 237. "U. S. V. Jamestown, 112 Fed. R. 622. '"Light Co. V. Hart, 13 C. C. 369. ^ Montgomery v. R. Co., 104 Cal. 186. "Rafferty v. Tr. Co., 147 Pa. 579; R. Co., 6 Wharton 25; R. Co. v. R. Co., IS C. C. 445; Maris v. R. Co., 10, Phila. 41; Faust v. R. Co., 3 Phila. 164. It does not matter what the motive power may be. Fox v. R. Co., 12 C. C. 180; Patterson v. Pittston, 8 Kulp 530; Tuebner v. R. Co., 66 Cal. 171 ; Comth. v. West Chester, 9 C. C. 542. " Carson v. R. Co., 35 Cal. 325 ; Weyl v. R. Co., 69 Cal. 202 ; Finch v. R. Co., 87 Cal. S97. "Penna. R. Co. v. Lippincott, 116 Pa. 472; Penna. E*-c. R. Co. v. Walsh, 124 Pa. 544. ■"Patton v. Lumber Co., 15 Wash. 210. "Lockhart v. St. R. Co., 139 Pa. 419; Rafferty v. Tr. Co., 147 Pa. 579- ""Tel. Co. V. Keesey, 5 D- R- 366. "McDevitt V. Gas Co., 160 Pa. 367. ^ Provost V. Water Co., 162 Pa. 275. EMINENT DOMAIN. 143 electric or other street railway may not be laid and operated thereon without compensation.'" An electric light company will be enjoined from placing poles along a country road, until it gives bond for damages."" It was at first contended that road supervisors might grant the use of the highways, without compensation to abutters," but this assumption was overturned by the Supreme Court, on be- half of the Penn. R. Co. against the Montgomery Co. Pass. R., a competitor for passenger business.'' It was held that the act of May 14, 1889, did not contemplate such long-distance competitive lines over rural roads, and a number of lower court cases were over- ruled." 38. Pipe lines — ^license by city. The same principle is applied to pipe lines laid by a gas com- pany," and a railroad company which proposes to lay a track on a turnpike to which releases of the right of way had been given." Where, under license of a city, a railroad company erected a bridge on its own land, an adjacent owner could recover damages only for injuries by exclusion of light and air from his dwelling, and not for depreciation of value. 39. Inclined plane— discharge of water. It was held, where an inclined plane was built on piers, across a street by a railroad company, where it owned the land, an ad- jacent owner could not recover for increasing difficulty of access, but he might be compensated for discharge of water against his building, by this structure." 40. Riparian rig^lits. A taking of property is not necessarily the exclusive manual control of it, for it may be of an incorporeal right, incapable of actual seizure. An upper riparian owner of water may take all the water by eminent" domain for a public use, by compensation to the one below who has acquired the right to use it. But if he takes it otherwise, he is answerable in trespass." 41. Title by prescription — statute of limitations. May a corporation, invested with the privilege of eminent domain, acquire title by prescription? It seems that it cannot. McClinton V. Railway Co. (66 Pa. 404), by Agnew, J., decided that when "Penna. R Co. v. Pass. R. Co., 167 Pa. 62; Thompson v. Tr. Co., i8r Pa. 131 (Heilman v. R. Co., 14S Pa. 23 seems contra— but decides nothing.) Road Co. v. Tel. Co., 18 Lane. 61 ; Kester v. Tel. Co., 108 Fed. R. 926. "Light Co. V. Hart, 13 C. C. 369; Hankey v. Phila., S Supr. C. 148. "Gillette V. R. Co., S Del. Co. 106. " 167 Pa. 62. "D. L. & W. R. Co. V. El. R. Co., i D. R. 626, overruled. "Sterling's Ap., in Pa. 35. " Mifflin V. R. Co., 16 Pa. 182. "Jones V. R. Co., 151 Pa. 30. "Hartmann v. I. P. Co., 159 Pa. 442. "Penna. R. Co. v. Miller, 112 Pa. 34; Lord v. Water Co., I35 Pa. 122; Clark V. R. Co., 145 Pa. 438; P. & R. R. Co. v. Pottsville Water Co., 18 C. C. 501 ; Wagner v. Water Co., 39 C. C. 337- 144 EQUITY PRACTICE IN PENNSYLVANIA. a railway company encroached upon lands of another it was an un- lawful entry and the doctrine of easement does not apply, and the statute of limitations does not run in favor of such entry. There cannot arise a presumption of grant, and. the owner may at any time present his petition for assessment of damages. Said the Justice: "It is obvious, therefore, that the statute of limitations is not ap- plicable to the petition, which does not determine, unless by con- sent of the parties, the former damages for intrusion, but compen- sation only for the future use; leaving the former damages to be settled in the common law form, according to Harrisburg v. Craugle (3 W. & S. 464). 42. Act of 1713. In D. L. & W. R. Co. v. Burson (61 Pa. 369), it was held that the act of 1713 did not apply where there were special statutory proceedings for damages, and in Hannum v. Boro, 63 Pa. 475, where the petition was for the assessment of damages for diversion of water, it was held by Sharswood, J., that an occupation or use is a continuing trespass, for which ejectment, trespass or case would lie, unaffected by the bar of the statute as far as the right is concerned Nothing but adverse possession or user for twenty-one years would bar the right of action itself. Thompson, C. J., and Williams, J., would not agree that the statute of limitations is a bar in any case of taking under the right of eminent domain. See Stauffer v. Boro, 64 Atl. 46. 43. How title can be acquired. A railroad corporation is armed with the privilege of eminent domain for the purpose of obtaining possession and title to land, where the owner will not consent to alien, and under Art. XVI, Sec. 8, of the Constitution of 1874, it cannot take adverse possession which will by lapse of time raise a presumption of a grant. The only manner in which it may acquire title is by complying with this article or by purchase or grant from the owner." 44. Reason of the law. In Covert v. R. Co., 204 Pa. 341, although the question was not directly up for decision, Justice Brown, having in mind the above and other authorities, reasoned thus: "The reason that adverse possession cannot be set up in such a case is, that the law pre- sumes, when a railroad company takes land for its corporate pur- poses, it does so under its high right of eminent domain, and not as a wilful trespasser whose trespass may grow into a title. Its enjoy- ment of the easement so acquired is upon the condition that proper compensation to the land owner will be made whenever demanded. The law regards such occupancy of the land as by its permission, on the condition stated, and not as the act of a mere trespasser to whom statutes of limitations may give rights." 45. Discordant note— overruled. The only discordant note to be found in our decisions is the opinion of Orlady, J., in Carter v. Turnpike Co., 22 Super. C. 162, "Phila. Etc. R. Co. v. Cooper, 105 Pa. 239; WheeHng Etc. R. Co. v. Warrell, 122 Pa. 613. EMINENT DOMAIN. 145 delivered a month later than the Supreme Court decision above cited. In this case, the argument of counsel for the corporation was almost wholly based upon authorities beyond this state, and the reasoning of the Judge in sustaining the right by prescription is based upon the analogy of a turnpike road to a public road, which fails in one important particular, viz. : That a public road is free to the entire public, whereas a turnpike is private property, to be used by the public only on payment of toll. The only Pennsylvania cases cited by counsel for the turnpike company to sustain pre- scriptive right are Overfield v. Christie, 7 S. & R. 173, and Wahl v. R. Co., 158 Pa. 257. The first is inapplicable, being only on the . question of estoppel, with no corporate right involved. The second case was also one of estoppel, by the knowledge and acts of the owner of the land and the statute of limitations or the doctrine of prescription was not mentioned in the case. The decision in Carter V. Turnpike Co. seems to be fulcrumed upon a mass of "encyclo- pedic law," ill-considered and at variance with Pennsylvania au- thorities and correct reasoning. That a turnpike company as a corporation, exercising the privilege of eminent domain, is exactly in the same position as a railway company cannot be doubted. A turnpike is no more nor less a highway than a railroad, and the corporation may take private property for public use only in the manner authorized by the constitution and laws in pursuance thereof. 46. The Superior Court revised. When Carter v. Turnpike Co., supra, came up for review in the Supreme Court (208 Pa. 565), the reason of the Superior Court for its decision is expressly discredited. Brown, J., saying: "We affirm the judgment of the Superior Court on the ground that the presumption of payment of the damages had not been overcome by the plaintiiiCs, and not for the reason given by that court, that the turnpike company had acquired title by adverse possession." The same learned judge who wrote the opinion said in Covert v. R. Co., 18 Supr. C. 541 : "It is well settled that a railroad company entering unlawfully is not absolved from the obligation to make compensation by reason of its possession for twenty-one years." On appeal, we approved this. Covert v. R. Co., 204 Pa. 341. "What is true of a railroad company, possessing the right of eminent domain is equally true of a turnpike company, enjoying the same right." A railroad company may enjoin another from entry upon its tracks, though such road claims title from adverse possession." Nor can an individual get title to the right of way of a rail- road which received a grant of it from Congress." "Donora Etc. R. Co. v. Penna. R. Co., 213 Pa. 119. "Northern Pacific R. Co. v. Townsend, 84 Minn. 152; reversed by U. S. Supr. C. 190 U. S. 267. Vol. 4 Practice — 10 CHAPTER VIII. CONSTITTJTIONAL AND STATUTOEY PEaVISIONS IK PENNSYLVANIA. 1. "Privilege," not right. 7!7. 2. Exercise of right by state. 38. 3. Compensation. 39- 4. Limitations upon corporations. 40. 5. Power to alter or revoke. 41. 6. Railroads and canals. 42. 7. Consolidation prohibited. 8. Discrimination prohibited. 43. 9. Passes restricted. 44- 10. Acceptance of constitution. 45. 11. Consent of municipalities. 46. 12. Revocability of charters. 47. 13. Con. Amendment of 1857. 48. 14. Turnpikes, public roads, etc. 49. 15. Railroads. 50. 16. Reserved power of the state. Si. 17. State ownership of public util- 52. ities. S3. 18. Reservation of power to con- 54- trol. SS- 19. Obligation to repair canal S6. bridges. 57- 20. Sale of canals. S8. 21. Review of early railroad char- 59- ters. 60. 22. Columbia etc. R. Co. 61. 23. State railroad. 62. 24. State loan and the panic. 63. 25. The Penna. R. Co. incorpor- ated. 64. 26. Width of right of way. 27. Assessment of damages. 65. 28. New view. 66. 29. Paramount right of public 67. roads. 68. 30. Lateral roads. 69. 31. Resumption and purchase re- 70. served. 32. Examination and forfeiture re- 71. served. 72. 33. Valuation, how to be ascer- 73. tained. 74. 34. Assessment, when title is in 7s. dispute. 76. 35. Water Supply for Penna. Rail- i-j. road. 78. 36. Offer to sell state railroads and canals. 146 Conditions of sale. Public works embraced. Price to be realized. Public highway declared. Privilege of eminent domain. Damages, how to be ascer- tained. The Phila. & Erie R. Co. The Phila. & Reading R. Co. Power to survey and fix route. Right of entry. Right to enter for material. Public roads paramount. Causeways for landowners. Fixing of tolls. Reservation of police power. Amendment of P. & R. charter. Sunbury and Erie. Assessment of damages. Protection of public roads. Rates fixed. Right reserved to purchase. Lateral ra^ilroads, act of 1832. Scope enlarged. Assessment of damages. Reservation by legislature. Crossings regulated. Duty of viewers under act of 1858. General Railroad act 1849 — ^lo- cation. Assessment of damages. Change of location. Protection of public roads. Public highways. Reservation to the legislature. Approval of bond under act of 1844. Jury trial instituted. Bar as to damages. Waiver of view to assess. View of premises by jury. Consolidation of parallel lines. Gra,de crossings. Widening railroads and canals. Lease of lines. EMINENT DOMAIN. 147 79. Land in diflferent counties — bond. 80. Bridges, changing location of. 81. The Northern Central R. Co. 82. The Cumberland Valley R. Co. 83. The Lehigh Valley R. Co. 84. Delaware & Hudson Canal Co. 85. The Baltimore & Ohio R. Co. 86. Assessment of damages. 87. The New York & Erie R. Co. 88. The Huntingdon & Broad Top R. Co. 89. The Phila. & Trenton R. Co. go. Pittsburgh, Kittanning & War- ren R. Co. 91. The Pittsburgh & Erie R. Co. 92. The Washington & Pittsburgh R. Co. 93. Two systems in Pennsylvania. 94. Reference to various acts of incorporation. 95. Railroad landings. 96. Docks. 97. Turnpike Etc. Co. ^. Street railways, special char- ters. 99. General Act of 1889, as to street railways. 100. Grade crossings, etc. loi. Procuring possession of lands condemned — notice. ' 102. Habere facias possessionem. 103. Privilege conferred on school districts — exceptions. 104. Petition for viewers, to the Common Pleas. 105. Duties of viewers — report. 106. Appeal from report. 107. Payment into court. 108. Practice on exceptions or ap- peal. 109. Costs and fees. no. Exercise of privilege by County Commissioners. 111. Petition for viewers — notice by publication. 112. Proceedings by the viewers — report. 113. Vacation of part of old road — transfer. 114. Payment of damages. 115. Appointment and pay of viewers. 116. Exceptions to report — trial, appeal, etc. 117. Municipalities. 118. County board of viewers. 1. "Privilege," not right. Con. 1838, Sec. 4, Art. 7: "The Legislature shall not invest any corporate body or individual with the privilege of taking private property for public use, without requiring such corporatioii or in- dividual to make compensation to the owners of said property, or give adequate security therefor, before such property shall be taken." 2. Exercise of right by state. Con. 1874, Sec. 3, Art. 16: "The exercise of the right of eminent domain shall never be abridged or so construed as to prevent the General Assembly from taking the property and franchises of incor- porated companies and subjecting them to public use, the same as the property of individuals;' and the exercise of the police power of the state shall never be abridged or so construed as to permit cor- porations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the state." 3. Compensation. Con. 1874, Sec. 8, Art. 16: "Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or 'Towanda Bridge Co., 91 Pa. 216; Lock Haven Bridge Co. v. Clinton County, 157 Pa. 379. See Con. of Illinois, Art. 11, Sec. 14. 148 EQUITY PRACTICE IN PENNSYLVANIA. secured before such taking, injury or destruction. The General As- sembly is hereby prohibited from depriving any person of an appeal from any preliminary assessment of damages against any such corpo- rations or individuals made by viewers or otherwise ; and the amount of such damages in all cases of appeal shall on demand of either party be determined by a jury according to the course of the com- mon law."" 4. limitations upon corporations. Con., Sec. 5, Art. 16': "No foreign corporations shall do any busi- ness in this state without having one or more known places of busi- ness and an authorized agent or agents in the same, upon whom process may be served." ' Con., Sec. 6, Art. 16: "No corporation shall engage in any busi- ness other than that expressly authorized in its charter, nor shall it take or hold any real estate except such as may be necessary and proper for its legitimate business." 5. Power to alter or revoke — ^renewal. Con., Sec. 10, Art. 16: "The General Assembly shall have the power to alter, revoke or annul any charter of incorporation now existing and revocable at the adoption of this Constitutioij, or any that may hereafter be created, whenever in their opinion it may be injurious to the citizens of this commonwealth, in such manner, however, that no injustice shall be done to the corporators. No law hereafter enacted shall create, renew or extend the charter of more than one corporation." * 6. Railroads and canals — connections and crossings. Con., Sec. i. Art. 17: "All railroads and canals shall be public highways, and all railroad and canal companies shall be common car- riers. Any association or corporation organized for the purpose shall have the right to construct and operate a railroad between any points within this state, and to connect at the state line with railroads of other states. Every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad; and shall receive and transport each the others' passengers, tonnage and cars, loaded or empty, without delay or discrimination."" 7. Certain consolidation prohibited. Con., Sec. 4, Art. 17: "No railroad, canal, or other corporation, or the lessees, purchasers or managers of any railroad or canal cor- poration shall consolidate the stock, property or franchises of such corporation with, or lease or purchase the works or franchises of, or in any way control any other railroad or canal corporation own- ' See supra Ch. 2, Par. 24. ' Retterly v. Machine Co., 4 W. N. C. 525 ; Hagerman v. Slate Co., 97 Pa. 534- *Moers v. City, 21 Pa. 188; Cleveland Etc. R. Co. v. Erie, 27 Pa. 380; Bank v. Pittsburg, ^y Pa. 340; Comth. v. R. Co., 58 Pa. 26. 'Pittsburg Etc. R. Co. v. R. Co., 77 Pa. 173; Perry Co. R. Co. v. R. Co., ISO Pa. 193 ; Graff v. R. Co., 2 C. C. 502. EMINENT DOMAIN. 149 ing or having under its control a parallel or competing line; nor shall any officer of such railroad or canal corporation act as an of- ficer of any other railroad or canal corporation owning or having the control of a parallel or competing line, and the question virhether railroads or canals are parellel or competing lines, shall, when de- manded by the party complainant, be decided by a jury as in other civil issues." " 8. Discrimination prohibited. Con., Art. 17, Sec. 7: "No discrimination in charges or facilities for transportation shall be made between transportation companies and individuals, or in favor of either, by abatement, drawback or otherwise, and no railroad or canal company or any lessee, manager or employer thereof shall make any preferences in furnishing cars or motive power." 9. Passes restricted to officers and employees. Con., Art. 17, Sec. 8: "No railroad, railway or other transporta- tion company shall grant free passes, or passes at a discount, to any persons except oflScers or employees of the company." (When this was adopted it was not conceived that state, county, judicial and municipal officers would become "officers or employees of the company.") 10. Acceptance of constitution. Art. 17, Sec. 10, Con.: "No railroad, canal or other transporta- tion company, in existence at the time of the adoption of this article, shall have the benefit of any future legislation by general or special laws, except on condition of complete acceptance of all the provi- sions of this article." ' Sec. 2, Art. 16, Con. : "The General Assembly shall not remit the forfeiture of the charter of any corporation now existing, or alter or amend the same, or pass any other general or special law for the benefit of such corporation, except upon condition that such corporation shall thereafter hold its charter subject to the provisions of this Constitution." 11. Consent of municipalities. Sec. 9, Art. 17, Con.: "No street passenger railway shall be con- structed within the limits of any city, borough or township, without the consent of its local authorities." ' "Comth. V. R. Co., i C. C. 2-4, 223; Gyger v. R. Co., 136 Pa. 96. 'Duncan v. R. Co., 7 W. N. C. 551; Penna. R. Co. v. Duncan, ill Pa. 352, affirmed by U. S. Supreme Court, 129 Pa. 181. See remarks of Buckalew on this and Sec. 2, Art. 16, Con., construing its purpose. Buckalew on Con., p. 246. Such acceptance may be constructive, as by accepting legislation. (Comth. v. Flannery, 203 Pa. 28.) The Penna. R. Co., on March 27, 1901, filed its acceptance with the Sec'y of the Comth. at Harrisburg, Pa. The legislature of 1907 passed several acts to enforce this article of the Constitution. . ' Harrisburg Etc. R. Co. v. Harrisburg, 7 C. C. 593 ; WilHamsport Passr. R. Co. V. Williamsport, 120 Pa. i ; City of Allegheny v. R. Co., 33 W, N. C. 397; Hays v. Comth., 82 Pa. 518, on retroactive force. ISO EQUITY PRACTICE IN PENNSYLVANIA. 12. Bevocability of charters. All charters granted by the state are impliedly revocable upon mis- use or abuse of privileges conferred, and nearly all the charters of railroad companies granted prior to 1857 contained an express reservation of the power of the legislature to alter, revoke or annul, and to resume to the sovereign the privileges granted. This power, though an inherent one, was given expression in the consti- tutional amendment of 1857,' which provides: 13. Constitutional amendment of 1857. "Sec. 26. The Legislature shall have the power to alter, revoke or annul any charter of a corporation hereafter conferred by, or un- der any special or general law, whenever in their opinion it may be injurious to the citizens of the commonwealth ; in such manner, how- ever, that no injustice shall be done to the corporators." 14. Turnpikes, public roads, etc. Before railroads were built, the power of eminent domain was exercised mainly in the construction of turnpikes, bridges, canals and ferries. It did not enter as a feature in the opening and construc- tion of township roads and bridges." Hence writers upon this subject living in other states than Pennsylvania, and unfamiliar with the history of public roads, have confused the subject with matters not germane. The Commonwealth of Pennsylvania originally granted with every patent of lands an allowance of six per cent, for roads for the public. But a turnpike, private canal or a private road could not be built over the lands of any person without authority of law and due com- pensation. When the railroads came into use the state itself built the first road from Philadelphia to Columbia and surveyed and laid out a comprehensive system of canals and railroads, constructing some very important ones under its sovereign power, and made com- pensation to property owners, by agreement with them in most cases. 15. Conferrence of privilege on railroads. Numerous acts of Assembly were- passed authorizing the Governor to grant letters patent to individuals forming a corporation, and in- vesting them with corporate powers and privileges, subject to state surveillance and control, and reserving the right to alter, revoke and annul whenever the privileges conferred were misused or abused by the corporations, and in many instances also reserving the right to purchase the roads and resume the franchises after twenty or thirty years. 16. Beserved power by the state. These acts were carefully worded by honest and true men who used plain English and all through them runs the assertion and notice of the paramount power of the state to regulate rates, tolls and con- duct, so as to prevent extortionate charges, or excessive acts, con- "P. L. 1857, p. 811. See example of resumption by the state of charter privileges in Franklin R. Co., act 1857, P- 1- 770. "Wagner v. Twp., 132 Pa. 636. EMINENT DOMAIN. igi trary to the general welfare. Every charter was taken and accepted with the state's power of control ineffaceably written all over it, together with the declaration that the railroad built should "be and remain forever a public highway" for the use of the public, and at maximum tolls or rates fixed by the state, so that none of the cor- porators, stockholders, bondholders or others interested in such railroads could ever plead the right of private contract as para- mount to the power of state control or eventual ownership when the public good required it. 17. State ownership. The state itself entered upon a comprehensive system of internal improvements by canals and railroads under the direction of the Board of Public Works, thus establishing them as government-owned highways, and when forced by financial stringency and the cupidity of some of her wealthy and designing citizens to sell them in 1857 and 1858, the state coupled with the terms of sale a condition that "it shall be and remain forever a public highway," and reserved the right to revoke in Sec. 15 (P. L. 1857, p. 629)." 18. Beservation of power. Sec. 15 provided: That the purchaser of said works shall have a perpetual corporate succession, and if the said purchaser shall at any time misuse or abuse any of the privileges granted by this act, the legislature may revoke all and singular the rights and privileges granted to said company, on a judicial decree of said misuse or abuse being first duly had and obtained, and thereupon may take for public use the road or roads, canal or canals so purchased or constructed in pursuance of this act: Provided, That in resuming said franchises no injury shall be done to the corporators of said company; and in taking such road or roads, canal or canals, for public use full com- pensation shall be made to the stockholders. 19. Obligfation to repair canal bridges. When the Pennsylvania R. Co., under the purchase act of May 16, 1857, P. L. 519, bought the canals, etc., it assumed all the obligations imposed upon the state, by law, including the duty to keep the bridges over the canal in repair. Its subsequent sale of the canal and aban- donment of the public use of it did not relieve it from the duty cast upon it to keep the bridges at highway crossings in repair."^ 20. Sale of canals. By act 1858, P. L. 414, the state sold to the Sunbury and Erie Rail- road Company the remaining unsold public works, to wit: Delaware Division, Lower N. Branch Division, Upper N. Br. Division, West Branch Division and Susquehanna Division of the Pennsylvania Canal, such canals to be and remain forever highways. The price fixed upon was $3,500,000, and the purchaser was authorized to issue bonds for $7,000,000. The grantees or lessees of the Sunbury and Erie were given the same rights and privileges as this railroad company had under the act incorporating it. (1837, P. L. 170.) The " In Mott V. R. Co., 30 Pa. 9 these acts of sale were upheld except the clause exempting the Penna. R. from certain taxes. ^•»Book V. Penna, R. Co., 207 Pa. 138. 152 EQUITY PRACTICE IN PENNSYLVANIA. Sunbury and Erie, by act 1861, P. L. 94, became the Philadelphia and Erie Riilroad, and was further authorized to issue bonds in $5,000,000, other bonds amounting to $4,000,000 secured by mortgage to save the claim of the state for purchase money, the act reciting that the labor claims and liens amounted to $6,000,000. This line was subsequently leased to the Pennsylvania Railroad Company. 21. Review of early laws. By act of 1822, P. L. 249, a charter was granted to John Stevens for fifty years for a railroad from Phila. to Lancaster, and by the act of 1823, P. L. 249, John Stevens and others were authorized to incorporate the Phila. and Columbia Railroad Company, with power to locate a road forty feet wide, but not to pass through any dwell- ing house, place of worship or burying ground, nor to obstruct public roads. The land and materials taken to be compensated for, and a view and assessment to be had as provided by the Phila. & Reading act of 1833, infra. This charter contained no clause of revocation. 22. Columbia Etc. R. Co. The act of 1826, P. L. 216, incorporated the Columbia, Lancaster and Phila. Railroad Company with powers and restrictions as above, and authority to construct lateral roads, fixing passenger tolls at one cent per mile and reserving the right to alter the charter. 23. State railroad. The state, by act of April 9, 1826, P. L. 192, authorized the Canal Commissioners to survey a railroad line from Phila. through Chester and Lancaster counties and down the Brandywine river to the Delaware line, also to form a connection between the North Branch and Lehigh rivers. Section 8 of this act provided for a mode of assessment of damages in the Quarter Sessions. The act of 1828, P. L. 221 (Sec. 5), authorized the Canal Commissioners to locate the railroad from Phila. through Lancaster to Columbia, and the Governor was authorized to borrow $2,000,000 for public improve- ments. Section 8 required the Commissioners to call on owners of lands and agree with them, if possible, as to damages. In pursuance of these and subsequent acts the road was built, owned and operated by the state as the Pennsylvania Railroad until 1857, when the Pennsylvania Railroad Company purchased it, as will be seen hereafter. 24. State loan and the panic. In 1830 (P. L. 86) a state loan of $4,000,000 at 5J/$ per cent, in- terest was authorized to be negotiated for with the Bank of Pennsyl- vania, for which certificates of stock were directed to be issued; and by act 1834, P. L. 193, a further loan was authorized to be made for $2,265,400 at 5 per cent, to complete the public works, which was redeemable July i, 1862. It will thus be seen how the financial pinch of 1853 eventually squeezed the state out of its valuable proper- ties and landed the golden egg in the basket of the Pennsylvania Railroad Company. EMINENT DOMAIN. 153 25. Fenna. B.. Co. The Pennsylvania Railroad Company, which has become the ben- eficiary of the state's public works, and has outgrown all ordinary limitations of power, was incorporated by the act of April 13, 1846, P. L. 312 and 326." Section 2 granted and limited the corporate priv- ileges to railroad purposes alone. By section 1 1 the right was given to locate a route over lands, except through dwelling houses, burying grounds and church property. This limitation was by act of 1848, P. L. 274, altered so that it might take dwelling houses kept for rent and not occupied by the owner, and by act of 1864, P. L. 535, permission was given to tunnel under any place of wor- ship in Pittsburgh. Under the act of March 17, 1869, authorizing the straightening and widening of the road, no such limitation wa-s prescribed, and the courts held that the exemption did not apply, as already pointed out in the preceding chapter. 26. Width of road. The original act confined the right of way to four rods, and gave power to take materials from adjacent lands, but the act of 1867, P. L. 993, gave the right to take additional land for tracks, sidings, etc., the damages to be assessed under the act of 1846, supra; 1848, and 1850, infra, providing the mode. 27. Assessment of damages — ^notice — tender of bond. Sec. 12 of the act of 1846 provided for the assessment of damages where the railroad company and landowners failed to agree, or where some were under disability or absent from the state. The act of 1848, P. L. 274, provided for a petition to the Court of Common Pleas, whereupon said Court appointed five viewers, to be citizens of the next adjoining county or counties through which the road does not pass, who were to meet not less than twenty nor more than thirty days thereafter. The party petitioning was required to give the viewers and the other party ten days' notice of the time and place of view. Section 5 of the act of June 23, 191 1, P. L. 1123, provides for the appointment of three viewers from a county board created by it. This act provided for a tender of bond to the landowner, and if he refused to accept it, and did not recover a larger amount, he was liable for the costs of subsequent proceedings. The act of 1846 also provided for the approval of the bond by the Court of Common Pleas of the county where the land lies. '" These acts were construed by a 4 to 3 court in Penna. R. Co. v. Phila. County, 220 Pa. 100, the majority emasculating the "two cent fare" law of April 5, igo7, P. L. 59. The law in this case was with the minority of the court, holding that immunity from legislative power of revision is not contained in these laws or the constitution. The majority opmion sustained the finding by the willing court below upon a partial hearing that the rate fixed by the law was not "reasonable." The correct view of the minority of the court which may soon become the majority, was to sus- tain the supremacy of the legislative fiat and remand the cause to the Phila. court for a complete hearing upon all the earnings of the plaintiff under the single and indivisible corporate power. The court below had split the corporate entity as if there were two distinct corporations, one for carrying freight and one for carrying passengers — a patent absurdity, but a good enough pretext. 154 EQUITY PRACTICE IN PENNSYLVANIA. 28. New view. If the report of the viewers, under act of 1846, was set aside by the Court, on exceptions, a new view was granted, but if the re- viewers did not report more favorably the party excepting was liable for the costs of the re-view. Since the constitution of 1873 either party may have a jury, or under the act of 1895, P. L. 89, the parties may waive a view. Under the act of 1850, P. L. 583, a majority of the viewers may decide. 29. Paramount right of highways. The act of 1846, as every other act incorporating railroads, pre- serves the paramount right of the people to the free enjoyment of their highways. This is a statutory principle almost lost sight of in the bewildering adjudications, or "court-made law." Sec. 13 pro- vides for the protection of the highways. See Phila. & Reading act, infra, which nearly all the charters follow almost verbatim. 30. lateral roads — public highway. The corporation is empowered to build lateral roads, with the same rights as the main line. It is declared a public highway by Sec. 21, act 1846, and rates are fixed, among others, passenger fares not to exceed three cents per mile for through and three and one-half cents per mile for way. Sec. 18 provides that, in time of war, it shall transport troops, etc., at half the usual charges. 31. Besumption and purchase. Sec. 23 provides for resumption of the road, etc., after twenty years, on payment of "amount expended by them in the construction of said railroad, and in the construction of permanent fixtures and all other appurtenances for the use of the same, together with all moneys expended by said company for repairs, allowance and other- wise for the purposes of said railroad, with interest on such sums, at the rate of eight per cent, per annum, after deducting the amount of tolls and other revenue received by said company for the use of the same. If not claimed at the end of twenty years, the right shall continue for twenty years, and so on by twenties." This was subsequently changed in the state purchase act, supra. 32. Examination and forfeiture. Sec. 24 provides for examination of the books' and proceedings of the corporation by a committee of the legislature, and if this is refused the charter may be forfeited by the legislature. If a com- mittee reports to the governor any violations of the charter, they may order a scire facias to be sued out in the Supreme Court to inquire into such violations. If proven, all the rights, property, etc., shall revert to the state. The trial thereon shall be by jury. 33. How value to be ascertained. This was followed by the act of 1846, P. L. 326, construing the foregoing sections. The legislature hereby expressly reserved full power to forfeit the charter or purchase the property on payment of "the actual value of their said railroad, appurtenances and other property, to be ascertained and appraised by twelve disinterested per- sons, acting under oath or affirmation, to be appointed and governed in the proceedings in relation thereto in such manner as the legis- lature shall by law direct." EMINENT DOMAIN. ISS 34. Assessment where title is in dispute, etc. By act of 1854, P. L. 76, it is provided, That in proceedings by the Penna. R. Co. for the appropriation of land under any act of as- sembly, when it shall appear to the Court of Common Pleas, by affidavit or otherwise, that there is a disputed, doubtful or defective title, or that any party in interest is absent, covert, not of full age, or from any cause incapable of being served with notice or of having a bond tendered within the county where the land is situated, the said court shall, on application of the said company, direct the filing of a bond, in an amount, and with security, to the commonweath, to be approved by the Court, for the use of the party found to be entitled thereto, and shall direct notice thereof, and of the petition to assess damages, and the meeting of viewers to be published in two newspapers of the county where the land is situated for two weeks before the day appointed for the meeting of the viewers; and the said bond so filed, and the said notice so given, shall have like effect as if the bond were given under the 12th section of the act of 1846, and as if personal notice had been given under the act of March 27, 1848. 35. Water supply — entry on lands, etc. By act 1859, P. L. 679, the Pennsylvania Railroad Co. is given power to enter upon any lands adjacent to the railway of said com- pany, or to any of the real estate owned or occupied by said company for the purpose of obtaining a supply of water for the uses of said road, its machinery, shops, water stations and depots, and of any other property owned or occupied by said company. Sec. 2. In the event of an inability to agree as to the price or value to be paid for the use of such water, and of such land as may be required to be occupied for the conducting of the same to the premises of said company, it shall be lawful for said company, or for the owners of such property, to cause to be instituted such pro- ceedings as are prescribed by Sec. 4, act of 1848, Provided, said railroad company shall have no power to take any water from any spring, well or stream of water used by any owner or occupant of real estate at any dwelling house, brewery, distillery, or any other manufacturing establishment, barn or stable, without first obtaining the consent of the owner in writing. 36. Sale of state railroads and canals. The Pennsylvania Railroad Comany having succeeded to the prop- erty rights of the state, it now becomes important to trace the steps by which this purchase was consummated, in order to understand what privileges and rights passed to it. This is thie more important because it was stubbornly contended by the purchaser that it was vested with irrevocable rights and became greater than its creator, so that the state's constitution had no executive force upon it. 37. Offer to sell, conditions. By act of 1854, P. L. 520, the Governor was authorized to advertise for bids for the sale of the state's great internal improvements. This act hedged about the offer a number of conditions, such as that there should be no discriminations in charges, etc. In 1855, P. L. 521, the 1S6 EQUITY PRACTICE IN PENNSYLVANIA. offer to sell was repeated, and a provision was inserted that the main line shall bring in not less than $7,500,000, that the purchaser should take subject to the provisions of the act of 1849, regulating railroads. The proviso was added that if the Pennsylvania Railroad Co. became the purchaser it should pay $1,000,000 more. The pur- chaser should take the property subject to all the state's contracts and "be and forever remain a public highway," the state reserving the right to revoke, etc. 38. What the sale embraced. The sale and terms are set forth in the act of 1857, P. L. 519, as follows : The railroads and canals sold to the Pennsylvania R. Co., directly or indirectly, were: Philadelphia and Columbia Railroad, Canal from Columbia to Junction at Duncannon Island, Juniata Canal to Holi- daysburg, Allegheny Portage Railroad, including the new road to avoid the inclined planes, and the canal from Johnstown to Pitts- burgh, with all the property thereto appertaining or in any wise con- nected therewith. 39. The price — sale subject to laws. The minimum price fixed was $7,500,000, and if the Pennsylvania Railroad Co. purchased it must pay $1,500,000 more, in the bonds of the company, with the right to purchase or lease the Harris- burg Etc. Railroad, and if sold to individuals they might resell to a railroad company. The purchaser must take the property "subject to all contracts and arrangements heretofore made by act of As- sembly or otherwise for and respect to the use of such works." 40. Declared a public highway. It was declared that it should be and remain a public highway, and" that the rates and tolls should be as fixed in the Penna. R. Co.'s charter. 41. Bight of entry — compensation. The power of eminent domain was to be exercised as provided in section 9, to wit: "That it shall be lawful for said purchasers, their successors and assigns, and their officers, engineers, contractors and agents, to enter upon any lands adjoining or in the neighborhood of the works, and dig, take and carry away therefrom any materials necessary for enlarging, making, altering, deepening or improving said works or any portion thereof, or for constructing any railroad, canal, bridge, viaduct, dam or other mechanical structure which may be required for the said works, or for making a slack-water navigation, or for improving any works already made; Provided, That compensa- tion shall be made or secured to the owner or owners of any such lands or materials as shall be agreed upon between the parties; or if the said purchasers cannot agree with the owner or owners of such lands or materials, then the value of the same shall be ascertained, according to the provisions of the fourth section of the act entitled 'A further supplement to an act to incorporate the Pennsylvania Railroad Company,' approved the 27th March, 1848. EMINENT DOMAIN. 157 42. Compensation, how ascertained. This section provides as follows: That when the Pennsylvania Railroad Company cannot agree with the owner or owners of any lands or materials, for the compensation proper for the damage done, or likely to be done to, or sustained by any such owner or owners of such lands or materials which said company may enter upon, use or take away in pursuance of the authority given them by the act to which this is a supplement, or by reason of the absence or legal incapacity of any such owner or owners, no such compensation can be agreed upon, the Court of Common Pleas of the proper county, on application thereto, by petition, either by said company or owner or owners, or anyone in behalf of either, shall appoint five disinterested persons of the next adjoining county or counties, none of whom shall be residents of any of the counties through which said railroad shall pass, and to fix a time, not less than twenty or more than thirty days there- after, for said viewers to meet upon the premises where the dam- ages are alleged to be sustained, of which time and place, ten days' notice shall be given by the party petitioning, to said viewers, and to the other party; and the said viewers having been first sworn or affirmed, by some power competent to administer oaths, faith- fully, justly and impartially to decide, and true report to make con- cerning all the matters and things submitted to them, and in relation to which they are authorized to inquire in pursuance of the provi- sions of this act ; and having viewed the premises, they shall estimate and determine the quantity, quality and value of said lands so taken or occupied, or to be taken and occupied, or the materials so used or taken away, or to be used or taken away, as the case may be, and having a due regard to, and making just allowances for the advan- tages which may have resulted, or which may seem likely to result to the owner or owners of said lands or materials, in consequence of the opening or making of said railroad, or the construction of works connected therewith; and after having made a fair and just comparison of said advantages or disadvantages, they shall estimate and determine whether any, and, if any, what amount of damages have been sustained or may be sustained, and to whom payable, and make report thereof to the court; and if any damages be awarded and the report be confirmed by said court, judgment shall be entered thereon, and if the amount thereof be not paid, execution may issue thereon, as in other cases of debt, for the sum so awarded; and the cost and expenses incurred shall be defrayed by said railroad com- pany; and the said viewers shall be entitled to two dollars per day for each of them for the time necessarily employed in performing the duties hereinbefore prescribed: Provided, That nothing herein con- tained shall authorize the said company to enter upon any lands or take any property without making compensation to the owners of said property, or give adequate security therefor: And provided, That if either or all of the judges of the Court of Common Pleas aforesaid is or are interested in the said railroad as officers, stock- holders, contractors or otherwise, then the viewers aforesaid shall be selected and appointed by the sheriff and commissioners of the proper county, in like manner and with like powers, as if appointed by the Court of Common Pleas : Provided further. That if the proper officer IS8 EQUITY PRACTICE IN PENNSYLVANIA. of said company, at any time before application made by either party for the appointment of viewers, in the manner hereinbefore directed, shall tender to the owner or owners of said lands or materials a sum of money, in full compensation for his or their said damages, said company shall not be liable for costs on any subsequent proceedings, unless such owner or owners of land or materials shall be awarded a larger sum than the previous tender of said company." The act of 1857 does not except dwellings, etc., in enlargement of ,works, and Sec. 10 provides against discrimination in tolls or charges on canals. The act of 191 1, as to juries of view and various amendatory acts, provides for juries of three persons. But whilst this act was held con- stitutional by the Supreme Court in the cases of Petn. of Martha Brown and Petn. of Conrad Reber, January T., 1912, and applicable to railroads subject to the general railroad law of 1849, infra, it does not seem to reach railroad corporations acting under special charter provisions. In the first-mentioned case the petition was drawn under the act of 1849. 43. Tlie P. & E. Railroad. The Phila. & Erie Railroad Company, which succeeded in name the Sunbury and Erie, purchaser of the remainder of the state's public works, was by act of 1864, P. L. 414, placed under sections 10 and II of the act of 1849, general railroad law. By act of 1866, P. L. 312, it was authorized to construct branch lines in accordance with the original act of 1837 and supplements. The legislature of 1870, P. L. 938, extended Sec. 18 of the act of 1849, regulating charges, except the second proviso, to the Phila. & Erie. 44. The Philadelphia & Beading Railroad. The act of April 4, 1833, P. L. of '32-3, p. 144, incorporated the Phila. & Reading Railroad Company. As the provisions of its charter^ followed the first act in the matters of eminent domain and police powers, and was a model for many of the acts of incorpora- tion for more than a decade, the pertinent provisions are here given : 45. Power to survey and fix route. Sec. II. The president and managers of said railroad company shall have power to survey, lay down, ascertain, mark and fix such route as they shall deem expedient for a railroad, with as many sets of tracks as they shall deem necessary, beginning at or near the borough of Reading, in Berks county, and terminating at some suit- able point in or near the city of Phila., or on the line of the Phila. and Columbia, or of the Phila., Germantown and Norristown rail- roads; provided, that the said railroad shall not, except in deep cuts and fillings, or at points selected for depots, or engine and water stations, exceed four rods in width, and it shall not pass through any burying ground or place of public worship, or any dwelling house, without the consent of the owner thereof. EMINENT DOMAIN. 159 46. Bight of entry — ^jompensation — ^referees — view, etc. Sec. 12. That the said president and managers shall have power and authority, by themselves or their superintendents, engineers, ar- tists and workmen, to enter in and upon and occupy all land on which the said railroad or its depots and warehouses may be located, or which may be necessary for the erection of its engine and water sta- tions, weigh scales, or any other purpose necessary or useful in the construction and repairs of the said railroad, and therein to dig and embank, make and construct the same, and the said company shall pay or satisfy the owner or owners of the ground so taken and oc- cupied as aforesaid; but if the parties cannot agree upon the com- pensation to be made to such owner or owners it shall and may be lawful for the parties to appoint five suitable, judicious and dis- interested persons of the counties of Berks, Montgomery, Chester or Phila., who shall be under oath or affirmation, and who shall reside within the counties of Berks, Montgomery, Chester or Phila., and if they cannot agree upon such persons, then either of the parties, after giving twenty days' notice to the other, may apply to the Court of Common Pleas of the county in which the land may lie, and the court shall award a venire directed to the sheriff, to summon a jury of judicious and disinterested persons from the said counties, in order to ascertain and report to the said court what damages, if any, have been sustained by the owner or owners of said ground, by reason of the construction of said railroad through the same, which said jury of valuers being duly sworn or affirmed, and having viewed the premises, shall proceed to estimate the quantity and quality of the land occupied by the said railroad, and all other inconveniences which may be likely to result therefrom to the said land; and under the influence of these considerations, and a just re- gard to the advantages which may seem likely to result to the owner or owners of the said land from the opening of the said railroad through the same, to make their assessment, and report to the court, which report being confirmed by the said court, judgment shall be entered thereon, and execution may issue in case of non-payment, for the sum awarded, and the expenses incurred by the appraisers or jury, shall be defrayed by said railroad company; provided that either party may appeal to the court within thirty days after such report may have been filed in the prothonotary's office of the proper county, in the same manner as appeals are allowed in other cases : And provided also, that if any person or persons, owning land or any other property, which shall be affected by this act, be feme covert, under age, non compos mentis, or out of the state, then and in either of the cases, the president and managers of the company, and at the cost and charges of said corporation, shall within one year after the construction of the railroad through the said land, represent the same to the Court of Common Pleas of the county where the lands lie, as the case may be, who shall proceed thereon in the same manner, and to the same effect, as directed by this act in other cases. The Reading R. Co. has for years proceeded as required by the act of 1849. 47, Bight to enter for materials — ^notice. i6o EQUITY PRACTICE IN PENNSYLVANIA. Sec. 13. That the president and managers by and with their su- perintendents, engineers, artists, workmen and laborers, with their tools, instruments, carts, wagons and other carriages, and beasts of draught and burden, may enter upon the lands contiguous and near the said railroad, first giving notice to the owners or occu- piers thereof, and from thence to take and carry away timber, stone or gravel, sand or earth, doing as little damage thereto as pos- sible, and repairing any breaches they may make in the enclo- sures thereof, and making amends for any damages that may be done thereon, the amount whereof, if the parties do not agree, shall be assessed as hereinbefore mentioned in this act. 48. Public roads paramount. Sec. 14. That the said railroad shall be so constructed as not to impede or obstruct the free use or passage of any public road or roads which may cross or enter the same; in all cases where the said railway may cross or in any manner interfere with any existing public road, canal or slack water navigation, the said company shall make, or cause to be made, as soon as conveniently may be a good and sufficient causeway, or causeways, to enable all persons passing or traveling such public roads, canal or slack water navigation, to cross and pass over said railroad, and if the company shall neglect or refuse to keep such way or causeways in good re- pair, they shall be liable to a penalty of ten dollars for every day the same shall be so neglected or refused to be repaired, to be recovered by the supervisiors of the township, with costs, for the use of the township, as debts of the like amount are by law re- coverable, and shall moreover be liable to all actions at the suit of any person who may be aggrieved thereby. 49. Causeways for land owners. Sec. 15. That for the accommodation of all persons owning or possessing land through which the said railroad may pass, it shall be the duty of the said company to make, or cause to be made, a good and sufficient causeway or causeways, wherever the same may be necessary to enable the occupant or occupants of said lands to cross or pass over the same with wagons, carts and implements of husbandry, as occasion may require, and the said causeway or cause- ways, when so made, shall be maintained and kept in good repair by said company, and if the said company shall neglect or refuse, on request, to make such causeway or causeways, or, when made, to keep the same in good order, the said company shall be liable to pay any person aggrieved thereby, all damages sustained by such person in consequence of such neglect or refusal, to be sued for and recovered before any magistrate or court hearing cognizancp thereof; provided that the said company shall in no case be re- quired to make or cause to be made, more than one causeway through each plantation or lot of land, for the accommodation of any one per- son owning or possessing land through which the said railroad may pass, and where any public road shall cross said railroad, the person owning or possessing land through which said public road shall pass, shall not be ientitled to require the company to erect or keep in repair any causeway or bridge for the accommodation EMINENT DOMAIN. i6i of the occupant of said land; provided further that in the event of any private bridge or causeway being converted to public use, so as to be made to accommodate a public road, laid out subsequent to the passage of this act, then and in such case the company shall be forever thereafter exonerated from the duty of keeping the said bridge or causeway in repair. 50. Limitation. Sec. i6 requires suits for penalties to be brought within twelve months. 50. Rates. Sec. 20 has a proviso that the toll on any species of property shall not exceed an average of four cents per ton per mile, nor upon each passenger an average of two cents per mile. 51. ReserTation. Sec. 25. That if the said company shall at any time misuse or abuse any of the privileges hereby granted, the legislature may resume all and singular the rights and privileges hereby granted to the said corporation. 52. Amendments — ^Lebanon Valley Railroad. The act of 1836, P. L. 654, authorized it to alter lines of streets and roads, damages to be assessed as in the original act. By act of 1838, P. L. 149, it was authorized to extend its line to Pottsville from Reading. The act of 1845, P- L. 453, provided that abutting owners in the city of Reading should have damages. The Lebanon Valley which was consolidated with the Philadelphia & Reading by act of 1857, P. L. 401, was put under the Reading law. By act of 1864, P. L. 396, the same right was given to the P. & R. to build branches, etc., as was conferred on the Penna. R. Co. by the act of 1846, P. L. 312." The act of 1872, P. L. 445, extended the provisions of the act of August 23, 1864, to all the leased lines of the P. & R. See provisions of the act of 1849, «t/''o- 53. Snnbury and Erie — entry. The provisions in the Sunbury and Erie charter (1837, P. L. 170), with reference to eminent domain are in Sec. 11. The power is given to enter and locate on lands, except burying grounds, places of public worship, dwelling houses and outbuildings valued at $300, and branches were authorized. 54. Damages. In case no agreement could be had with the owner, a petition to the Common Pleas might be presented, which appointed twelve disinterested persons as viewers, whose award was to be signed by them and the sheriff and returned to the prothonotary in five days. Exceptions might be filed in twenty days. If the view was set aside a review might be granted. 55. Public roads. The same provision as to protection of the public roads with ' French v. R. Co., 13 Phila. 187 ; Phila. v. R. Co., 7 C. C. 390. Vol. 4 Practice — 11 i62 EQUITY PRACTICE IN PENNSYLVANIA. causeways (as already given) were enacted. Owners of land had the privilege to make lateral roads to it. 56. Bates. Tolls were fixed not to exceed an average of four cents per ton per mile and passenger rates two cents per niile, and the legislature re- served the right to reduce these rates. 57. Besumption or purchase. The Legislature reserved the right to resume the franchises, for misuse or abuse, and also the right to purchase the road after fifty years by paying the owners of the corporation the cost of the road and six per cent, interest. 58. Lateral railroads. By act 1832, P. L. 501, it was provided that owners of mills, mines, land, etc., who wished to connect with a railroad might enter on and over intervening lands, twenty feet wide and no more.' It provided for six viewers (changed to seven subseqently"), to pass upon the expediency of the road and assess the damages. Four were made competent to report. An appeal lay within twenty days from this report and the case was put at issue for trial at the next regular term. But an appeal did not lie on exceptions.' 59. Scope enlarged. The act of 1865, P. L. 64, enlarged the scope of the act of 1832, and authorized the construction of single or double tracks, sidings, etc. The length as fixed by act 1840, P. L. 196, was six miles, but the original width of twenty feet remains and is jurisdictional.' The act of 1865, amending act of 1832, was amended 1893, P. L. 15, so as to authorize the construction of a single or double track railroad with the necessary sidings, wharves, schutes, machinery, fixtures and appurtenances for the transfer and 'delivery of limestone, iron ore, coal and other minerals from said lateral railroad to any pub- lic or locomotive road. The damages to the owners of the land shall be ascertained by six disinterested and judicious men resident in the said county, to be appointed by the court who shall proceed in the same manner as directed in the original act of 1832 — ^no road to be more than five miles in length. 60. Damages — assessment. Damages are assessed in the same manner as under the act of 1849, P. L. 79 (see infra). The original act was confined to a few counties, but was extended to the State generally by act 1848, P. L. 516. 61. Revocation or purchase. The legislature reserved the right to alter or revoke the privileges granted or purchase the roads on reimbursement to the owners. 'Bank v. Shoenberger, iii Pa. 95. ' Act 1865, p. 1. 64. 'Hall's Ap., 56 Pa. 238. * Bank v. Shoenberger, 1 1 i Pa. 95. EMINENT DOMAIN. 163 62. Crossings. The act of 1857, P. L. 629, regulates the crossings of lateral or private railroads at grade over incorporated railroads. 63. Duty of Viewers. By act of 1858, P. L. 361, it is provided that it shall be the duty of the viewers to report in writing whether the road asked for is necessary for public or private use, as well as the damages which will be sustained by the owner or owners of intervening lands ; and when in the opinion of the court the road is necessary for public or private use, it shall be lawful for the petitioner or petitioners, upon giving bond, with one or more sureties, to be filed with the petition and to be approved by the court to which such petition shall have been presented, conditioned for the payment of such damages as shall be assessed under the provisions of the acts to which this is a supplement, to proceed in the opening, constructing, completing and using the said railroad with one or more tracks, as prayed for in said petition. 64. General railroad act of 1849 — ^location— exemption — ^width of road — entry — construction — compensation, etc. By act of 1849, P. L. 79, the subject of eminent domain is thus regulated Sec. 10. That the president and directors of such company shall have power by themselves, their engineers, superintendents, agents, artisans and workmen, to survey, ascertain, locate, fix, mark and determine such route for a railroad as they may deem expedient, not, however, passing through any burying ground or place of public worship, or any dwelling house in the occupancy of the owner or owners thereof, without his, her, or their consent, and not except in the neighborhood of deep cuttings, or high embankments, or places selected for sidings, turnouts, depots, engine or water stations, to exceed sixty feet in width," and thereon to lay down, erect, con- struct and establish a railroad, with one or more tracks, with such branches or lateral roads as may be specially authorized, and with such bridges, viaducts, turnouts, sidelings, or other devices as they may deem necessary or useful between the points named in the special act incorporating, such company, commencing at or within, and extending to any town, city or village, named as the place of be- ginning or terminus of such road; and in like manner, by them- selves, or other persons by them appointed or employed as afore- said, to enter upon and into, and occupy all land on which the said railroad or depots, ware-houses, offices, tool-houses, engines and water stations, or other buildings or appurtenances hereinbefore mentioned may be located, or which may be necessary or con- venient for the erection of the same, or for any purpose necessary or useful in the construction, maintenance or repairs of said rail- road, and therein and thereon to dig, excavate and embank, make, grade, and lay down and construct the same; and it shall in like manner be lawful for such company, their officers, agents, engineers, contractors or workmen, with their implements and beasts of * Snee v. R. Co., 210 Pa. 480. i64 EQUITY PRACTICE IN PENNSYLVANIA. draught or burden, to enter upon any lands adjoining or in the neighborhood of their railroad, so to be constructed, and to quarry, dig, cut, take and carry away therefrom, any stone, gravel, clay, sand, earth, wood, or other suitable materials necessary or proper for the construction of any bridges, viaduct or other building _ which may be required for the use, maintenance or repairs of said rail- road: Provided, that before such company shall enter upon or take possession of any such lands or materials, they shall make ample compensation to the owner or owners thereof, or tender . adequate security therefor: Provided further, that the timber used in the construction or repair of said railroad, shall be obtained from the owner thereof only by agreement or purchase: And provided further, that whenever any company shall locate its road in' and upon any street or alley, in any city or borough, ample compensa- tion shall be made to the owners of lots fronting upon such street or alley, for any damages they may sustain, by reason of any excavation or embankment made in the construction of said road, to be ascertained as other damages are authorized to be ascertained by this act. 65. Assessment of damag^es-y-'proceediugs upon, etc. Sec. II. That when the said company cannot agree with the owner or owners of any lands or materials for the compensation proper for the damage done or likely to be done to, or sustained by any such owner or owners of such lands or materials, which such company may enter upon, use or take away, in pursuance of the authority hereinbefore given, or by reason of the absence or legal incapacity of any such owner or owners, no such compensation can be agreed upon, the Court of Common Pleas of the proper county, on application thereto by petition, either by said company, or owner or owners, or any one in behalf of either, shall appoint seven (three by act of 191 1 ) discreet and disinterested freeholders of said county, neither of whom shall be residents or owners of property upon or adjoining the line of such railroad, and appoint a time, not less than twenty nor more than thirty days thereafter for said viewers to meet at or upon the premises where the damages are alleged to be sustained, of which time and place ten days' notice (see act 1856, giving the courts power to fix time) shall be given by the petitioner to the said viewers and the other party; and the said viewers or any five of them, having been first duly sworn or affirmed, faithfully, justly and impartially to decide, and true report to make concerning all matters and things to be submitted to them, and in relation to which they are authorized to inquire in pursuance of the provisions of this act, and having viewed the premises, they shall estimate and determine the quantity, quality and value of said lands so taken or occupied, or to be so taken or occupied, or the materials so used or taken away, as the case may be, and having a due regard to and making a just allowance for the advantages which may have resulted or which may seem likely to result to the owner or owners of said land or materials, in consequence of the making or opening of said railroad, and of the construction of works connected therewith; and having made a fair and just com- parison of said advantages and disadvantages, they shall estimate and EMINENT DOMAIN. i6s determine whether any, and if any, what amount of damages has been or may be sustained, and to whom payable, and make report thereof to the said court; and if any damages be awarded, and the report be confirmed by the said court, judgment shall be entered thereon; and if the amount thereof be not paid within thirty days after the entry of such judgment, execution may then issue thereon as in other cases of debt, for the sum so awarded, and the cost and expenses incurred shall be defrayed by the said railroad company; and each of said viewers shall be entitled to one dollar and fifty cents per day for every day necessarily employed in the performance of the duties herein prescribed, to be paid by such railroad com- pany. Section 5 of the act of June 23, 191 1, P. L. 1123, whose title gives notice of the creation of a county board of road viewers, includes eminent domain. The constitutionality of this legislation was sustained by the Supreme Court in Petn. of Martha Brown and Mary Chew, No. 24, Jany. T., 1912, and the act of 1849, is therefore amended so as to bring the appointment of railroad viewers under its provisions. 66. Change of location of road — damages. Sec. 13. That if any such railroad company shall find it necessary to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith at their own proper expense, on the most favorable location, and in as per- fect a manner as the original road: Provided, that the damages in- curred in changing the location of any road authorized by this sec- tion, shall be ascertained and paid by said company, in the same manner as is provided for in regard to the location and construction of their own road. 67. Protection of public roads. Sec. 12 provides protection of intersecting public roads and private ways by causeways, etc., and requires them to be kept in good repair. 68. Public highways. Sec. 18 declares all railroads completed under this law public highways, and limits the president and directors to reasonable charges, not exceeding a certain sum when motive power is fur- nished by others. 69. Beservation. Sec. 20 reserves to the legislature the right to "revoke all and singular the rights and privileges so granted to such company," at any time for misuse or abuse of privileges ; also the right to "resume, alter or annul any charter granted under this act, and take for public use any road constructed in pursuance of such charter: provided that in resuming, altering or amending said charter, no injustice shall be done to the corporators, and that in taking such roads for public use, full compensation shall be made to the stock- holders." l66 EQUITY PRACTICE IN PENNSYLVANIA. 70. Approval of bond act of 1844. By act 1895, P. L. no, Sec. 5, act of 1844, P. L. 565, is amended so that one judge may approve the bond, in term time or vacation, but not less than, ten day's notice shall first be given to the owners of such land or to their known agent or attorney of the time and place when and where such bond and security will be offered to the judge, and the names of the sureties to be offered. This act applied to all cases of damages by railroad or canal com- panies and all became subject to it at that time. 71. Jury trial. By act of 1871, P. L. 248, the right of trial by jury was given, and this was incorporated in the Constitution of 1874. 72. Bar as to damages. By act of 1866, P. L. 106, it was provided that after five years from actual entry and within three years after the road shall be in actual operation, no action for damages shall be brought against a railroad for right of way, etc. The effect of Art 3, Sec. 21, of the Constitution avoids this limitation.' The statute of limitations does not apply to proceedings under eminent domain.' 73. Waiver of assessment. The act of 1895, May 21, provides for a waiver of assessment. It is as follows : Section i. Be it enacted, &c., That in any and every action brought to ascertain or recover damages caused to any owner of lands by reason of the appropriation of a right of way or easement in the lands of such owner by any municipal or other corporation in- vested with and having the right of eminent domain as now au- thorized by the laws of Pennsylvania, where such owner of lands and such municipal or other corporation cannot agree upon the amount of damage done or properly payable to said owner for the appropriation of a right of way or easement in said lands, the parties may, by agreement with each other, waive the right to have such damages assessed as is now required by law, and such owner may thereupon file his statement and claim in the Court of Common Pleas of the proper county and rule the defendant to plead thereto within fifteen days from notice of such rule, duly served upon said corporation, and the said suit shall be proceeded with the same as if an award of viewers had been filed and an ap- peal had been taken therefrom. 74. Either party may demand and have jury view premises. Section 2. Either party to such action as is referred to in section one of this act shall have the right during the trial of such action, 'Heise v. R. Co., 62 Pa. 68; Dowling v. R. Co., 21 W. N. C. 527; Grape St., 103 Pa. 121. 'R. Co. V. Burson, 61 Pa. 369; Hannum v. Boro, 63 Pa. 475; Mc- Clinton v. R. Co., 66 Pa. 404; Seipal v. R. Co., 129 Pa. 425; Keller v. R. Co., 151 Pa. 67; StaufJer v. Boro, 215 Pa. 143. EMINENT DOMAIN. 167 on motion to the judge presiding at such trial, to demand and have the jury which may be selected to try said cause visit and view the premises over or through which the right of way or ease- ment mentioned in section one of this act may extend, before rendering a verdict in such case. Section two of this act has been held to apply only where there was no view. The rule as to the discretion of the court, on a trial, where a jury had previously viewed the premises remains the same as before this act.' A request to take a jury to view the premises should be made before the evidence is closed.* 75. Consolidation. Although the Constitution of 1874 prohibits the consolidation of parallel and competing lines, it does not cover connecting lines. The acts of 1861, P. L. 702, and 1865, P. L. 49, give railroad com- panies authority to merge their corporate rights, powers and privileges into any other railroad company so chartered, connecting therewith. Section two prescribes the method and conditions and preserves the debts, liens and liabilities after. When merged, if the acts governing the separate roads differed, the consolidated company will be governed by the law of the road with which the other lines were consolidated. The act of 1889, P. L. 205, regulates consolidation of railway companies and requires them to accept the provisions of the Consti- tution of 1874, before they may have any benefits under it. 76. Grade crossings — ^Equity jurisdiction. The act of 1868, P. L. 62, authorizes grade crossings of railroads by railroads, and the making of connections. The legislature re- serves the right to alter, amend or repeal. By act of June 19, 1871, P. L. 1360, court of Equity are given power to regulate grade cross- ings so as to "inflict the least practical injury upon the rights of the company owning the road which is intended to be crossed," or to avoid a crossing, if practicable. The court will inquire whether the corporation has been legally authorized to do what it attempts to do." 77. Widening railroads and canals. The act of 1869, P. L. 12, authorizes any railroad or canal com- pany to widen, deepen, enlarge or improve its works, and provides for assessment of damages under the act of 1849, supra. A dwelling house is not exempt from condemnation under this act;" but it may not be taken for terminals.' 78. lease of lines. The. lease of other lines of railroad, subject to provisions of law, is authorized by act of 1870, P. L. 31. ' Frazee v. Light Co., 20 Supr. C. 420 ; Laf ean v. York, 20 Supr. C. 573 ; Zug V. Pittsburgh, 194 Pa. 367 ; Trant v. R. Co., 15 Atl. 678. *Denniston v. Phila., i Supr. C. 599. 'Vinton Colliery Co. v. R. Co., 226 Pa. 131. ' Dryden v. R. Co., 208 Pa. 316 ; Snyder v. R. Co., 210 Pa. 500. ' O'Leary v. R. Co., 210 Pa. 522. i68 EQUITY PRACTICE IN PENNSYLVANIA. 79. Land in different counties. The act of 1881, P. L. 117, provides that where land taken or injured lies in different counties the parties may agree in which county the bond shall be approved. But if they cannot agree, then it shall be approved in the county where the mansion house is situated, or if there is none, then in the county in which the prin- cipal area of the land lies, and that county court shall have com- plete jurisdiction of the proceedings. 80. Change of location and grade of bridges and approaches. Section 4 of the act of May 4, 1905, P. L. 380, as amended by the act of April 27, 191 1, to change the number of viewers from seven to three, gives a railroad company the right to take lands, rights or easements necessary to make a change of location, depression or elevation of any bridge or approaches or change the location of the bridge in whole or part. Compensation or security must first be made; where they cannot agree bond to be given. If the bridge company and the railroad company cannot -agree (seven) three discreet and disinterested freeholders shall be ap- pointed viewers, on petition of either party to the C. P. The court shall fix a time not less than twenty nor more than thirty days there- after, for said viewers to meet at or upon the premises, of which the viewers shall give ten days' notice to both parties. Any five of the viewers may make a report to the court, and when con- firmed, judgment shall be entered and if not paid within thirty days execution may issue. Either party may within thirty days file an appeal from the report. The court may make all orders as to notices and proceedings. Under the act of May 8, 1909, P. L. 494, a county, when replacing a bridge is not restricted to the exact location of the old bridge.'* 81. Northern Central Eailroad. By act of 1854, P. L. 537, the Northern Central Railroad Com- pany was formed by the consolidation of the York and Maryland line, York and Cumberland and Susquehanna, and became subject to the act of 1849.' 82. Cumberland Valley. The Cumberland Valley was incorporated by act 1831, P. L. 373, amended 1836. The location reserved places of worship, etc., and outbuildings valued at $500. The provisions as to damages are similar to other laws passed at that time.. The Legislature reserved the right to revoke, and to purchase after thirty years. By act of 1852, P. L. 602, it was required to erect cattle guards on its line. 83. lehigh Valley. The Lehigh Valley was originally the Delaware, Lehigh and Wyoming and changed its name by act 1853, P. L. i. By act of 1857, P. L. 209, its corporate rights under the act of 1856, Mar. 8, were preserved, but not so as to conflict with the act of 1849. The 'aChartiers Creek Bridge, 48 Supr. C. 106. * Power to repeal reserved, State v. R. Co., 44 Md. 131. EMINENT DOMAIN. 169 Delaware, Lehigh and Wyoming was made subject to the act of 1849, by the act of 1859, P. L. 814. By act of 1854, P. L. 647, guar- dians were authorized to agree for their wards in the adjustment of damages. The act of 1866, P. L. 419, authorized this company to complete its line and construct branches under the act of 1849, ^tid subject to it. 84. Delaware and Hudson Canal Co. The Delaware and Hudson Canal Company originally incor- porated in New York, was admitted by act of March 13, 1823 (P. L. 74), and its power was enlarged so as to authorize the construc- tion of railways. The main features of the charter were similar to those of the Philadelphia and Reading Co. (supra). The state re- served the right to resume the franchises, after thirty years." 83. Baltimore and Ohio. The Baltimore and Ohio Railroad Company was by act 1828, P. L. 123, given the privilege of making surveys in Pennsylvania as authorized by its Maryland charter, in a manner not inconsistent with this act. The width was limited to 120 feet when more than 66 feet were necessary, but it had no right to construct lateral roads, and the right was reserved to connect with it. It was prohibited from discrimination in charges. The mode of assessing damages was made the same as under the Maryland law, which is found at p. 127, P. L. 1828. 86. Assessment of damages. By the Maryland law damages were assessed by a jury of twenty citizens of the county summoned by the sheriff on a precept from a justice of the peace. They were to meet on the land in not less than ten nor more than twenty days. The railroad company was prohibited from impeding other roads and tolls were fixed at a cent per ton per mile, 3 cents per ton per mile for freight and 3 cents a mile for passengers. By act of 1839, P. L. 355, tolls were regulated and the right to reduce them asserted. The act of April 21, 1846, P. L. 448, granted corporate powers and privileges in Pennsylvania and resumed the right to revoke in Sees. 10 and 12. This act granted the right of way from Maryland to Pittsburg. Lateral roads were limited to one mile, and the right to intersect and pass cars on the road reserved. From the assessment of damages the right of appeal in twenty days, as under our arbitration law, was provided for. For misuse or abuse, the privileges were to be revoked by writ of scire facias out of the Supreme Court of Pennsylvania. 87. New York and Erie. The New York and Erie was by act of 1841, P. L. 28, given the right to build through Susquehanna County, the citizens of Pennsyl- vania to have the same privileges as those of New York. Damages 'For further acts see 1826, P. L. 25, 204; 1830, P. L. 406, 407; 1848, P. L. 496; i8si, P. L. 739; 1852, P. L. 384, 535, S5i; 1853, P. L. 604; 1858, P. L. 222; 1859, P. L. 128; 1861, P. L. 277, 278, 407; 1862, P. L. 542; 1867, P. L. 1524; 1870, P. L. 554; 1871, P. L. 770. 170 EQUITY PRACTICE IN PENNSYLVANIA. were to be assessed by a jury of six on a venire from the Com- mon Pleas. An appeal within thirty days was allowed from their award. They were to pay damages before breaking ground. Dam- ages from fires were to be assessed in the same manner. The public roads were duly protected by this act. By act 1851 they were required to erect fences (P. L-. 629). By subsequent acts this com- pany was given further privileges and the right to revoke reserved. (See act 1846.) By act of 1864, P. L. 988, railroads were taxed on their lines within the state. 88. Huntingdon and Broad Top. By act of 1850, P. L. 154, with reference to the Huntingdon and Broad Top, repeal, etc., is reserved and by act of 1852, P. L. 614, it is put under the act of 1849. 89. The Fhila. and Trenton. The Phila. and Trenton was incorporated by act 1832, P. L. 86. It was not to be located on any turnpike, street or road. Assessment of damages by six viewers; appeal within thirty days. Tender on appeal and possesion to vest estate. The same provisions of police power, as to public roads, tolls, etc., and reservation of right to revoke and purchase within thirty years, as contained in acts al- ready cited. 90. Pittsburg, Eittanning and Warren. The act of 1837, P. L. 345, gave the Pittsburg, Kittanning and Warren Company the right of entry and provided for assessing the damages in the Quarter Sessions by six viewers^ on disagreement, the viewers to meet on not less than ten nor more than twenty days' notice. Of these, four might agree. This charter contains the usual reservations of right to resume the privileges and purchase after thirty years. By act of 1853, P. L. 412, the Allegheny Valley was authorized to build branches. 91. Pittsburg and Erie. By act of 1850, P. L. 812, the Pittsburg and Erie was authorized to locate on lands except dwelling houses, etc., the damages to be assessed in the Quarter Sessions, by twenty viewers, in not less than ten nor more than twenty days, on such reasonable notice as the court shall direct. This charter has the same provision as the Pennsylvania in regard to transportation of troops, etc., in war. It is declared a public highway, tolls are regulated and the right to declare void reserved. By act 1854, P. L. 592, this road was con- solidated with the Ohio and Pennsylvania, the number of viewers re- duced to five and notice by publication required to unknown owners. 92. Washington and Pittsburg. The act of 1837 fixes the privileges of the Washington and Pitts- burg, the width to be not exceeding four rods, dwellings, etc., ex- empt. Five arbitrators are to be chosen as to damages, and if they fail to agree, on petition to the Common Pleas, a venire to be awarded for a jury to assess. An appeal from their award was al- lowed within thirty days. In case any owners of land were under EMINENT DOMAIN. 171 disabilities, after one year from the construction a petition was pre- sented to the Common Pleas for an order in relation to the same. This charter reserves the right to the state to resume and purchase after thirty years. 93. Two systems of railroads. Before the act of 1849, the charters followed two systems one the Philadelphia and Reading and the other the Pennsylvania. The numerous short lines in Eastern Pennsylvania which make up the Reading system followed the act of 1833. Those lines and branches which followed the Pennsylvania, had charters similar to the act of 1846; such as the line from Blairsville to Indiana (1852, P. L. 639) ; and the South Penna. from Greensburg to Uniontown (1852, P. L. 99). A careful comparison of these acts prior to 1849 will show that nearly all contain specially reserved power to alter, annul or re- voke, and many to purchase after a term of years. AH those rail- road corporations mentioned, which have adopted the mode of pro- cedure laid down by the act of 1849, come within the force of the act of 191 1, as to appointment of viewers. A number of acts were amended by the same legislature so as to fix the number of viewers at three. 94. Reference to acts of incorporation. A reference to a number of acts is hereto appended: Pittsburg & Connellsville, 1837; 1846, P. L. 287; Ohio & Penna., chartered by Ohio, admitted 1849, P. L. 754; Phila. & Delaware changed to Phila., Wilmington & Baltimore, 1836, P. L. 87; Western Maryland admitted subject to act of 1849, by act of 1868, P. L. 1 184; Wyoming & Lehigh, 1833, P. L. 134; Norristown & Mt. Car- bon, 1833, P. L. 172; Susquehanna, 1833, P. L. 418; Mt. Carbon & Danville and Pottsville and Little Schuylkill, Consolidation, 1832, P. L. 256; Norristown, Berks & Lehigh, 1832, P. L. 342; Williams- port & Elmira, 1832, P. L. 573; Marietta, 1832, P. L. 583; Lykens Valley, 1830, P. L. 369 (no reservation) ; Phila., Germantown & Nor- ristown, 1831, P. L. 53; Delaware & Susquehanna, 1830, P. L. 323; Mill Creek & Mine Hill, 1830, P. L. 33, and 1828, P. L. 70; Mt. Carbon, 1829, P. L. 201, and 1844, P. L. 372; Railroad in Northern Phila., 1829, P. L. 270; Schuylkill Nav. Co., 1828, P. L. 414; Dan- ville & Pottsville, 1826, P. L. 242, and 1828, P. L. 421, and 1833, P. L. 263; 1851, P. L. 460; Lackawanna & Susquehanna, 1826, P. L. 80; Lackawanna & Bloomsburg, 1852, P. L. 669, subject to act of 1849 (see 1867, P. L. 956) ; Susquehanna & Delaware Canal & R. Co., 1826, P. L. 173; Erie, 1836, P. L. 395; York & Cumberland, 1848, 568; West Chester, 1831, P. L. 74, and 1833, P. L. 260, as to branches; Little Schuylkill & Susquehanna, 1831, P. L. 159; 1854, P. L. 327, providing for a special jury and view on rule of course, after appeal. Franklin, 1832, P. L. 114, revoked by legislature, con- ditionally; York & Maryland lines, 1832, P. L. 122; Catawissa, Wil- liarasport & Erie, formerly Little Schuylkill & Susquehanna, 1853, P. L. 285 ; 1869, P. L. 747 ; Lewisburg, Centre & Spruce Creek, April I, 1853; Cleveland & Pittsburg admitted, 1853, P. L. 473, adopting its Ohio charter; Cleveland, Painesville & Ashtabula, admitted sub- ject to act of 1849 (1854, P. L. 588) ; Lackawanna & Western Con- 172 EQUITY PRACTICE IN PENNSYLVANIA. solidated with Cobb's Gap and put under act of 1849 (1853, P. L. 163) ; Delaware, Lehigh, Schuylkill & Susquehanna, 1848, P. L. 575; Delaware, Lackawanna & Western made subject to act of 1849 (1865, P. L. 624) ; Norristown & Allentown, changed to Per- kiomen, 1865, P. L. 741 ; Pittsburg, Ft. Wayne & Chicago, put under act of 1849 (1865, P. L. 104); Susquehanna & Hudson put under act of 1849 (1866, P. L. 1 131); Connecting Railway Co. (1864, P. L. 896), assessment under acts of 1846 and 1850 as to Penna R.; Cleveland & Mahoning, charter annulled, 1864, P. L. 763; Bald Eagle Valley, 1861, P. L. 214, subject to act of 1849; Shawmut & Ridge- way, subject to act of 1849 (1861, P. L. 633); East Penn. (18^2, P. L. 114), damages to be ascertained according to act of April 9, 1856, under name of Reading & Lehigh; Reading & Columbia, 1858, P. L. 591, subject to act of 1849; Coudersport, Portage & Allegheny, 1857, P. L. 706, under act 1849; Ebensburg & Cresson, 1859, P. L. 314, subject to act of 1849. Canal, coal and other co.'s. There were numerous canal and coal and iron companies chartered by special acts, and others under the acts of 1849, P. L. 563 and 1873, P. L. 28, 76. Some of these are still of sufficient interest to warrant a reference to the acts incorporating them and extending their privileges, which is here done : Lehigh Coal & Nav. Co. Feb. 13, 1822, P. L. 21; 1827, P. L. 248; 1830, P. L. 288; 1831, P. L. 406, 457; 1837, P. L. 53; 1838, P. L. 393; 1839, P. L. 47, 152; 1841, P. L. 86; 1842, P. L. 19; 1844, P. L. 215; 1849, P. L. 591; 1861, P. L. 404; 1863, P. L. 99; 1864, P. L. II. 533; 1865, P. L. 73, 139, 378; 1866, P. L. 302; 1867, P. L. 986; 1871, P. L. 354; 1872, P. L. 584, 833. Absorbed Lehigh & Del. W. G. R. Co. ,1867. Lehigh Nav. Co. March 22, 1814, P. L. 181; 1816, P. L. 238; 1817, P. L. 273; i8i8, P. L. 197. Penna. Canal Co. May i, 1866, P. L. 1068; 1867, P. L. 593; 1870, P. L. 1318. Absorbed Wyoming Valley Canal Co. 1869, which was incorporated April 22, 1863, P. L. 567; 1864, P. L. 184. North Branch Canal Co. July 22, 1842, P. L. 411 ; 1843, P. L. 256; 1844, P. L. 425; 1845, P. L. 493; 1847, P- L. 214; 1848, P. L. 440; 1859, P. L. 530; i860, P. L. 338; 1861, P. L. 468; 1863, P. L. 311; 1865, P. L. 427; 1870, P. L. 790, 1308; 1871, P. L. 1377. Susquehanna & Lehigh Canal Co. 1826, P. L. 140; 1827, P. L. 178; 1828, P. L. 464; 1829, P. L. 105; 1830, P. L. 288; 1834, P. L. 524- Upper Lehigh Navigation Co. March 14, 1840, P. L. 134; 1852, P. L. 610; 1855, P. L. 360; 1855, P. L. 1856, p. 710; 1859, P. L. 655. Northern Coal & Iron Co. 1864, P. L. 627; 1866, P. L. 1028. Ab- sorbed Baltimore Coal and Union Railroad Co. 1871. Authorized to construct lateral railroad not exceeding 20 miles in length and con- nect with other railroads. Subject to repeal. Penna. Coal Co. 1838, P. L. 434. Given power of E. D. and to contsruct railroads, subject to repeal. Same act incorporates Wash- ington Coal Co., relinquished to Penna. Coal Co. under act 1849, P- L. 524. Amendments to Penna. Coal Co.'s charter, 1839, P. L. 391 ; 1841, EMINENT DOMAIN. 173 P. L. lis; 1849, P- L- 135; 1850, P. L. 317; 1851, P. L. 57; 1852, P. L- 7T, 1853. P- L- 196; i8ss, P. L. 379; 1857, P. L. 72; 1861, P. L. 371; 1862, P. L. 542, 3; 1863, P. L. 579; 1864, P. L. 430; 1867, P. L. 670; 1868, P. L. 1082. Hillside Coal and Iron Co. April 12, 1867; P. L. 1869, 1312; 1868, P. L. 1869, 1353. Absorbed North Mountain Coal Co. Dec. 30, 1873, and others. For reference to other special acts see Kulp's Corporation & Local Laws and Beitel's Titles to Penna. Corporations. 95. Bailroad landings. Under Sec. 10, act of April 24, 1843, P. L. 361, lands for railroad landings were to be condemned in the Common Pleas, and a jury of five was provided to assess the damages. 96. Docks. Under act of 1865, P. L. 33, authority is given to erect docks on navigable streams, the damages to be assessed under the act of 1849. 97. Turnpike, etc., co.'s. Turnpike and plank road companies were regulated by the act of Jany. 26, 1849, P. L. 10, as amended same year, P. L. 461. 98. Street railways. The right of eminent domain as applied to the earlier street rail- ways is limited by the regulations of city and borough councils, under the act of 1849, the damages, if any to be assessed as therein provided. These are illustrations : Fairmount Passenger, 1858, P. L. 257; Hestonville, etc., 1859, P. L. 389; Germantown Passenger, 1858, P. L. 494; Girard College, 1858, 300; Green and Coates Sts., 1858, 447; Ridge Ave. & Manayunk, 1859, P. L. 264; Central Passenger of Phila., 1858, 399, subject to Phila. ordinance of July 7, 1857; Citizens' Passenger of Phila., 1858, P. L. 166; North Branch Passenger of Phila., 1858, P. L. 245; Citizens' Passenger of Pbg., 1859, P. L. 203; Phila. City Passenger, 1859, P. L. 243; Wilkes-Barre & Kingston, i860, P. L. 888; Williamsport Passenger, 1864, P. L. 1080; Reading Passenger, 1865, P. L. 462. By act of 1879, P. L. 9, the incorporation of street railways in cities of the second and third class is regulated and city councils are given power to fix the conditions by ordinance. 99. General law — assessment — ^payment into court— consent of municipal authorities. The act of 1889, P. L. 211, provides for the manner of incorporat- ing street railway companies and authorizes them to construct exten- sions and branches. Sec. 14 provides for the use of portions of the tracks of other railway companies, and where they fail to agree upon the value, on petition, the Court of Common Pleas shall appoint five viewers to report thereon, with right of appeal, under Sec. 8, Art. 16 of Con. and act of June 13, 1874. On appeal the amount of the award may be paid into court to abide final judgment. Under Sec. 15, the con- sent of the local authorities is made a condition precedent. Section 174 EQUITY PRACTICE IN PENNSYLVANIA. 17 gives the right to use turnpikes not exceeding the width of two trades along or over the same, by making compensation to the own- ers, as above provided. 100. Grade crossings — obstructions, etc. Under section 18 they may cross railroads at grade, diagonally or transversely. Sec. 19 gives them the right to use streets and any wilful obstruction shall be punishable before a magistrate by a fine not exceeding ten dollars. Any street railway company existing when this act was passed was given the privilege of accepting its provisions by filing its acceptance in the office of the Secretary of the Commonwealth, when new letters patent were authorized to be issued to it, "subject to all the contracts, duties and obligations there- tofore resting upon it, or to which said company shall then be in any ways liable." 101. Procuring possession of lands condemned — ^notice. Section one of the act of June 7, 1907, P. L. 461, provides : "That when any municipality, corporation, or company, having the right of acquiring lands, buildings or other property by virtue of the laws of eminent domain, has tendered a bond in sufficient sum to secure the owner or lessee for damages, and the same has been ac- cepted, or, if the acceptance of said bond has been refused, and the same has been filed in and approved by the court, such municipality, corporation, or company shall have the right to immediate possession thereof. If the owner, lessee, or occupier shall refuse to remove his personal property therefrom, or give up possession thereof, the petitioner in the proceedings may serve written notice upon such owner, lessee, or his agent, or the occupier, to remove his personal property therefrom, and give up possession of said lands, buildings or other property, within sixty days from the date of the service of said notice." 102. Habere facias, on proof of service of notice. Section two provides: "That if the owner, lessee or occupier of said lands, buildings or other property shall refuse or neglect to remove his personal prop- erty therefrom and give possession thereof, upon proof of the service of the notice, specified in section one of this act, in the office of the prothonotary for the county in which said lands, buildings or other property is located, a writ of habere facias possessionem shall forth- with issue, directing the sherifiE to give to the party entitled thereto full and peaceable possession as is provided by existing laws." 103. Privileges conferred on school districts — exceptions. Section 608 of the new school code approved May 18, 1911, P. L. 309, provides : "Section 608. The board of school directors of any school district may enter upon and acquire any land in said district, either vacant or occupied, that it may require for school purposes, in compliance with the provisions of this act, except the following: Any burial-ground, or any land belonging to any incorporated institution of learning, incorporated hospital association, or unin- EMINENT DOMAIN. 175 corporated church, incorporated or unincorporated religious associa- tion, which land is actually used or held for the purpose for which such burial-ground, institution of learning, hospital, association, church, or religious association was established." 104. Petition for viewers, to the Common Fleas. "Section 609. When the board of school directors of any district shall enter upon and occupy lands for school purposes, as herein pro- vided, it or the owners of such premises, or any one of them in behalf of all of them, may present a petition to the Court of Com- mon Pleas of the county in which such land is situated, setting forth the facts, giving a description of the premises taken by metes and bounds, and the names of all the owners thereof; whereupon the said court shall appoint a jury of viewers, consisting of three competent and disinterested residents of said county, and shall fix a time for a hearing when they shall view said premises. Said time shall not be less than ten or more than thirty days after their appointment, of which time and place five days' notice shall be given by the peti- tioners to said viewers and other parties interested. If on account of non-residence, or for any other reason, personal notice cannot be given, notice shall be given of such view by registered letter, or by advertisement, or otherwise, as the court may direct." 105. Duties of viewers — report. "Section 610. At the same time and place fixed for said view, the said viewers, having first been duly sworn or affirmed to perform their duties with fidelity and according to law, shall view and ex- amine the premises so taken by said school district, and, after hear- ing such parties as may desire to be heard, shall decide and make a true report to said court concerning the matters set forth in such petition and submitted to them, and, taking into consideration the quality and location of and the improvements upon the land so taken and occupied for school purposes as aforesaid, and taking into consideration the damages sustained and the benefits accruing, shall estimate and determine what amount of damages, if any, have been sustained by the owners of such premises by reason of the tak- ing of said land by the school district, and to whom payable, if they can ascertain the legal owners thereof.. Such hearing may be ad- journed from time to time as such viewers may direct, and the said school district and the parties interested shall have at least five days' notice of the filing of such report. If the actual owner of such premises, or any part thereof, by reason of non-residence or otherwise, cannot be notified, notice of the filing of such report shall be given as directed by the court." 106. Appeal from report. "Section 611. If no exceptions are filed to, or appeal taken from, said report by any party interested within thirty days after the filing thereof, the same shall be confirmed absolutely by the court, and the amount awarded therein to any person shall be a valid debt and obligation of said school district, collectible as herein provided." 176 EQUITY PRACTICE IN PENNSYLVANIA. 107. Payment into court. "Section 612. If on account of any liens existing against such premises, or if the actual owners thereof cannot be found, or if the owners or any of them refuse the amount awarded by such re- port, or if, for any other reason, the said school distric'. cannot pay the sum awarded for such damages to the persons legally entitled thereto, it may pay the same into court, and thereafter the owners of such premises or its lien creditors shall look to said fund for all damages accruing to them on account of the taking of said property." 108. Practice on exceptions or appeal. "Section 613. If exceptions to said report are filed by any interested party, or if an appeal is taken, the said exceptions or ap- peal shall be disposed of according to the rules of said court." 109. Costs and fees. "Section 614. All costs and witness fees in any such case shall be paid by the school district: Provided, That in cases where an appeal is taken by any property owners from the award made by any board of viewers, and the appellant does not recover a verdict for a greater amount than the viewers awarded, the appellant shall pay all costs of such appeal and trial." 110. Exercise of privilege by county commissioners. The act approved May 11, 191 1, P. L. 244, embraces an elaborate scheme of laying out and constructing county roads, in the Quarter Sessions, with the approval of the court and grand jury, and powers of exercising eminent domain, after failure to agree with the owners of property as to the damages. 111. Petition for viewers— notice by publication. Section 6 of said act provides: "In case the said commissioners, or a majority of them, and the parties interested in the land upon which such public improvement shall or is to be made and constructed, as aforesaid, fail to agree upon the compensation to be made for the property so taken, injured or destroyed by reason of such improvement; then, upon petition of such commissioners, or a majority of them, or any person or parties interested in said proposed improvement and whose property or land is affected thereby, to a court of Common Pleas of said county, the said court of Common Pleas shall appoint three disinterested freeholders, residents of the county aforesaid, as viewers, and appoint a time, not less than twenty nor more than thirty days thereafter, when said viewers shall meet upon the line of the proposed im- provement and view the same and the properties affected thereby. The said viewers shall give at least ten days' notice, by publication in the newspapers aforesaid, of the time and place of their first meet- ing, and shall also give notice thereof by handbills posted in con- spicuous places along the line or in the vicinity of the said proposed improvement." 112. Proceedings by the viewers — report. "Section 7. The said viewers, having been sworn or affirmed faithfully, justly and impartially to decide and true report make EMINENT DOMAIN. 177 concerning all matters and things to be submitted to them, and in relation to which they are authorized to inquire under the pro- visions of this act, and having viewed the properties connected with and affected by the said proposed improvement, shall hear all parties interested and their witnesses; and, having due regard to the advantages and disadvantages, shall estimate and determine the damages, if any, for the property taken, used or appropriated, and to whom the same are payable; they shall give at least ten days' notice thereof, in the manner herein provided, to all parties in- terested, of the time and place when said viewers will meet and ex- hibit their report and hear any exceptions thereto; after making whatever changes are deemed necessary and proper, said viewers shall make report to the said court, showing the damages, if any, allowed, and file therewith a plan showing the properties acquired, taken, used and appropriated for the purposes aforesaid, and the names of the persons or parties to whom such damages are payable. The said viewers shall have the right to adjourn from day to day, as may be found necessary, and to administer oaths to all parties and witnesses appearing before them and desiring to be heard upon all matters connected with the construction, main- tenance, repair, alteration, change or extension of the improve- ments aforesaid. In making any such improvements it shall be lawful to enter upon, take and use whatever land may be necessary for the proper slopes, fills, embankments, and culverts; the damages therefor, if any, shall be taken into consideration and determined and reported by the said board of viewers, in the manner herein pro- vided." 113. Vacation of part of old road — ^transfer by owner. "Section 8. Whenever, by reason of the relocating, opening, widen- ing, straightening, or extending of any such road or highway, or any part thereof, any part of the road or highway so relocated, opened, extended, straightened, or widened shall thereby become useless and vacated, and the property of one owner shall intervene between the new road or highway and the lands of another having no other outlet, by reason of said relocation, opening, extending, straightening, or widening, it shall be the duty of the said county commissioners to obtain from the owner of said intervening prop- erty and the owner of the said contiguous or adjoining land an agreement for the transfer thereof from one to the other upon terms satisfactory to such parties ; and said county commissioners, if the parties shall not agree to the transfer of the properties so in- tervening upon the said new road, as aforesaid, and any such lot or piece of land in the opinion of the said county commissioners be insufficient for building purposes, it shall be taken and used as part of said road or highway." 114. Payment of damages. "Section 9. All damages found, awarded, or sustained for or on account of the improvement of any public road, under the provisions of this act, and all cost and expense thereafter incurred in repairing and maintaining such improved road, shall be paid from funds raised by taxation as hereinafter provided and authorized." Vol. 4 Practice — 12 178 EQUITY PRACTICE IN PENNSYLVANIA, 115. Appointment and pay of viewers. "Section lo. The viewers provided for in the foregoing sections may be appointed before or at any time after the entry, taking, ap- propriation, or injury of any private property used and required in said improvement. The costs of the said viewers and all court costs incurred, including advertising and notices, shall be paid by the said county; and each of the said viewers shall be entitled, as compen- sation, to a sum not exceeding five dollars per day for every day necessarily employed in performing the duties herein prescribed." 116. Exceptions to report — atrial, appeal, etc. "Section ii. Upon the report of said viewers, or a majority of them, being filed in said court, any party in interest may, within thirty days thereafter, file exceptions to the same; and the court shall have power to confirm said report, or to modify, change, or otherwise correct and amend the same, or refer the same back to the same or new viewers, with like power as to their report ; or within thirty days after the filing of any report in court, the county com- missioners, on behalf of the county, or any party whose property is taken, injured or destroyed, may appeal therefrom and demand a trial by jury; and any party so interested may, within thirty days after final decree and confirmation of said report by said court, have an appeal to the Supreme Court. That said court of Common Pleas shall have power to order and direct what notices shall be given in connection with any part of said proceedings, and make such orders as it may deem requisite in the premises. For the purposes of this act, it shall be lawful for a majority of the said board of view- ers to hear, determine, pass upon, and report all matters in this act relating to said viewers, but all said viewers shall act unless pre- vented by sickness or other unavoidable cause." 117. Municipalities. The various provisions of law in regard to cities and boroughs and townships of the first class, relating to streets, alleys, etc., are not set out here in extenso, and reference must be had to the latest act on the subject, which are subject to frequent changes by the legislature. By various acts the number of viewers was fixed at three, and by act of June 23, 1911, P. L. 1123, a board of viewers in each county was authorized to be appointed. Among the acts of the last legislature relating to condemnation and views are these: Condemnation of toll bridges connecting different municipal divi- sions, by proceedings in the Quarter Sessions, May 5, 191 1, P. L. 109. Townships of the first class, June 9, 191 1, P. L. 733; June 15, 191 1, P. L. 987. Capitol Park Extension with a reservation, June 16, 1911, P. L. 1027. Boroughs for wharves and docks, June 21, 191 1, P. L. 1099. 118. County board of viewers. The act of June 23, 191 1, P. L. 1123, which has been recently de- cided to be constitutional,' provides for the appointment of county '■ Comth. V. Cunningham, 60 Pitts. L. J. 209 ; Pet. of Reber, No. 12, Jan'y T., 1912, Supreme C, Petn. Martha Brown, No. 24, Jan'y T., 1912. EMINENT DOMAIN. 179 boards of viewers, from which selections and appointments are to be made in both the Quarter Sessions and Common Pleas, which- ever court has jurisdiction/ It is a general act and does not apply to corporations acting under special laws. Under various other acts passed in 191 1 the number of viewers is fixed at three. ' Columbus Twp. Road, 21 D. R. 29. CHAPTER IX. EMINENT DOMAIN— MODE 01" EXERCISE BY THE UNITED STATES— TELEGRAPHS AND OTHER UTILITIES— LUM- BER COMPANIES, ETC.— CONDEMNATION OF BRIDGES AND TURNPIKES— WATER SUPPLY AND WATER COMPANIES, ETC. 1. Exercise of eminent domain by 30. the U. S. 31. 2. Abutting owners exempt except 32. for roads, etc. 33. 3. Payment of damages into court. 34. 4. Filing bond when title is in dis- 35. pute. 36. 5. Appointment of guardian ad 37. litem. 38- 6. Act of Congress as to telegraphs. 39- 7. Telegraph companies in Penn- 40i sylvania. 41- 8. Assessment of damages. 42. 9. Municipal consent. 43- ID. Damages to trees. 44- 11. Lumber companies. 4S- 12. Approval of bond. 13. Lumbering over improved land. 40- 14 Condemnation of corporate 47- bridges. 15. Report of viewers. 4o- 16. Report of viewers, approval of. 17. Witnesses to be heard. 49- 18. Appeal. SO. 19. Removal of cause. 20. Streams on county lines. Si- 21. Counties authorized to condemn toll bridges. 52- 22. Petition for view on failure to agree. 53- 23. Proceedings by the viewers — oath — notice, etc. 54 24. Time of appointment — County to 55. pay costs. 25. Exceptions to report — power of S6. court — appeal. 26. Bond by county — tender — ap- S7. proval. 27. Effect of discontinuance — costs. S8. 28. Bridge to become public. S9. 29. Turnpikes — state condemnation. 60. 180 Petition for condemnation, etc. Stenographer and master. Oath of viewers. Quorum at view. Compensation. Report. Exceptions. Appeal. Effect of adverse report. Water supply for municipalities. Bond for damages. Viewers. Appeal. Appeal, affidavit for. Re-location of roads destroyed. Acquiring lands to prevent con- tamination. Damages, assessment of. Alteration and re-location of a channel of a stream. County may condemn land for county buildings. Cities, boroughs and townships. Acquisition of water plants and systems. Appraisers — time of filing re- port. Powers of appraisers — report — appeal. Authority to buy — filing consent — default. Municipality may issue bonds. Sinking fund — exemption from taxes. Appraisement where contract exists. Water companies under Act of 1874 Bond, tender of — refusal. Franchises may be taken. Exclusive privilege by contract EMINENT DOMAIN. i8i 6i. Power to take water. 73. .Viewers — practice — rule of esti- 62. Exclusive privileges ended, etc. mating damages. 63. Reserved power to purchase 74. When owners are absent, etc. — works. Bond — approval — effect. 64. Powers extended. 75. Guardians ad litem and trustees. 65. Water companies may take fee, 76. Jurisdiction when land lies in etc. two or more counties. 66. Extension of plant. 77. Order to fence private lands. 67. Electric power — consent of au- 78. Manufacturing companies under thorities. Act of 1849. 68. Condemnation of land, etc. 79. Iron and steel companies — real 69. Lands necessary, contiguous to estate, mining and manu- streams. facturing. 70. Revocation of privileges of gas 80. Coke and other manufacturing companies. companies. 71. Street railways given power to 81. Appropriation of streams — use locate and re-loca,te tracks, granted. etc. 82. Powers and privileges. 72. Bond to be tendered — approval 83. County roads — ^viewers to be — right of entry. three. 1. Exercise by the TJ. S. Sec. I, act 1874, P. L. 280, as amended by act June 19, 191 1, P. L. 1034, provides where the U. S. exercises its right of eminent domain in Pennsylvania, a petition shall be filed on behalf of the U. S. in the court of Common Pleas of the county where the land lies asking for a view. After such notice to the owners of such estates and interests affected, as the court shall direct, it shall appoint three dis- -creet and disinterested resident freeholders of the said county, who, having been duly qualified, and having given such public notice to the owners of the said estates or interests, as the court may direct, shall estimate and determine the fair value of such lands, etc., desig- nate the several owners, and report to the court, their award being subject to appeal, etc. Where the lands are situate in a town or city of more than 10,000 inhabitants, the viewers shall be residents there- of. The act of May 11, 191 1, amends section 4 of the act of April 29, 1874, so as to provide for three instead of five viewers. 2. Abutting owners. By act of 1871, P. L. 391, it was provided that damages should not be assessed against owners of property adjoining or in the vicinity, for lands taken for public use, except for roads, streets or highways.* 3. Payment into court. By act 1891, P. L. 172, where damages awarded are refused or declined, the party liable may pay the same into court, if no appeal has been taken and judgment is entered. The party may then have his rule to pay into court and satisfy the judgment, "after notice by rule or publication ordered by said court." 4. Filing bonds where title is in dispute. The act of 1893, P. L. 350, provides that in any case where any railroad or canal company has or shall have authority, under any 'Devine's Case. Q Phila. 553; Root's Case, 77 Pa. 276; Mill Creek Sewer, 196 Pa. 183. i82 EQUITY PRACTICE IN PENNSYLVANIA. act of assembly, to take and appropriate lands and materials, and in any case where such company is or shall be required to give security for the payment of damages to or for the taking of any land or ma- terials, and when it shall be made known to the Court of Common Pleas of the proper county by petition, affidavit or otherwise that there is a disputed, doubtful or defective title, or that any party interested in such land or materials is absent, unknown, covert, not of full age, or of unsound mind, or from any cause cannot be bargained with or served with notice, or have a bond tendered to them within the county where the land or materials are situated, the court which shall have jurisdiction of the appointment of viewers and assess- ment of damages in such case, shall, on application of such company, direct the iiling of a bond to the Commonwealth of Pennsylvania in an amount and with security to be approved by the court, for the use of the person or persons who may be found to be entitled to the damages for the taking and appropriation of such land or materials, or for the damage or injury to such land; and when such bond shall be so approved and filed, and when, upon the petition of such com- pany, viewers to assess the said damages shall be appointed, the said court shall direct notices of the approval and filing of said bond and of appointment and time and place of meeting of said viewers, respectively, to be published in two newspapers published in the county where the land or materials are situated, if two are published, twice a week for two weeks, after the bond is filed and before the day appointed for the meeting of the viewers; and the bond so filed and the notice or notices so published shall have the like effect as if the said bond had been given or tendered to the parties entitled, and as if personal notice had been served on the party or parties owning or claiming such lands or materials; provided, however, that when the residences of any such parties shall be known to such company a copy of such published notices shall be sent to them by mail or otherwise. 5. Guardian ad litem or trustee. Sec. 2. It shall be the duty of the court having jurisdiction of the appointment of viewers and assessment of damages, at the time of the application of such company for the appointment of viewers, to appoint a guardian ad litem or trustee, as the circumstances of the case shall require, for such interested party who is absent, unknown, covert, not of full age, or of unsound mind, or for any cause cannot be bargained with or served with notice or have a bond tendered to them, and such guardian ad litem or trustee shall represent the in- terests of the person of whom he is guardian ad litem or trustee, in all the subsequent proceedings. 6. Telein^aphs — ^United States laws. Congress, by Statute i866 (at large p. 221), authorized any com- pany organized under the laws of any state the right to construct and operate lines "through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States, and over, under, or across the navigable streams and waters of the United States" on condition : (i) "That Government business shall have priority of transmis- EMINENT DOMAIN. 183 sioii over all business, and shall be sent at rates to be annually fixed by the postmaster-general. (2) "That the rights and privileges hereby granted shall not be transferred by any company acting under this act to any other cor- poration, association, or person; provided, however, That the United States may at any time after the expiration of five years from the date of the passage of this act for postal, military, or other pur- poses purchase the telegraph lines, property, and eiiects of any or all of said companies at an appraised value, to be assessed by five competent, disinterested persons, two of whom shall be selected by the postmaster-general of the United States, two by the company interested, and one by the four so previously selected. (3) "That before any telegraph company shall exercise any of the powers and privileges conferred by this act, such companies shall file their written acceptances witli the postmaster-general of the restrictions and obligations required by this act." These conditions were accepted by the Western Union and other companies. 7. Telegraph companies in Penna. Sec. 33, act 1874, P. L. 92, gives telegraph companies the right to construct lines of telegraph along and upon any of the public roads, streets, lands or highways," or across any of the waters within the limits of this state, by the erection of the necessary fixtures, including posts, piers or abutments for sustaining the cords or wires of such lines, but the same shall not be so constructed as to incom- mode the public use of said roads, streets or highways, or injuriously interrupt the navigation of said waters ; and this act shall not be so construed as to authorize the construction of a bridge across any of the waters of this state. 8. Assessment of damages. In all cases where the parties carmot agree upon the amount of damages claimed, or by reason of the absence or legal incapacity of the owner or owners, no such agreement can be made, for the right to enter upon lands or premises for the purposes named in this sec- tion, the company shall tender a bond, or have the same filed in the manner provided in the 41st section of this act and proceedings shall be had as therein set forth. 9. Municipal consent. Under act of 1885, P. L. 164, the municipal authorities must first assent to erection of poles, wires, etc., within the municipality. 10. Damages to trees. The act of 1891, P. L. 170, makes telegraph, telephone and electric light Co.'s liable for damages for cutting trees belonging to adjacent owners. The mode of assessment is by three viewers appointed by the Court of Common Pleas of the county, who shall report at the next term of the court. If no appeal be entered before ten days from the Saturday of the week in which the same is presented, it shall be confirmed absolutely and judgment entered thereon. 'Tel. Co. v. Wilt, I Phila. 270. i84 EQUITY PRACTICE IN PENNSYLVANIA. 11. Lumber companies. By Sec. 4, act 1883, P. L. 287, companies incorporated for the pur- pose of floating and' driving logs, timber and lumber on and over any stream shall, before commencing the driving or floating on or over any stream, agree with the owner or owners of any mill or saw mill dams upon such stream or streams, and the owners of land adjoining such streams, for compensation for any damages that may be occasioned by reason of the erection of splash dams on said streams, and the driving and floating of logs, timber and lumber thereon ; and when such company cannot agree with the owner or owners for such dams, or riparian owners, for the damages afore- said, by reason of incapacity or otherwise, then the damages done or likely to be done to such owner or owners shall be assessed and the right of possession and use of the such stream or streams acquired, under the forty-first section of the act of 1874. (See acts 1889, P. L. 259, and 1893, P. L. 287, amendatory.) 12. Approval of bond. Sec. 5 of the act of 1883 requires the corporation to file a bond with sureties in the Common Pleas, approved by the judge thereof, to indemnify the owners, before authorized to enter and exercise any control over any stream. 13. Lumbering over unimproved land. The act of 1871, P. L. 868, and its supplements gave lumbermen the right of entry on unimproved lands of others, for lumbering op- erations in the counties of Cambria, Cameron, Carbon, Centre, Clin- ton, Clearfield, Elk, Luzerne and Monroe, the damages to be prepaid or secured. If unable to agree with the owners, then the lumber- man might file his petition in the Quarter Sessions, with his bond, for approval, and thereupon the court at its next succeeding term shall appoint three disinterested persons, who, after giving at least five days' notice to the parties, their agents or attorneys, shall pro- ceed to view and assess said damages, considering the advantages and disadvantages to accrue, and make report thereof to the next Court of Quarter Sessions; whereupon the said court shall proceed thereon in the same manner as is or shall be provided in the case of road views in said county, with power to order a review or con- firm the report, and to decree payment of costs by either party, or divide the same between them, as justice and Equity may require. 14. Condemnation of bridges — ^petition. The act of 1876, P. L. 131, as amended by the act of 1878, P. L. 42, provides that when any turnpike road company, bridge company or other corporation has heretofore erected or may hereafter erect by authority of general or special laws, any bridge over a river, creek or rivulet crossing any road or highway on which the public are required to travel, and such company or corporation is authorized to charge and take tolls for the use and crossing of such bridge, and at least twenty residents and taxpayers of the county where such bridge is situated shall petition the Court of Quarter Sessions of said county, or if said bridge be located on a river, creek or rivulet dividing two counties, then upon the petition of at least twenty EMINENT DOMAIN. 185 residents of each county, representing that the said bridge is neces- sary to the accommodation of public travel and that the payment of tolls over such bridge is burdensome to the traveling public and praying that the same shall be taken as a county bridge, the said court shall appoint six disinterested persons to view the said bridge and assess the damage, if any, which such company or corporation may sustain by the taking of the same, and make report of their pro- ceedings to the respective court at the next term thereof: Provided, that notice shall be given in at least one newspaper published at the County seat of such intended application for at least three weeks be- fore the presentation of such petition: Provided further. That when two or more toll bridges cross the same stream and lead to the same streets or general thoroughfares and are situated within one- fourth mile of each other, no purchase of any one of said bridges shall be made under this act, unless the assent of the stockholders of the remaining bridge or bridges be first had at a meeting called for that purpose.' A bridge erected under the act of June 14, 1873 (P. L. 1874, 421), and used for railroad purposes cannot be condemned.* 15. Report of viewers. Section 2. The viewers so appointed shall make report at the next term of the said court, which said report shall state particularly: First. Who of them were present at the view. Second. Whether they were severally sworn or affirmed. Third. Whether the bridge be necessary as a free bridge for public accommodation and the payment of tolls on the same is an unjust burden on the traveling public and the people of the township or townships where the same is located. Fourth. The amount of damages, if any, sustained by such company or corporation by reason of the taking of the same. 16. Approval by court and gi^and jury. Section 3, as amended by the act of 1878, P. L. 41, provides: "If, upon the report of the viewers, it shall appear to the court and grand jury that such bridge ought to be declared a county bridge, and is necessary for the public accommodation, and that payment of tolls thereon is an unjust burden on the traveling public and the people of the township or townships near where the same is located, the report shall be approved, and the damages shall be payable out of the county treasury, and the said bridge or bridges shall be taken possession of by the county commissioners, and shall thenceforth be declared a county bridge, and all tolls for travel thereon shall cease: provided, that in case one of the viewers fail to attend at the time and place of meeting, the viewers present, if five or more in number, may view and make the report." 17. Witnesses to be beard. Sec. 4., 1876. In their inquiry into the propriety of approving and confirming any report under this act it shall be the duty of the court and grand jury, if requested, to hear and examine witnesses for and against the same. 'Bridge Co. v. County, 172 Pa. 243; Hogsett's Ap., 182 Pa. 618. * Nanticoke Bridge, 40 Supr. C. 345. i86 EQUITY PRACTICE IN PENNSYLVANIA. 18. Appeal. Section 4 of the act of 1878 provides that the company owning any such bridge as mentioned in said act, or the county, shall have the right to appeal from any award of damages, made under the pro- visions thereof, to the Court of Common Pleas, in which such bridge or part thereof is situated, under such regulations for bringing the matter to trial in due course of law by a jury, as the said court may prescribe. 19. Bemoval of cause. Sec. s, act 1878: That after appeal entered as aforesaid, the case shall be removed, on application of either party, for trial in some other county to be determined by the court to which the appeal was taken. 20. Streams on county lines. Sec. 5, act 1876, provides: Bridges over any river, creek or rivu- let, being on the line of adjoining counties, shall be taken in the manner provided in this act in the case of any other county bridges, except that the Court of Quarter Sessions of each county shall ap- point three of the viewers, and that a report, as aforesaid, be made to the said courts, respectively, and the said courts shall, together with the grand jury and commissioners of the respective counties, in all other respects have and exercise concurrent jurisdiction and discretion therein. [The proviso was declared unconstitutional in Royersford Bridge, 112 Pa., 627, and repealed by act 1889, P. L. 29.] The toll gatherer's dwelling is to be included in the damages.^ 21. Counties authorized to condemn toll bridges. Section i of the act of May 5, 191 1, P. L. 109, provides: "That the several counties of this commonwealth are authorized to purchase or condemn any public toll-bridge crossing any river, rivulet, stream, or ravine- within the limits of such county, where the same connects different municipal divisions of such county. Proceedings for the purchase or condemnation of a bridge, under this act, may be instituted by said county, upon approval thereof by the Court of Quarter Sessions of such county, on petition of at least twenty taxpayers of the county in which such bridge is situate, repre- senting that such bridge is necessary to the accommodation of public travel and that payment of tolls on such bridge is burdensome to the traveling public, and praying that same shall be taken as a county bridge." Whilst the preliminary steps are in the Court of Quarter Sessions, the proceedings to view and condemn, on failure to agree with the owner or owners, is in the Common Pleas. 22. Petition for view, on failure to agree. Section 2 provides : "In case the county, after the approval of said petition by the court, desires to obtain any such bridge, and is unable to agree with the owner or owners of the bridge, upon the price to be paid therefor, "County V. Bridge Co., no Pa. 54. The Acts of May 6, 1897, P. L. 46, and May 13, 1901, P. L. 191, were held to be constitutional in Lewisburg Bridge Co. v. County of Union Etc., 232 Pa. 255. EMINENT DOMAIN. 187 any court of Common Pleas of the county wherein said bridge is lo- cated, or any law judge thereof in vacation, on application therefor by petition of such county, shall appoint three discreet and disin- terested persons as viewers, and shall appoint a time, not less than ten nor more than twenty days thereafter, when said viewers shall meet and inspect the said bridge and view the same, together with the approaches and appurtenances thereto." 23. Proceedings by the viewers — oath — ^notice, etc. Section 3 provides : "The said viewers, having been duly sworn or affirmed justly and impartially to decide and true report to make concerning all matters and things to be submitted to them, and in relation to which they are authorized to inquire in pursuance to the provisions of this act, and having viewed the said bridge, together with the approaches and appurtenances thereto, shall hear all parties interested and their witnesses, and shall estimate and determine the damages for the property taken and to whom the same is payable, and prepare a schedule thereof; and shall give not less than ten days' notice to all parties interested of the time and place where they will meet and exhibit said schedule and hear all objections thereto and evidence thereon. The said notice shall be given by personal service upon all the parties in interest or their attorneys of record residing in such county, if such residence is known, and to all others by publi- cation by one insertion in one newspaper of general circulation pub- lished in such county. After hearing the parties desiring to be heard in reference to said schedule at the time designated, and making whatever changes shall be deemed necessary, the said viewers shall make report to the court, showing the damages allowed and to whom the same are payable, and file therewith a plan showing the bridge, together with the approaches and appurtenances thereto, and all exceptions that may be filed to their said schedule." 24. Time of appointment — county to pay costs. "Section 4. The viewers provided for in the foregoing sections may be appointed before or at any time after the entry, taking or appropriation of such bridge, together with the approaches and ap- purtenances thereto. The cost incurred in the proceedings afore- said shall be defrayed by the county, and each of the viewers shall receive such compensation as the court may determine." 25. Exceptions to report — power of court — appeal. "Section 5. Upon the report of said viewers, or any two of them, being filed in said court, either party may within thirty days thereafter file exceptions to the same, and the court shall have power to confirm said report, or to modify, change or otherwise correct the same, or refer the same back to the same or new viewers, with like power as to their report; or, within thirty days from the filing of any such report in court, either party may, within thirty days after final decree, appeal to the superior or to the supreme court, accord- ing to law. Upon final confirmation, in any of the cases provided in this section, the award shall be good and valid judgment against the county. The said Court of Common Pleas shall have power i88 EQUITY PRACTICE IN PENNSYLVANIA. to designate what notice shall be given in connection with any part of said proceedings, and may make all such orders as may be deemed requisite." 26. Bond by county, tender, approval. "Section 6. In case of compensation to be paid for any bridge, which the county desires to obtain, cannot be agreed upon between the county and the owners thereof, and the county desires to take possession of said bridge, it shall be lawful for it to tender its bond as security to the owner or owners of such bridge; the condition of which bond shall be that the said county shall pay or cause to be paid such amount of damages as the owner or owners thereof shall be entitled to receive, after the same shall have been agreed upon by the parties in interest, or awarded in the manner provided for by this act. In case the owner or owners of such bridge shall refuse to, or do not accept such bond, it shall be lawful for such county, after five days' written notice to the owner or owners or attorney of record to present the same to the Court of Common Pleas ap- pointing said viewers, and, on approval thereof, said bridge shall become the property of such county." 27. Effect of discontinuance — costs. "Section 7. In case the county shall discontinue any proceeding taken, providing for the appropriation or condemnation of any bridge, as hereinbefore set forth, prior to the entry upon, taking or appro- priation thereof, and before judgment therein, the said county shall not thereafter be liable to pay any damages which have been, or might have been, allowed; but all costs upon any such proceedings had thereon shall be paid by the county, together with any actual damages, loss, or injury sustained by reason of such proceeding; the amount of the same may be determined and fixed by the court in which such proceeding was pending." 28. Bridge to become public. "Section 8. Whenever any bridge shall be purchased or con- demned under the provisions of this act, the county shall control, maintain and use said bridge as a public bridge; but it shall have power to charge tolls or rentals for the use thereof, from railway, telephone and telegraph companies, and other persons making use thereof for other than ordinary public foot and vehicle travel: Pro- vided, That where contracts exist between such persons and the owners of the bridge, such contract shall be preserved for the benefit of the county and shall be assigned thereto." 29. Turnpikes — state condemnation. State ownership of public utilities, and the mode of condemnation is further illustrated by the act of June 2, 1887, P. L. 306, providing for the acquisition of turnpikes, and the act of 1899, P. L. 79, where located upon a line dividing two counties. 30. Petition for condemnation and proceedings. The act of 1887 provides for a petition of twenty-fivfe or more resident taxpayers of the county and the act of 1899 for thirty or EMINENT DOMAIN. 189 more resident taxpayers of the two adjoining counties, upon pre- sentation of which to the Court of Quarter Sessions (both counties in the latter case), representing that any turnpike, road or highway, heretofore or hereafter constructed, upon which tolls are charged the traveling public, under any general or special law, is located wholly or in part of their county, and that it would be for the best interests of the people of their county for such turnpike, road or highway, or any part thereof, to become a public road, free from tolls and toll gates, it shall be the duty of such Court of Quarter Sessions to appoint a jury of view, consisting of five reputable citizens of the petitioner's county to view and condemn such turnpike, road or high- way or part thereof, for public use, free from tolls and toll gates, and to assess the damages to which the owner or owners thereof may be entitled therefor : Provided, however. That notice of the intended application for the appointment of such jury of view shall be pub- lished in two newspapers of general circulation in the petitioner's county, at least thirty days previous to the time of making the ap- plication, and that like notice in writing shall be served upon the county commissioners or proper municipal authorities, at least ten days before making such application: And provided further, That such petitioners shall serve or cause to be served upon the county commis- sioners or proper municipal authorities a written notice of the time and place of the meeting of such jury of view, at least five days be- fore such meeting shall be had. 31. Stenogfraplier — master. Sec. 2. The said court of Quarter Sessions may, in its discretion, appoint a competent stenographer to keep a faithful record of all pro- ceedings before the viewers and to furnish a full copy of his notes to be attached to and form a part of the record;' and, in addition to the five viewers provided for in the first section of this act, shall appoint a reputable person learned in the law, who shall preside at all meetings of the viewers, to be known as a master and have the power to determine the admissibility of evidence, to issue writs of subpoena to compel the attendance of witnesses and the production of papers, and instruct the viewers upon matters of law, to which exceptions may be taken for the purpose of review, but shall not have a vote on any question of fact or value. 32. Oath of viewers — appomtment. The same section requires the master and stenographer to be sworn, and then each of the viewers shall be sworn on his voir dire touching his competency, impartiality and disinterestedness, of which a record shall be made. The court shall have the power to appoint other viewers, if any be found disqualified or on objection by a party interested. Having all been found qualified they shall each be sworn to perform his duties with fidelity, impartiality and accord- ing to his best judgment. 33. Quorum at view. Three viewers shall constitute a quorum and be competent to act. They shall hear at least six witnesses pro et con. at the request of ' Somerton Turnpike, 16 Supr.C. 400. 190 EQUITY PRACTICE IN PENNSYLVANIA. the parties, but they may declare in favor of freeing the turnpike, without any testimony, if no request be made by either party. In assessing the damages the jury may consider tolls, condition of road- bed, value of stock, etc;' also local as well as general interests in- volved.' 34. Compensation of viewers. They shall be paid two dollars and fifty cents per day necessarily employed thereon, and the master's compensation shall be fixed by the court. The county commissioners shall draw warrants therefor. 35. Report of the viewers. The viewers shall report within thirty days after appointment, unless the time be extended by the court. The report shall show: First — The names of the members of the jury and master who at- tended each meeting thereof; Second — The number, names, residences and ages of the witnesses examined before a jury; Third — Whether or not the entire turnpike, road or highway is located in the petitioners' county, and if not, what proportion is so located, and whether or not it is for the best interests of the people of the petitioners' county for the turnpike, road or highway, or a part thereof, to be made free from tolls and toll gates, and whether or not the same is condemned, by such jury of view, for public use free from tolls and toll gates; and if the whole of said turnpike, road or highway lying in the petitioners' county is not condemned, but only a part thereof, then such part shall be clearly designated and described; and to which report shall be attached a map or draft of said turnpike-road, showing definitely the points between which the same is condemned for public use for the turnpike, road or highway, or part thereof, if the same shall be condemned for public use as aforesaid. 36. Exceptions. Exceptions may be filed to the report within thirty days after it is filed. The court may refer the report back to the viewers, with instructions to take further proceedings or testimony. When the report is confirmed or disapproved, either party may have a certiorari within twenty days after the final confirmation or disapproval, from the Supreme Court. 37. Appeal. An appeal from the assessment of damages may be taken by the corporation, the county commissioners or the municipal authorities, or by the twenty-five petitioners, within thirty days after the ap- proval of the report, and the court shall direct an issue to be tried by a jury, according to the course of the common law. An appeal may be taken to the Supreme Court, as in other cases, on ' Harrisburg Etc. v. County, 225 Pa. 467. ' Maytown Etc. T., 27 Lane. L. R. 133 ; Pattonville Turnpike Road. 32 Supr. C. 122. EMINENT DOMAIN. 191 affidavit that it is not taken for the purpose of delay. But an appeal cannot be taken from the Quarter Sessions, after final proceedings. "Thirty days" means after approval of the report of the viewers nisi, and not after final confirmation." A borough exercising the privilege of eminent domain, under the act of May 25, 1887, P. L. 267, cannot be compelled to give security." 38. Effect of adverse report. The act of May 7, 1907, provides "that where the jury has reported against the condemnation of such turnpike, road or highway, and such report has been finally confirmed by the said court, it shall be the duty of the said court, at any time after the lapse of five years from the date of the final confirmation of any such last preceding adverse report, upon petition of twenty-five or more resident tax- payers of said county, to appoint a second or subsequent jury of viewers, including a master and stenographer, as provided in said act, whereupon the same proceedings shall be had for the condem- nation of said turnpike, road or highway, and the assessment of damages therefor, and all sub-proceedings therein, as is provided in said act to which this is a supplement." 39. Water supply for municipalities. By act of 1887, P. L. 267, as amended by act of April 15, 1907, P. L. 90, any city or borough desiring to erect waterworks, or to improve its water supply, may for such purpose appropriate springs, streams known as rivers or creeks, lands, easements and rights of way, whether within its territorial limits or not, and for the pur- pose of conducting water obtained outside of the territorial limits of any city or borough, may lay pipes across, under and over any lands, rivers, streams, bridges, public highways and cross railroads: Provided, That no waters or springs, appropriated under the pro- visions of this act, shall he used in such manner as to deprive the owner or proprietor thereof of the free use of and enjoyment of the same, at all times, for any domestic, dairy, stock, or farm pur- poses. 40. Bond for damages. Sec. 2. Prior to any appropriation, the city or borough shall attempt to agree with the owner as to the damage done, or likely to be done to him; if the parties cannot agree, or the owner can- not be found, or is not sui juris, the said city or borough may file its bonds in the Common Pleas Court of the county, conditioned for the payment to the owner or owners of the property ap- propriated, of the damages for the taking thereof, when the same shall have been ascertained according to law. Upon the approval of the bond and its being filed the right of the corporation to enter upon the property or rights intended to be appropriated, shall be complete. 41.Viewers — ^notice. Upon petition of either the property owner, or the city or borough, at any time thereafter, the said court shall appoint five "Upper Ten Mile Plank Road, 15 D. R. 988. "Lancaster Etc. Turnpike Case, 26 Lane. L. R. 6. 192 EQUITY PRACTICE IN PENNSYLVANIA. disinterested freeholders of the county to serve as viewers, to assess the damages proper to be paid to the owner for the property or rights appropriated, and shall fix a time for their meeting of which notice shall be given to both parties. When the report is filed, either party may appeal and have a jury trial as provided by law. 42. Appeal. By act of 1874, P. L. 283, an appeal from the assessment of damages against any municipal or other corporation, or individual, by viewers shall be allowed to the Court of Common Pleas, "within thirty days from the ascertainment of the damages, or the filing of a report thereof in court, pursuant to any general or special act, and not afterwards."" 43. Affidavit. Sec. 2. Any appeal taken pursuant to this act, shall be signed by the party or parties taking the same, or by his or their agent or attorney, and shall be accompanied by an affidavit of the party ap- pellant, or of his, her or their agent or attorney, that the same is not taken for the purpose of delay, but because the affiant firmly believes that injustice has been done. It was the intention of the legislature of 1911, to fix the number of viewers in all cases at three. Whether it succeeded can only be learned by an examination of its acts. 44. Relocation of roads destroyed, etc. Section I of the act of May 7, 1907, P. L. 167, provides: "That whenever any municipal corporation in this Commonwealth shall supply water to the public, shall have found, or shall find, it neces- sary, in storing water, to occupy and flow with water portions of any turnpike or any public road in this Commonwealth, or where any public road now leads into, crosses over or through any reser- voir used for the storing of water, the said municipality shall cause the same to be reconstructed forthwith, at its own proper expense, on a favorable location and in as perfect a manner as the original road, and for such purpose are authorized to condemn land for that purpose whenever a.n agreement as to price cannot be had with the owners. And after such change is made, such municipality shall file in the court of quarter sessions of the proper county a map or plan showing such change of road, and shall furnish to the supervisors or other public authorities of the township or municipal corporation a copy of such map and the changes made." 45. Acquiring lands to prevent contamination. "Section 2. That any such municipality shall Ise and is hereby em- powered to acquire and hold, by purchase or condemnation, such lands, along and contiguous to the streams of water or reserviors from which water is taken for public use, as may be necessary to "Towanda Bridge Co., 91 Pa. 216; Hare v. Rice, 143 Pa. 608; Gardner v. Chester, 13 C. C. 4; Boro's Ap., 158 Pa. 314; on Act 1891, Bowers v. Boro, 172 Pa. 596. EMINENT DOMAIN. 193 preserve them from contamination: Provided, That no land shall be taken for the uses mentioned in this act until just compensation shall have been made for property taken, injured, or destroyed, which shall be paid or secured before such taking, injury or destruc- tion." 46. Damages assessed as in other cases. "Section 3. The damages incurred in changing the location of any turnpike or public road, as authorized by this act, shall be ascertained and paid by such municipality, in the same manner as is provided for in regard to the taking of lands, waters, materials, property and franchises for public purposes, as now provided by law." 47. Alteration and re-location of channel of a stream. The act of April 28, 1899, P. L. 74, was passed to enable a city or borough to re-locate or alter the course or channel of any creek, run or natural waterway, other than navigable streams, and to condemn and take property and materials necessary therefor. Since this act was passed to meet conditions in a few localities, it is not deemed important to set it out in extenso, but reference to the session laws, must suffice. 48. County may condemn land for county buildings. The act of June i, 1883, P. L. 58, and its supplement of April 26, 1889, P. L. 55, provide a method of condemning land for county build- ings which affords a complete system in itself, and reference thereto is here made. 49. Cities, boroughs and townships. The statutory provisions in cities of the three classes, boroughs and townships of the first class, in respect to the opening, altering and widening of streets and alleys, are similar to those regulating township roads and the element of benefits as modifying the damages constitutes a substantial feature, in each case. Reference must be had to these statutes. The act of May 25, 1907, P. L. 240, authorizes boroughs to take lands to build bridges or viaducts over railroads, rivers, creeks, streams and private property, etc. Damages to be assessed by three viewers, who are freeholders, to be appointed by the Court of Com- mon Pleas, and in the same manner as streets are opened. The act of June I, 1907, P. L. 365, amends the act of June 10, 1901, as to the taking of land by boroughs for public buildings, by adding "filter plant." The act of April 10, 1905, P. L. 125, authorizing cities to take land for sewers is not unconstitutional.' *■ Under the city viaduct law, remote and speculative damages are not an element."'' Section i of the act of March 26, 1903, is amended by the act of March 14, 1907, P. L. 12, so as to authorize cities to purchase or "* City of Lancaster's Case, 27 Lane. L. R. 233. "•> Robbins v. Scranton, 217 Pa. 578. Vol. 4 Practice — 13 194 EQUITY PRACTICE IN PENNSYLVANIA. condemn lands for "work houses or houses of detention, hospitals, water works, poor houses, for the purposes of a poor farm, garbage and incinerating furnaces, and sewage disposal works, or plants with the necessary filter beds, appliances, drains, and sewers and for any extensions thereof. 50. Power to acquire water plants and systems from corpora- tions, firms or individuals. Section i of the act of May 31, 1907, P. L. 355, provides: "That the several cities and boroughs of this Commonwealth desirous of owning and operating the water works, plants or system, for the supplying of water to any such municipality and the in- habitants thereof, which water works, plant or system is now or may hereafter be owned by a private corporation, firm or individual, may petition the Court of Common Pleas of the proper county, set- ting forth that the said municipality is desirious of owning said water plant or system, owned by such corporation, firm or individual, and that it will be necessary in order to make payments therefor to issue bonds, secured by such plant or system of water works, and, that therefore a value should be placed upon such water works, plant or system, including all property, real or personal, used in connection therewith and reasonably necessary for its purposes." 51. Appraisers — ^time of filing report. Section 2 provides: "That the said court shall thereupon ap- point three disinterested civil engineers as appraisers to value and appraise such plant or system and the property used in connection therewith and reasonably necessary for its purposes, who shall file their report in the office of the prothonotary of the proper court, within three months after their appointment, unless such time be extended by the court." 52. Powers of appraisers — report — appeal. "The appraisers so appointed shall have full access to the books and records of the private corporation, firm or individual owning said water works or system to inform themselves as to the income and value thereof. They shall have power to administer oaths, and, are hereby authorized to hear and consider the testimony of wit- nesses and other legal proofs. Their report shall be final if not appealed from within ten days after notice of the filing thereof shall have been served on the mayor or burgess of the city or borough and upon the corporation, firm or individual owning the water works. Within said ten days, either party may appeal from such appraisement, alleging an under or over valuation of the property thereby, and praying for a hearing before the court, and the said court shall thereupon, upon application of either party, fix a time when said appeal may be heard, of which time at least ten days' notice shall be given to the parties, and, upon such hearing, the court shall have power, after hearing legal proofs and argu- ments, to increase or lower such appraisement or otherwise and modify the same as the facts may warrant, subject however to the right of appeal by either party to the proper Appellate Court as in other cases in Equity." EMINENT DOMAIN. 195 63. Authority to buy — iling consent — default. "Section. 4. After such value is finally determined, the municipality is authorized to buy said water plant at the valuation so fixed and determined and the said corporation, firm or individual owning same shall, within ten days' notice of such determination, and a re- quest by the municipality so to do, file in said court a paper indi- cating its consent and election to sell and convey its plant, system and property so appraised, to the municipality, at the valuation fixed as aforesaid, and in default whereof, such corporation, firm or individual shall cease to have a:ny exclusive privilege of supply- ing said municipality or the citizens thereof with water and said municipality may install or cause to be installed such plant of sys- tem as the authorities may deem necessary and expedient for the accommodation of the public." Under this act when 3. company has filed a disclaimer it cannot afterwards enjoin the municipality." A borough need not give bond nor establish its financial ability as a pre-requisite." 54. Municipality may issue bonds. "Section 5. For the purpose of said purchase the municipality may issue bonds, which shall be secured solely by such water works system and property and the revenues thereof, to an amount not exceeding the appraisement of the value fixed by the said appraisers or the court. The proceeds of the sale of such bonds shall be used exclusively for the purpose of making payment for the prop- erty so acquired." 55. Sulking fund for redemption — ^bonds exempt from all taxes. "Section a The municipality shall provide an adequate sinking fund from the receipts and revenues derived from said water works or system, for the payment of the interest on such bonds and for their redemption. The bonds shall be payable within thirty years from the date of their issue and shall be redeemable at such earlier period as the municipality may by ordinance provide, and shall bear interest at a rate to be fixed by the municipality not ex- ceeding six per centum per annum. The bonds shall be exempt, from taxation for any purpose." 56. Appraisement where contract exists. Section 7. Should there be at the time of the passage of this act a contract or agreement in writing existing between any corporation, firm or individual owning the water plant or system and a munici- pality then being supplied with water, by such corporation, firm or individual, establishing or adjusting the price or fixing the manner in which such water plant or system may be appraised, purchased or acquired, then and in that case appraisers shall be selected and the appraisement made in accordance with the terms of such con- tract, and the respective parties to such contract, shall, in lieu of the preceding provisions of this act, carry out the terms of said contract in arriving at the value of the said water plant or system." ''Water Company v. Catasauqua, 3 Lehigh 319. ^Manheim Borough's Case, 229 Pa. 177. 196 EQUITY PRACTICE IN PENNSYLVANIA. When a city condemns water works it must pay for the franchise: as well as the property or "system" taken, and also the costs of the whole proceedings." 57. Proceedings to view under act of 1874. Section 41 of the act of April 29, 1874, as amended by act of May 5, 191 1, changing the number of viewers from five to three, provides: "That in all cases in which, under the provisions of this act, any corporation is permitted to take waters, streams, lands, property, materials or franchises for the public purposes thereof, and the said corporation cannot agree with the owner or owners of any such waters, streams, lands, materials or franchises, for the compensation proper for the damage done or likely to be done to or sustained by any such owner or owners of such waters, streams, lands or materials, which such corporation may enter upon, use or take away, in pursuance of the authority herein given, or by rea- son of the absence or legal incapacity of any such owner or owners, no such compensation can be agreed upon, the Court of Common Pleas of the proper county, on application thereto, by petition, either by said corporation or by the owner or owners, or any one in behalf of either, shall appoint three discreet and disinterested freeholders of the proper county and appoint a time, not less than ten nor more than twenty days thereafter, for said viewers to meet at or upon the premises where the damages are alleged to be sus- tained, or the property taken, of which time and place five days' notice shall be given by the petitioner to the said viewers and the other party; and the said viewers, having been first duly sworn or afiirmed faithfully, justly and impartially to decide and true report to make concerning all matters and things to be submitted to them, and in relation to which they are authorized to inquire, in pursuance of the provisions of this act, and having viewed the premises, they shall estimate and determine the quantity, quality and value of said lands, streams or property so taken or occupied, or the materials so used or taken away, as the case may be, and having a due re- gard to and making just allowance for the advantages which may have resulted, or which may seem likely to result, to the owner or owners of said streams, land or materials, in consequence of the making the improvements or conducting the operations of such cor- poration, or of the construction of works which the property is to be taken ; and after having made a fair and just comparison of said advantages and disadvantages, they shall estimate and determine whether any, and, if any, what amount of damages has been or may be sustained, and to whom payable, and make report thereof to the said court; and if any damages be awarded, and the report be confirmed by the said court, judgment shall be entered thereon; and if the amount thereof be not paid within thirty days after the entry of such judgment, execution may then issue thereon, as in other cases of debt, for the sum so awarded, and the costs and ex- penses incurred shall be defrayed by the said corporation; and each of the said viewers shall be entitled to one dollar and fifty cents per day for every day necessarily employed in the performance of the duties herein prescribed, to be paid by such corporation." "Monongahela Water Co.'s Case, 223 Pa. 323. EMINENT DOMAIN. 197 68. Tender of bond — refusal. The same section continues: "In all cases where the parties can- not agree upon the amount of damages claimed, or by reason of the absence or legal incapacity of such owner or owners no such agree- ment can be made, either for lajids, streams, water, water rights, franchises or materials, the corporation shall tender a bond, with at least two sufficient sureties, to the party claiming or entitled to any damages, or to the attorney or agent of any person absent, or to the guardian or committee of any one under legal incapacity, the condition of which shall be that the said corporation will pay, or cause to be paid, such amount of damages as the party shall be entitled to receive, after the same shall have been agreed upon by parties or assessed in the manner provided for by this act. Provided, That in case the party or parties claiming damages refuse or do not accept the bond as tendered, the said corporation shall then give the party a written notice of the time when the same will be presented for filing in court, and thereafter the said corporation may present said bond to the Court of Common Pleas of the county where the lands, streams, water or materials are, and if approved the bond shall be filed in said court for the benefit of those interested, and recovery may be had thereon for the amount of damages assessed, if the same be not paid or cannot be made by execution on the judg- ment in the issue formed to try the question. "The viewers provided for in this section may be appointed before or after the entry for constructing said work or taking materials therefor, and after the filing of the bond hereinbefore provided for; and, upon the report of said viewers being filed in said court, either party, within thirty days thereafter, may file his, her or their appeal from said report to said court. After such appeal either party may put the cause at issue in the form directed by said court, and the same shall then be tried by said court and jury, and, after final judgment, either party may have a writ of error thereto from the Supreme Court, in the manner prescribed in other cases; the said court shall have power to order what notices shall be given connected with any part of the proceedings, and may make all such orders connected with the same as may be deemed requisite. If any ex- ceptions be filed with any appeal to the pi-oceedings, they shall be speedily disposed of; and, if allowed, a new view shall be ordered, and, if disallowed, the appeal shall proceed as before provided." 59. Franchises may be taken. Under act of 1874, P. L. 73, clause 2 of sec. 34, as amended by act of 1889, P. L. 226, water companies may secure condemnation of the franchises and property of other corporations held for public use, and are not limited merely to private propel ty." But while they may do this, there are limitations upon its exercise." 60, Exclusive right. Where a borough makes a contract with a water company with " Gas Co. V. Water Co., 210 Pa. 177. " Chapter i, Par. 59 to 64 for authorities. See Water Co. v. Water Co., 7 C. C. 476. 198 EQUITY PRACTICE IN PENNSYLVANIA. the exclusive right to supply it with water for a period, it is thereby estopped from installing works of its own, in competition." 61. Power to take water. Under section 34 of the act of 1874, P. L. 93, as amended by the act of 1889, P. L. 226, a water company shall have power to appro- priate so much of the water from the rivers, creeks, canal water rights and easements, within or without the limits of the city, borough or place in which said company may by its charter be located, as may be necessary for its purposes, and all damage done thereby shall be ascertained, recovered and paid as provided for in the forty-first section of the act to which this is a supplement (1874, P. L. 104) ; and it is further authorized and empowered to enter upon lands, streets, etc., and make free use thereof, and if any in- jury be done to private property the said company shall make com- pensation therefor in the manner above provided. This act shall not apply to private springs or private water supplies. 62. Exclusive privileges repealed — ^pure water — agreement. The privilege under the act of 1874 was exclusive," as to such water companies as were incorporated under it prior to the act of 1887, P. L. 310, which repealed it by implication, as to water com- panies." The act requires companies to furnish pure gas and water and gives the Court of Common Pleas authority to enforce it." Before an assessment of damages is authorized the water com- pany is required to make an effort to agree with the owner or owners. 63. Power to purchase the works. Sec. 34, act of 1874, provides as follows: 'It shall be lawful, at any time after twenty years, from the introduction of water or gas, as the case may be, into any place as aforesaid, for the town, borough, city or district in which the said company shall be located, to be- come the owner of said works and the property of said company, by paying therefor the net cost of erecting and maintaining the same, with interest thereon at the rate of ten per cent, per annum, deducting from said interest all dividends theretofore declared. 64. Powers extended — other companies added. By act 1881, P. L. 112, the act of 1874, was extended to all gas and water companies. The act of 1887, P. L. 310, supplies the act of 1874, partly and gives gas, light, heat and fuel companies the " Troy Water Co. v. Troy, 200 Pa. 453. "Co. v. Phila., IS W. N. C. 57; Reading v. Co., 41 Leg. Int., 428; Sea- mans V. Water Co., i Lack. Jur. 421 ; Water Works v. Prager, 3 C. C. 371. "Water Co. v. Water Co., 148 Pa. 568. ""For full discussion of this subject see Chapter V, "Police Power," by Bierly. EMINENT DOMAIN. igg right of eminent domain to be exercised as in the 41st sec. of the act of 1874." 65. Water companies may take land in fee — pollution a mis- demeanor. The act of 1895, P. L. 195, gives water companies the right to hold lands purchased or leased by them in fee, subject to their con- tracts. The pollution of water on the enclosed lands of any in- corporated water company, is made a misdemeanor to be punished by a fine not exceeding fifty dollars and imprisonment not exceed- ing sixty days, by act of 1895, P. L. 231." 66. Extension of plant. The act of 1901, P. L. 270, gives a water company power to ex- tend its plant or works, subject to the terms of its charter, beyond any borough, town or city, on the petition of a majority of the lot owners in such district. 67. May furnish electric power — consent of authorities. By act of 1895, P. L. 425, water power companies may furnish electric power to citizens, but before entering upon any street or alley in a city, borough or township, they shall obtein the consent of councils or the supervisors of the district. 68. Power of condemnation. By act of 1893, P. L. 158, a chartered water company, may con- demn land or turnpikes or public roads, where necessary in storing water, if it cannot agree with the owners, but shall cause the road to be reconstructed on a favorable location to be approved by the Quarter Sessions and in as perfect a manner as the original. Equity will not restrain a water company from condemning land where complainant had an opportunity to object on proceedings prior to the approval of the bond, that the company made no effort to agree with him. A water company is not limited to one condemnation and may condemn land for a filtration plant in connection with it. Neither can complainant challenge the constitutionality of the act incorpor- ating the company. This can only be done when the Commonwealth is a party.^ 69. Lands contiguous to streams, etc. It is also authorized to take such lands along and contiguous to streams of water, or reservoirs from which water is taken for pub- lic use, as may be necessary to preserve them from contamination. '^ See these cases on the foregoing acts : Brymer v. Water Co., 172 Pa. 489; 179 Pa. 231; DuBois v. Water Co., 176 Pa. 430; White v. Meadville, 177 Pa. 643; Comth. v. Pittsburg Co., 180 Pa. S78; Braddock v. Water Co. 189 Pa. 379; Water Co. v. Tyrone, 195 Pa. 566; Philipsburg Water Co. v. Water Co., 189 Pa. 23; Hey v. Water Co., 207 Pa. 38; Gas Co. V. Water Co., 210 Pa. 177; Water Co. v. Water Co., 15 C. C. 603; Boro V. Water Co., 9 Kulp 241. See Pepper & Lewis' Digest Etc., vol. 22, col. 39, 478. See Bierly on Police Power, C. 5. " Burkhard v. Penna. Water Co., 234 Pa. 41. 200 EQUITY PRACTICE IN PENNSYLVANIA. Provided, That no land shall be taken for the uses mentioned in this act until just compensation shall have been made for the property injured or destroyed which shall be paid or secured before such injury or destruction; and any owner of land along said streams shall have the use of the water for farming and domestic purposes, with free ingress and egress at all times to such streams. The damages to be assessed as in other cases of taking for public pur- poses by a water company. 70. Bevocatiou of privileges of gas companies. The act of 1895, P. L. 266, revoked all exclusive privileges of gas companies, prior to April 29, 1874, which have since accepted the act of 1874. 71. Power of cities to take lands for certain purposes. The act of March 14, 1907, amending sec. i, act of March 26, 1903, enacts as follows: "That the several cities of this Commonwealth shall have power to acquire by purchase any real estate, within the city limits, which they may need, upon which to erect and construct necessary municipal buildings, fire engine houses, gas and electric light works, and, within or without the city limits, within the same county, sufficient real estate, for present and future use, upon which to erect work- houses or houses of detention, hospitals, waterworks, poorhouses, for the purpose of a poor-farm, garbage and incinerating furnaces, and sewage disposal works, or plants with the necessary filter-beds, appliances, drains, and sewers, and for any extensions thereof; and in case they cannot agree with the owner or owners as to the price thereof, or in case the owner or owners thereof are absent, or are incapacitated from any cause, or are unknown, by reason of which no agreement can be made, it shall be lawful for each re- spective city, and the same is hereby authorized and empowered, to take and appropriate, for any of the said purposes and any ex- tensions thereof, all such necessary and suificient real estate, within or without the city limits, as the case may be, after an ordinance shall have been passed providing for such taking and appro- priation." 71. Street railways given power to locate and relocate tracks, etc. Section i of the act of June I, 1907, P. L. 368, provides: "That every corporation now or hereafter chartered under the provisions of an act entitled 'An act to provide for the incorporation and government of street railway companies ;in this Common- wealth,' approved the fourteenth day of May, Anno Domini one thousand eight hundred and eighty-nine and the several amendments thereof and the supplements thereto, may locate or relocate its tracks and lines of railway so that the same may be in whole or in part on a public highway, or in whole or in part over private prop- erty, and shall have the right of eminent domain, which is hereby conferred, and, by virtue of such right, may take and occupy so much land or material as may be necessary for the location, con- struction and operation of its railway, either as an extension or EMINENT DOMAIN. 201 relocation of an existing line, or as a new line, which land shall not exceed forty-five (45) feet in width, excepting where a greater width shall be required for the slopes of cuts and embankments, and such easements in lands lying within or without the limits of any street, road, lane, alley or other highway, as may be necessary for the accomplishment of the objects of said corporations; and, also, such lands or materials as may be required for the purpose of locating and constructing all turn outs, poles, stations, power houses, car barns, lines for the transmission of power and all necessary works and buildings, conveniences and equipments for the construc- tion and operation of machinery, engines, boilers, or appliances, in- cluding the erection of poles for the support of wires and conduits, or the making of tunnels or subways, for the production or supply of the motive power used by said company in the operation of its railway, whether the lines for the transmission of such power be parallel with the said railway or divergent therefrom: Provided That no right of way for any such divergent transmission line shall exceed sixteen and one-half (i6i/^) feet in width: And, provided further. That in all cases just compensation for all property taken or injured by the construction and operation of the railway and appurtenances shall be made: And, provided further. That no cemetery, or place of public worship, or dwelling house, which is the bona fide home in the occupany of the owner thereof, or curtilage appurtenant thereto, shall be taken, excepting that so much of such curtilage may be taken for the widening of any right of way now owned by a street railway company as may be required to increase said right of way to a total width not exceeding forty-five feet, ex- clusive of the slopes, cuts and embankments: And, provided further. That before the right of eminent domain herein conferred shall be exercised upon any highway in any township, excepting for the purpose of crossing such highway, the consent of the owners of at least fifty-one (51) per centum of the foot frontage of the entire distance to be traversed longitudinally on such highway, in said township, shall be obtained: And, provided further. That the con- sent of the local authorities shall be first had and obtained before the occupation of the streets and highways in any city, borough, or township: Provided further. That all street railway companies that shall avail themselves of the right of eminent domain shall be common carriers of express matter, farm produce, garden truck, milk, merchandise and other light freight and property." 72. Bond to be tendered on disagreement — approval — ^right of entry. "Section 2. In case such corporation cannot agree with the owner of any real estate, land or material so about to be taken or injured, as to the compensation to be paid by such corporation to said owner, the corporation, before entering upon the said land, shall tender a bond with at least two sufficient sureties, to said property owner, conditioned for the payment of such amount of damages, as the property owner shall be entitled to receive, after the same shall have been agreed upon between the parties or assessed in the man- ner provided for in this act, whether the sum exceeds the amount of penalty in the bond mentioned or not. Provided, That in case 202 EQUITY PRACTICE IN PENNSYLVANIA. the said property owner shall refuse or decline to accept the bond so tendered, the corporation shall then give the said property owner a written notice of the time when the same will be presented for filing in court, and thereafter the said corporation may present said bond to the Court of Common Pleas of the county wherein the land about to be entered upon is situated, and, if the bond and sureties are approved, the bond shall be filed in said court for the benefit of those interested and recovery may be had thereon for the amount of damages assessed, if the same be not paid or cannot be made by execution upon any judgment therefor; and, after the approval of said bond, the said corporation may enter upon the said land and begin the work of construction. The execution and filing of said bond shall not relieve said corporation from the payment of the entire amount of damages which shall be awarded to any property owner and such owner may recover by an action of eject- ment the possession of the property taken unless said damages are paid in full." 73. Viewers to be appointed — ^practice — ^rule of estimating damages, etc. "Section 3. In all cases in which such corporation cannot agree with any property owner as to the proper compensation to be paid for the interest in the real estate, land or material taken or in- jured, the Court of Common Pleas of the county in which the land is situated, on application thereto by either said corporation or the said property owner, shall appoint five discreet and disinterested freeholders of said county as viewers and appoint a time not less than ten nor more than twenty days thereafter, for said viewers to meet, at or upon the premises where the damages are alleged to be sustained, or the property to be taken or injured, of which time and place five days' notice shall be given by the petitioners to the said viewers and the other party; and, the said viewers or any three of them, having been first duly sworn or affirmed faithfully, justly and impartially to decide and a true report to make concern- ing all matters and things to be submitted to them in relation to which they are authorized to inquire, in pursuance of the provisions of this act, and, having viewed the premises, shall estimate and de- termine the quantity, quality and value of the real estate, land or material so taken or injured, or to be taken or injured, and hav- ing due regard to and making just allowance for the advantages which may have resulted or which may seem likely to result to said owner in consequence of the taking or injury of said real estate; and, after having made a fair and just comparison of said advantages and disadvantages, they shall estimate and determine whether any, and, if any, what amount of damages may have been sustained, and to whom payable, and make report thereof to said court; and, if any damages be awarded and the report be confirmed by the said court, judgment shall be entered thereon, and, if the amount thereof be not paid within thirty days after the entry of such judg- ment, execution may then issue thereon for the sum so awarded and the costs and expenses incurred shall be defrayed by said cor- poration; and each of said viewers shall be entitled to five dollars per day for every day necessarily employed in the performance of EMINENT DOMAIN. 203 the duties herein prescribed, to be paid by such corporation: Pro- vided, That either party shall have the right to appeal from the said report to the said Court of Common Pleas within thirty days after the confirmation of the report, and the appeal shall be tried by a jury as in similar cases, but the costs of the appeal shall be paid by such corporation after final judgment. Either party may appeal therefrom to the Superior Court or the Supreme Court as the case may require." 74. When owners are absent, etc^ — ^bond — approval — effect. "Section 4. In any case where any street railway company has or shall have authority under this act to take and appropriate lands and in any case where such company is or shall be required to give se- curity for the payment of damages to or for the taking of land, and when it shall be made known to the Court of Common Pleas of the proper county by petition, affidavit or otherwise that there is a disputed, doubtful or defective title, or that any party interested in such land is absent, unknown, covert, not of full age, or of unsound mind, or from any cause cannot be bargained with, or served with notice, or have a bond tendered to them, within the county where the land is situated, the court which shall have jurisdiction of the appointment of viewers and assessment of damages in such case, shall, on application of such company, direct the filing of a bond conditioned as provided in section two hereof, to the Commonwealth of Pennsylvania, in an amount and with security to be approved by the court, for the use of the person or persons who may be found to be entitled to the damages for the taking and appropriation of such land, or for the damage or injury to such land, arid when such bond shall be approved and filed and when upon the petition of such company, viewers to assess the said damages shall be appointed, the said court shall direct notices of the approval and filing of said bond and of appointment and time and place of meeting of said viewers, respectively, to be published in two newspapers, published in the county where the land is situated, if two are published, once a week for three weeks after the bond is filed, and before the day appointed for the meeting of the viewers; and the bond so filed and notice or notices so published shall have the like effect as if the said bond had been given and tendered to the parties entitled and as if personal notice had been served on the party or parties own- ing or claiming such lands : Provided, That when the residence of any such parties shall be known to such company a marked copy of such notice shall be sent to them by mail or otherwise." 75. Guardians ad litem or trustees for those under disabilities. "Section 5. It shall be the duty of the court having jurisdiction of the appointment of viewers and assessment of damages, at the time of the application of such company for the appointment of view- ers, to appoint a guardian ad litem or trustee, as the circumstances of the case shall require, for such interested party who is absent, unknown, covert, not of full age, or of unsound mind, or from any cause cannot be bargained with or served with notice, or have a bond tendered to them, and, such guardian ad litem or trustee shall represent the interests of the person of whom he is guardian ad litem or trustee in all subsequent proceedings." 204 EQUITY PRACTICE IN PENNSYLVANIA. 76. Jurisdiction when land lies in two or more counties. "Section 6. Whenever a street railway is located or constructed over or upon a property situate in two or more counties, the Court of Common Pleas of either county may take jurisdiction of the proceedings to assess damages, and the first of the said courts to which application for any such proceedings shall be made, shall ac- quire jurisdiction to the exclusion of the others." 77. Order to fence private lands — gates. "Section 7. Whenever the right of way of any street railway com- pany authorized to exercise the right of eminent domain under this act shall cross private lands, the Court of Common Pleas of the county in which such lands are situated may upon petition of the owner of such lands and proof of the necessity thereof, order and decree that said railway company shall properly fence in the right of way of said company and erect gates at all private ways and farm crossings and keep said fences and gates in good order and repair, and said court may require a bond with surety to be ap- proved by the court, to be filed for the faithful compliance with said decreee." 78. Manufacturing companies. The act of 1849, "to encourage manufacturing operations in this Commonwealth" did not confer the privilege of Eminent Domain, and all charters granted under it are subject to this provision: "Sec. 26. The legislature reserves the right to amend, alter or repeal this act, in such manner, however, as shall do no injustice to the corporators; but such amendments, alterations or repeal shall not take away or impair any remedy given against any company, created in pursuance of the provisions of this act, its stockholders or officers for any liabilities which shall have been previously incurred." 79. Iron and steel companies — ^real estate, mining and manu- facturing. The act of March 21, 1873, P- L. 28, amended by act of same year, P. L. 76, provides for the incorporation of iron and steel manufac- turing companies, under which it is claimed the Temple Iron Com- pany holds its chartered rights. Section six provides "that every such company shall have the right to purchase, lease, hold, mortgage and sell real estate and mineral rights, to prove and open mines, to mine and prepare for market, or for their own use and consumption, iron ore and other minerals, and to erect and construct furnaces, forges, mills, foundries, manufac- tories and such other improvements and erections as they may deem necessary, and to manufacture iron and steel, in all shapes and forms, either of these metals exclusively or in combination with other metals, or with wood, and to transport all of said articles, or any of them, to market and to dispose of the same, and to do all such other acts and things as a successful and convenient prosecution of said business may require; Provided, They shall not at any one time have more than five thousand acres of land within this Common- wealth, including leased lands." EMINENT DOMAIN. 203 80. Coke and other manufacturing companies. The act of April 18, 1873, P. L. 76, extended the provisions to the manufacturing of coke with iron and steel or either of them ; and also to glue, sandpaper, hair, kent and woolen goods and paper," and authorized an increase of "Capital stock to any sum not exceed- ing five million dollars." 81. Appropriation of streams — use granted. Under Section 11, "it shall and may be lawful for any corporation organized under this act to appropriate any stream or streams, spring or springs, flowing through or along or rising upon any lands belong- ing to and owned by such corporation, in the vicinity of their ■works, for the purpose of supplying the same with steam or water power, upon the said corporation filing in the office of the prothon- otary of the Court of Common Pleas of the county in which such works may be located, a draft or drafts, showing the stream or streams, spring or springs, which may have been appropriated for the purposes aforesaid, whereupon it shall not be lawful for any other corporation or individual to divert or use the water of any stream or streams, spring or springs, thus appropriated, so as to diminish the usual, accustomed and natural flow thereof : Provided, That every corporation thus appropriating any stream or streams, spring or springs, shall, after using the same for their manufacturing neces- sities, return the same into the usual and accustomed channel where- by the waters of such stream or streams, spring or springs, have theretofore been accustomed to flow oflf or along the lands of such corporation." 88. Powers and privileges — ^unconstitutional purpose. Section 12 prescribes that "the incorporation of any association of persons under the provisions of this act shall be held and taken to be of the same force and effect as if the powers and privileges con- ferred, and the duties enjoined, had been conferred and enjoined by special act of the legislature; and the franchises granted shall be construed according to the same rules of law and Equity as if it had been created by special charter, and no modification or repeal of this act shall affect any franchise obtained under the provisions of the same." " 83. County roads. The act of May 11, 191 1, provides an elaborate system of county roads to be laid out by authority of the Court of Quarter Sessions, and the damages to be assessed by three viewers, to be appointed by the Court of Common Pleas, in the manner therein described. The act of April 27, 1911, amends section I of the act of June I?, 1836, so as to make the number of road viewers three instead of six. See also act of May 11, 1909, P. L. 506, authorizing the buildinar of public highways, bridges and tunnels in the several counties. Sec- tion 5 confers the power to appoint viewers to assess damages. "This section was designed to anticipate the new constitution or- dained by the people of Pennsylvania in December, 1873, which abolished special legislation and granting of charters. If so intended, it conflict=! with the constitution of 1838 and the amendment of 1857, under and subject to which the act was passed. CHAPTER X. EMINENT DOMAIN— ASSESSMENT OF DAMAGES— JURIS- DICTION— PETITION OF TAKER— PETITION OF OWNER— NOTICE. 1. Proceedings in rem. 17. Viewers, qualifications of. 2. Jurisdiction. 18. Notice of view. 3. Waiver of view. 19. Notice when indispensable. 4. Petition by taker. 20. Notice — mode of service. 5. Prerequisites. 21. Notice — time, Act 1849. 6. Description of land. 22. Assessment, by whom made. 7. Answer. 23. Foi-m of petition to give bond 8. Petition for approval and filing for security. of bond. 24. Form of notice of application to 9. Notice in writing. give bond. 10. Approval — sufficiency of bond. 25. Form of bond. 11. Petition by owner — misdescrip- 26. Averment of failure to agree. tion. 27. Form of notice of presentation. 12. Cause of injury, allegation of. 28. Form of affidavit of tender. 13. Title, averment of. 29. Form of petition of owner for 14. Prayer for relief. assessment of damages. 15. "Owner," dower inchoate — 30. Form of order to and report of tenants. viewers. 16. Amendment of petition. 31. Form of report of viewers. 1. Assessment of damagfes. Proceedings to assess damages are in their nature in rem,^ not according to the common law, but special,' and for the sole purpose of fixing compensation." But to determine who may receive it, the question of title may be determined.* There can be but one assess- ment.** Where the government condemns, it may institute the pro- ceedings." 2, Jurisdiction. .... . .u If the court has jurisdiction its judgment is not void, although the proceedings may be irregular.' But objections to the jurisdiction may be raised at any stage, even on appeal.' Every essential requi- site must be complied with, to give jurisdiction.' ^Chandler v. Comrs., 141 Mass. 208. " Gilmer v. Lime Point, 19 Cal. 47. ' Mountz V. R. Co., 203 Pa. 128. * Bredin v. R. Co., 165 Pa. 262 ; Los Angeles v. Pomeroy, 124 Cal. 597. *a Chatham St., 16 Supr. C. 103. "Chappell V. U. S. 160 U. S. 499- " Alameda City v. Cohen, 133 Cal. 5. ' Grove Street, 61 Cal. 438. " R. Co. v. Kimball, 61 Cal. go ; Ditch Co. v. Webber, 108 Cal. 88 ; County .v Gamlich, no Cal. 94; Madison v. Daley, 58 Fed. R. 751. 206 EMINENT DOMAIN. 207 The presumption of regularity arises only where jurisdiction has clothed the proceeding with it." Where a municipal corporation has the power by its charter, and the mode of exercising it is prescribed, it must be followed strictly." In some states mere irregularities are not fatal to the jurisdiction." (See infra as to Penna.) In condemnation proceedings under the act of March 22, 1901, P. L. S3, the question of unconstitutional merger by parallel and com- peting lines of railroad, cannot be raised by a property owner, by a bill for an injunction. The remedy must be by the Commonwealth, challenging the right." 3. Waiver of view — ^rule to plead. Under the act of 1895, P. L. 89, the parties interested in the as- sessment of damages for property taken by eminent domain may, by agreement in writing, waive a view, and the "owner may thereupon file his statement and claim in the Court of Common Pleas of the proper county and rule the defendant to plead thereto within fifteen days from notice of such rule, duly served upon said corporation, and the suit shall be proceeded with the same as if an award of viewers had been filed and an appeal had been taken therefrom." 4. Petition by the taker. When the taker petitions for an assessment of damages he must show: (a) That he is entitled to take the land by right of eminent domain. ' (b) That the land to be taken is necessary to the construc- tion and operation of the improvement" and its extent." (c) The names of the various owners of the land taken, and that having made an effort they cannot agree with each other upon the question of compensation, which must be verified;" and (d) that it has surveyed, marked and located the road on the land (if a railroad), which also must be verified." When there is a discrepancy between the line as marked and as located, the petition may be amended." It has been held sufficient when the petition was signed by the board of directors by the president and secretary, in the absence of evidence to the contrary. (Kuntz' case, 2 Lehigh, 231, 1996.) 'Road Co. v. Abraham, s Ore. 318; R. Co. v. R. E. Co., 10 Ore. 444; Hampton v. Water Co., 65 N. J. L. 158. "Binney v. Canal Co., 8 Peters (U. S.) 201; County v. Thompson, 51 Cal. 577. "Stanford v. Worn, 27 Cal. 171; Co. v. Crozier, 118 Cal. 680; Co. v. Johnston, 129 Cal. 404. "^ Penna. R. Co. v. Libby Bros., Court No. 3, Allegheny County, Evans, J. "Ditch Co. V. Webber, 108 Cal. 88. " Shick V. R. Co., i Pearson 259. "" Penna. R. Co. v. Porter, 29 Pa. 165 ; Ladd v. E. Portland, 18 Ore. 87. "Reitenbach v. R. Co., 21 Pa. 100; O'Hara v. R. Co., 25 Pa. 445; Dar- lington v. U. S., 82 Pa. 382; U. S. V. R. Co., 16 Fed. R. 524; Mahoney v. San Francisco, S3 Cal. 383; Co. v. R. Co., 29 Colo. 90; Road Co. v. Abra- ham, 5 Ore. 318; Cable Co. v. R. Co., 23 U. 474. " O'Hara v. R. Co., 25 Pa. 445. " Boyd V. Negley, 53 Pa. 387 ; under the act of 1832 the petitioner alone may survey; Fricke Coke Co. v. Painter, 198 Pa. 468. 2o8 EQUITY PRACTICE IN PENNSYLVANIA. 5. Prerequisites. The petition should show that all preliminary requirements of the law have been met," though not necessarily in detail." Such es- sentials, however, must appear, as authority of eminent domain,"* the fact of incorporation, if the taker be a corporation,^ the public use," whether it is to operate a railroad or telegraph line or what public utility;" or if an irrigating ditch, its public necessity." But power given to a municipality in an act, need not specify the details;" inability to agree, or a good reason for not attempting," as absence of the owner, or the futility of it.'" The statute of limitations does not apply.™ The portion of the act of February, 1905, P. L. 22, which au- thorizes the assessment of benefits against private lands, for a sewer, is unconstitutional, since such lands are taken by eminent domain."* 6. Descriptioiu It should show the description of the land with definiteness and precision;" and only that which it proposes to take." But this de- scription may be made precise by a map, plan or draft ;^ unless de- fective." The names and residences of the owners are essential.'" An insufficient petition is demurrable.^ 7. Answer. A petition may be answered by a general denial of the averments;" but, after award, an answer denying that the petitioner has no title will not be allowed to be filed nunc pro tunc." If several issues are raised by an answer, the defendant may be ruled to elect, on which he will rely." The rule as to variance is the same as in civil suits." ''Harbaugh Ave., 10 C. C. 440. ™ County v. Scobey, 31 Wash. 357. " Montgomery, 48 Fed. R. 896. " Dallas V. Hallock, 44 Ore. 246. " R. Co. v. Moss, 23 Cal. 323. " R. Co. V. Leviston, 134 Cal. 412. " Dist. v. Brandon, 103 Cal. 384. " San Francisco v. Kiernan, 98 Cal. 614. " R. Co. V. Moss, 23 Cal. 323 ; R. Co. v. R. E. Co., 10 Ore. 444; Ex Parte U. S., 24 P. L. J. 105. " Reitenbaugh v. R. Co., 21 Pa. 100. "U. S. V. R. Co., 16 Fed. R. 524. " Stauffer v. Boro., 215 Pa. 143. "a' Anderson v. Lower Merion Twp., 217 Pa. 369. "Water Co. v. Baker, 95 Cal. 268; R. Co. v. Gould, 122 Cal. 601. "Fricke Coke Co. v. Painter, 198 Pa. 468; R. Co. v. R. Co., 67 Cal. 59; R. Co. V. Coleman, 3 Wash. 228. *" County V. Co., 139 Cal. 128. " R. Co. V. Hooper, 76 Cal. 404. "^ See note 4. "Santa Ana v. Brunner, 132 Cal. 234; Parker v. Court, 25 Wash. 544, " Santa Ana v. Gildmacher, 133 Cal. tos. "R. Co.. I Leg. Gaz. 22. "R. Co. V. Wait, 3 Ore. 91. *" P. & R. R. Co. V. R. Co., 12 C. C. 513. EMINENT DOMAIN. 209 8. Petition for approval and filing of bond. On a petition for approval and filing of bond, the petition should be sworn to and it should show the right of petitioner to take by virtue of eminent domain and set forth all the pre-requisites.' If it be by a street railway company, under act of June i, 1907, P. L. 368, it will be fatally defective if it does not aver incorporation and that it comes within such act, and set forth the resolution to ap- propriate the land.° On petition for the approval of a bond, by a pipe line Co. it was held sufficient to set forth the size of the pipe, the general direction and the number of feet of land required. The approval of the bond is not an adjudication of the right to proceed with the condemnation;* but there is no appeal from the order." A bond approved by the court is sufficient to the taking, where actual payment is not made a pre-requisite,° and when security is given the owner is restricted to the proceedings instituted for condemnation.' By the approval of the bond the owner's title is divested.' A bond which is conditioned for the payment of damages arising from the location of the road covers all, both of location and construction." When a water company tenders a bond in proceedings to con- demn lands of another water company and it does not appear in the bond itself, or in the petition for its approval or otherwise in the record that the company has no right in law to appropriate the land and waters described therein, it is error for the court to dismiss the proceedings without passing upon the sufficiency of the bond." Under the act of 1889, P. L. 159, the single surety of a title surety company is sufficient. In case the land belongs to a married woman, a bond to her alone is sufficient." A general bond filed by a logging Co. under act of 1883, P. L. 156, is sufficient; separate bonds as required by act of 1874, P. L. 73, being no longer necessary;" so also a bond under act 1869, P. L. 12, without warrant of attorney, if approved by the court." If the properties to be affected are properly described, it is imma- terial that the railroad company was misnamed." But before the court approves a bond the record should show the pre-requisite fact that an effort had been made to agree with the owner, upon com- ' Summit Water Co.'s Bond, 16 D. R. 355. ' York Railways Co. v. Stiles, 23 York 69 ; Economy Imp. Co. v. R. Co., 57 Pitts. L. J. 273. 'Gas Company's Pet., 6 D. R. 200. *Edgewood Water Co. v. Troy Water Co., 7 C. C. 476. "Market Co. v. Reading Terminal Co., 142 Pa. 580; Pittsburg R. Co. v. Gamble, 204 Pa. 198. "Fries V. R. Co., 85 Pa. 73. 'Degen v. Water Co., 3 Lack. Jurist 233. 'Fischer v. R. Co., 17s Pa. 554; Wanamaker v. Schuylkill Etc. Co., 21 D. R. 669. ' Wadhams v. R. Co., 42 Pa. 303. As to requisites see Studebaker v. Gas Co., 7 Supr. C. 641 ; County v. Tisdale, 136 Cal. 474- '" Katharine Water Co., 32 Supr. C. 94. "R. Co.'s Appl., 28 W. N. C. 117. " Sharpless v. Boro, i Grant 237. "Imp. Co. V. Ives, 144 Pa. 114. " R. Co.'s Appl., 7 Phila. 461. "Line Co.'s Case, 6 York 73. Vol. 4 Practice — 14 210 EQUITY PRACTICE IN PENNSYLVANIA. pensation." Where the application concerns a crossing, it should also first appear whether it be at grade or not." Under the act of May 25, 1887, P. L. 267, a borough need not give bond;" nor under the act of 1907 to take over water works.*" Where a bond is approved and filed subsequent to the granting of an injunc- tion, it will not be made perpetual.'" 9. Notice in writing. The act of 1856, P. L. 288, requires that notice in writing shall be given of the time when the bond will be presented, and this should appear in the record. But if the record does not show it, but it was proven that the notice was served, but claimant failed to read it, he will not be heard to complain after approval, which raises a presumption that notice was given.''' When an appeal from a view is pending on the question of necessity, a bond will not be approved."" 10. Approval — sufficiency of bond. The rule was laid down by Scott, J.,"' that the only question for the court of Common Pleas was upon the sufficiency of the bond, since its approval settles nothing as to the right to exercise the privilege of eminent domain. He further suggested that there is ample Equity power to control the exercise of corporate functions."* The rule as to considering only the sufficiency of the bond has been fol- lowed as established practice,"^ but where a rule of court relates to the sufficiency of the surety and adequacy of amount, it will be followed." After the approval, objections to mere informalities will not be considered." The approval is interlocutory and non-appeal- able."* The order relates only to the security for the damages which may be found and does not affect any qwestion as to the right involved in the taking."" After approval it appeared that the damages were not " R. Co.'s Appl., 7 Phila. 461. "Schuylkill Etc. R. Co.'s Pet., 17 Phila. 11. "Lancaster Etc. Turnpike Case, 26 Lane. L. R. 6. ''Manheim Boro's Case, 229 Pa. 177. ""Bland v. Water Co., 222 Pa. 285. "" Bryant v. R. Co., 6 C. C. 53 ; Welsh v. R. Co., 6 C. C. 56. ""Bessemer Co. v. Coal Co., 18 C. C. 440; In re Coke Co.'s Railroad, 5 D. R. 76s. "' Railroa,d Co.'s Case, 8 D. R. 65, citing Getz v. R. Co., i Walker, 427 ; Slocum's Ap., 12 W. N. C. 84; Myers v. R. Co., 14 Luz. L. R. 247; 3 Kulp 347 and Von Storch v. Canal Co., 3 Luz. Leg. Obs. 368. "*Comth. V. Bank, 3 W. & S. 193; Sarver's Ap., 81 * Pa. 193; R. Co.'s Ap., 79 Pa. 257. "'Katharine Water Co., 32 Supr. C. 94; Harwood Coal Co. v. Water Co., IS Luz. L. R. 114. "" Penna. R. Co.'s Bond, 31 C. C. 537 ; Lancaster and Northern R. Co., 27 Lane. L. R. 257. "' Myers v. R. Co., 3 Kulp 347. "Slocum's Ap., 12 W. N. C. 84; Market Co. v. R. Co., 142 Pa. 580; Mc- Manus' Ap., S Supr. C. 65. ""Getz V. R. Co., I Walker 427; R. Co. v. C. Co., i Lack. Jur. 113; Water Co. V. Water Co., 7 C. C. 476. EMINENT DOMAIN. 211 only greater than the amount in the bond, but also that the sureties were insolvent, and the court held that additional security could not be required," which seems to annul the statement that there can be no wrong without a legal remedy. The street railway act of 1907, supra, contains a clause providing for this discrepancy. If the owner of the land dies after the bond has been approved and filed, the damages will be distributed as personal property and not real' estate.'" A compulsory nonsuit will not be entered for defects in the bond, where no substantial damages are proved."* 11. Petition by the owner — misdescription. When the owner of the land petitions for an assessment of dam- ages, he should show specifically, not only the nature and quantity of his estate, but the character of the injury for which he claims com- pensation. If he fails herein, the proceedings may be quashed even in the Supreme Court.'^ A law is valid which gives a lot-holder the right to petition although it does not embrace the lien-holder.^ It must comply with the constitution.^'' The statute of limitations does not apply to it.°° Where a description of land included some below low water mark and the jury was properly instructed not to allow compensation for that portion, the judgment will not be dis- turbed." 12. Cause of injury. If the efficient cause be stated, evidence of the natural consequences may be given, though not particularized in the petition." The peti- tion should not mention the amount of the bond, but where it did, and no exception was taken before award, the objection was held waived.** 13. Title. The petitioner must correctly set forth his title. If he be a tenant in common with others, he cannot have the entire damages assessed, even though he have a power of attorney from the other co-tenant and a release from his wife.™ '"Welsh V. R. Co., 6 C. C. 56. ^ Sloan V. Hoyt, 40 Supr. C. 181. "a Mtchell V. R. Co., 28 Lane. L. R. 33. ''Canal Co. v. O'Brien, 4 Rawle 358. ^ Sec. V. Ramish, 138 Cal. 120. "Sharett's Road, 8 Pa. 89; R. Co. v. New York, 176 U. S. 335- ''McClinton v. R. Co., 66 Pa. 404; D- L. & W. R. Co. v. Burson, 61 Pa. 369; Hannum v. Boro, 63 Pa. 475; Phila. Etc. R. Co. v. Cooper, 105 Pa. 239; Wheeling Etc. R. Co. v. Warrell, 122 Pa. 613; Covert v. R. Co., 204 Pa. 341; Carter v. Turnpike Co., 208 Pa. 565; Stauflfer v. Boro, 215 Pa. 143. ""McGunnegle v. R. Co., 213 Pa. 383. " R. Co. V. Gilson, 8 Watts 243. ™ Wilson V. R. Co., 7 Montg. 46; Diller v. Pipe Line Co., 9 Lane. 125. "R. Co. V. Bucher, 7 Watts 33. 212 EQUITY PHACTICE IN PENNSYLVANIA. 14. All owners must join prayer. All the owners must join and become parties." The rule is: Void as to one, void as to all.*" The prayer of the petition should ask for an assessment of the damages suffered and not for a valuation of the land." 15. "Owner" — dower inchoate — tenants. To be an "owner" and have his damages assessed, he need not be owner of the fee; but he may be owner of merely a right of way;' or of a mill race, with right to use water;" or an irrigation ditch;' or a non-navigable stream;' or a spring below high water mark;° or a water power on a stream which is a highway." "Owners" includes all interested in the estate, legally or equitably.' But dower inchoate is not an estate in land and is defeated by proceedings in the lifetime of the husband, who by agreement had released the damages.'^ Land- lord and tenant have distinct estates," and a tenant from year to year may recover without proving a term certain, and for loss occasioned by being compelled to move his machinery from the leased premises." But a tenant by sufferance has no right to damages and may be evicted on ten days' notice.'^ One who has an Equity of redemp- tion after a tax sale is an "owner." " A railroad company which condemns a building without consent of the municipality is liable to a tenant who renews his lease before such consent is obtained and the cost of removing the machinery may be shown, not as a substantive item, but as bearing on the gen- eral valuation of the leasehold estate." A judgment will not be reversed, for error, when evidence was given, unobjected to, of depreciation of lessee's fixtures and cost of removal; neither can the railroad company avail itself of the landlord's right to have possession on ten days' notice, as reserved in the lease. Damages belong to the owner of the land at the time of appropria- tion and not to the subsequent vendee, when there is nothing to show such intent. The vendee cannot proceed to have the damages assessed in such case.*^^ *■ R. Co. V. Alley, 34 Mich. i6. " Brush V. Detroit, 32 Mich. 43. *" Quigley's Case, 3 P. & W. 139. ' Phila. Etc .R. Co. v. Williams, 54 Pa. 103. 'Lycoming Water Co. v. Moyer, 99 Pa. 615. * Reading v. Althouse, 93 Pa. 400. 'Hecksher v. Water Co., 2 Foster 273. ° L. V. R. Co. V. Trone, 28 Pa. 206. ' Barclay R. & C. Co. v. Ingham, 36 Pa. 194. ' Phila. Etc. R. Co. v. Williams, 54 Pa. 103. 'a Arnold v. R. Co., 32 Supr. C. 452. ' Voegtly v. R. Co., 2 Gr. 243. ° Getz v. R. Co., los Pa. 547. •a Lyons v. R. Co., 209 Pa. 550. '° R. Co. v. Benitos, S9 Tex. 326 ; Enoch v. R. Co., 6 Wash. 393 ; or one having an inchoate right under the U. S. land laws, R. Co. v. Zeigler, 167 U. S. 05- " Printing Co. v. R. Co., 216 Pa. 504. " Shipley v. R. Co., 216 Pa. 512. "a Quade v. Columbia Etc. R! Co., 233 Pa. 20. EMINENT DOMAIN. 213 16. Amendment — conditions. Amendment of the petition may be had at any time before the view, with leave of court.'" Even after view the court may set aside the report and allow an amended petition to be filed, and ap- point a new jury." The court may, in its discretion, impose condi- tions, when an amendment is allowed, but if it does not impose any, it will not be reviewed, when no abuse is shown." Where the petition was in the name of the husband, and it should have been in the right of his wife, it is amendable." After issue framed it is too late to object to the names of the parties." 17. Qualification of viewers. Under the act of 1849, P- L. 79, a viewer must be a disinterested freeholder in his own right."' Objection to his qualifications must be made before the report, unless it is not sooner discovered." By the act of April 27, 191 1, Section i of the act of June 13, 1836, is amended so as to change the number of viewers for a public road from six to three and the county road act of May 11, 191 1, provides for "three disinterested freeholders, residents of the county afore- said as viewers." The board of viewers act of June 23, 191 1, P. L. 1 123, also provides for "a board of view of three members, one of whom shall be learned in the law." This has been declared consti- tutional and held to repeal the provision in the act of 1849, on the same subject"* 18. Notice. The acts of 1848 and 1849 required no notice to the landowner of the time and place where viewers were to be appointed," but Wood- ward, J., in Reitenbaugh v. R. Co." suggested that it was good prac- tice to bring the other party in, or at least give him notice before the viewers are appointed." Under the act of 1832 notice of applica- tion for a view was required, which might be signed by the at- torney for the taker.'^ But, for want of notice, and a defect in the petition, an exception made in the Supreme Court was sustained." 19. Indispensable, when. Notice to the owner is necessary under the U. S. Constitution.' Where an ordinance taking property must be published, the publica- tion must precede compensation.* Without notice the proceeding is " Penna. R. Co. v. Porter, 29 Pa. 165. " Penna. R. Co. v. Bunnell, 81 Pa. 414. " Robinson v. R. Co., 174 Pa. 199. " Seipel V. R. Co., 129 Pa. 425. "Ehret v. R. Co., 151 Pa. 158. "Patten v. R. Co., i Pearson 48; Alley, 2 D. R. 136. " Newbecker v. R. Co., i Pearson 57. "a Brown's Pet., 236 Pa. i ; Reber's Petn., 235 Pa. 622. '°Zack v. R. Co., 25 Pa. 394. "21 Pa. 100. " Still's Damages, 2 Chester 233. "" Harvey v. Lloyd, 3 Pa. 331. " O'Hara v. R. Co., 25 Pa. 445- ' Burns v. R. Co., 15 Fed. R. 177 ; Thompson v. Co., 2 Ore. 34 ; Silva v. Garcia, 65 Cal. 591. 'Bates V. Titusville, 3 Pitts. 434. 214 EQUITY PRACTICE IN PENNSYLVANIA. void and a law that does not provide for notice is unconstitutional.' It must appear affirmatively on the record that notice was given in road cases.* But it may be waived by appearance and participation." A notice to husband alone will not bind his wife as tenant in com- mon.' If possession changes after notice, no further notice is re- quired.' One owner served is not competent to object on behalf of another not served, in Pennsylvania,' but in New York it is different and better." Notice may be served personally on the agent of an owner, and after many years have elapsed, such service will be valid, though the agency be then denied." 20. Mode of service. When the mode of service is not specified, it should be personal service on residents." The legislature may provide for notice by publication." The mode of service and the proof of it must con- form t9 the law." But when the law is silent as to the manner, it must be in writing, differing from the common law in this respect." 21. Notice of view. Under the act of 1849 ten day.s' notice of the meeting of the viewers must be given to the landowner, and, upon exception to the report for want of such notice, the view './ill be set aside.'° If it appear that there are other claimants notice should be given to them." 22. Sy whom made. The assessment may be provided for in the law, by viewers or commissioners, with an appeal to court, where a jury may be had." A jury is not necsesary in the first instance," except where the con- stitution requires it, and then no other makeshift will suffice." 23. Form of petition to give bond for security. To the Honorable Judges of the Court of Common Pleas of Ches- ter county the petition of the Phila. and Western R. Co. respectfully represents : ' Burns v. R. Co., 15 Fed. R. 177. 'Boyer's Case, 37 Pa. 257; R. Co.'s Ap., 102 Pa. 38; Bryant v. R. Co., 6 C. C. S3; State v. Officer, 4 Ore. i8o. ' Kimball v. Co., 46 Cal. 19. 'Whitcher v. Benton, 48 N. H. 157. ' Houston V. Tr. Co., 69 N. J. L. 168. But see Curran v. Shattuck, 24 Cal. 427; where the common law doctrine of lis pendens does not apply. "Alley, 2 D. R. 136. •R. Co. v. R. Co., 172 N. Y. 462. '"Peach Etc. R. Co. v. McAllister, 7 Supr. C. 574. " R. Co. V. Smith, 78 111. 96. "Turnpike, 2 Dauphin Co., 51; Wight v. Davidson, i8i U. S. 371. "Central Etc. R. Co.'s Ap., 102 Pa. 38. " Church v. Phila., 4 Clark 181. " Reitenbaugh v. R. Co., 21 Pa. 100. But see act of 1856 giving courts power to fix the time, supra. " McCurdy v. R. Co., 8 W. N. C. 143. " Cherokee Nation v. R. Co., 13s U. S. 641 ; Whitman v. Nantucket, 169 Mass. 147; Bauman v. Ross, 167 U. S. 548. " State V. Rapp, 39 Minn. 65 ; R. Co. v. Congn., 53 Pa. 445. " Peterson v. Smith, 6 Wash. 163 ; Towanda Bridge Co., 91 Pa. 216. See Constitution of Penna., 1874. EMINENT DOMAIN. 215 First. That your petitioner was duly incorporated and is existing tinder the general railroad law of Pennsylvania. [If by special char- ter, set forth.] Second. That your petitioner has by due corporate action, and by virtue of its powers and privileges, surveyed, ascertained, located, fixed, marked and determined the route of the proposed railroad in the township of Valley, county of Chester, and that the same passes through and over the land of Graham Rambo. Third. That for the purpose of constructing said railroad your petitioner has measured off a narrow strip of land belonging to the said Graham Rambo, having a width of fifty feet and extending in length about two thousand three hundred and seventeen and five-tenths (2,317.5) feet, and containing 2.66 acres, which is more particularly and at large described in the engineering description and the blue print hereunto attached and made a part hereof. Fourth. That your petitioner, after reasonable effort so to do, has been unable to agree with the said Graham Rambq as to the damages sustained or likely to be sustained by the occupation of the said land as aforesaid. Fifth. That your petitioner has tendered a bond to the said Graham Rambo in the sum of three hundred and seventy-five dollars, conditioned for the payment of all damages which may be caused to him or likely to be caused to him and which he shall be entitled to receive for the entering by your petitioner upon his lands and the establishment of its railroad thereon, after the same shall have been agreed upon by the parties or assessed as now provided by law. Sixth. That the said Graham Rambo refused to accept the said bond, and your petitioner therefore applies to your honorable court for leave to file said bond to Graham Rambo in the sum of three hundred and seventy-five dollars with the as surety, in accordance with the act of assembly in such case made and pro- vided. And it will ever pray. Phila. & Western R. C., Willard F. Thompson, President. Attest: Paul Willis, Secretary. (Affidavit appended.) 24. Form of notice of application. To Graham Rambo : Notice is hereby given that application will be made to the Hon. Joseph Hemphill and Hon. William Butler, Jr., Judges of the Court of Common Pleas of the County of Chester, State of Pennsylvania, at the court house (or in chambers), on Monday, the seventh day of July, 1902, at ten o'clock A. M., to approve the bond tendered to you to secure the damages which you may suffer by reason of the construction and operation of the Phila. & Western R. Co. over your land. W. W. MacElree, Jos. H. Baldwin, Attorneys for R. Co. 2i6 EQUITY PRACTICE IN PENNSYLVANIA. Charles H. Umsted being duly affirmed according to law declares and says that he served a notice of which the foregoing is a copy upon Graham Rambo and J. Howard Hampton on the eighth of June, A. D. 1902, by giving the same to them personally. Affirmed, etc. 25. Ponn of bond. Know all men by these present. That the Pennsylvania & New York Canal and Railroad Company, and , are jointly and severally held and firmly bound unto , in the sum of , lawful money of the United States, to be paid to the said , to which payment well and truly to be made the said Railroad Company, and , do bind themselves, their successors, heirs, executors, administrators, and every of them, firmly by these presents. Sealed with our seals, and dated the day of , A. D. one thousand nine hundred and . Whereas, The said Pennsylvania and New York Canal and Railroad Company have located their railroad through and upon the lands of the said , situate in the township of , county of , Penn- sylvania, being (describe same). Now, the condition of this obligation is such, that if the said Pennsylvania and New York Canal and Railroad Company shall pay or cause to be paid unto the said such amount of damages as the said shall be entitled to receive in consequence of the location and construction of said railroad, after the same shall have been agreed upon by the parties, or assessed by and under the provi- sions of the Acts of the General Assembly of this Commonwealth, in such case made and provided, whether the sum exceeded the amount of the penalty in this bond mentioned, or not, without fraud or further delay, then this obligation to be null and void, otherwise to be and remain in full force and effect. Sealed and delivered in presence of 26. Averment of failure to agree. County, ss. being duly sworn, according to law, deposeth and saith, that on the day of , A. D. 19 — , he, as the representative and agent of the Pennsylvania and New York Canal and Railroad Com- pany, endeavored to agree with , owner of certain lands in township, county aforesaid, upon the compensation to be by the said , received from the said Pennsylvania and New York Canal and Railroad Company, for damage done, or likely to be done, to, or sus- tained by, the said , by reason of the said Pennsylvania and New York Canal and Railroad Company having entered, or being about to enter, upon and use the said land ; and deponent further says, that the amount of such compensation could not be agreed upon between the party aforesaid and the Pennsylvania and New York Canal and Rail- road Company. Sworn and subscribed before me, this day of , A. D. 19 — . EMINENT DOMAIN. 217 27. Form of notice. To . Take notice, That the bond of the Pennsylvania and New York Canal and Railroad Company, and their sureties, in the sum of , tendered to you herewith, and intended to secure the payment of any damages you may sustain in consequence of the location and con- struction of the said Pennsylvania and New York Canal and Railroad Company's Railroad, over , will be presented to the Court of Common Pleas of County, for approval, on day of , A. D. 19 — , at o'clock M. 28. Affidavit of tender of bond. County, ss. — being duly sworn, according to law. deposeth and saith, that on the day of , A. D. 19 — , he, on behalf of the Penn- sylvania and New York Canal and Railroad Company, tendered the foregoing bond to and that declined to accept the same, and that he then served upon the said , notice of the intended application to Court for approval of the foregoing bond; a true copy of which notice is above set forth. Sworn and subscribed before me, this day of , A. D. 19 — . 29. Form of petition for view for assessment of damages. To the Honorable the Judges of the Court of Common Pleas of Chester County: The petition of Thomas Htope respectfully representL.: That he is the owner in fee simple (or if less estate or lessee so state) of a messuage and tract of land situate in the township of Valley, Chester County, and state of Pennsylvania, of which the tract or strip of land described as follows is a part: (Describe land affected.) That the Philadelphia and Western R. Co. have notified your petitioner that they intend to construct and establish over and across said tract of land, and to take, use and occupy the strip above described, by laying railroad tracks, with their appurtenances, thereon ; that your petitioner after having made an effort cannot agree with the said Phila. & Western R. Co. for the compensation proper and adequate for the damage done or likely to be done or sustained by your petitioner, by reason of the said taking of this land as aforesaid. Your petitioner therefore prays your Honorable Court to appoint discreet and disinterested freeholders of said county, none of ^yhom shall be residents upon or owners of property adjoining the line of the said railroad, to estimate and determine the damage which will result to your petitioner in consequence of the taking of said strip of land as aforesaid, and of the making or opening of the railroad so as aforesaid over and across said tract of land, and the construction of the works connected therewith thereon, and 2i8 EQUITY PRACTICE IN PENNSYLVANIA. after making a just and fair comparison of the advantages and disadvantages resulting therefrom, to estimate what amount of damages has been or may be sustained by your petitioner, and to make report thereof to your Honorable Court. And he will ever pray. (Append afifidavit.) Thomas Hope. A. M. Holding, Atty. for Pet. 30. Form of order to and report of viewers. State of Pennsylvania, County of Chester, ss. At a Court of Common Pleas held at West Chester in and for the County of Chester on the 28th day of September, A. D. 1903, before the Honorable Joseph Hemphill, Judge of said Court, the petition of Thomas Hope was presented to the court setting forth that the Philadelphia and Western Railroad Company have surveyed, located and marked upon the ground, and taken into actual occupancy and possession, for the purposes of a railroad, a portion of certain tract of land belonging to Thomas Hope, situate in Valley Township. (For description see other side.) That the petitioner has been unable to agree with the said company as to the compensation proper to be made for the damage done, or likely to be done to him by reason of the entering upon and into said lands, and the occupancy thereof for the purposes aforesaid; and praying the court to appoint viewers and fix a time for said viewers to meet upon the premises where the damages are alleged to be sus- tained, to view and assess the damages done, and make report thereof to the court. And whereas on November 12th, A. D. 1903, the court appointed (insert names of viewers) viewers and appointed December 3, A. D. 1903, at 10 o'clock in the forenoon of said day, for said viewers to meet upon the premises of said Thomas Hope, in the township of Valley where the damages are alleged to be sustained, for the per- formance of their duties, and directs that ten days' notice of the time and place of meeting be given by the petitioner to the said viewers and the other party. Now, therefore, it is hereby ordered that the said viewers or any ■ of them, having been first duly sworn and affirmed, faithfully, justly and impartially to decide and true report to make concerning all matters and things to be submitted to them, and in relation to which they are authorized to inquire, and having viewed the said premises, to estimate and determine the quantity, quality, and value of the land so taken or occupied, or to be taken or occupied, or the materials so used or taken away, and having a due regard to, and making a just allowance for, the advantages which may have resulted, or which may seem likely to result, to the owners of said land in consequence of the construction of the said railroad, and after having made a fair and just comparison of said advantages and disadvantages, to estimate and determine, whether any, and if any, what amount of damages has been sustained, or may be sus- tained, and to whom payable, and make report thereof to this court. (Seal) From the Record, Maxwell Clower, Prothy. EMINENT DOMAIN. 219 31. Form of report of viewers. To the Honorable, the Judges of the Court of Common Pleas of Chester County: The subscribers appointed by the annexed order to view and assess the damages, referred to therein, met at the time and place appointed in the said order. There were present at the said meeting, Thomas Hope, the petitioner, with his attorney, A. M. Holding, Esq., and Joseph H. Baldwin, and W. W. MacElree, Esqs., attorneys rep- resenting the Phila. & Western R. Co., also numerous witnesses. Having been qualified according to law, we proceeded to view the premises where the damages are alleged to have been done, or are likely to be sustained, heard the parties and their witnesses and esti- mated and determined the quantity, quality and value of the land taken or occupied, or to be taken or occupied, and, having due regard to and making just allowance for the advantages which may have resulted or which may seem likely to result, to the owner of said land in consequence of the making or opening of said railroad, and of the construction of the works connected therewith, and after having made a fair and just comparison of said advantages and disadvan- tages, we estimated the quantity of land taken of Thomas Hope, or occupied, or to be taken or occupied, at (insert quantity) acres and the damages which have been or may be sustained by the said Thomas Hope by reason of the said taking or occupation at the sum of forty- seven hundred dollars ($4700) which damages are payable to Thomas Hope. We annex hereto and return herewith a plan or draft of the route of the said railroad through the lands of the said Thomas Hope, and of the lands taken and occupied, or to be taken or occupied belonging to the said Thomas Hope. Witness our hands this 3d day of December, 1903. Signed, CHAPTER XI. EMINENT DOMAIN— MEASURE OF DAMAGES. 1. Measure when the whole is taken. 2. Time when value is ascertained. 3. Measure when part of tract is taken. 4. Injury without taking. b. Injury to part owner. 6. Irregular taking. 7. Limit of use. 8. Measure to abutting owner. 9. Land for bridge, etc. 10. Land for pipe lines and gas companies. 11. Coal underlying. 12. Railroads, right of way of. 13. Canal companies — fee. 14. Abandonment act. 15. Damages direct and consequen- tial. 16. Estimates — timber, water course, etc. 17. Streets, abutting owner on. 18. Injury to tract of land. 19. Advantages to owner. 20. Iron ore in land, and other ad- vantages. 21. Immaterial facts. 22. Present use of the land. 23. Tenants in common, mode of valuation. 24. Experts, opinions of. 25. Restoration, cost of. 26. Selling price. 27. Offers to sell — cross-examina- tion. 28. Danger from fire as an element. 29. Smoke, dust and noise. 30. Fencing right of way. 31. Other injuries — restrictions. 32. Incidental injuries. 33. Improvements by taker. 34. Ordinary use — crops. 35. Timber right to— telegraph com- pany. 36. "Damnum absque injuria." 37. Damages allowed. 38. Survey and plat. 39. Damages, when they begin. 40. Quantity of the estate. 41. Trespass, exemplary damages. 42. Effect of giving bond. 43. Consequential damages. 44. Subject to constitution though exempt by charter. 45. Railroad laid on a street. 46. Embankments, cuts, etc. 47. Municipalities — sewers, etc. 48. Speculative uses. 49. Time of estimate. so. Disadvantages, obvious. 51. Interest, date from which al- lowed. 52. Interest after award. 53. Sale and release. 54. Agreement to give land. 55. Damages, to whom awarded. 56. Damages enforceable by eject- ment. 57. Damages, tenant for years en- titled to. 58. Damages, life tenants. 59. Damages, ground rent. 60. Descent of right on death. 61. Mortgages, etc. 1. Measure of damages when the whole is taken. When the fee is taken, the measure of damages is the fair market value of the property at the time of taking.* The measure of value 'Bauman v. Ross, 167 U. S. 548; Devine v. R. Co., 29 Leg. Int. 220; Bensley v. Water Co., 13 Cal. 306 ; Warden v. Phila., 167 Pa. 523 ; Hope v. R. Co., 211 Pa. 401; Friday v. R. Co., 204 Pa. 405;Shoemaker v. U. S., 147 U. S. 282; Santa Ana v. Brunner, 132 Cal. 234; Kishlar v. R. Co., 134 Cal. 636 ; Graham v. R. Co., 145 Pa. 504 ; Baker v. Penna. R. Co., 236 Pa. 479. 220 EMINENT DOMAIN. 221 is the selling price of the property in the vicinity, with a view to its location and productiveness;" what it would bring in the hands of a prudent seller, at liberty to fix the time and conditions of the sale.' It should be valued without reference to the personality or state of business of the owner.'' Any purpose for which the land is adapted may be considered," and all the facts affecting its value;' and if there is a depression in values at the time, it may be valued as of the time immediately preceding such depression.' The market value meant is not necessarily what it would bring at a forced sale.' It is the ordinary selling value, and not what profits might be made out of a special feature, as, e. g., a salt water well on the premises.' In valuing a toll-bridge there is no market value — and the compensation must be estimated for franchise and all the property." The value of the land as a reservoir for a water Co. may be shown." If there is a stone quarry on the land condemned, the quality of the stone may be shown and considered."^ The measure of damages is the actual value of the stone in place, or, if severed, where t^en."*" The valuation of platted land may be based upon its adaptation as a whole."" The selling price of similar land in the vicinity is a fair measure;""^ but what was paid other landowners is incompetent."^ 2. Time of valuation. In general the valuation must be made as of the time of the tak- ing.^ But this time has been fixed in some cases when a railroad company files and has its bond approved," and again when the greatest injury is imposed;" in Ohio, the time of trial ;'° in California, when the proceedings are commenced." But where a city takes ' Pittsburg Etc. R. Co. v. Rose, 74 Pa. 362. •Cobb V. Boston, 112 Mass. 181; Boom Co. v. Patterson, 98 U. S. 403; Land Co. v. Neale, 78 Cal. 63; Mullin v. R. Co., 83 Cal. 240. ' Pittsburg Etc. R. Co. v. Robinson, 95 Pa. 426. "Shenango Etc. R. Co. v. Braham, 79 Pa. 447; Gearhart v. Water Co., 202 Pa. 292; Santa Ana v. Harlin, 99 Cal. 538. (The citation of the cases in the most enlightened of the code states, is merely illustrative of their practice, comparatively.) " Water Works v. Drinkhouse, 92 Cal. 528. 'Kohl v. U. S., 91 U. S. 367. "Pittsburg Etc. R. Co. v. Vance, 115 Pa. 325; R. Co. v. Roeder, 30 Wash. 244. •Rosier v. R. Co., 208 Pa. 50; Cox v. R. Co., 215 Pa. 506. "County V. Bridge Co., no Pa. 54. "Brown v. Water Co., 213 Pa. 440. "=• Keim v. Reading, 217 Pa. 613. "••Cole V. Elwood Powder Co., 216 Pa. 283. "<= Hamory v. R. Co^222 Pa. 631 ; see also Scott v. R. Co., 222 Pa. 634; Catlin V. Coal & Iron Co., 225 Pa. 262. "Vaiver of right of action. 14. Nuisance by R. company. 15. Exclusive remedy. 16. Unconstitutional act. 17. Construction of law — rule of. 18. Special act. 19. Finding of jury, scope of. 20. Damages, how found. 21. Competent witness. 22. Defendant's point, answer to. 23. Separate interests, how found. 24. Province of jury. 25. Jury, when necessary. 26. Election as to remedy. 27. Special findings. 28. Proper instructions to jury. 29. Disagreement. 30. Award, for money. 31. Award, effect of. 32. Award to joint tenants. 33. Award, sufficient findings. 34. Award, setting aside of. 35. Award, reasons for setting aside. 36. Award, referring back to viewers. 37. Award, exceptions to. 38. Award, confirmation of. 39. Award, finality of. 40. Appeal by tenant. 41. Appeal by heirs. 42. Appeal, time of. 43. Appeal, affidavit for. 44. Appeal as waiver of irregular- ities. 45. Motion to strike off after appeal. 46. Viewer's fees. 47. Discqntinuance. ^. Quashing proceedings. 49. Costs. 50. Issue in court, on appeal. 51. View by trial jury. 52. Burden of proof. 53. Evidence — rules of. 54. Verdict, how made up. 55. Power of court. 56. Judgment, form of. 57. Judgment, finality of. 58. Execution. 59. Appeal, right of. 60. Possession, right of. 61. Presumption of payment. 62. Lien for damages. 63. Sureties on bond. 64. Judgment in trespass — lien. 65. Assessment by commission. 1. Time when proceedings may be commenced — ^statute of limita- tions does not apply. Under the general railroad law of 1849 (see infra), the right of action was held to have accrued when the location was made.' The ' Wadhams v. R. Co., 42 Pa. 303 ; Beale v. R. Co., 86 Pa. 509. 239 240 EQUITY PRACTICE IN PENNSYLVANIA. statute of limitations does not apply to a petition for assessment of damages in eminent domain. (See Ch. i, Par. 106.)' But it is competent for the legislature to limit the time wherein the remedy- provided may be invoked, conditioned with forfeiture of the right by delay.' 2. Title — ^when divested. Under the act of 1874 the owner need not wait until the bond is filed and approved although that is the time of divestiture of title. He can present his petition as soon as the corporation has definitely appropriated his land.* As to consequential damages the right does not accrue until the road is constructed ;' that is to say, the work com- menced which is the cause of the injury complained of.' 3. Time of valuation. The jury should value the land as of the time when the bond was filed and award the difference between such value and the value of the land as affected by the taking.' Where a city appropriates land to widen a street, the valuation is as of the time when the resolution passed appropriating it.' But as to a borough under act of 1856 see supra.' 4. Structures by taker — easement. In valuing the land after taking and completion, the structures placed upon it by the R. Co. are not to be considered as part of the land." Where a turnpike is condemned under an act to compensate its owners, the assessment should not cover the soil beneath, for the company has but an easement." 5. Presumption as to time of assessment. It will be presumed that the assessment was made as of the time when the injury was done, unless it appear otherwise and on certiorari evidence will not be received aliunde.^. The difference in dates of valuation is immaterial unless it appear that the value changed be- tween those dates." Where one assessment is defective so that no judgment was entered, and it was treated as a nullity, a second assessment will be sustained." 'D. L. & W. R. Co. V. Burson, 61 Pa. 369; Hannum v. Bore, 63 Pa. 475 ; McClinton v. R. Co., 66 Pa. 404; Seipel v. R. Co., 129 Pa. 425; Keller v. R. Co., 151 Pa. 67 (see supra). But in road cases by Act 1891, p. 1. log, the limit is six years. ' Potter V. Ames, 43 Cal. 75 ; Harper v. Richardson, 22 Cal. 251 ; Water Power Co. v. Canal Co., 142 U. S. 254. * Bowers v. Water Co., 162 Pa. 9. "Penna. Etc. R. Co. v. Ziemer, 124 Pa. 560. ■O'Brien v. R. Co., 119 Pa. 184. 'Graham v. R. Co., 145 Pa. 504; Mfg. Co. v. R. Co., 212 Pa. 156. ' McMuUin v. Pittsburg, Pitts. L. J., vol. 36, 159. "Justice v. R. Co., 87 Pa. 28. "Hinnershitz v. Tr. Co., 206 Pa. 91. " Penna. R. Co. v. Congregation Etc., S3 Pa. 445. " Rees v. R. Co., 135 Pa. 629. " Knight V. Turnpike Co., 4 Luz. L. R. 269. EMINENT DOMAIN. 241 6. Local jurisdiction — change of venue. The proceedings are of the nature of a local action and the court of the county where the land lies has jurisdiction;" but, when once commenced, a change of venue may be taken before the jury is sworn, tinder act of 1834, P. L. 395." 7. Bight of condemnation — ^bar. When a conflict arises between rivals, as to the right to condemn, in California, it will not be determined on a proceeding to assess dam- ages." So two proceedings for the same land may be had simulta- neously, there." In Massachusetts the right to condemn is held to be a question of law for the court to decide, under the statute." 8. Bar in Pennsylvania. A petition for viewers to assess damages, after sixteen years from the taking, is not barred by the statute which limits actions of trespass to* six years." But as to road damages the act of 1891, P. L. 109, fixes a limitation of six years."' 9. Statutory method of assessment — ^trespass for tortious taking. Where the statute provides an exclusive mode for assessment of damages, it must be followed and trespess will not lie.' But where the act is tortious and not in compliance with the statute, the remedy by trespess is available.'' Where no bond is given all the damages are in issue,' and the form of action should be trespass and not trespass quare c. f., but include damages for ervery injury, as if the proceeding were one to assess the damages.* Trespass lies for an illegal entry, but a view to assess damages is appointed only where the property is actually taken." An actual trespass from which damage flows must be paid for." '°R. Co. V. Kohler, 3 Lane. Bar, No. 2; Pool v. Simmons, 134 Cal. 621; Santa Rosa v. Water Co., 138 Cal. 579. "R. Co. v. Cummins, 8 Watts 450; Pinneo v. R. Co., 43 Pa. 361. "Water Co. v. Water Co., 36 Cal. 639. "Water Co. v. Cowles, 31 Cal. 214. ''Burt v. Brigham, 117 Mass. 307. '"McClinton v. R. Co., 66 Pa. 404. "Ulmer v. Cowen, 199 Pa. 316. 'Knorr v. R. Co., s Wharton 256; Nicholas v. Canal Co., 2 W. N. C. 708; McKinney v. Nav. Co., 14 Pa. 65; Phila. Etc. R. Co. v. Williams, 54 Pa. 103; Farnham v. Canal Co., 61 Pa. 265; Spangler's Ap., 64 Pa. 387; Koch v. Water Co., 65 Pa. 288 ; Fehr. v. Nav. Co., 69 Pa. 161 ; Boom Co. V. Sanderson, 81* Pa. 402; Snyder v. R. Co., 55 Pa. 340. ' Brown v. Powell, 25 Pa. 229 ; McClinton v. R. Co., 66 Pa. 404 ; Penna. R. Co. V. Duncan, iii Pa. 352; Stork v. Phila., 195 Pa. loi. 'Pittsburg Etc. R. Co. v. Jones, ill Pa. 204; Jones v. R. Co., 151 Pa. 30. Hankey v. Phila. Co., 5 Supr. C. 148 ; Zanziger v. Light Co., 6 D. R. 577- "County's Ap.,.119 Pa. 159; P. & R. R. Co. v. Patent, 17 W. N. C. 198. ' Conniff v. San Francisco, 67 Cal. 45 ; U. S. v. Lynah, 188 U. S. 445 ; Water Power Co. v. Raff, 36 N. J. L. 335. Vol. 4 Practice — 16 242 EQUITY PRACTICE IN PENNSYLVANIA. 10. Ejectment — stay, pending assessment. Ejectment will lie when the taking was in non-compliance with the Constitution and laws,' except where the legislature has provided an exclusive remedy." But pending a proceeding to assess, proceed- ings in an action of ejectment may be stayed, reserving the right for damages for taking illegally.' A judgment in ejectment will be con- . trolled by the court." 11. Approval of bond after suit. When the entry was made without filing bond, or tendering com- pensation, an action of trespass will lie and the measure of damages, is the injuries suffered down to the time of approval of bond." 12. Injunction to restrain. While trespass is the remedy, yet the owner may, within the proper time, have an injunction to restrain the illegal act complained of," until security is given." The necessity of the taking jivill not be considered on the approval of the bond."^ 13. Waiver of right of action. The right to action is waived by one who appears before viewers and presents a claim for damages." 14. Injunction as for nuisance. If a railroad company builds a road on the street of a borough with- out authority of law, it may be restrained, as a nuisance;'" or if it has no power of eminent domain by law," but its power cannot be challenged collaterally." 15. Exclusive remedy by statute. Where the statute gives an exclusive remedy, although it fails to be effectual, because of insolvency, or otherwise, an injunction will not be granted." 'Pittsburg Etc. R. Co. v. Jones, 59 Pa. 433; Phillips v. R. Co., 78 Pa. 177; Seal v. R. Co., i Pearson 547; Pittsburg Etc. R. Co. v. Bruce, 102 Pa. 23 ; Phila. Etc. R. Co. v. Cooper, 105 Pa. 239 ; Richards v. R. Co., 137 Pa. 524. 'Canal Co. v. Hireen, 44 Pa. 418; Phillips v. I. P. Co., 153; Pa. 230. * Harrisburg v. Crangle, 3 W. & S. 460. "Cumberland V. R. Co. v. McLenahan, 59 Pa. 23; Oliver v. R. Co., 131 Pa. 408. "Dimmick v. Broadhead, 75 Pa. 464; Penna. R. Co. v. Eby, 107 Pa. 166; Water Co. v. Yoder, 112 Pa. 136; Keil v. Gas Co., 131 Pa. 466. " Penna. R. Co. v. Pass. R. Co., 167 Pa. 62 ; Sower v. Phila., 35 Pa. 231 ; Atchison v. R. Co., 14 Hazard's Reg. 10. "McDevitt's Ap., 7 Atl. 588; Colgan v. R. Co., 3 Pitts. R. 394; Hecksher V. Water Co., 2 Foster 252. "a Coke Co.'s Case, S D. R. 765 ; R. Co., 8 D. R. 65. "Water Co. v. Yoder, 112 Pa. 136. "Penna. R. Co.'s Ap., 115 Pa. 514; Potts v. El. R. Co., 3 D. R. 172; 161 Pa. 396. "Edgewood R. Co.'s Ap., 79 Pa. 2=17. "Market Co. v. R. Co., 142 Pa. 580. " Stump's Ap., I Walker 420 ; Campbell's Ap., 22 W. N. C. 81 ; Wallace V. R. Co., 138 Pa. 168. EMINENT DOMAIN. 243 16. Injunction when law is void. An injunction was maintained, under the act of 1889, P. L. 211, restraining a street railway from taking a turnpike, because the law was unconstitutional in that it provided no compensation." 17. Construction of law, liberal to owner. Statutes authorizing the taking of private property for a public use and providing a mode of assessment of damages, are not to be strictly construed against the owner, so as to eliminate any part of his damages." Where an act is repealed, while proceedings are on, they are suspended." 18. Special act as to Lancaster. The act of 1836, P. L, 134, giving the city of Lancaster authority to take land for water works, is not repealed by the general act of 1887, P. L. 267; so that either method is legal in Lancaster ."^ 19. Finding of the jury — ^title in dispute. A jury must find the public necessity for the proposed improve- ment;'' but have nothing to do with its location." If there is a dis- pute as to title, before them, they are to hear and determine it." If they find that claimant had no title and the court confirmed it, a higher court will not reverse."' They must also find the quantity, quality and value of the land or materials taken." 20. Damages and cost. The jury must find the damages and who is entitled to receive them; and to this end, may hear witnesses on both sides, whose fees are taxable as costs."* 21. Competency of witnesses. In estimating the damages, one is a competent witness who knew the property for a number of years and could speak of sales and prices of like property during that period, to show its market value." The opinions of witnesses on this point may be rebutted by the railroad company.'" The question of competency is a preliminary one to be settled before the evidence of the plaintiff is given." "Turnpike Co. v. R. Co., 177 Pa. 585. "°Nav. Co, V. Loose, 19 Fa. 15; Boom Co. v. Sanderson, 81* Pa. 402. " Comth. v. Beatty. i Watts 382. '" Shroder v. Lancaster, 170 Pa. 136. "^ Shick V. R. Co., I Pearson 259. " Hays V. Risher, 32 Pa. i6g ; Zahn v. R. Co., 184 Pa. 66. '^Bredin v. R. Co., 165 Pa. 262. *" Winebiddle v. R. Co.. 2 Grant 32. "O'Hara v. R. Co., 25 Pa. 44s; R. Co. v. Bruner, 55 Pa. 318. "'R. Co. V. Keiffer, 22 Pa. 356. ""McElhany v. Bridge Co., 153 Pa. 108; Stauffer v. Boro, 215 Pa. 143; Sutton V. R. Co., 214 Pa. 275; Lally v. R. Co., 215 Pa. 436; Markowitz y. R. Co., 216 Pa. 535 ; g Keim v. Reading, 32 Supr. C. 613 ; Brennan. v. P. & C. R. Co., 230 Pa. 228. * Henkle v. R. Co., 213 Pa. 485. " Hope v. R. Co., 21 1 Pa. 401 ; Davis v. R. Co., 215 Pa. 581 ; Michael r. Crescent Pipe Line Co., 159 Pa. 9; Friday v. Penna. R. Co., 204 Pa. 4015 : Scott v. Cent. V. R. Co., 33 Supr. C. 574. 244 EQUITY PRACTICE IN PENNSYLVANIA. A witness otherwise competent, is not rendered incompetent be- cause he shows bias, prejudice, etc. His credibility is for the jury."* 22. Answer to defendants' point as to value. The defendant is entitled to an answer to his point fairly drawn, raising an issue as to the value of the land before and after the improvement." 23. Separate interests — ^releases. The jury should appraise each interest separately, where there are distinct interests, and pass upon releases of damages, when presented before them, and whether a release covers the damages claimed. This is their province.'* 24. Province of jury. All disputes as to facts are for the jury.' It is for the jury to determine the value and the benefits.^ It is also for the jury to deter- mine whether one railroad crosses another in such a manner as to give the greatest possible benefit with the least possible injury.' But the determination of the question of necessity by the proper authority seems to be conclusive.'' The jury should consider all the testimony.^ 25. When a jury is necessary. A jury must necessarily be had if required by a constitution or a law; otherwise;, commissioners or viewers will suffice.' All that is required is a fair method of ascertaining the damages, by due course of law.' A general provision in the constitution for "due process of law" does not necessarily mean a jury.' But where the requirement is specific, it cannot be dispensed with,' and the owner has the right to insist.* The procedure by a borough under act of May i6, 1891, P. L. 75, is by viewers.'* 26. Election of remedy — appeal. But where he has both exceptions to a report and a demand for a jury, he will be ruled to elect between them." After exceptions are "a Brennan v. Pitts. Etc. R. Co., 230 Pa. 228. ^ Sutton v. R. Co., 214 Pa. 274. "Fulmer v. R. Co., i C. C. 46; Herner v. R. Co., I C. C. 43; Updegrove v. R. Co., 3 C. C. 74. * Grugan v. Phila., 158 Pa. 337 ; Shaw v. Phila. 169 Pa. 506 ; Hancock v. Phila., 17s Pa. 124. ' County V. Hudson. 8s Cal. 633. ' R. Co. v. R. Co., 67 Cal. S9. ' R. Co. v. Leviston, 134 Cal. 412. ■*» Bortz v. Allentown, i Lehigh Co. 355. 'Bauman v. Ross, 167 U. S. S48; Kendall v. Post. 8 Ore. 141. °U. S. V. Jones, 109 U. S. 513; People v. Blake, 19 Cal. S79- ' R. Co. v. Congregation, 53 Pa. 445 ; People v. Blake, 19 Cal. 579 ; Tel. Co. V. R. Co.. 122 Fed. R. is6. 'Bachler's Ap., 90 Pa. 207; Musgrove St., 10 C. C. 180; Rolling Mills V. Grannan, I Del. Co. 379; U. S. v. Co., 122 Fed. R. 581; R. Co. v. Hill, 9 Ore. 377. •Land Co. v. Ditch Co., 18 Colo. 489. •a Barrett v. Boro, 38 Supr. C. 76. "Bechtle v. Boro, 3 D. R. 713. EMINENT DOMAIN. 245 disposed of, it is too late to demand a jury." If the law is silent the court may determine the time when an appeal may be taken." 27. Special findings. When either party asks for special findings of fact, the jury must answer each." 28. Proper instructions to jnry. The jury must be instructed first to ascertain whether any dam- ages are sustained; second, if so, how much, and find the difference in value before and after the taking." 29. Disagreement of viewers. If the viewers cannot agree and they so report, they will be discharged and new viewers will be appointed." A report of viewers may be referred to them for amendment as to matters which are not disputed."* 30. Award in money. The award of damages must be in money and based on the fair market value," which award may be paid into court," and all further claims for the same taking will be barred." 31. Effect of report of viewers. The report has the same force as a verdict, and is clothed with the presumption of regularity." Its confirmation relates back to the date of filing, for the purpose of calculating interest." The report of reviewers supersedes that of the viewers." The court, before confirming the report should see that the damages are either paid or secured, except in case of a municipality." 32. Joint tenants — apportionment not necessary. Where joint tenants recover, the jury need not apportion the amount assessed." Heirs may recover when their decedent had not released or waived the right, although he petitioned for the improve- ment.* If they award in a single report the amounts due several owners, it will be sufficient, where they joined in the one view." But "Road, 4 C. C. SI I. "Towanda Bridge, 91 Pa. 216. "Cummings v. Peters, 56 Cal. 593. "Mfg. Co. v. R. Co., 212 Pa. 156. "Hay v. Pipe Line Co., 8 Kulp 112. "a Line v. R. Co., 218 Pa. 604. " Pittsburg Etc. R. Co. v. Rose, 74 Pa. 362. " Phila. v. Dyer, 41 Pa. 463. " Grafton v. R. Co., 21 Fed. R. 309. "Road, 8 C. C. 590; R. Co. v. Porter, 29 Pa. 165. * Phila. Etc. R. Co. v. Cooper, 58 Pa. 408. "'Lewistown, 84 Pa. 410; Bensalem Twp., 38 Pa. 368. "Leet Twp., 7 Atl. 801. '"Reed St., 19 Leg. Int. 141. "R. Co. V. Hall, 25 Pa. 336. "^ Lewis V. Darby, 166 Pa. 613. "■Tucker v. R. Co., 27 Pa. 281. 246 EQUITY PRACTICE IN PENNSYLVANIA. it was said: "the better practice is for the jury to find the aggregate amount, and then, if they have the evidence on which they can do so, apportion the same among the seve»-al claimants." " 33. Sufficient findings. An award will not be set aside on an exception that the claimant had no title." A report will be sufficient on exception by petition, where it follows the description in the petition and fixes the quantity of the land,"" and also one which attaches a draft showing the metes and bounds, though not the calculation.*" That an award does not specify all the sources of damage, is not a ground for setting it aside." It is sufficient if it does specify them and fixes a round sum.'' It is not essential that the report should show a hearing or that witnesses were regularly called and sworn.*" 34. Setting aside of report. A report that does not define the quantity, quality or value of the land, nor the advantages and disadvantages likely to accrue, will be set aside." There must be a comparison of the advantages and dis- advantages,°° unless the charter does not require it.'' If it does not set forth the quantity taken or what was valued it is too indefinite." Under the act of 1848, P. L. of 1849, p. 754, a report was defective which did not set forth "the value of the property taken, or damages done to the property, the amount of benefit conferred, and the differ- ence between it and the damages done to the property taken." But for mere irregularities the court will not reverse, though for fraud, it will." 35. Beasons for which report may be set aside. A report may be set aside either because grossly excessive or inad- equate in the assessment." It may be done even after a procedendo from the Supreme Court, on reversal." It has been held, however, that the better practice is to appeal.*" The award may be set aside for interference with the jury by one of the parties," and in such " Getz V. R. Co., 105 Pa. 547. "^ Directors v. R. Co., 7 W. & S. 236. "Hay v. Co., 7 Kulp 401. "R. Co. V. Bruner, 55 Pa. 318. '' Tucker v. R. Co.. 27 Pa. 281. "Keen v. R. Co., 9 Lane. Bar 103. " Penna. R. Co. v. Porter, 29 Pa. 165. ^ Reitenbaugh v. R. Co., 21 Pa. 100. * R. Co. v. Cake, 95 Pa. 139. " R. Co. v. Trimble, 4 Wharton 47. " Poffenburger v. R. Co., i Pearson 45 ; McGovern v. R. Co., 8 Lane. L. R. 57. " Road Corns, v. Fickinger, 51 Pa. 48. " Garrison v. N. Y. City, 88 U. S. 196. *■ East Pa. R. Co. v. Hiester, 8 Pa. 445 ; R. Co. v. Congregation, 53 Pa. 445; R. Co. v. Cake, 95 Pa. 139; R. Co. v. Gesner, 20 Pa. 240; R. Co. v. Rumpp, 94 Cal. 432; Banner v. York, 14 York 10. " Cake V. R. Co., 11 Lane. Bar 208. " Witling V. R. Co., 5 Wharton 460 ; Roberts v. R. Co., i Brewster 538. ■" Henwood v. R. Co., 2 Lack. Jur. 244. EMINENT DOMAIN. 247 case it will not be reviewed;" or for corrupt ' motives, prejudice or passion." 36. Beferring^ the report back. For formal error, on request of the jury, the report may be referred to them for correction." 37. Exceptions to report. Exceptions can be filed only by one whose property or right is affected by the award." Where an appeal is provided for, the court will not consider exceptions as to matters not on the face of the record." Where there is no appeal, a report should not be set aside without granting a new view." Under Sees. 6 & 8, Act June 2, 1887, P. L. 306, exceptions may be filed within thirty days from the time of filing the report. If the exceptions are withdrawn or dismissed and the report is not referred back to the viewers or set aside, it will then be marked confirmed nisi. Thirty dayS are then allowed in which to appeal to the Common Pleas, and the report is then con- firmed absolutely, if not disapproved. If an appeal be taken, and the result is certified back to the Quarter Sessions, thirty days more remain before final confirmation or disapproval."^ And where no appeal is given, the court may go into the evidence of title. As to lateral railroads the act of 1871, P. L. 56, provides for an appeal.™ 38. Confirmation — appeal. After exceptions filed, if the report is confirmed, the confirmation should be as of the date of filing. Under act of 1903, P. L. 83, the confirmation is to be made thirty days after filing, if no exceptions are filed in the meantime. An appeal from the report of viewers is not in the nature of an action for damages for illegal entry. The legality of the entry is admitted and the only question is the value of the land immediately before and after the taking.''^ If the owner appeals and then withdraws his appeal, with leave of court, he cannot have confirmation entered nunc pro tunc.^' Where an appeal is pending execution will be stayed.™^ Under act of June i, 1907, P. L. 368, the appeal must be taken within thirty days after the first confirmation or it will be stricken off."'" " North Etc. R. Co. v. Davis, 26 Pa. 238. "Shoemaker v. U. S., 147 U. S. 282. *R. Co.'s Ap., 2 Walker 506; Fitzpatrick v. R. Co., 10 Phila. 107; Line v. R. Co., 218 Pa. 604. "Olyphant, 198 Pa. 534. "Hays v. Risher, 32 Pa. 169; Church v. P.. Co., 45 Pa. 339; Turner's Ap., 2 Walker 229. "Turner's Ap., 2 Walker 229. "a Obiter in Chestnut Hill Etc. Co. v. County. 228 Pa. z. "Arthur v. R. Co., 27 Leg. Int. 237. "R. Co. v. Cooper, 58 Pa. 408. "a Mitchell V. Columbia Etc. R. Co., 233 Pa. 25. "Donaldson v. R. Co., 15 W. N. C. 312. ^^ Hay V. Valley Pike Co., 38 Supr. C. 145. ""bAItoona Etc. R. Co. v. Miller, 49 Supr. C. 102. 248 EQUITY PRACTICE IN PENNSYLVANIA. 39. Finality of award. An award unappealed from is final, although the corporation has not taken possession." Upon certiorari only the record will be reviewed." But in New Jersey, the constitutionality of the law may be tested, or an unwarrantable invasion of the owner's rights be redressed."* The evidence before the viewers will not be reviewed," nor exceptions relating thereto,'* nor the amount of damages alleged to be excessive,"' nor as to exceptions on matters reviewable on appeal."" 40. Appeal by tenant. Where a tenant is awarded damages for his term only and not the renewal, his remedy is by appeal and a bill in equity will not lie." On an appeal under act of 1871 as to lateral railroads the only questions to be considered are the assessment of damages and the necessity for the taking, and not the quantity of the land." 41. Appeal by heirs and devisees, etc. Heirs and devisees may appeal in the name of the administrator pendente lite^ Where the owner dies, proceedings may be con- tinued by legal representatives."'' A municipality has the right of appeal." 42. Time of appeal — ^public parks. Under the act of 1856, P. L. 288, as well as 1903, P. L. 83, the time to appeal is within thirty days from the filing of the report. (See also act 1874, P. L. 283.) The court has no power to enlarge this time.'* Under act of 1891, P. L. 116, appeals in public park cases are allowed to the Quarter Sessions within thirty days from con- firmation.*" 43. Affidavit on appeal — costs. The appeal must be accompanied with an affidavit that it is not taken for the purpose of delay but because affiant firmly believes that injustice has been done." This affidavit was held unnecessary under "'Neal V. R. Co., 31 Pa. 19. "* Canal Co. v. Keiser, 19 Pa. 134; North Etc. R. Co. v. Davis, 26 Pa. 238. "•a R. Co. v. R. Co., 31 N. J. Eq. 492. ™Winebiddle v. R. Co., 2 Gr. 32; Reitenbaugh v. R. Co., 21 Pa. 100. "R. Co. v. Congregation, 53 Pa. 445. "Comth. v. McAllister, 2 Watts. 190; Allison v. Canal Co., s Wharton 482; Heise v. R. Co., 62 Pa. 67. " Hall's Ap., 56 Pa. 238. ""Loble v. Phila., 174 Pa. lii. '" Hays V. Briggs, 74 Pa. 373. " McCay V. R. Co., 2 Chester 558. "County V. Cushing, 83 Cal. 507. "Gardener v. Chester, 5 Del. Co. 293; Hanover Borough Alley, 4 D. R. i6o. "Morgan v. R. Co., 2 Luz. Leg. Obs. 194; Gwinner v. R. Co., 55 Pa. 126. "'Vernon Park, 163 Pa. 70. " Hanover Borough Alley, 4 D. R. 160 ; Brehm v. Boro, 18 D. R. 727. EMINENT DOMAIN. 249 the pipe line act of 1883, P. L. 112." Under the acts of 1849 and 1856, costs need not be paid nor security given by appellant, as condi- tion precedent."' But see Vol. i Johnson as to all appeals now. 44. Waiver of irregularities by appeal. The effect of an appeal is to waive all mere irregularities in the record of initial proceedings.™ It operates for all parties and cannot be withdrawn, after the time for appeal has passed, except with the consent of those interested.™ 45. Practice on appeal — ^motion to strike off. A motion to strike off on the ground of unconstitutionality of an act will not be heard after an appeal on the merits." If an appeal has been erroneously ordered to be withdrawn the withdrawal will be vacated. An appeal nunc pro tunc by the other party is not allowable." On appeal by the land owner and issue awarded it is not necessary to file a statement."^ 46. Viewers' fees — costs.. The viewers are entitled to fees on each distinct order and award, there being different properties, but the same parties." If the award be set aside because not in proper form, the costs of filing such report, may not be taxed to the defendant." 47. Leave to discontinue. Leave to discontinue may be granted before absolute confirmation, where no land was taken nor injury done." But where title has vested in the taker it cannot be done without consent of the adverse parties." 48. Quashing and discontinuance. When no title is acquired the proceedings may be quashed." The right to discontinue has been recognized even after award." Proceed- ings may be discontinued as to some and pursued as to the rest." But not after the right is fixed by judgment.™ Conditions may be imposed. It is largely a question of actual possession." "Miller v. Pipe Lines, 2 D. R. 602. "Perry v. R. Co., 13 Atl. 66; Assn. v. Sherfy, 117 Pa. 256. ™R. Co., V. Burson, 61 Pa. 369; R. Co. v. Lawrence, 10 Phila. 604. "Nav. Co. V. Blair, 20 Pa. 71. "Wilson V. Scranton, 141 Pa. 621. " R. Co. V. Harris, 124 Pa. 215. , "^Quade V. R. Co., 27 Lane. L. R. 217. "Shirk V. R. Co., 10 Lane. Bar 70. " Kauffma,n v. R. Co., 12 Lane. Bar 107. "Funk v. School Dist., 18 W. N. C. 447; Seminary v. Boro, 153 Pa. 583. See Act i8gi, p. 1. 78, as to municipality. " Wood v. Hospital, 164 Pa. 159. " Stanford v. Worn, 27 Cal. 171. "Pool v. Butler, 141 Cal. 46; Water Co. v. Cameron, 141 Cal. 283. "Myers v. S. Bethlehem, 149 Pa. 85. "Wood v. Hospital, 164 Pa. 159. "Franklin St., 14 Supr. C. 403. 250 EQUITY PRACTICE IN PENNSYLVANIA. 49. Costs, by whom payable. Under the act of 1848 there were no costs without damages awarded and confirmed to the owner."" Unless the act of assembly provides for costs each party must pay his own." The costs allowed by the acts of 1848 and 1849 include all the costs and expenses, such as serving of notices, subpoenas, etc." The same under act of 1842,°° and by this act and that of 1869, counsel fees were allowed." Where the first view (under act 1848), was set aside as defective and the alias view awarded larger damages, this carried the costs of both." But where the defendant apoealed and obtained a reduction, he was held not liable for the costs subsequent to the appeal."" 50. Framing issue for trial — ^rule in Allegheny. On appeal, the practice was before the constitution of 1874 and the act of 1887, for the court to frame an issue as in trespess quare clausum fregit, making the taker defendant and the claimant plain- tiff." But now the court, under its rules, may frame an issue without formal pleadings and embrace all the facts in dispute." The court has entire control of the issue and may direct a plea to be entered without declaration filed. While the form is trespass, the status of the defendant is not that of a trespasser in fact, when he enters by legal right as under the act of 1851." Where works are enlarged after one appropriation, the damages may be assessed as if it were a new taking. Rule 72, Allegheny County (Digby R. C. 62), provides: "On appeals from assessment of damages for the taking, or for injuries arising out of the taking of private property for public use by municipal or other corporations, or by individuals, the issue shall be framed as follows : The party claiming damages shall be made plaintiff, and the corporation or individual taking the land the defendant; and the plaintiff shall file a statement or declaration describing the land or materials and value there- of, and averring his estate therein and his damages, and any other matter specially directed by the court to be tried. The defendant thereupon shall file his plea, traversing such material allegations in the declaration as he intends to deny, and such as are not so traversed shall be taken at the trial to be admitted." " Shick's Case, i Pearson 266. "" Herbein v. R. Co., 9 Watts 272 ; Hoover v. School Dist., 4 C. C. 520. "R. Co. V. Keiffer, 22 Pa. 356; Shirk v. R. Co., 10 Lane. Bar 70; Leiper v. R. Co., S C. C. 60. "^ DeLong v. R. Co., i Woodward 195. "Marshall v. Grove, 10 C. C. 532. " McGovern v. R. Co., 8 Lane. L. R. 59. ""Nav. Co. V. Kittera, 2 Rawie 438. ■•R. Co. V. Smick, 2 Wharton 273. "R. Co. V. Stauffer, 60 Pa. 374; Dorian v. R. Co., 46 Pa. 520; R. Co. v. Aunsman, 11 Atl. 561; Mack v. R. Co., S Northam. 378. " R. Co. V. Lazarus, 28 Pa. 203 ; R. Co. v. Price, 4 Penny. 200 ; Hibberd's Ap., 2 D. R. 28. "Shenango Etc. R. Co. v. Braham, 79 Pa. 447. "Canal Co. v. Keiser, 19 Pa. 134. EMINENT DOMAIN. 251 61. View by the jury. The court will, under proper safeguards, direct the jury trying the issue, to be taken to the premises and view the same." The request should be made before the evidence is closed."' The jury may judge by their view as well as the testimony of the witnesses, but are not at liberty to disregard the indubitable testimony." The purpose of this view is to enable the jury properly to understand the testi- mony adduced." The act of 1895 has been held to apply only where no viewers had been appointed. 52. Burden of proof — orders of court. The petitioner has the burden of proof on every material averment,' and therefore has the right to open and close.' But the burden of showing the value of the land is upon the owner." Where one railroad company seeks to cross the line of another at grade the burden is upon it to show that such crossing is unavoidable.* The court makes the necessary orders, findings, etc., in the proceeding. 53. Evidence — summing up. The same rules as to competency of witnesses, admissibility, order and sufficiency of evidence apply as in civil cases. Where the petition avers title in the defendant, evidence of a dedication by him is inadmissible." It is competent to show that the consent of local authorities, when required, was not obtained.' Evidence of com- pliance or non-compliance with conditions precedent, is competent.' So failure to agree with the owner must be averred and proved.* But in valuing a hotel property it is error to admit evidence of an application for license, after the filing of the bond.* The owner may prove his damages by witnesses who are familiar with the premises and values of land in the vicinity." The award is inadmissible on appeal," but the viewers are competent witnesses." The uses of the property may be shown," but not injuries to other property not taken." The court should not give misleading instructions. In "Act 1856, p. 1. 228; Trant v. R. Co., 15 Atl. 678. "Denniston v. Phila. Co., i Supr. C. 599. " Gorgas v. R. Co., 144 Pa. i ; Hartman v. R. Co., 22 W. N. C. 84. "Finn v. Water Co., 99 Pa. 631; Flower v. R. Co., 132 Pa. 524; Hoff- man v. R. Co., 143 Pa. 503; Antoinette St., 8 Phila. 461. "Frazee v. Light Co., 20 Supr. C. 420; Lafean v. York, 20 Supr. C. 573; Zug v. Pittsburg, 194 Pa. 367; Trant v. R. Co., is Atl. 678. * Water Works v. Drinkhouse, 92 Cal. 528 ; R. Co. v. Murphine, 4 Wash. 448. ' Comrs. v. Trustees,. 107 111. 489 ; R, Co. v. Gilchrist, 4 Wash. 509. 'County V. Gushing, 83 Cal. 507. *R. Co. V. R. Co., 4 Com. PI. Rep. 189. ' San Jose v. Reed, 65 Cal. 241. •El. R. Co. v. T. Co., 4 D. R. 17. 'County V. McGriff, 130 Cal. 124. •O'Hara v. R. Co., 25 Pa. 445. * Schonhardt v. R. Co., 216 Pa. 224. "Leiby v. Water Co., 205 Pa. 634. " Sharp v. U. S., 191 U. S. 341. " Dorian v. R. Co., 46 Pa. 520. "Miller v. Water Co., 148 Pa. 429. " Mahaffey v. R. Co., 163 Pa. 15& 252 EQUITY PRACTICE IN PENNSYLVANIA. taking a stone quarry by a municipality for a park, evidence by a witness as to the quality of the stone, is pertinent." Reference by counsel to amount awarded by viewers, in addressing jury, is ground for withdrawing a juror and continuing the cause."^ 54. The verdict. The jury may consider each item of damage separately and specify the same, giving a verdict for the sum total," or they may return a verdict for the whole, with or without specifications." 55. Power of court — ^new trial. The court may hear evidence, modify, approve or quash the report of viewers,' or grant a new trial unless the owner, in case of ex- cessive damages, consents to remit part." 56. Judgment — form and effect. The judgment is for the amount of damages ascertained and costs. It does not conflict with the claimant's right of action on the bond, for it fixes the amount that may be recovered on the bond. But suit cannot be brought on the bond for a judgment improperly or fraudulently obtained.' The judgment gives a vested right to the damages,* and parties and privies are concluded as to matters which might have been put at issue in the condemnation proceedings." The .preliminaries are not subject to collateral attack.' The judgment should conform to the petition.' The owner is not prejudiced when it does not, in form, require payment, before appropriation of the land.' 57. Finality of judgement. Where proceedings were begun and carried to judgment on an award from which no appeal was allowed by law, the judgment is final and an act passed three days before an erroneous appeal was quashed (1874, P. L. 283), will not avail the party appellant.* A judgment is final which determines the merits." "Royer v. Bore, 171 Pa. 429. "Keim v. Reading, 32 Supr. C. 613. "a Fisher v. D. L. & W. R. Co., 227 Pa. 63s, citing Shaeffer v. Kreitzer, 6 Binney 430; Wagner v. Hazel Twp., 215 Pa. 219; HoUis v. Glass Co., 220 Pa. 49 ; Quinn v. P. R. T. Co., 224 Pa. 162 ; Hollinger v. Railways Co., 225 Pa. 419. " Harvey v. R. Co., 47 Pa. 428 ; (but see Kossler v. R. Co., 208 Pa. 50) ; County v. Bryan, 68 Cal. 57. "R. Co. v. Hill, 56 Pa. 460; R. Co. v. Burson, 6i Pa. 369. 'Forbes St., 70 Pa. 125. 'Watson v. R. Co., 15 Phila. 224; Meckes v. Water Co., 203 Pa. 13; Bennett v. R. Co., 31 C. C. 545. •Harris v. R. Co., 159 Pa. 468; Stotler v. Gas Co., 36 Pitts. L. J. 173. *Ziegler, 12 York 158. ' Second Ave., 7 Supr. C. SS- 'County v. Tisdale, 136 Cal. 474, 'R. Co. V. Coleman, 3 Wash. 228. 'County V. Co., 139 Cal. 128. 'R. Co. V. Gorsuch, 84 Pa. 411, "R. Co. V. Harlan, 24 Cal. 334; Phillips v. Pease, 39 Cal. 582; People V. Pfeiffer, 59 Cal. 89; Belt v. Davis, i Cal. 135. EMINENT DOMAIN. 253 58. Execution, without stay. This final judgment is the just compensation provided for, by the constitution," and may be enforced by execution," without stay.'" 59. Bight of appeal. The right of review is statutory," and may be waived, but not by filing exceptions.'" It can only be had from a final judgment in Pennsylvania.'" 60. Bight of possession. The right of possession may be enforced by the taker, in New York, by a writ of assistance." In Pennsylvania the right to take posses- sion follows the approval of the bond. 61. Presumption of payment. After twenty years a presumption arises that damages for entry were paid and must be overcome by proof to the contrary. The burden is on the petitioner." 62. Lien for damages. The lien for damages in favor of the owner, when no bond is given, is good against the vendee of the corporation," and against the mortgagee or lessee.''" But where a bond is filed and approved in due form, the damages are not a lien.'" Even where the road is sold to another corporation which abandons the improvement, the vendee is not liable when brought in on a sci. fa. quare executionem non." 63. Sureties on bond cannot plead abatement. The sureties on the bond cannot plead that the dissolution of the corporation prior to condemnation abated the action against the principal and discharged them from liability."" 64. Judgment in trespass — ^lien One who has a judgment in trespass against a railroad corporation, whose property is sold by a decree of the U. S. Circuit Court pro- viding that the purchaser shall pay "all claims of land-owners for "Road Co. v. R. Co., 177 Pa. 585; County v. Coburn, 130 Cal. 631. "Canal Co. v. Hireen, 44 Pa. 418; R. Co. v. Strand, 14 Wash. 144; R. Co. v. R. Co., 6s Cal. 293. " R. Co. v. Peffer, 84 Pa. 295. "Vernon Park, 163 Pa. 70. '"Rodgers v. Freeraansburg, 2 C. C. 523. " Co.'s Ap., 161 Pa. 571 ; Co.'s Pet., 188 Pa. 509. "People v. R. Co., 2 Hunter 482. " Carter v. Turnpike Co., 208 Pa. 565. '"R. Co. v. Cooper, 105 Pa. 239. "" Borough's Ap.,"47 Pa. 255; Water Co. v. Moyer, 99 Pa. 615; R. Co. v. Johnston, 59 Pa. 290; R, Co.'s Ap., i Penny. 360; R. Co. v. Harvey, 107 Pa. 319. Fries V. R. Co., 85 Pa. 73; Hoflfman's Ap., 118 Pa. 512. "" Potter V. R. Co., 33 Pitts. L. J. 289. "" Keller v. R. Co., 161 Pa. 504.- 254 EQUITY PRACTICE IN PENNSYLVANIA. damages for property taken, injured or destroyed in the construction of the railroad," has no standing to collect such claim from the vendee." 65. Assessment by conunissiouers. The assessment may be made by commissioners as provided by law," and objections must be made, when the grounds are learned, or they will be considered waived." If in their report they make no mention of damages, it is equivalent to a finding of "no damages."" An adjournment by them need not be noted.''' "Campbell v. R. Co., 137 Pa. 574. ^Bank v. Shoenberger, iii Pa. 95; Brooklyn St., 118 Pa. 640. "" Gingrich v. R. Co., i Pears. 74: Mulholland v. Water Co., 7 Lack. L. N. I. " Road Case, 134 Pa. 409. " Toll Bridge, 2 Montg. 21. CHAPTER XIII. EaUITABLE EJECTI/EENT. 1. Nature and purpose. S. Forms. 2. Practice applied to parol trusts. 6. Action by vendee — ^tender. 3. Act of 1846 — ^time of essence. 7. Action by vendor. 4. Service of writ when land is not 8. Conditional verdict and judg- occupied. ment. 1. Nature and purpose. Long before the act of April 21, 1846, P. L. 424, equitable ejectment was known in the practice of Pennsylvania, and was thus explained by Duncan, J. :* "There being no Court of Chancery here, our courts grant the same relief that Chancery would. The ejectment is in the nature of bill for specific execution, but as the courts of law cannot compel the execution of a conveyance, the vendee may retain the possession, provided he has complied with his contract, or offers to comply with it by a tender of the purchase money due on the trial of the cause. But if he declines to do this, the vendor can recover the possession. He is not confined to one remedy. He may bring ejectment, or covenant or debt (now assumpsit) for the sum due on the articles. By the stipulation in the articles, the vendors do not covenant to convey on any particular day, but on the payment of the money. The payment of the money is a condition precedent ; until it is paid or tendered, the vendee cannot call for conveyance of the title. He could support no bill for specific execution ; Chancery would grant no injunction. The equitable relief to which the defendant is entitled, is not, however, extinguished by non-payment of the install- ments as they become due; the time is modal and not of the essence of the contract; Chancery would relieve even against the lapse of time, when the delay was not unreasonable, and it would, where a considerable part of the purchase money had been paid, possession taken, improvements made, be less rigid in the consideration of the time, than where no money had been paid, improvements made, pos- session taken. The course of procedure by ejectment, by vendor who has not parted with the legal title is not unusual. In some instances where there is no Court of Chancery, it might be his only remedy." Even prior to this the action was sustained where the defendant in possession failed to pay all the purchase money,'' and while the vendor may dispense with the tender of bonds, the vendee must bring the consideration money into court.' In the same manner the vendee ' Marlin v. Willink, 7 S. & R. 297. ' Mitchell's Lessee v. DeRoche, i Yeates 12. " Minsker v. Robinson, 2 Yeates 344. 255 2S6 EQUITY PRACTICE IN PENNSYLVANIA. may enforce articles and require a conveyance by tender and bringing the money into court.' 2. Practice applied to trusts by parol. In a case of parol trust resulting from the purchase of land at sheriff's sale, for the former owner, the court held, Duncan J. deliver- ing the opinion, that the action would lie to enforce such a trust." The court said: "It is an equitable action, and wherever Chancery would execute a trust, or decree a conveyance, the courts of this state, by the instrumentality of a jury, would direct a recovery in ejectment. They, in the exercise of this power, would be governed by the same rules as a Court of Chancery. The court, in discharging this duty, are the judges whether the plaintiff is entitled to relief, and the extent and mode and manner of this relief. Nothing is submitted to the jury, but that which is their proper province, — ^the ascertainment of the facts, with instructions from the court, that if the jury find the facts in a oarticular way, the plaintiff is entitled to relief, or he is not; and if they find facts which would require the interposition of Chancery powers, then it is their duty to instruct them, in what manner and to what extent, and on what terms the relief is to be granted. Thus the verdict may be moulded, and equity substantially attained." It was here noted that the statute of frauds (March 21, 1772), does not prevent any declaration of trust being made by parol.' If the case were such as to incur a forfeiture equitable ejectment would not lie, for said Duncan J.:' "Equity frequently relieves against forfeiture, but will never assist in the recovery of a forfeiture." * * * "Now, Chancery would never decree an act to be done which would deprive a man, by way of forfeiture, of half of his estate." * * * "The forfeiture here is a stricHssimi juris. The penalty must arise on the very letter of the condition, or the law will not award the pound of flesh — it is not in the bond." 3. The act of 1846 — time of essence. The act of April 21, 1846, P. L. 424, provides: "That in all actions of ejectment, hereafter tried, to enforce the payment of purchase money, wherein time becomes of essence in the finding of the jury, or in a judgment, by confession, by fixing a time for such payment, one verdict and a judgment thereon unreversed, or a judgment in such case, by confession, shall be conclusive, between the parties; and a failure to pay the money within the time so fixed, shall be deemed a rescission of the contract between the parties, and shall render such judgment absolute." (The remainder of the section relates to actions previously tried.) Section 5 of the act of April 9, 1849, P- 1- 524, authorizes the executors or administrators of the deceased creditor to sustain *Hawn v. Norris, 4 Binney 77. ° Peebles v. Reading, 8 S. & R. 484; Deitzler v. Mishler, 37 Pa. 82. "German v. Gabbald, 3 Binney 304; Wallace v. Duffield, 2 S. & R. S2i- But see Act of June 4, 1901, P. L. 425, requiring an action to be com- menced or a declaration to be recorded. ' Steedman v. Cooke, 13 S. & R. 171, citing Vane v. Fletcher, 1 Feere Williams 352. EQUITABLE EJECTMENT. 257 the action in their own names. Under Section 4 of the act of April 26, 1850, P. L. 590, where the vendor brings suit, then sells or assigns, the title devolves on the purchaser or assignee, who may be substituted on motion in open court. 4. Service of writ when land is unoccupied. Section 11 of the act of April 14, 1851, P. L. 612, provides: "That any action of ejectment hereafter to be brought by a vendor to enforce the specific performance of the agreement against the vendee, or vendees, or persons claiming under him or them, for land upon which there is no person residing, the writ may be served on the vendee or vendees, or persons claiming under them, and if such vendee or person claiming as aforesaid cannot be found by the sheriff of the proper county, then and in that case, the court, after the return day of the writ, may, on motion of the plaintiff or his attorney> grant a rule on the defendant (describing the premises), to appear and plead, which rule shall be published sixty days before the return day thereof in one newspaper of the county in which such action "is brought, to be inserted at least three times, and if no proper nerson shall appear to defend against the said action, the court on proof of such publication shall on motion in open court, at the stated term give judgment by default, but in case the vendee or purchaser or person claiming under him shall appear, the court shall cause the person, or his legal representative so claiming under the vendee or purchaser to be made defendant, and the cause shall be proceeded in and tried with the same effect as if there were an actual occupation of the land and regular service on the defendant." This act was so far modified by the act of April 13, 1858, P. L. 256, including a claimant or mortgagee, as to require actual notice to the defendant;' but the act of June 26, 1895, P. L. 345, in relation to unseated lands, so amends the act of 1858, as to eliminate the requisite of actual notice in actions of equitable ejectment. The course pre- scribed by the acts must be strictly pursued and it must appear that the rule and advertisement contained a description of the premises involved in the suit.' The notice and return of a rule to appear and ■plead is essential in every case.'" 5. Forms. The forms of praecipe and writ are the same as prior to the service act of 1901, which does not apply to this kind of ejectment. The return as to the non-resident will be nihil and the sheriff should make oath to his return, since this is the basis of the application for the rule to appear and plead, or judgment. Following is a form of motion for the rule: Now, , 19 — , on motion of , Esq., plaintiff's attorney the court grants a rule on defendant, in an action of ejectment for premises situate (describe same) No. — . Term, 19 — , to appear and plead to said action, within the time allowed by law, or judgment by default, returnable on the day of , ' Haslett V. Foster, 46 Pa. 471 ; Roberts v. Orr, 56 Pa. 176, "Roberts v. Orr, 56 Pa. 176; see Phila,. v. Jenkins, 162 Pa. 451. " Kreamer v. Voneidai 213 Pa. 74 ; 24 Supr. C. 347. Vol. 4 Practice — 17 2S8 EQUITY PRACTICE IN PENNSYLVANIA. 19 — , and directs the same to be published sixty days before said return day in , a newspaper published in said county, to be inserted at least three times in said newspaper. Per Cur. Proof of publication must be made as in other cases, by the pub- lisher, and when presented in open court, in default of appearance and plea, judgment may then be moved accordingly, for such default. 6. Action by vendee — ^tender. The language of the act of 1846, supra, was at first construed to apply only to actions by the vendor ;" but since the right of the vendee to an action stood established independently, a larger scope was given to it by Chief Justice Lowrie," and "to enforce purchase money" was held to mean also "to enforce specific performance." The right of the vendee has been adjudicated in numerous cases." But "it is an axiom of equity jurisprudence that a party who asks equity must do equity," and the verdict in favor of the vendee is of grace and must be based on clear equity." In order that vendee may maintain the action he must show performance or tender of the same." The defendant may show failure to perform." A conflict of evidence is for the jury." The tender should be made before suit and brought into court." If time is made the essence of the contract, on failure to pay at the time, the right is forfeited and if any purchase money is paid, suit must be brought to recover it in the form of assumpsit." The duty of the plaintiff, being vendee, is to tender the balance due and if refused, bring his action and when the cause is called have the amount of the tender in court." Then, by leave of court, he may pay the money into court, if upon tender to the defendant, in open court, his tender is refused. The court will order the prothonotary to receive the money and enter it of record in the cause. Where the vendee is put in possession by the vendor, but, subse- quently ousted by him, illegally, a previous tender is not necessary" nor where the vendor is in fault and the vendee has made valuable improvements,'" or the vendor has committed a fraud upon the "Brown v. Nickle, 6 Pa. 390; Hersey v. Turbett, 27 Pa. 418; Peter- man V. Huling, 31 Pa. 432; Lykens v. Tower, 27 Pa. 462. "Hill V. Oliphant, 41 Pa. 364. "Cope V. Smith, 8 S. & R. 115; Baum v. Dubois, 43 Pa. 260; Corson V. Mulvany, 49 Pa. 88 ; Merrell v. Merrell, S Kulp 125 ; Hewitt v. Huling, II Pa. 27; Mellon v. Lemmon, iii Pa. 56; Tyson v. Passmore, 2 Pa. 122; McCulIough v. Staver, iig Pa. 432. "Thompson, J., in Deitzler v. Mishler, 37 Pa. 82. "Elbert v. O'Neill, 102 Pa. 302; Hawthorn v. Robinson, 16 S. & R. 269. "Lykens v. Tower, 27 Pa. 462; Youst v. Martin, 3 S. & R. 423; P. & L. Dig., vol. s, cols. 7416-7-8. " Dreisbach v. Serfass, 126 Pa. 32. "Williams v. Bentley, 29 Pa. 272. " Dwyer v. Wright, 162 Pa. 405. ^ Dauchy v. Pond, 9 Watts 49. "Bell v. Clark, in Pa. 92. ^Bassler v. Niesley, 2 S. & R. 352; Davidson v. Barclay, 63 Pa. 406; D' Arras v. Keyser, 26 Pa. 249; Baum v. Dubois, 43 Pa. 260. "'Chase v. Irvin, 87 Pa. 286; Eberly v. Lehman, 100 Pa. 542. EQUITABLE EJECTMENT. 259 vendee/'' It seems that the tender upon the trial is sufficient even after the evidence is closed"', but the safer practice is as above stated. 7. Action by vendor. The vendor may bring this action whenever the vendee has defaulted in the payment of an installment or the interest when made payable at a specified time.'" Where the purchaser agrees to a condition that if he fails in his payments, the money he has paid shall be forfeited, he is not entitled to a conditional verdict, but the vendor is entitled to an absolute one." The rights of the vendor pass to his respective assignees" or heirs.^ If the vendor sues another than the vendee he must show that defendant came into possession under the vendee.™ The act of April 9, 1849, P. L. 524, does not apply to the administrators of vendee." After delivering a deed to vendee, the right of the vendor to an action of ejectment is dead.°* The vendor, who claims a conditional verdict need not tender a deed before suit; he may tender it on the trial." A vendee in possession by parol, must tender the balance of the purchase money, and he is entitled to only a conditional verdict." The defendant's tender, if made in court, should also include the costs if he wishes an absolute verdict. Otherwise the plaintiff is entitled to a verdict for the land to be released on payment of costs and nominal damages which are usually "six cents." "" If the plaintiff refuses a deed on tender of balance, which is kept good, interest is stopped. The vendor may bring his action for default of interest stipulated to be paid by the contract." If the vendor has parted with the legal title he has no right of action." 8. Conditional verdict and judgment The respective rights and equities of the parties will be protected by a conditional verdict and judgment thereon, in case a jury passes upon it; if the court or a referee, the judgment will be moulded accord- ingly." A conditional verdict is a verdict for the land in the writ, for the plaintiff, to be released by him, upon the payment of the sum found due within a specified time. The ccjndition may be, as in case of a railroad company taking land, without tendering bond, to be released on prompt payment of the award and interest. ' Wh-ere the "Weaver v. Craighead, 104 Pa. 288. "^ Merrell v. Merrell, s Kulp 125. See P. & L. Dig., vol. 5, cols. 7423-6, for various cases of tender. "'Brown v. Devitt, 131 Pa. 455. "Emery v. DeGolier, 117 Pa. 153. ''Riel v. Gannon, 161 Pa. 289. "* Webster v. Webster, 53 Pa. 161. ^"Williams v. Irwin, 99 Pa. 37. "Thompson v. Adams, 55 Pa. 479. ""Myers v. Myers, 25 Pa. lOo; Wheeling Etc. R. Co. v. Gourley, 99 Pa. 171; Krebs v. Stroub, 116 Pa. 405. "Smith V. Webster, 2 Watts 478; Lauer v. Lee, 42 Pa. 165; P. & L. Dig., vol. 5, cols. 740S-6. "JChadwick v. Felt, 35 Pa. 305. "°Cadwalader v. Berkheiser, 32 Pa. 43; Allen v. Woods, 24 Pa. 76. "'Meyer v. Garrett, 96 Pa. 376. "'Adams v. Barrell, 26 Supr. C. 641. ""Evans v. Yost, 2 Law Times (N. S.) 235. "Wheeling Etc. R. Co. v. Warrell, 122 Pa. 613. 26o EQUITY PRACTICE IN PENNSYLVANIA. judgment is entered by agreement with the condition of payment at a certain time, the time fixed becomes essential, and it cannot be afterwards paid." The condition having failed, the plaintiff may procure an order of sale or have his writ of hab. fa. poss^ " Gable v. Hain, i P. & W. 264. "Heath v. Gardner, 10 W. N. C. 49s; Hewit v. Huling, 11 Pa. 27. CHAPTER XIV. FEME SOLE IBADEBS. 1. Wives of mariners and others 7. Procedure to obtain a decree. gone to sea. 8. Form of petition. 2. Certain alienations declared 9. Form of decree. void. 10. Effect of decree. 3. Execution against absentee's es- 11. Right of married woman to ac- tate. quire and dispose of prop- 4. Form of affidavit for attach- erty. ment. 12. Emancipation as to contracts, 5. Additional causes. with exceptions. 6. Scope and effect of the act. Proceedings to declare a married woman feme sole trader. 1. Wives of mariners or others gone to sea, to be deemed feme sole traders. Section i of the act of February 22, 1718, i Sm. L. 99, provides : "Where any mariners or others are gone or hereafter shall go to sea, leaving their wives at shop-keeping, or to work for their livelihood at any other trade in this province, all such wives shall be deemed, adjudged and taken, and are hereby declared to he, as feme sole traders ; and shall have ability and by this act are enabled to sue and be sued, plead and be impleaded at law in any court or courts in this province, during their husbands' natural lives, without naming their husbands in such suits, pleas or actions; and when judgments are given against such wives, for any debts contracted, or sums of money due from them, since their hus- bands left them, executions shall be awarded against the goods and chat- tels in the possession of such wives, or in the hands or possession of others in trust for them, and not against the goods and chattels of their husbands; unless it may appear to the court, where those executions are returnable, that such wives have, out of their separate stock or profit of their trade, paid debts which were contracted by their husbands, or laid out money for the necessary support and maintenance of themselves and children; then and in such case, execution shall be levied upon the estate, real and personal, of such husbands, to the value so paid or laid out, and no more." A married woman is not authorized to act as a feme sole trader, except as provided by an act of assembly liberating her from the fetters of the common law." The suit against her authorized by this act lies whether on a simple contract or a specialty.' "Jacobs v. Featherstone, 6 W. & S. 346. 'Burke v. Winkle, 2 S. & R. 189. 261 262 EQUITY PRACTICE IN PENNSYLVANIA. 2. Certain alienations declared void. Section 2 of the act, supra, provides : "If any of the said absent husbands, being owners of lands, tene- ments or other estate in this province, have aliened, or hereafter shall give, grant, mortgage or alienate from his wife and children, any of the said lands, tenements or estate, without making an equiv- alent provision for their maintenance, in lieu thereof, every such gift, grant, mortgage or alienation shall be deemed, adjudged and taken to be null and void. Section 3. Provided, That if such absent husband shall happen to suffer ship-wreck, or be by sickness or other casualty disabled to maintain himself, then and in such case, and not otherwise, it shall be lawful for such distressed husband to sell or mortgage so much of his said estate as shall be necessary to relieve him, and bring him home to his family." Where a married woman is not supported by her husband because of his sickness and consequent inability, she does not become feme sole, although she may carry on business herself." 3. Execution against absentee's estate. Section 4 of the act, supra, provides : "But if such absent husband, having his health and liberty, stays away so long from his wife and children, without making such provision, for their maintenance, before or after his going away, till they are like to become chargeable to the town or place where they inhabit; or, in case such husband doth or shall live in adultery, or cohabit unlawfully with another woman, and refuses or neglects, within seven years next after his going to sea, or departing this province, to return to his wife and cohabit with her again; then and in every such case, the lands, tenements and estates belonging to such husbands, shall be and are hereby made liable and subject to be seized and taken in execution, to satisfy any sum or sums of money, which the wives of such husbands or guardians of their children shall necessarily expend or lay out for their support and maintenance ; which execution shall be founded upon process of attachment against such estate, wherein the absent husband shall be made defendant." Such suit may be commenced by attachment of the absentee's property.* Under this act and the supplement of May 4, 1855, P. L. 430, the wife may sue her husband for the amount she expended for the family during his absence, notwithstanding the act of June 8, 1893.' The attachment provided for in the act of 1855 will not lie against the husband's real estate.' This attachment is original pro- cess and it is erroneous to appoint trustees. It is in the nature of foreign attachment."^ 'Weiler v. Greiner, 12 Phila. 440; King v. Thompson, 87 Pa. 365. '' Reilley v. Reilley, 4 Brewster 169. 'Miller v. Miller, 4 D. R. 309; Longbotham v. Longbotham, 18 C. C 460. ' Von Helmold v. Von Helmold, 19 Supr. C. 217. "a Longbotham v. Langbotham, 18 C. C. 460. FEME SOLE TRADERS. 263 4. Form of affidavit for attachment. Mary Rodgers f In the Court of Common Pleas of Delaware V. J County, John Rodgers. ( No. — , Term, 1910. Delaware County, ss. : Mary Rodgers being duly sworn deposes that she was united in marriage with John Rodgers on the day of , 19—, in the city of Chester, Pa. ; that the said John Rodgers has for upwards of seven years remained away from said deponent and their lawful child Edna Rodgers, although he the said John Rodgers has been during all of said time" possessed of his health and liberty, and that he has wholly neglected and failed to make any provision for their support during said absence, thus rendering them likely to become chargeable to said city of Chester ; that said John Rodgers has during some of said period lived and cohabited with one in open adultery and at all times refused to return and cohabit with his said lawful wife; that deponent has, during said period, necessarily expended from her sole earnings for the support of herself and said minor child the sum of $ ; that said John Rodgers was and is possessed of property in said city (or county) as follows, to wit: (Describe same in detail.) Wherefore she prays your honorable court to award an attachment in assumpsit, against said property, as by the acts of assembly is provided and she will ever pray, etc. Sworn to and subscribed, etc. Mary Rodgers. Special Allocatur. Now, to wit, , 1910, petition presented and upon consid- eration, writ of attachment allowed and directed to issue accordingly, special bail being fixed at the sum of $- . Judge. 5. Additional causes for declaring a married woman feme sole trader. The 2nd section of the act of May 4, 1855, P. L, 430, provides : "Whensoever any husband from drunkenness, profligacy or other cause shall neglect or refuse to provide for his wife, or shall desert her, she shall have all the rights and privileges secured to a feme sole trader, under the act of the 22nd of February, 1718, entitled, 'An Act concerning feme sole traders, and be subject as therein provided ; and her property real and personal, howsoever acquired, shall be subject to her free and absolute disposal during life, or by will, without any liability to be interfered with or obtained by such husband, and in case of her intestacy shall go to her next of kin as if he were previously dead." 6. Scope and effect of the act. The section last quoted confers on a married woman directly the privilege of feme sole trader, as under the act of 1818, supra, without 264 EQUITY PRACTICE IN PENNSYLVANIA. petition and decree;' but to make her liable for debts contracted in the course of her business, a compliance with Section 4 of the act of 1855, infra, is necessary.' She may acquire property paying for it with her earnings and hold it clear from her creditors, unless she is decreed a feme sole trader on her own petition and the burden of proving her privilege is upon her.' Notwithstanding she has taken advantage of the law, her husband still remains liable for family necessaries" and a bare failure to provide for her support does not confer the right;" nor a naked separation without neglect or refusal to provide;" nor failure to support her, when incapacitated by illness of the husband." But where the husband deserts his wife and she is divorced a mensa et thoro, she gains a settlement of her own, under the pauper laws." A suit may be maintained against her for repairs of her estate by her orders, without joining her husband;" and she may sue in her own name for her rights" and for damages for the death of her minor child;" but not for the seduction of her daugh- ter over twenty-one years without proving the right to service." She is still disqualified from becoming an accommodation endorser, notwithstanding the enlarging act of June 8, 1893, even though she has a divorce a mensa et thoro.^' 7. Procedure to decree a married Tvoman feme sole. Section 4 of the act of 1855, supra, provides: "That creditors, purchasers and others may, with certainty and safety, transact business with a married woman under the cir- cumstances aforesaid, she may present her petition to the Court of Common Pleas of the proper county, setting forth, under affidavit, the fact which authorize her to act as aforesaid, and if sustained by the testimony of at least two respectable witnesses, and the court be satis- fied of the justice and propriety of the application, such court may, upon such notice as they may direct, make a decree and grant her a certificate, that she shall be authorized to act, have the power, and transact business as hereinbefore provided; and such certificate shall be conclusive evidence of her authorfty, until revoked by such court for any failure on her part to perform the dutips by this act made incumbent upon her, which may be ascertained upon the petition of any next friend of her chidren." 'Black V. Tricker, 59 Pa. 13; Conley v. Bentley, 87 Pa. 40; Orrell v. Van Gorder, 96 Pa. 180 ; Lewis v. Eddy, 8 W. N. C. 355 ; Peoples' Savings Bank v. Denig, 131 Pa. 241 ; Dawson v. Roney, 15 Phila. 92. ' Cleaver v. Scheetz, 70 Pa. 496 ; Krebs v. Clark, 9 C. C. 420 ; Bell v. Ladd, 8 W. N. C. 129; Hentz v. Clawson, 12 Phila. 432. 'Ellison V. Anderson, no Pa. 486. " Markley v. Wartman, 9 Phila. 236. "Ellison V. Anderson, no Pa. 486. " Ardin v. Udderzook, i Chester County 142. " King V. Thompson, 87 Pa. 365. " Williamsport Overseers v. Eldred Twp. Overseers, 84 Pa. 429. "" Winternitz v. Porter, 86 Pa. 35. " Valentine v. Ford, 2 Browne 193 ; Winkler v. Pemberton, 9 W. N. C. 419. " Kerr v. Penna. R. Co., 169 Pa. 95. " Matthews v. Koch, 20 C. C. 363. " Harley v. Leonard, 4 Supr. C. 431. FEME SOLE TRADERS. 265 8. Form of petition. In the matter of Petition to decree Helen Vivian a feme sole trader. In the Court of Common Pleas of Mifflin County. To the Hon. Joseph M. Woods, president judge of the said court, the petition of Helen Vivian respectfully represents that she was married to Henry Vivian on the day of , 19 — , that to them were born two children, viz.: James, aged two years, and Helen, aged four years ; that for upwards of a year past said Henry Vivian has wholly neglected his family, having then abandoned and deserted them, being wholly dissolute and intemperate in his habits and hav- ing neglected to provide for them as he was in duty bound to do, and she therefore prays your honorable court to decree her a feme sole trader as provided by law. Sworn to, etc. Helen Vivian. Mifflin County, ss. : We, James Reed and Arthur Munn, residents of said county, being duly sworn, do say that they are acquainted with the petitioner above named, and also Henry Vivian, and, to their knowledge, the facts set forth in her above petition are true. Sworn to, etc. James Reed, Arthur Munn. A petition has been held sufficient when it avers that the husband has deserted his family on a certain date and has not been seen nor heard from since, and that he has neglected to provide for his wife."* Notice may be given personally or by publication, as the court may direct in its order. 9. Order fixing time of hearing^. Now, to wit, , 1910, petition and affidavits presented and upon consideration the court fixes , 1910, for hearing, and directs notice to be given in writing, served personally [or by adver- tisement in a newspaper, designating it as well as the time]. .Per cur. Form of decree. Now, to wit, , on hearing after due notice as di- rected, the court being satisfied of the truth and justice of the ap- plication, does hereby decree that the said Helen Vivian be and is a feme sole trader and entitled to all the rights and privileges con- ferred by the acts of assembly in such case provided, and that the prothonotary is directed to issue to her, in due form, a certificate thereof. Per cur. 10. Effect of decree. The effect of a decree of feme sole trader is to render the mar- ried woman as free from her husband's claims upon her or her separate estate as if he were dead prior to such decree, and it bars effectually his claim upon her estate™ in all respects, as well as tenant by curtesy^ She may make a valid contract to convey her land, even without such decree,''^ and she may convey it without his |°* Cole's Case, 230 Pa. 162. "" Simon v. Kessler, 12 D. R. 781 ; Kamraerer's Est, 50 Pitts. L. J. 218. "Moninger v. Ritner, 104 Pa. 298. ^Elsev V. McDaniel. q=; Pa. 472. ivioninger v. K.itner, 104 i-a. 29 ^ Elsey V. McDaniel, 95 Pa. 472. 266 EQUITY PRACTICE IN PENNSYLVANIA. joining in the deed." She may also execute a valid mortgage." The decree does not validate a sole deed previously executed by her, it seems, although she may subsequently ratify and confirm it. The law granting such powers is constitutional.'" The court having granted a decree the proceedings are clothed with the presumption of regularity." Having been so decreed, her right to dower will be barred by a sale of her husband's real estate, under a mortgage given by him alone after his desertion." She can- not convey a separate use trust estate under the powers conferred by the act of iSss."" If the husband appeals from the decree, the appeal will have the effect only of a certiorari.^ 11. Bight of married woman to acquire and dispose of property. Since the act of June 8, 1893, P. L. 344, a married woman has little need for the feme sole trader laws, except to divest entirely the interest of a recusant, worthless or absenting husband. Section I of said act is as follows: "That hereafter a married woman shall have the same right and power as an unmarried person to acquire, own, possess, control, use, lease, sell, or otherwise dispose of any property of any kind, real, personal or mixed, and either in posses- sion or expectancy, and may exercise the said right and power in the same manner and to the same extent as an unmarried person, but she may not mortgage or convey her real property, unless her husband join in such mortgage or conveyance." It is the latter clause which the feme sole trader acts obviate, as seen above. (See Vol. I Johnson's Practice, pp. 372, 386, for Section 3, Act of 1893.) 12. Emancipation as to contracts, with exceptions. Section 2 of the act of 1893, provides: "Hereafter a married woman may, in the same manner and to the same extent as an unmarried person, make any contract in writing or otherwise which is necessary, appropriate, convenient or advan- tageous to the exercise or enjoyment of the rights and powers granted by the foregoing section, but she may not become accommodation endorser, maker, guarantor or surety for another, and she may not execute or acknowledge a deed, or other written instrument, con- veying or mortgaging her real property, unless her husband join in such mortgage or conveyance." When this section expressed the exceptions it declared the limit of the wife's incompetency. As to all other matters of contract she was rendered competent and the presumption of general competency has been sustained under this act and its predecessor, the act of June 3, 1887." So, if a married woman in any way executes a note "Wilson V. Coursin, 72 Pa. 306. '"Foreman v. Hosier, 94 Pa. 418. '^ Simon's Est, 20 Supr. C. 450. " Moninger v. Ritner, 104 Pa. 298. " Wheelock's Ap., 2 W. N. C. 503. " Duquesne Savings Bank's Ap., 96 Pa. 298. " People's Savings Bank v. Denig, 131 Pa. 241. " Cole's Case, 230 Pa. 162. "Patrick & Co. v. Smith, 165 Pa. 526; Latrobe v. Fritz, 152 Pa. 224. FEME SOLE TRADERS. 267 or endorses one, with a view to accommodate "another," which in- cludes her husband,"" or make her property answerable for the same, the disability may be set up as a defense. A married woman's en- dorsement of a negotiable instrument, without consideration, is re- garded by the courts as an ordinary suretyship." Where a married woman has been divorced a mensa et thoro only, the relation is still maintained sufficiently to entitle her to dower and the husband to curtesy in her lands,"° and to her administration as widow."' But where she has been also declared a feme sole trader, it does not remove the marital disability so as to prevent her claiming it against becoming surety for another." The disability is not predicated upon her own transactions, contracts and obligations in the course of her business,"* but upon assuming the debt, obligation or liability of another. The cases upon this act are numerous, because of a lack of understanding of its plain import, which was to protect her against the fear or importunity of her husband and the arts or persuasion of others. All the cases may be found in Pepper & Lewis' Digest of Decisions, Vol. 8, Col. 13828; Vol. 2 C. R. A., Col. 2625-7; Vol. 3 C. R. A., Col. 1079, 1080. The restriction in the act has been held not to preclude her power to mortgage her separate estate for her husband's debt."* By act of June 10, 191 1, a wife may deed real estate directly to her husband, as if she were sole. ""Patrick & Co. v. Smith, 165 Pa. 526, citing Real Estate Co. v. Roop, 132 Pa. 496. " Henry v. Bigley, 5 Supr. C. 503. "Wiltbank v. Tobler, 181 Pa. 103. "Clark V. Clark, 6 W. & S. 85; Thorndell v. Morrison, 25 Pa. 326; Nye's Ap., 126 Pa. 341. "Fyock's Est, 13s Pa. 522. "Harley v. Leonard, 4 Supr. C. 431; citing Black v. Tricker, 59 Pa. 13; Orrell v. Van Gorder, 96 Pa. 180; People's Bank v. Denig, 131 Pa. 241. "Packer v. Taylor, 2 D. R. 443; Mitchell v. Richmond, 164 Pa. 566; Brooks V. Bank, 125 Pa. 394; Evans v. Evans, ISS Pa. S72; Dennis v. Grove, 4 Supr. C. 480; P. & L. Dig., vol. 8, col. 13828, Good Hope Bldg. Assn. V. Amweg, 22 Supr. C. 143. "Righter v. Livingston, 214 Pa. 28; citing Kuhn v. Ogilvie, 178 Pa. 303; Herr v. Reinoehl, 209 Pa. 483. CHAPTER XV. HABEAS COiRFUS. 1. Jurisdiction of courts. 14. Once liberated, not to be re- 2. Manner of complaint — service — committed. hearing, etc. 15. Prisoner not to be removed. 3. Form of petition — allowance. 16. Purposes of the writ. 4. Motion for writ in term time. 17. Habeas corpus ad testificandum. S- Discharge of prisoner on bail. 18. Return in criminal matter. 6. Proviso as to prisoner from an- 19. Subpoenas for witnesses. other state. 20. Costs of witnesses and officers. 7. Not applicable when detained 21. The hearing on a criminal by civil process. charge. 8. Time of application, as to juris- 22. Judgment and process. diction. 23. Discharge of prisoner. 9. Notice of application. 24. The writ in civil cases. 10. Penalty for refusal of writ. 25. Form of petition. 11. Form of writ. 26. Appeals. 12. Duty of jailer — penalty for neg- 27. Limitation of suits. lect. 28. Pleading in suit for penalty. 13. Penalty for not delivering copy of warrant. 1. Jurisdiction of courts. The writ of habeas corpus is of high constitutional protection, and comes down to us from English Magna Charta. Our courts, state and federal, are never closed to it. In volume one its nature and power are fully discussed, and the practice in the federal courts is given in detail. It remains, then, only to consider here the practice under our acts of assembly. It will be noticed that the writ issues out of the Supreme Court, Superior Court or the Court of Common Pleas, but when, as provided in Section 6 of the act of Feb. i8, 1785, 2 Sm. L. 275, it issues within fifteen days next preceding the term or sessions the prisoner must be brought before the judge or justices of the court in which the offense "charged is properly cog- nizable." The Supreme Court has original jurisdiction to grant the writ;' and for a case of imprisonment under a federal law or process it has concurrent jurisdiction with the federal courts,' but the writ will not be granted where the prisoner has been committed for con- tempt of a federal court." (As to the suspension of the writ, see Vol. I.) The Superior Court or any judge thereof has power to 'Comth. V. Shortall, 206 Pa. 165. ^Comth. V. Holloway, 5 Binney 512; Comth. v. Wright, 3 Grant 437; Comth. V. Fox, 7 Pa. 336. " Williamson's Case, 26 Pa. 9. 268 HABEAS CORPUS. 269 issue the writ at common law ancillary to certiorari;' but its juris- diction cannot exceed $1500.° By Section 9 of the act of April 13, 1791, 3 Sm. L. 30, judges were given as full power to grant the writ in vacation as in term time. Section 2 of the act of April 4, 1837, P. L. 378, gave the judges of the Quarter Sessions of Phila. the same powers as judges of the Common Pleas there had. A state court cannot inquire into the legality of enlistments in the marine corps of the U. S. by writ of habeas corpus." The Su- perior Court will not issue the writ within fifteen days before the term or sessions of the county court.' No court will issue this writ as a quasi writ of error to relieve one from confinement under sen- tence of a court of competent jurisdiction.' Where the person is at liberty the writ will not lie on behalf of his wife as relator.' But where an oificer, as a burgess, has no jurisdiction the writ may be invoked." Upon proceedings to extradite an alleged fugitive to another state, he may have this writ, in order to have the court de- termine the legality of the proceedings upon which the application for extradition is founded." 2. Maimer of complaint — service, hearing, etc. Section i of the act of 1785, supra, is as follows : "If any person shall be, or stand committed or detained for any criminal or supposed criminal matter, unless for treason or felony, the species whereof is plainly and fully set forth in the warrant of commitment, in vacation time and out of term, it shall and may be lawful to and for the person so committed or detained, or any one on his or her behalf, to appeal or complain to any judge of the Supreme Court, or to the president 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 warrants of commitment or detainer, or otherwise, upon oath or affirmation legally made, that such copy or copies were denied to be given by the person 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 on 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, whereof, he shall then be a judge or justice, to be directed to the person or persons in whose custody the prisoner is detained, returnable immediately before the said judge or justice. 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, ^Comth. v. Nuber, 6 Supr. C. 420; Comth. v. Gibbons, 9 Supr. C. 527; Jack v. Twyford, 10 Supr. C. 47S- ' Scott's Petn., 10 Supr. C. 286. ' Comth. V. Butler, 19 Supr. C. 626. 'Comth. V. Keeper of County Prison, 26 Supr. C. 191. " Comth. V. May, 24 C. C. 546 ; Comth. v. Seechrist, 27 Supr. C. 423. •Comth. V. Becker, 11 D. R. 182. " Comth. V. Bowman, 29 C. C. 635. "Comth. V. Sheriff. 38 C. C. 55- 270 EQUITY PRACTICE IN PENNSYLVANIA. "By act of assembly, one thousand seven hundred and eighty-five," and shall be signed by the judge or justice who awards the same. And whenever the said writ shall, by any person, be served upon the officer, sheriff, jailer, keeper or other person 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-offi- cers or deputies shall, within three days after the service thereof, as aforesaid, 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 indorsed, 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 remanded, 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, be- fore whom the said writ is made returnable; and, in case of his ab- sence, before any other of the judges or justices aforesaid; and shall then likewise specifically and fully certify the true cause or causes of the commitment and detainer of the said prisoner, and when he was committed, unless the commitment be in any place beyond the distance of twenty miles from the place where such judge or justice shall be residing, and if 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. And there- upon the judge or justice before whom the prisoner shall be so brought, shall, within two days, discharge the prisoner from impris- onment, 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 the nature of the offence, for his or her appearance at the next court of oyer and terminer, general jail delivery, or general quarter sessions of or for the county, city or place where the offence 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 recognizances, 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 offences for which, by the law, the said prisoner is not bailable. And that the said judge or justice may, according to the intent and meaning of this act, be ena-bled, by investigating the truth of the circumstances of the case, to determine whether, ac- cording to law, the said prisoner ought to be bailed, remanded or discharged, 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." In vacation and more than fifteen days before the term a prisoner may present his petition to any court having jurisdiction, either by himself or another;" but within fifteen days of the term he must present it to the judge of the court having jurisdiction of the of- fence." " Comth. v. Killacky, 3 Brewster 565 ; Comth. v. Hoffman, 4 Kulp 428. "Comth. V. Sheriff, 7 W. & S. 108; Clark v. Comth., 123 Pa. 555. HABEAS CORPUS. 271 3. Form of petition. Following is a form of petition where prisoner is detained on a criminal charge: To the Hon. John W. Reed, President Judge of the Court of Com- mon Pleas of Jefferson County: The petition of Hearst Watt respectfully shows that your petitioner is confined unjustly (as he apprehends) in the jail of the county aforesaid, for some criminal or supposed criminal matter as appears by a copy of the warrant of commitment hereto annexed. To be relieved from said imprisonment in which he is unjustly detained your petitioner now applies and prays that a writ of habeas corpus may be issued in accordance with the act of assembly in such case made and provided, so that your petitioner may be brought before your Honor, to do, submit to and receive whatsoever may be right in that behalf. And he will ever pray as in duty bound. [Affidavit and copy of warrant Hearst Watt, attached.] Order of allowance. Now, to wit, August I, 1910, petition presented and writ directed to issue forthwith, returnable at — o'clock — M. day of , 1910. _ John W. Reed, P. J. Upon this order the prothonotary issues the writ to the jailer or person having the custody of the person whose body is commanded to be brought before the judge. In his petition the prisoner must show at least probable cause, or it will be defective," and an actual detention or legal custody in restraint of his personal liberty." The act of April 16, 1903, P. L. 211, amended by the act of May 28, 1907, P. L. 288, authorizes a review on habeas corpus, of com- mitment of persons habitually addicted to the use of alcoholic drink, absinthe, opium, morphine, chloral or other intoxicating liquor or drug under these acts. 4. notion for writ in term time. Section 2 of the act of 1785 provides: "In term time, it shall and may be lawful for any prisoner, as aforesaid, in manner aforesaid, to move and obtain his or her habeas corpus, out of the Supreme Court, or Court of Common Pleas for the county in which he or she is imprisoned, whereupon proceed- ings shall be had as aforesaid." 5. Discharge of prisoner on bail. Section 3 of the act, supra, provides: "If any person shall be committed for treason or felony, and shall not be indicted and tried some time in the next term, session of oyer and terminer, general jail delivery or other court, where the offence is properly cognizable, after such commitment, it shall and may be lawful for the judges or justices thereof, and they are hereby re- "Comth. V. Jailer, 26 Pa. 279; Comth. v. McAleese, 192 Pa. 410; Scott's Petition, 10 Supr. C. 286. " Resp. V. Arnold, 3 Yeates 263 ; Comth. v. Sheriff, 2 D. R. 319 ; Comth. V. Gill, 10 C. C. 71 ; Comth. v. Doran, 15 C. C. 385 ; Comth. v. Fenicle, 6 D. R. 789. 272 EQUITY PRACTICE IN PENNSYLVANIA. quired, upon the last day of the term, sessions or court, to set at liberty the said prisoner upon bail; unless it shall appear to them, upon oath or afRrmation, that the witnesses for the Commonwealth, mentioning their names, could not then be produced; and if such prisoner shall not be indicted and tried the second term, sessions or court 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 imprisonment" If the delay of trial be with the prisoner's consent or on his motion, he will not be discharged." It must be at a term or ses- sion where the cause is properly triable." If the prisoner has the small-pox he cannot be tried." A prisoner cannot be removed from the jurisdiction of the court during the term." 6. Proviso as to prisoner from another state. Section 4 of the act, supra, is as follows: "Provided always. That nothing in this act shall extend to dis- charge out of 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 of nations." 7. Not applicable when detained by civil process. Section 5 of the act, supra, is as follows: "Provided also. That nothing in this act shall extend to discharge out of prison any person charged with debt or other action, or with process in any civil cause, but that after discharge for such crim- inal or supposed criminal matter, he or she shall be kept in custody, according to law, for such other suit." The writ is not available where one is detained under civil pro- cess and there is other adequate remedy." 8. Time of application, as to jurisdiction. Sections 6 and 7 of the act, supra, provide: "Sec. 6. And that no person may avoid his or her trial by pro- curing a removal, so that he or she cannot be brought back in time, Be it enacted. That no person shall be removed upon any habeas corpus granted in pursuance of this act, within fifteen days next pre- ceding the term, sessions of oyer and terminer, general jail delivery or other court, where the offence with which he or she stands charged is properly cognizable; but upon such habeas corpus shall be brousjht before the judge or justices thereof, who are thereupon to do what to justice shall appertain." "Sec. 7. Provided, nevertheless, That after such court, the person detained may have his ©r her habeas corpus, according to this act." " Clark y. Comth., 29 Pa. 129 ; Comth. v. Brown, 2. W. N. C. 153. "Comth. v. Sheriff, 16 S. & R. 304; Walton, ex parte, 2 Wharton 501. " Comth. V. Jailer, 7 Watts 366. " Comth. V. Sheriff, ^ W. & S. 108. " Williamson v. Lewis, 39 Pa. 9. HABEAS CORPUS. 273 9. Notice of application. Under the act of June 6, 1893, P. L. 328, notice of the application ■must be given to the authorities of the penitentiary when applicant is an inmate, and before hearing the application, proof must be sub- mitted to the judge that such notice was given. The rules of court also require notice to be served upon the district attorney. 10. Penalty for refusal of writ. "Sec. 8. If any judge or justice aforesaid, being appealed or com- plained to, as aforesaid, upon view of the copy or copies of the war- rant or warrants of the commitment or detainer, or upon oath or af- firmation made, that such copy or copies were denied as aforesaid, shall refuse or neglect to award any writ of habeas corpus by this act required to be granted, he shall forfeit to the prisoner or party grieved, the sum of three hundred pounds, to be recovered by the said prisoner or party grieved, his or her executors or administrators, against such oifender, his or her executors or administrators, by action of debt, suit, bill, plaint, or information, in any court of record, wherein no essoin, protection, privilege, injunction, wager of law or stay of execution shall be allowed, or any more than one im- parlance." It is contempt to aid or abet in the evasion of this writ, since, if it be well-founded, it is a high constitutional right." 11. Form of writ. Schuylkill County, ss. : The Commonwealth of Pennsylvania to Mark Twix, greeting: We command you that the body of Pearl Clemons, under your custody detained (as it is said), by whatsoever name she may be charged, together with a return of the day of her commitment and the cause of her detention, you have before the Honorable Charles N. Brumm, one of the judges of our county Court of Common Pleas, at his chamber in the court house in Pottsville, immeditely after the receipt of this writ, then and there to do and be subject to what- soever our said judge shall consider in that behalf. And have you then and there this writ. Witness the Honorable Charles N. Brumm, etc. 12. Duty of jailer — penalty for neglect. Section 9 of the act, supra, provides : "If any officer, sheriff, jailer, keeper or other person, to whom such writ shall be directed as aforesaid, or any of his under-officers or deputies, shall refuse or neglect to make the returns aforesaid, or to bring the body of the prisoner, according to the command of the said writ, within the respective times aforesaid, all and every such officer, sheriff, 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, for the first offence, forfeit to the prisoner or party grieved one hundred pounds, and for the second offence two hundred pounds, and shall be and is hereby made incapable to hold or execute his said office; the said forfeiture to be recovered by the prisoner or party grieved, in man- ner aforesaid." " Comth. v. Reed, 59 Pa. 425 ; Comth. v. Curtis, 14 Phila. 361. Vol. 4 Practice — 18 274 EQUITY PRACTICE IN PENNSYLVANIA. 13. Penalty for not delivering copy of warrant. "Sec. 10. If any officer, sheriff, jailer, keeper or other person, to whom such writ shall be directed as aforesaid, or any of his under- officers or deputies, upon demand by the prisoner, or some person in his or her behalf, shall refuse to deliver, 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 and detainer of such prisoner, which are hereby required to be delivered, all and every such officer, sheriff, jailer, keeper or other person, un- der-officer or deputy, so offending, shall, for the first offence, forfeit to the prisoner or party grieved, one hundred pounds, and for the second offence two hundred pounds, and shall also be and is hereby made incapable to hold or execute his said office; the said forfeiture to be recovered by the prisoner or party grieved, in manner afore- said." 14. Once liberated, not to be recommitted for the same offence. "Sec. II. And for preventing unjust vexation by reiterated com- mitments for the same offence ; 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 committed or imprisoned for the same of- fence, by any person or persons whatsoever, 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 jurisdiction of the case, 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 offence or supposed of- fence, any person delivered or set at large as aforesaid, or be know- ingly aiding or assisting therein, then he or they shall forfeit to the prisoner or party grieved, any pretence of variation in the warrant or warrants of commitment notwithstanding, the sum of five hun- dred pounds, to be recovered by the prisoner or party grieved, in manner aforesaid." The penalty above applies only to recommitment on the same charge, after having been discharged."" 15. Prisoner not to be removed, except on habeas corpus. "Sec. 12. Any person being committed to any prison, or in cus- tody of any officer, sheriff, jailer, keeper or other person, or his un- der-officer, or deputy, for any criminal or supposed criminal matter, shall not be removed from the said 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 common 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 commitment as aforesaid, make out, sign, countersign and issue any warrant or warrants for "" Schofield V. Root, I2 Phila. 223; Comth. v. Little, 33 W. N. C. 486. HABEAS CORPUS. 275 such removal, except as before excepted, then he or they shall for- feit to the prisoner or party grieved, two hundred pounds, to be recovered by the prisoner or party grieved in manner aforesaid." 16. Purposes of writ. The statutory writ is intended to inquire into and examine the regularity and propriety of the commitment and not the merits of the charge." Where it is claimed that the prisoner is held on in- sufficient evidence the application should not be made under the act of 1785, but at the Common Law, the writ being called habeas cor- pus ad subjiciendum.'* This writ does not take the place of a writ of error** or of a certiorari." It was sustained, however, in a case, where the time for a certiorari had passed'" and to ascertain whether a justice of the peace had jurisdiction.^ It may be used as ancillary to a certiorari, however. One who voluntarily surrenders to the sheriff can have neither writ.™ 17. Habeas corpus ad testificandum. Where this writ is applied for a rule to show cause is asked for, the petition averring under oath that the witness whose presence is demanded is in prison or under duress, showing that his testimony is material to the issue and in what respect; and if he is not in prison, but under duress, that he would be willing to appear in answer to a subpoena served upon him, if not restrained, and that such subpoena was duly served." There is a very rare old writ named from terms in it: habeas corpus ad prosequendum, testiUcan- dum et deliberandum, etc., which may issue by the Oyer and Ter- miner to bring a convict from prison to the jurisdiction where the offence was committed.^ 18. Setum in criminal matter. Section 14 of the act of 1785, supra, provides : "Whensoever any writ of habeas corpus awarded and granted, either in term or vacation time, for any person so confined or re- strained, without a commitment for any criminal or supposed crim- inal matter, shall be served upon the person or persons so confining or restraining such party, by being brought to such person or per- sons, or by being left at the place where the party shall be so con- fined or restrained, the person or persons so confining or restrain- ing 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, '" Comth. V. McNall, i Woodward 423. "'Schofield V. Root, 12 Phila. 333. ^ Comth. V. Keeper of Jail, 26 Pa. 579; Comth. v. Leckey, i Watts 66; Comth. V. Deacon, 8 S. & R. 72. " Byers v. Comth., 42 Pa. 89 ; McCabe v. Comth., 22 Pa. 450. "Comth. v. Keeper of the Prison, 14 Phila. 396. " Comth. V. Scranton, 2 Jus. L. R. 106. ^Gosline v. Place, 32 Pa. 520; Comth. v. Perkins, 124 Pa. 36; Comth. ^•™^^"' 14s Pa. 374. Comth. v. Green, 185 Pa. 641. "Kcecker v. Koecker, 7 Phila. 364. "Comth. V. Ross, 13 D. R. 493. 276 EQUITY PRACTICE IN PENNSYLVANIA. within the respective times limited, and under the provisions herein- before prescribed. And every such person refusing or neglecting so to make return of such writ, or to bring, or to cause to be brought, the body of the party, according to the command thereof, within the times respectively limited, and under the provisions hereinbefore prescribed, shall be guilty of a contempt of the court under the seal of which the said writ shall have issued, and shall also forfeit, for the first offence, to the party grieved, one hundred pounds, and for the second offence, two hundred pounds, to be recovered by him or her, his or her executors or administrators, against the offender, his or her executors or administrators, in manner aforesaid." The answer or return must be specific and not evasive." It should either deny the custody or restraint or show other sufficient cause for having the body." Where the petitioner himself shows that he is in legal custody, as for contempt, it is immaterial to set forth the record of it, since it is admitted.** 19. Subpoenas for witnesses. Section i of the act of April 17, 1866, P. L. 112, provides: "The judge or court before whom any writ of habeas corpus shall be returnable, shall have the power to issue subpoenas and all other process necessary to compel the attendance of witnesses." 20. Costs of witnesses and officers. Section 2 of the act of 1866, supra, provides: "The officer serving the process and the witnesses in attendance shall be entitled to the same mileage, fees and allowances as for similar services and attendance before a justice of the peace; and the 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." The act of April 14, 1868, P. L. 98, provides: "It shall be lawful for the Court of Common Pleas, or any judge thereof before whom any writ of habeas corpus shall be heard, upon the petition of any person or persons charged with any criminal or supposed criminal matter, to make an order for the payment by the proper county, or by the prosecutor or prosecutors in the case, as the said court or the judge hearing the case may determine, of the costs and fees of the witnesses subpoenaed by the district-attorney on the part of the Commonwealth; Provided, That the fees of wit- nesses shall be the same as are allowed by law in civil cases." 21. The hearing^ on a criminal charge. Since the act of May 23, 1887, P. L. 158, no evidence for the defendant shall be received "upon a hearing under habeas corpus for the purpose of determining whether bail ought to be taken upon commitment for murder in the first degree, or for the purpose of determining in any case how much bail ought to be required, or for determining in any case whether a person committed for trial ought to be held." The effect of the writ in such case is only that of a certiorari, and the court will inquire whether he is held on an " Comth. v. Friend's Home, 7 D. R. 653. '* Comth. v. Kirkbride, i Brewster S4i. ^ Comth. V. Bell, 145 Pa. 374. HABEAS CORPUS. 277 indictable offence.'" Upon the hearing, the defendant will not be discharged where it appears that he has committed an indictable offence. Although the direct testimony is somewhat suspicious the prisoner will not be discharged, but he will be admitted to bail.'" If no probable cause be made out, however, he will be discharged."' The court will not discharge a relator who has been regularly com- mitted by the county auditors for failure to produce all the books of his office, under Section 55, act of April 15, 1834, P. L. 537." Having once passed upon a commitment the court will not re-open it on a habeas corpus.*^ 22. Judgment and process. The court will not set aside the judgment of a competent tribunal,'" or inquire into the regularity of proceedings in another court." The Supreme Court will not discharge one under arrest by process from the Common Pleas." But where the judgment or commitment is void and without jurisdiction or legal cause the writ will be effective to give immediate relief." A mere irregularity will not avail; the maxim being : "De minimis non curat lex.'' " . II ia 23. Biscliarge of prisoner. A discharge without notice to the adversary in a civil case is void." But the effect of a discharge in a criminal case is such a final judgment as will warrant the commencement of a suit for false imprisonment or malicious prosecution.* The relator cannot again be arrested for the same offence, by a bench warrant." However, he may be re-arrested under valid process when discharged because the warrant charged no offence.^" Where the discharge is invalid, as upon evidence as to the cause of action, it is a discharge as on com- mon bail (sureties, John Doe and Richard Roe), and the action may proceed." Where the principal is discharged it also discharges the surety in the recognizance.™ " Corath. v. Fenicle, 6 D. R. 789 ; Comth. v. Ketner, 92 Pa. 372. "Comth. v. Rickey, i Clark 436; Gerdemann v. Comth., 11 Phila. 374; Comth. V. Crans, 2 Clark 172; Comth. v. Sheriff, 10 C. C. 341; Comth. v. Berks Co. Prison Warden, 4 D. R. 605. "Resp. V. Davison, 4 Yeates 125. "Mann's Case, 2 Leg. Gaz. 329; Comth. v. Crawford, 8 Phila. 490. " Comth. V. Fenicle, 5 Northam 185. "Comth. V. Taylor, 11 Phila. 386; Kennedy's Case, 26 Pitts. L. J. 81. "Comth. V. Wetherhold, 2 Clark 476; White's Appn., 30 Pitts. L. J. 251. "Comth. V. Keeper Etc., i Ashmead 10. "Comth. V. Leckey, i Watts 66; Comth. v. Hambright, 4 S. & R. 149; Comth. V. Deacon, 8 S. & R. 72. " Comth. V. Irwin, i Clark 408 ; Comth. v. Walker, 3 D. R. 534 ; Comth. V. Ketner, 92 Pa. 372; Comth. v. Brower, 9 Kulp 317. "Comth. v. Wright, 126 Pa. 464; Reddill's Case, i Wharton 445. "Hecker v. Jarret, 3 Binney 404. "Zebley v. Storey, 117 Pa. 478; Charles' v. Abell, Brightly 131; Orr v. Seller, i Penny. 445; Bernar v. DunJap, 94 Pa. 329. "Comth. v. McBride, 2 Brewster 545. ""Comth. V. Little, 33 W. N. C. 486; Hecker v. Jarret, supra. '^Thomas v. Crossin, s Clark 328; 2 Wallace, Jr. (U. S.), 521-39 (Jenkins, ex parte). ■"Lopenian v. Henderson, 4 Pa. 231. 278 EQUITY PRACTICE IN PENNSYLVANIA. 24. The writ in civil cases. Section 13 of the act of 1785, supra, provides: "All the provisions hereinbefore made for the awarding and granting writs of habeas corpus, and proceeding thereon, in case of commitment or detainer for any criminal or supposed criminal matter, shall, in like manner 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 pretence whatsoever. And upon oath or affirmation made by such person, so confined or restrained, or by any other in his or her behalf, of any actual confinement or restraint, and that such confine- ment or restraint, to the best of the knowledge and belief of the person so applying, is not 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 as aforesaid, shall be awarded and granted, in the same manner and under the same penalties, to be recovered from the same persons, as is hereinbefore directed; and the court, judge or justice before whom the party so confined or restrained shall be brought, shall, after the return made, proceed in the same manner as is hereinbefore prescribed, to examine into the facts, relating 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 justice shall appertain." This section covers a case where one claims the right of custody of the person of another ; as a child f or a ward ;" or an apprentice. The writ in such cases will be controlled in the sound discretion of the court.'" It will not be allowed in aid of a controversy between parties subject to the jurisdiction of another state." The finding- of a commission in lunacy does not absolutely bar it." Where a defendant is committed on a capias in an action of trespass or trover before a justice of the peace, the court will allow it in order to decide upon the record whether the action arose ex delicto or ex contractu." 25. Form of petition. To the Honorable John M. Garman, Judge of the Court of Common Pleas of Luzerne County: The petition of Gwendolyn Price respectfully, shows that she is unjustly held and detained in custody by , of said county, who refuses to discharge her and set her at liberty, and that she is not held by virtue of any commitment for any criminal or supposed criminal matter, nor under any legal process whatsoever. Your petitioner therefore prays that your honor will direct to be issued "Comth. V. Addicks, 2 'S. & R. 174; Comth. v. Smith, i Brewster S47; Comth. v. Barney, 4 Brewster 408; Comth. v. Airey, s Kulp 83; Comth. v. Conrow, 2 Pa. 402; Comth. v. McDougal, 203 Pa. 291. " Comth. V. Dugan, 2 D. R. 772. •° Comth. V. Beck, i Browne 277; Comth. v. Atkinson, 8 Phila. 375. "Comth. V. Demott, 64 Pa. 305 N. (7 Phila. 624). ■"Comth. V. Sage, 160 Pa. 399. " Comth. V. Kirkbride, 3 Brewster 393. "Jones, in re, 2 Jus. L. R. 68; Connolly v. Evans, 4 C. C. 300. HABEAS CORPUS. 279 forthwith a writ of habeas corpus, returnable forthwith, or at such time as may be fixed by your honor, agreeably to the act of assembly in such case made, against the said , or such other person in whose custody your petitioner may be found, that cause may be shown, if any exist, why she should be thus against her free will and consent detained and confined. And she will ever pray, as in duty bound. Gwendolyn Price. Affidavit attached. 26. Appeals. Where the relator is discharged, it has been held that the warden of the jail has no standing, to appeal from the decree.™ One court cannot modify, disregard or set aside the judgment of another court of co-ordinate jurisdiction; but the sheriff may have a certorari to review the record." One who was charged with burglary and ne- glected on the trial to ask for a more specific description of the building cannot raise the question on appeal."" An appeal from a final order on petition for the custody of an infant has the effect only of a certiorari.'^ Where the custody is awarded to its father or grandfather, holding the writ over as pending, no appeal lies." On appeal only the record will be considered.'" 27. Limitation of suits. Section 15 of the act of 1785, supra, provides : "No person shall be sued, impleaded, molested or troubled for any offence against this act, unless such person be sued or impleaded for the same within two years after the time wherein the said offence shall have been committed, in case the party grieved shall not be then in prison, or confined or restrained as aforesaid; and if the said party shall be then in prison, or so confined or restrained, then with- in two years after the release of the person imprisoned, or so confined or restrained, or his or her delivery out of prison, or from such confinement or restraint." 28. Pleading in sach suits. Section 16, act of 1785, supra, is as follows: "In or upon any action, suit, bill, plaint, or information for any offence against this act, the defendant or defendants may plead the general issue, and give the special matter in evidence." "Comth. v. Newcomet, 18 Supr. C. 508. " Doyle v. Comth., 107 Pa. 20. " Comth. v. Johnson, 19 Supr. C. 241 ; Comth. v. Newcomer, 49 Pa. 478. " Comth. V. McDougall, 203 Pa. 291 ; Comth. v. Maurer, 42 Supr. C. 170. "Comth. V. Blatt, 165 Pa. 213. "Comth. V. Strickland, 27 Supr. C. 309; Comth. v. Supt. of County Prison, 220 Pa. 401 ; 33 Supr. C. 594. CHAPTER XVI. INSOLVENTS— DISCHARGE FEOM PRISON. 1. Status of laws. 4. Proceedings to discharge one 2. Prisoners, how discharged — Act held on civil process. of 1901. S. Form of petition under Acts of 3. Discharge by County Commis- 1814 and 1833. sioners — ^Act of 1887. 6. Recording discharge in bank- ruptcy. 1. Status of laws. Section 6 of the act of June 4, 1901, P. L. 404, is an interpolation into the assignment law of a matter, always held distinct in practice, viz. : the discharge of insolvents under sentence of court for crime or costs. But this act does not repeal the act of May 6, 1887, P. L. 86, whereby the county commissioners are authorized to discharge pris- oners upon order of the Court of Quarter Sessions, without com- plying with the insolvent laws; nor Section 19 of the act of March 26, 1814, 6 Sm. L. 210 and March 30, 1833, P. L. 107, authorizing the prothonotary to take the security required by the former act. Since the act of 1901, supra, followed the National bankrupt law of 1898, and is in effect a bankruptcy law, it has been held inoperative as to all classes except farmers and wage earners who have the least need for it and as to them it must be voluntary.' What effect the principle of suspension has upon the bifurcated feature of providing a mode of discharge for insolvent delinquents in criminal cases, also, has not been raised or decided. But these are distinct subjects. In some portions of the State, lawyers pursue the emasculated act of 1901 ; in others they follow the act of 1836 and supplements and in some they make a ludicrous effort to straddle all of them.' The more sensible way would be for the legislature to wipe out the whole suspensory and remove it from the realm of doubt. 2. Prisoners, how discharged. Section 6 of the act of 1901, supra, provides: "The Court of Common Pleas of any county, in which any person may be confined by sentence or order of any court of this Common- wealth, until he restore any stolen goods or chattels, or pay the value thereof; or in which any person may be confined for the non-payment of any fine or of the costs of prosecution, or upon conviction of fornication and bastardy, and for no other cause, shall discharge such person from confinement on his making application and conforming 'Hoover v. Ober, 42 Supr. C. 308; Potts v. Smith Mfg. Co., 25 Supr. C. 206. 'Mankey v. Stocking, 213 Pa. 299. 280 INSOLVENTS. 281 to the provisions herein directed in the case of insolvents, who have been arrested on civil process : Provided, That where such person shall have been sentenced to the payment of a fine, or after a convic- tion of fornication and bastardy, he shall not be entitled to make such application until after he shall have been in actual confinement for a period of not less than three months, except in case of a fine not exceeding fifteen dollars, exclusive of costs, in which event the actual confinement need not exceed thirty days." This section is substantially a re-enactment of Section 47 of the act of June 16, 1836, P. L. 731. The only case covered by this section which is not covered by the act of May 6, 1887, P. L. 86, authorizing the county commissioners to discharge prisoners on order of the Quarter Sessions, is the crime of fornication and bastardy, and courts will not be astute to find an easy way to discharge such persons." The formalities of Section 5 of the act of 1901, must be strictly followed. One sentenced to pay a fine and costs must pay both if he wishes to apply for his discharge before the time required.* A prosecutor sentenced to pay costs may be discharged as an insolvent without serving a prison term.^^ 3. Dischargee by county commissioners. The act of May 6, 1887, P. L. 86, provides : "The commissioners of the several counties of this Commonwealth, shall be and they are hereby authorized, upon the order of the Court of Quarter Sessions, or in vacation, of a law judge thereof, in the exercise of its or his discretion, and upon such terms as said court or judge as aforesaid, may impose, to discharge from prison, without the delay and expense of any proceedings under the insolvent laws of this Commonwealth, every convict who shall have served out his or her term of imprisonment, or who shall have been committed for non-payment of costs only, notwithstanding if he be a convict and shall not have paid the costs of prosecution, fine, or made resti- tution, or paid the value of stolen goods or property. Provided, That in the opinion of said commissioners such person is unable to pay or restore the same; and Provided, That such discharge shall not prevent the Commonwealth, or any person interested, in such pay- ment or restitution, from proceeding by action to recover the same from the property of such person; but no such person shall be so discharged, until he shall have made, under oath or affirmation, du- plicate schedules of all his or her property, real, personal or mixed, so far as he or she can ascertain the same, one of which shall be filed among the papers of the said prison and the other with the clerk of the Court of Quarter Sessions: Provided further, That nothing in said proceedings shall either add to or take from the liability of said county for costs under existing laws of this Com- monwealth." The county is not liable for the sheriff's fee of fifty cents, on discharge of prisoners, other than vagrants." Where the fine is •Comth. v. Snavely, 28 C. C. 488. *Lindsey, in re, 16 D. R. 1014. ''^ Beatt/s Case, 20 D. R. 139. ' Dougherty v. Cumberland County, 26 Supr. C. 610. 282 EQUITY PRACTICE IN PENNSYLVANIA. over $15 the prisoner must serve three months in addition to the term of his sentence, before he can ask for discharge.' The act, supra, does not apply to a case of fornication and bastardy.' It was held in Dauphin county that the petition should be made by the prisoner, and the court will exercise its discretion as to the time after the term of sentence is served, as to how much longer the prisoner should serve. The order of court is permissive only to the commissioners and the responsibility of the discharge rests upon them.' A prisoner who has been a resident of the state for six months, and one who has been sentenced to pay costs only can be discharged, without serving time.' This has been held to apply to a prosecutor." 4. Proceedings to discharge one held on civil process. Section 5 of the act of June 4, 1901, P. L. 404, as amended by the act of 191 1, provides: "Any person arrested on civil process may make an assignment for the benefit of his creditors, in the manner herein set forth, and may thereupon present his petition to the court issuing the same, accom- panied by the assignment, inventory, schedules and oath required, or copies thereof if the process was issued by a different court from that which has jurisdiction of such assignment, and praying a rule to show cause why he should not be discharged from arrest. The court to which the petition is presented shall grant the rule, return- able at some convenient time, and, unless the case is one requiring the petitioner's imprisonment, shall discharge the petitioner pending the hearing of said rule, upon his paying the fees due the jailor, if any, and, upon his entering such security for his appearance, surrender and compliance with the decree of the court and the requirements of this act, as the court shall deem requisite. Actual notice of the rule shall be given to the plaintiif in the process, or his counsel of record, and to all creditors whose addresses are known to the peti- tioner, and publication thereof shall be made twice in a weekly newspaper published in the county, and twice in a daily newspaper published in the county, and once in the legal periodical, if any, designated by the court, and an affidavit of such service and publica- tion shall be filed in the cause at least three days before the day fixed for the hearing. Notice to creditors non-resident in the county may be made by registered letter. Upon the hearing of the rule, which shall be at the bar of the court, and at which the petitioner shall answer all questions put to him and shall produce all papers and books required of him, if it shall appear to the court that the petitioner has duly assigned all his property for the benefit of his creditors, that he has not violated any of the provisions of this act, and that all the claims against him would be discharged by the creditors accepting a dividend, as by this act provided, the court 'Johnson's Case, 13 C. C. 170. But see Comth. v. Stroup, 29 C. C. 456, and cases cited for the rule. ' Comth. v. Young, 16 C. C. 540. ' Comth. v. Stroup, 29 C. C. 456 ; Comth. v. Ross, 7 Lane. L. R. 342 ; Roche, in re, S Lack. Jur. 379. • Conle/s Petn., 3 D. R. 623. '" Beatty's Case, 20 D. R. 139. INSOLVENTS. 283 shall forthwith discharge him from arrest; and he shall not there- after be liable to arrest in said proceedings, or upon any claim existing at that time, unless upon petition to said court, and with notice to the insolvent, it shall afterwards be made to appear that, under this act, he should have been or should be imprisoned. If, however, he shall refuse to answer relevant questions, or to produce his books and papers, or it shall appear that he has violated any of the provisions of this act, or that any of the claims against him would not be discharged by the creditors accepting a dividend, as by this act provided, he shall be discharged from arrest only upon under- going such imprisonment, not exceeding ninety days, as the court shall require. If the petitioner fails to give notice as required, or to appear, or to surrender himself within forty-eight hours, or to com- ply with the decrees of the court or the provisions of this act, his "bond shall thereby be forfeited, and recovery may be had thereon by the assignee, for the use of all the creditors of the insolvent, and he may be rearrested by an alias or pluries writ. A surrender, to be valid, must be accompanied by a certified copy of the order of the court, or of the writ under which the arrest was originally made. The assignment once made shall proceed in the usual course. The benefits of this section shall not extend to any person who has been attached for failure to comply with an order or decree requiring him to make an assignment, execute a conveyance, or to do any other specific act, until he shall, in fact, have done so, nor shall it in any manner affect the liability of the petitioner to imprisonment for crime." If the party is in doubt between this act and that of June 16, 1836, P. L. 729, and gives bond under the latter, with the consent of plaintiff's counsel, the plaintiff cannot recover on the bond, against the surety.' The surety on a bond under the above section is not relieved by the voluntary surrender of the insolvent eight days after the order is made against him.' Mere poverty is not insolvency.' In an action where actual force is averred the defendant must serve time (90 days under act of 1901), before he may be discharged." But an injury sustained by negligence does not come within the terms." A defendant in breach of promise where there is no allega- tion of fraud or imposition, is entitled to discharge upon complying with the insolvent laws without imprisonment.' c 5. rorm of petition for discharge of insolvent under acts of 1814 and 1833. The acts of March 26, 1814, 6 Sm. L. 201, Section 19, and March 30, 1833, P. L. 107, provide for the discharge of a prisoner who is confined under a capias ad satisfaciendum for a tort. A proper form of petition is as follows: To the Honorable the Judges of the Court of Common Pleas of Lancaster County: The petition of Honus Long respectfully represents that he was committed to the jail of Lancaster county by virtue of a writ of * Mankey v. Stocking, 213 Pa. 299. 'Marks v. Willenski, 31 Supr. C. 177. • Shafer's Petn., 12 D. R. 216. *Doescher's Pet., 18 Supr. C. 346. " Norton's Case, 37 W. N. C. 64. 'Fritz V. Buchman, 9 Northam. 303. 284 EQUITY PRACTICE IN PENNSYLVANIA. capias ad satisfaciendum on a judgment for the sum of five hundred dollars, recovered in an action of trespass to No. term, 19 — , in said court wherein one Wells Hoar was plaintiff and petitioner defendant; that he, the petitioner, is poor and insolvent; that said Wells Hoar has been duly notified by Frank Shaub, the keeper of the prison, to pay for the support of the prisoner whom he hath had committed, every Monday morning the daily allowance fixed by the order of court in such case and said Wells Hoar has for three days failed to pay said allowance. The petitioner, further showing that he is destitute of property for his support in prison, prays the court to discharge him forthwith from said imprisonment: And he will ever pray, etc. Honus Long. (Affidavit to truth.) 6. Recording of dischai^e in bankruptcy. Under the provisions of the act of May 2, 1907, P. L. 159, when one is discharged in bankruptcy proceedings, his certificate shall be recorded by the recorder of deeds as notice to the world. CHAPTER XVII. PEOCEEDINGS ON INSURANCE POLICIES. 1. Insurance policy a contract. ii. Fraud in proofs. 2. Copy of application to be at- 12. By and to whom notice to be tached to policy. given. 3. Lost policy — copy. 13. Time of giving notice and proof 4. Jurisdiction of Common Pleas. of loss. 5. Previous demand — service. 14. Conclusiveness of proofs. 6. Notice and proof of loss by fire 15. Certificate of magistrate, etc. — form. 16. Waiver of formal notice and 7. Preliminary proof of loss. proof of loss. 8. Necessity and sufficiency of 17. Limitation of time to bring suit. proof of loss. 18. Cancellation or renewal of 9. Proof of loss and waiver. policy. 10. Total loss — effect on bill of par- 19. Life policy — notice of death, ticulars. 20. Accident insurance — notice. 1. Insurance policy a contract. A policy of insurance of whatsoever kind is a contract wherein the insurer agrees with the insured to do certain stipulated things in accordance with the terms of the instrument which may be regu- lated by law as to form. The stipulations in the policy constitute the important matters to determine the rights of the insured and the liabilities of the insurer. As the action upon a policy for the recovery of the amount stipulated is in the form of assumpsit, the practice thereon is covered in general terms in volumes i and 2 of this series. But there are some preliminary steps which pertain to the policy that it is deemed advisable to present here. (Observe the insurance laws of 191 1 for many important changes.) For example, a few late cases are given here: An agreement to notify the insurer of any other insurance effected, if not kept, avoids the policy.^ Payments when required to be entered on a premium book, if omitted, by fraud of the insurer, will not be disregarded.^ The payment of first premium in notes does not violate the act of May 3, 1909, P. L. 405.*= An assignment of a policy to secure a mortgage confers no higher right on the assignee than the assignor had.* Where the insured opened his store after thirty days, his act did not bar his right to recover.® Clause of sole ownership is construed favorable to the insured where there is no fraud.' *Weiler v. Lancaster Etc. Co., No. 17, Oct. T., 191 1, Supr. C. ■•Dominico v. Prudential Ins. Co., 49 Supr. C. 156. '^ Ellis v. Anderson, 49 Supr. C. 245. * Heine v. Lancaster Etc. Co., 49 Supr. C. 501. e Post V. Am. Central Ins. Co., 27 March T., 1912, Supr. C. ' Clymer Opera Co. v. Rural Etc. Co., 152 April T., 1912, Supr. C. 38s 286 EQUITY PRACTICE IN PENNSYLVANIA. 2. Copy of application to be attached to policy. The act of May ii, 1881, P. L. 20, provides: "All life and fire insurance policies upon the lives or property of persons within the Commonwealth whether issued by companies organized under the laws of this state, or by foreign companies doing business therein, which contain any reference to the applica- tion 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 policy, correct copies of the appli- cation, 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 received in evidence in any con- troversy 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 such parties." This act has been held constitutional.^ It means a written and not an oral application.^ And the one signed by the applicant.' The copy attached is presumed to be a true copy. If it appears, now, that there was a supplemental application, which was not attached, the original cannot be received in evidence.' If no application is attached, none can be received in evidence on behalf of the company,* but the company cannot prevent the insured from offering it.' This act does not apply to accident insurance companies,' but to life and endowment companies,' but not to live stock insurance companies." It applies to property insured beyond the state." But it does not apply to a beneficial society." Many underwriters follow the New York standard forms of policies for life, health, accident and fire and marine insurance. Even these standard forms are changing almost constantly. For example, the New York legislature of 1910 amended the law of 1909, so that in regard to accident and health policies, a new law went into effect January i, 191 1, which provided, among other things that the time limit which the insurer might prescribe for making proof of loss, from death, dismemberment or loss of eye should not be less than 90 days, and for other disability not less than 90 days from its termination. It also provided the time within which notice of the accident should be given, all of which must ^ New Era Life Assn. v. Musser, 120 Pa. 384. "Lenox v. Greenwich Etc. Co., 165 Pa. 575. ' Baldi V. Ins. Co., 18 Supr. C. 599 ; Susq. Etc. Co. v. Hallock, 22 W. N. C. isi. ■* Holleran v. Life Assn. Co., 18 Supr. C. 573. ° Fisher v. Fidelity Etc. Assn., 188 Pa. i. 'Imp. Fire Etc. Co. v. Dunham, 117 Pa. 460. ' Norristown Title Co. v. Ins. Co., 132 Pa. 385. ' Pickett v. Ins. Co., 144 Pa. 79 ; Snyder v. Globe Etc. Co., 38 Supr. C. 623; Standard Etc. Co. v. Carroll, 86 Fed. R. 567; Accident Ins. Co. v. Zimmer, 207 Pa. 472. 'Hendel v. Assn., 2 D. R. 116. " Snyder v. Globe Etc. Co., 38 Supr. C. 623. " Hebb V. Ins. Co., 138 Pa. 174. "Beatty v. Supreme Commandery, 154 Pa. 484; Dickinson v. A. O. U. W., IS9 Pa. 258; Johnson v. P. & R. R. Co., 163 Pa. 127; Lithgow v. Su- preme Tent Etc., 165 Pa. 292. INSURANCE POLICIES. 287 appear in the policy. The policy and application are therefore the guide. When the policy, application and proofs are offered in evi- dence they are evidence for all purposes."* 3. lost policy — copy. If the policy be lost or destroyed, the law has provided a method by which a copy can be obtained. Section i of the act of March 4, 1850, P. L. 126, 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 pro- vided, 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 the same, at the time of the loss or destruction thereof; the copy so made to be as effectual for the security and indemnification of the person or persons holding the same, as the original, and subject like it to transfer to any person purchasing the property insured." 4. Jurisdiction of Common Fleas. Section 2 of the same act, provides: "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 persons to whom granted, if practicable, together with the mesne transfers 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 certain, 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 appear and show cause why such copy as aforesaid should not be sup- plied, the court shall issue a mandate to such body corporate or politic, to furnish such copy in ten days after 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 judgment to be entered by the prothonotary in favor of the person or persons making the ap- plication, 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 plaintiff 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 rendering services shall receive the like fees as are now allowed by law for similar services." "n, Furey v. Molropo'itan Etc. Co., 49 Supr. C. 592, citing Standard Etc. Co. V. Printz Etc. Co., 232 Pa. 64 ; Seltzer v. Beyer, 224 Pa. 369. 288 EQUITY PRACTICE IN PENNSYLVANIA. 5. Previous demand — service. Section three provides that no rule shall be granted unless the person or persons entitled to the benefit of the policy, his agent or attorney shall make oath or affirmation that the policy of insurance has been lost or destroyed, and that a demand for a copy of such policy was previously made of the president, secretary, treasurer, or authorized agent of the body corporate or politic which granted it, and a tender of not less than one dollar for the expenses of making such copy. Service of the rule and mandate may be made by the sheriff of the city or county in which the body corporate has its office, or any branch or agency thereof, and the service shall be sufficient, if made upon the president, secretary, treasurer or author- ized agent thereof. For the manner of service of process upon a foreign insurance company (see Vol. i, Johnson's Practice, P. 397, Par. 8). The act of April 22, 1909, P. L. 120, seems to supersede the mode of service above as to a foreign insurance company. The act of June 8, 1911, requiring service of process upon foreign cor- porations, to be made upon the secretary of the Commonwealth, does not apply to a foreign insurance company. 6. Notice and proof of loss by fire. The act of June 27, 1883, P. L. 165, provides the time and manner of service of notice and furnishing proof of loss by fire, in Penn- sylvania : "Hereafter when 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 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 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 preliminary proofs aforesaid may be served on any other agent of the company, authorized to effect contracts of insurance and countersign policies of any such insurance companies." This act fixes the time of notice of the fire at ten days and the time of serving the preliminary proofs at twenty days, and therefore, if the owner delays beyond this time, he is too late, unless the in- surance company waives notice and proofs or estops itself from claiming the limitation." The safest practice is to give notice to the regular agent or to the home Office, by letter, forthwith and preserve a copy of it. The form of such letter may be as follows: To the President and other officers of the ( name of company). You are hereby notified that on the day of , A. D. 19 — , at about o'clock — M. (house, barn or other building) belonging "Dunn V. Farmer's Fire Ins. Co., 34 Supr. C. 245; Hottner v. Aachen Etc. Co., 31 Supr. C. 461. INSURANCE POLICIES. 289 to , and covered by policy No. , in your said insurance company, dated , was wholly (or partially) destroyed by fire, for which I claim the entire sura due under said policy, to wit : $ . Date . Signed . If the policy has been assigned the notice should state the facts. The act of March 14, 1873, P. L. 46, authorizes suit by the assignee," and if the policy makes assent of or notice to the coriipany, necessary, this must be shown, or the assignee has no such standing." Usually the agent has the necessary blanks for notice and preliminary proof of loss, and in furtherance of the desire of his company for prompt payment, if the loss is an honest one, does all he can to facilitate the adjustment and payment. A letter sent to an insurance company merely stating that there was a fire, without giving any details, is not a sufficient notice of loss. Waiver of proof of loss is not sustained by proof that a person not- naming him, nor averring his authority, came "to look over the damage." ^ * 7. Frelimmary proof of loss. The notice of loss is not sufficient, but must be followed with formal proof of loss, which must comply with the terms of the policy and the application when it becomes a part of the contract. It may not be as requisite to set out all the particulars of loss, where the loss is total, as where it is only partial. In the Overholt whiskey case, wherein Henry C. Frick, Andrew W. Mellon and Richard B. Mellon as co-partners trading as "A. Overholt & Company," sued the United Firemen's Insurance Company," a proof of loss was sustained which did not furnish a complete itemized inventory as the policy required. The court held that a proper statement of the loss, signed and sworn to was sufficient. And when the policy required the cash value of every item of property to be set out, it was held sufficient to refer to the schedule of machinery on file in the plaintiff's office and the delivery of a copy to the adjuster within thirty days after the fire." Where the loss is total and immediate notice is given and the company by its adjuster has inspected the building, it was held formal proofs of the loss are waived and become unnecessary." Where the insured volunteers to furnish proofs of loss, he is bound to furnish such proofs as are sufficient under the conditions of his policy, and whether or not they are sufficient is a matter of law to be determined by the court." Declarations of the agent of the company as to matters coming from the company itsel.' " O'Grady v. Prudential Etc. Co., 3 Supr. C. 548. "Natl. Etc. Co. v. Lupoid, loi Pa. in; P. & L. Dig. of Dec, vol. 0, col. 14716, 15015. See also Moise and Matlack on Insurance, Penna. Rees Welsh & Co., goi Sansom St., Phila. '°a McCrea v. Patrons' Etc. Co., 46 Supr. C. 618. " 218 Pa. 4og. For a concise statement Luzerne County, i No. , Term , 19 — . To the Honorable the Judges of the Court of Common Pleas within named : The undersigned auditor appointed in the annexed order respectfully reports that having been duly sworn, he gave notice to all parties concerned, a copy whereof is hereto annexed, and to Bessie Spare the wife and (naming them), the children of said Abner Spare, personally, of a meeting appointed; and that in pursuance thereof he met the parties on the day of , A. D. , at the appointed time and place and heard their proofs and allegations. There were present at said hearing: (Naming them and counsel if any. If any were absent state which and if any reason be known why.) The following were sworn and examined (names). From which hearing the auditor finds the facts to be: (State them), and he reports that it is (or not) expedient to grant the application of the petitioner and that the amount proper to be raised by said sale (or mortgaging), is dollars. Respectfully submitted. D. O. Fell, Auditor. 58. Requisites of order of sale. Section 26 of the act of 1836, supra, provides: "Every order for the sale of real estate as aforesaid, situate within the same county, shall specify the property to be sold, the notice of the sale to be given by the committee, the terms of sale, the amount of security to be given by the committee and the day on which the order of sale is to be returnable." 59. Order for private sale. The act of April 27, 1903, P. L. 325, provides: "In all cases where, under existing laws, the courts of Common Pleas of this Commonwealth have power to order and direct the sale of real estate of lunatics, the said courts are hereby authorized and empowered to order, direct and approve a private sale of such real estate, if in the opinion of the court, under all the circumstances, a better price can be obtained at private than at public sale." The order should recite that the court is of the opinion that "under 326 EQUITY PRACTICE IN PENNSYLVANIA. all the circumstances a better price can be obtained at private than at public sale." 60. Requisites of order to mortgage. Section 27 of the act of 1836, supra, provides : "Every order for the mortgage of real estate as aforesaid shall specify the amount to be raised by mortgage, the property to be mortgaged, the rate of interest to be paid, the amount of security to be given by the committee, and the day on which the order is to be returnable." 61. Orders where real estate is situate in other counties. Section 28 of the act of 1836, supra, provides: "When the real estate of such person is situate in another county or counties, or in the same and another county or counties, and the Court of Common Pleas aforesaid shall be satisfied of the expediency of a sale or mortgage of some portion of such real estate not within their jurisdiction, it shall be lawful for such court to make an order, authorizing such committee to raise so much money as the said court may think necessary, from real estate situate in such county, as they may designate; and thereupon it shall be the duty of the Court of Common Pleas of the county wherein the real estate so designated is situate, upon the petition of such committee, to make an order for the sale or mortgage, as they shall think expedient, of so much and such parts of such real estate as shall, in their opinion, be necessary to raise the specified sum." 62. Betum of sale — security. Section 29 of the act of 1836, supra, provides: "The committee shall make return to the Court of Common Pleas of the county in which the real estate is situate, at the time appointed in the order, of the manner in which such order shall have been executed, and the same being in conformity with such order, shall be confirmed by the court. Section 30. But no sale or mortgage of real estate as aforesaid shall be confirmed by the court until the committee have given security, to the satisfaction of the court for the faithful application of the proceeds of such sale or mortgage, according to the duties of his trust." 63. Form of return to order of sale. To the Honorable Judges within named: The within named committee Alvers Bosard doth return that in pursuance of said order, after having duly advertised the same accord- ing to law by (state manner), I did on the day of , A. D. 19 — , expose the within described real estate to sale by public vendue or outcry, and sold the same to Rush Trescott, of the city of Wilkes-Barre, Pa., for the sum of dollars, he being the highest and best bidder and that the highest price bidden for the same. Which sale I pray may be confirmed by the court. Alvers Bosard. [In case of mortgaging or private sale, omit the advertising feature and state the particular facts.] HABEAS CORPUS. 327 64. Form of bond. Know all men by these presents. That we, Wiliam Wait, Willard James and John Jones, committee of Henry Lee, a lunatic, Abner Fague and Willis Houck, all of the county of Luzerne, State of Penn- sylvania, are held and firmly bound unto the Commonwealth of Penn- sylvania in the sum of five thousand dollars lawful money of the United States, to be paid to the said Commonwealth, her certain attorney or assigns to which payment well and truly to be made we bind ourselves jointly and severally our heirs, executors and admin- istrators, firmly by these presents: Sealed with our seals dated the day of , A. D. 19 — . Whereas, the Court of Common Pleas of said county on the day of , A. D. 19 — , did make an order authorizing the said William Wait, Willard James and John Jones, committee aforesaid, to raise the sum of two thousand five hundred dollars by the sale (or mortgage) of the real estate in said order described, for the payment of the debts of said lunatic and for the support and main- tenance of himself and family and the education of his minor children : Now the condition of this obligation is such, that if the above bounden William Wait, Willard James and John Jones, committee aforesaid, shall faithfully apply the proceeds of the said sale (or mortgage) according to the duties of their said trust, then this obliga- tion to be void otherwise to be and remain in full force and virtue. Signed, sealed and delivered in the presence of, etc. [Signatures and seals.] Approval of bond. Now, to wit, , 19 — , the foregoing bond and sureties there- in are approved. Per cur. John M. Carman, Judge. 65. Execution 01 deed or mortgag:e. Section 31 of the act of 1836, supra, provides: "On the return made of any sale or mortgage as aforesaid, if the same be confirmed by the court, the committee shall execute such deed of sale or mortgage as may be according to the terms of the contract ; which deed, so executed, shall be effectual to convey or mortgage, as the case may be, all the right, title and interest of the lunatic or habitual drunkard, according to the terms of the contract as afore- said." 66. Execution of deed, etc., when committee dies, etc. Section 32 of the act, supra, provides : "If the committee in such case shall die, or from any cause or in any manner become incapable of executing such deed, it shall be lawful for the court, on the petition of the purchaser or mortgagee, to direct the prothonotary of the court to execute an'd deliver to the purchaser or mortgagee the necessary deed, on his paying into court the money otherwise payable to the committee as aforesaid, and in other respects complying with the terms of the contract ; and the deed SO executed by the prothonotary shall be as valid and effectual, to 328 EQUITY PRACTICE IN PENNSYLVANIA. all intents and purposes, as if executed by the committee aforesaid; or in any case as aforesaid, if a new committee shall have been appointed, and given security according to law, it shall be lawful for the court to order the deed to be executed by such new committee, on the payment to him of the purchase or mortgage money and the performance of the terms of the contract as aforesaid." "Section 33. The like proceedings may be had if any committee as aforesaid shall neglect or refuse to execute any deed of sale or mortgage as aforesaid, without sufficient cause shown for such neglect or refusal, after due notice to such committee of the applica- tion as aforesaid." 67. Authority to sell timber. The act of April 16, 1849, P. L. 663, provides: "It shall and may be lawful for the Court of Common Pleas of any county of this Commonwealth having jurisdiction of the accounts of the committee of any lunatic or habitual drunkard upon the application of such committee, and due cause shown, to authorize such committee to sell and dispose of any wood or timber growing or standing upon the lands of such lunatic or drunkard, with the privilege to the purchaser or purchasers of entering thereon to cut and carry away the same, or to authorize such committee to cut the same and dispose thereof when cut, whenever in the opinion of such court the conversion of the same into money, in either of the modes aforesaid, will be beneficial to such lunatic or drunkard, or to his or her estate; and to order that the proceeds of such sale or sales shall be expended upon and in improving the real estate of such lunatic or drunkard, or shall form a part of his or her personal estate, as if originally a part thereof; and in all or any of the cases aforesaid, to require security for the due application of such pro- ceeds, as such court may in its discretion require." 68. Form of petition to sell timber. To the Honorable the Judges of the Court of Common Pleas of Schuylkill County: The petition of Scott Love, committee of Selin Bear, a lunatic, respectfully represents : That the said lunatic is seized in his demesne as of fee of and in a certain messuage and tract of land situate in the township of being bounded and described as follows (describe same) ; that about thirty acres of the same is woodland, and that, in the judgment of your petitioner more than is necessary for the enjoyment of said real estate and that at least ten acres thereof might be depleted of the timber now growing thereon, without any disadvantage to the same. (Here state the exigency requiring the use of the money for the estate.) The petitioner therefore prays the court to authorize him to sell and dispose of the wood and timber growing upon ten acres of said land, with the privilege to the purchaser of entering upon said land to cut and remove the same; or to authorize your petitioner, in his discretion to cut the same and dispose thereof when cut, if, in the opinion of the court the conversion of said wood and timber into LUNACY AND DRUNKENNESS. 329 money will be beneficial in either event to the said lunatic, as intended by the act of assembly in such case made and provided. And he will ever pray, etc. Scott Love. [Aflfidavit to truth in usual form.] 64. Form of affidavit of witnesses. Schuylkill County, ss. John Staudt and Robert Lee being sworn say that they are well acquainted with the real estate of Selin Bear in the foregoing petition named, and with the woodland thereof and are of the opinion that the timber might be cut from ten acres thereof beneficially to the said Selin Bear; that in their opinion said timber and wood are worth not exceeding one thousand dollars and that they are in no wise interested therein. Sworn to, etc. John Staudt, Robert Lee. 70. Order of court. In the Estate of Selin Bear, a lunatic. In the Court of Common Pleas of Schuylkill County. Upon the application of Scott Love, committee of Selin Bear, to sell timber. And now, August 17, 1910, the petition of Scott Love, committee of Selin Bear, a lunatic, being read, and due cause being shown, the court being of the opinion that the conversion of the wood and timber on ten acres of said Selin Bear's real estate, into money, will be beneficial to said Selin Bear and his said estate, it is considered and ordered by the court that said Scott Love, committee as afore- said be and he is hereby authorized to sell and dispose of the wood and timber from ten acres of said real estate, with the privilege to the purchaser to enter thereon to cut and remove the same; or, in the discretion of said committee, himself to cut the same and dispose of it to the best advantage of said Selin Bear; the proceeds of said sale to be expended (here follow the purposes as set forth in the petition), the said Scott Love first entering into a bond to the Com- monwealth in the sum of two thousand dollars, with Henry Haag and James Wilhelm as sureties, who are approved by the court, for the due application of the proceeds of such sale, to the uses and purposes authorized. Chas. N. Brumm, Judge. The bond accompanying is in the usual form of bond with the condition in the above order, and formally approved by the court. 71. Sale, etc., by spouse whose consort is of unsound mind. The act of April 11, 1866, P. L. 780, provides: "It shall be lawful for any person whose wife or husband, being non compos mentis, and seized and possessed of real estate in his or her own right, to sell, mortgage, lease for years, and convey upon ground rent, the same or any part thereof, under the direction of the Court of Common Pleas of the proper county, whenever it shall appear to the said court that the wife or husband is non compos 330 EQUITY PRACTICE IN PENNSYLVANIA. mentis, and that it is the interest of the owner thereof that the same should be sold, mortgaged, leased for years and conveyed on ground rent, as aforesaid: Provided, however. Where said husband or wife has no estate in his or her own right, or [has] one inadequate to his or her support, it shall be in the discretion of the said court, by their order and decree, to make a reasonable provision for his or her support and maintenance out of said rents, or proceeds of sale or mortgage, so long as he or she shall continue non compos mentis: And provided further that such sale shall divest such premises from any estate or claim of dower and estate as tenant by the curtesy." The purpose of this act is stated in the last proviso, — to enable the spouse of a lunatic to make clear title or contract without such lunatic consort's joining in the deed. 72. Powers of committee in partition. The act of March 22, 1865, P. L. 31, provided that: "The committee of the estates of lunatics and habitual drunkards shall have the same power in proceedings for the partition or parti- tion and valuation of real estate, held by such lunatics and habitual drunkards, which guardians have over the real estate of their wards, by the existing laws of this Commonwealth." The act of February 20, 1867, P. L. 30, further provided: "Whenever the estate of a lunatic or habitual- drunkard consists of an undivided interest in real estate, whether as joint tenant, tenant in common or co-partner, it shall and may be lawful for the committee of such lunatic or habitual drunkard, as the case may be, to institute an action of partition, in the Court of Common Pleas of the county in which such real estate is situated, for the purpose of having the same divided, according to the act of assembly in such case made and provided." This act gave specific power where formerly it was only inferential from the committee's general powers.' 73. Husband as trustee for insane wife. Section 7 of the act of October 28, 1851 (P. L. 1852, P. 725), provides : "When any married woman in this Commonwealth hath become insane, it shall be lawful, upon application of her husband, for the Court of Common Pleas of the proper county, to select and appoint three discreet and intelligent persons, one of whom shall be a prac- ticing physician, who shall make an examination, personal or other- wise, of such alleged insanity, and report the facts to the court; and if the said court be fully satisfied that the said married woman is insane, and approve the said report, the same shall Jbe filed of record in said court, and the husband shall thenceforth, upon giving good and sufficient security to the Commonwealth for the faithful performance of his trust, have full power to transact all business relating to the management or disposition of his or her real estate and personal estate, in as full and ample a manner as he might or could do if his said wife was sane and gave her full consent thereto." 'Klohs v. Reifsnyder, 61 Pa. 240. LUNACY AND DRUNKENNESS. 331 This act provides an extraordinary ex parte examination and find- ing upon the fact of lunacy and is of doubtful validity. It has been held that it is unconstitutional so far as it lacks provision for notice ;' and where the court sets the proceedings aside, for want of notice and an opportunity of the alleged lunatic to be heard, the costs will be placed upon the petitioner except those on the rule to take depositions, which will be divided equally. A sheriff's sale on a prior mortgage will divest the wife's dower," where a husband has proceeded under this act. This act was not intended to permit the husband of a lunatic wife to sell his real estate divested of her dower, but the act of 1866, supra, provides a remedy and protects the interest of the wife."a 74. Powers of wife of lunatic, as to her estate. The act of May 25, 1878, P. L. 154, provides: "That any married woman whose husband has been duly found to be a lunatic, by a court of competent jurisdiction within the Commonwealth, and who owns lands as her separate estate in this Commonwealth, in fee simple or otherwise, may dispose of the same, by deed or otherwise, or bind the same by mortgage, as fully and completely as she could, if she were a feme sole, without her husband joining in or consenting to said deed or mortgage, subject nevertheless to the rights of the husband under the intestate laws of this Com- monwealth: Provided, That the Court of Common Pleas of the proper county may upon the petition of the committee of the husband, authorize the sale of his rights to, or interest in, such real estate." 75. Release of dower by wife. The act of March 28, 1879, P. L. 14, provides: "In all cases where deeds conveying titles to real estate, situated within this Commonwealth, have been or shall hereafter be executed by a committee 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 has been restored to his reason or sanity." 76. Proceeding's to restore subject to civil rights. Section i of the act of June 15, 1897, P. L. 162, provides : "It shall be the duty of the court to which any inquisition shall have been returned, or of any court of Common Pleas of the county in which any alleged lunatic or habitual drunkard shall be confined or detained or be under any restraint whatever, as an alleged lunatic or habitual drunkard on petition of such alleged lunatic or habitual drunkard, as the case may be, setting forth that he is restored to a sound state of mind, or is now of a sound state of mind, or that he is reformed and become habitually sober, and that he demands a jury " May's Case, 10 C. C. 283. '° Hetrick's Case, 23 C. C. 522. " Bilyeu v. Gerstley, 2 C. C. 1 14. "=■ Mellander, in re, 16 D. R. 301. 332 EQUITY PRACTICE IN PENNSYLVANIA. trial, to make such order respecting notice as to the said court may- be advisable, and to award an issue framed to determine the question of fact involved, wherein the petitioner shall be plaintiff and the committee of the person and estate of the petitioner, or the party or parties holding the petitioner in confinement, or under restraint, or under detention, shall be defendant or defendants; and such trial shall be had according to the course of the common law, and the verdict, if in favor of the petitioner shall be conclusive, and it shall be the duty of the court to enter judgment on the verdict and to make an order setting the petitioner at liberty and restoring to him his property ; but, if the verdict shall be against the petitioner, it shall be advisory only." "If, however, the petitioner shall not demand a jury trial, then if shall be the duty of the court to take proofs of the facts, and if satisfied of the truth of the allegations in such petition, to make an order where an inquisition shall have been returned as aforesaid, that the commission issued in such case, and the inquisition taken thereon, and the appointment of committee and all proceedings relat- ing thereto be suspended or altogether superseded and determined, as the court shall decide. And the court shall have power in all cases to make an order setting the petitioner at liberty and restoring to him his property; and it shall be the duty of the court in every such trial to direct who shall pay the costs thereof, or to apportion said costs between the parties to the issue as the justice of the case shall require, and to order and direct payment accordingly : Provided, That nothing in this act shall be so construed as taking away the right of appeal as at common law." 77. Scope and effect of procedure to restore. The act of 1897, supra, takes the place of Section 63 of the act of 1836 and the practice to restore the lunatic or habitual drunkard to his civil status is similar to that which placed him under civil disability. The petition of the subject must be presented to the court which placed him under restraint and not the court of the county where he may be restrained." The burden of satisfying the court, or a jury where he demands a jury trial in his petition, is upon the applicant." In the case of a habitual drunkard he must aver and show that he has voluntarily abstained from the use of all intoxicating liquors and has both power to abstain in the future." In short he must show that he is now and has been for some time habitually sober," the usual period being one year last past and upwards. The verdict of a jury in his favor is conclusive of his present status though it seems only prima facie of his testamentary capacity in an issue devisavit vel non. However, it rebuts the pre- sumption of incapacity arising from the former inquisition." Where no issue is requested the court may hear the evidence or appoint a master or examiner. If the parties take testimony without a master and without objection in the office of counsel the court " Hunt's Lunacy, 28 C. C. 417. "Thompson's Ap., 16 Montg. Co. 102; 17 Montg. 183. "Worrall's Petn., i Del. Co, 148. " Rasely, in re, i Northam. 354. "Wuller's Est., 14 D. R. 89. LUNACY AND DRUNKENNESS. 333 will not afterwards consider an exception on the ground that no master was appointed." The hearing by the court follows the rules of Chancery; but when a jury trial is demanded the practice follows the common law. In case of suspension where the subject was a habitual drunkard, the court may re-instate the commission on proof of relapse into habitual inebriety."' 78. Form of petition for supersedeas. The Commonwealth of Penn- j„ ^he Court of Common Pleas of ^yXw^m^ ex relatione I Clinton County, James Chatham V ^^ ^'^^^^ ^^^^ p, J T^ J Commission de lunatico inquirendo. To the Honorable the Judges of the Court of Common Pleas of Clinton County: The petition of Fred. Fratz, respectfully represents: That the inquisition, by virtue of the commission in the above stated case held on the day of , A. D. 19 — , found the petitioner to be a lunatic, and that Charles A. Mayer was on the confirmation of said inquisition, on the day of , A. D. 19 — , appointed committee of his person and estate and he was committed to the State Hospital for the Insane at Danville, Pa. The petitioner further represents that he has been entirely cured of his said malady and by the superintendent and physicians of said hospital given leave to depart to his home and he is entirely restored to a sound state of mind. He therefore prays the court to take proof of the facts, as required by law, and being satisfied of the truth hereof to make an order that the commission and inquisition thereon, the appointment of a committee and all proceedings thereon be superseded and deter- mined and that he be set at liberty and his property fully restored to him. (If a jury trial is desired, it must be demanded in the petition.) And he will ever pray, etc. Fred. Fratz. [Affidavit to truth.] 79. Order of court. Now, to wit, August 18, 1910, the court having taken proofs of the ■facts (or, an issue having been framed and the jury having by their verdict found that Fred. Fratz is of a sound state of mind), and being satisfied that the allegations in said petition are true, that said Fred. Fratz is restored to a sound state of mind, do order that the commission issued in his case and the inquisition taken thereon, and the appointment of committee and all proceedings relating theretOj be altogether superseded and determined and said Fred. Fratz be restored to his liberty and his property as of this date. Per cur. President Judge. "Thompson's Ap., 16 Montg. 102. "a Robert's Est., 197 Pa. 621. 334 EQUITY PRACTICE IN PENNSYLVANIA. In case the court sees fit only to suspend the commission, etc., as it may, the order will read: "Suspended until further order of the court." 80. Effect of order of restoration. Sections 64 and 65 of the act of 1836, supra, provide: "The order of the court as aforesaid, duly certified shall have all the effect of a writ of supersedeas, in respect to the estate, or rights and privileges of such party and may be enforced by attachment: Provided, That the order of the court for the superseding of the commission as aforesaid, shall not have the effect of rendering the estate of such person liable for any contract made by him at any time previous to such order." 81. Triennial account of committee. Section 40 of the act of 1836, supra, provides: "Every committee of the estate as aforesaid, shall, at least once in three years, or at any other time when so required by the court, render an account of the management of the property committed to him as aforesaid, including the particulars of his receipts and expendi- tures; which accounts shall be filed in the office of the prothonotary of the court, for the information of the court and the inspection of all parties concerned," The duty to file such account is imperative and a committee who fails herein may be removed," although such account is only for information and not adjudication and will not r;estore a claim which is barred though audited and allowed.'* So exceptions taken will not be referred to an auditor to be passed upon." Such exceptions are admonitory only, to avoid acquiescence. 82. Final account. Section 41 of the act of 1836, supra, provides: "And every committee as aforesaid, shall, on the determination of his trust, by the death of the party, or otherwise settle in the said office a full and complete account of his management of the property under his care, including all the items embraced in every preceding settle- ment." When the trust is terminated by death of the subject, the powers of the committee cease absolutely, except to account to date. Even the court has no power to authorize the committee to discontinue a suit commenced by his subject before the inquisition." The settle- ment of this account follows the practice in the settlement of guard- ians' accounts. The settlement made and finally confirmed is equiva- lent to a decree in Chancery, the balance due being a debt of record enforcible in the usual manner."" The adjudication, unappealed from is res judicata and cannot be attacked collaterally." The adjudication " Henry, in re, 24 C. C. 79. "Raeder's Lunacy, 167 Pa. 597. " Moran's Est., 8 D. R. 315. " Stobert v. Smith, 184 Pa. 34; 189 Pa. 240. ^ Vincent v. Watson, 40 Pa. 306. "Comth. V. Patterson, 13 Supr. C. 136. LUNACY AND DRUNKENNESS. 335 is not only conclusive upon the accountant but also upon the lu- natic." The Court of Common Pleas has ample power over the costs under the acts of April 16, 1849, P- L. 663, and Sec. 9 of the act of June 13, 1836, P. L. 589, and counsel fees may be allowed to one who institutes proceedings in good faith. The act of May 8, 1889, P. L. 127, supplementary to the act of April 20, 1869, P. L. 78, con- cerning commissions for the purpose of sending a lunatic, etc. to the asylum does not apply to inquisitions de lunatico inquirendo."^ 83. Account of committee of the person. Section 42 of the act of 1836, supra, provides : "In every case in which a committee of the person of a lunatic or habitual drunkard, shall be appointed separately from a committee of the estate, such committee of the person shall settle an account of his transactions as such, in the office of the prothonotary, as aforesaid, whenever so required." 84. Form of account of committee. The account of the committee is similar in form to that of a guard- ian. The final account embraces all the preceding triennial accounts. The form, briefly, is as follows : Final account of A. J. Hummel, \ Committee of William Berger, I -r ^, r^ ^ ^ r- -ct e a lunatic, of Pine Grove ) ^V^^^ Court of Common Pleas of Township, Schuylkill County ( Schuylkill County, and State of Pennsylvania. / Dr. The said accountant charges himself as follows: April 18, 1905, to amount of inventory and appraisement. . $1917.05 [Here follow all the items of the account] Total $3088.38 Cr. The accountant craves credit as follows: May II, 1906, by amount in inventory and appraisement not sold $272.05 [By the various items of expenditure out of the fund.] By commission, at 5 per cent., due A. J. Hummel 1, as committee $140.82 By R. S. Bashore and F. V. Filbert, attorneys' fees 50.00 By S. H. Gore, Frothy., filing, etc., of account i5-oo Total $3357-56 Balance due the accountant $296.18 " Spaulding v. Bullock, 206 Pa. 224. "» McCracken's Case, 45 Supr. C. 230. 336 EQUITY PRACTICE IN PENNSYLVANIA. [Affidavit that the account is true and correct.] Entered and filed May ii, 1906. Confirmed, nisi, July 27, 1908. Confirmed absolutely, September 28, 1908. 85. Form of notice of filing^ of account. In the matter of Estatd of 1 ^^ *\^ ^^u r ^r*""" ^'^^ "* John J. Stump, a lunatic. | ^f !!!L"^'l!_£Te?m. X9- Notice is hereby given that the second account of F. S. Snayberger, committee of John J. Stump, a lunatic, has been filed in the prothon- otary's office of Schuylkill County and the same will be presented to the court on the first Monday of May, 1908, for confirmation nisi, and unless exceptions be filed within fifteen days thereafter the same will be confirmed absolutely. All parties interested will take notice and govern themselves accordingly. Samuel H. Gore, Prothonotary. This advertisement is inserted four weeks, once a week, in two newspapers prior to court. If no exceptions are filed under the rules of court within fifteen days, after confirmation,wm, the prothonotary enters on the record "confirmed absolutely." 86. Recording of account. Section 19 of the act of April 25, 1850 P. L. 572, provides: "It shall also hereafter be the duty of the prothonotaries of the various Courts of Common Pleas and district courts of this Common- wealth, to record in a book or books to be procured for that purpose, all accounts of assignees, trustees, sequestrators and committees and all reports of auditors thereon, omitting the evidence upon which such reports are based, etc." 87. Control over committees. Section 43 of the act of 1836, supra, provides: "The several Courts of Common Pleas, and the judges thereof respectively, shall have the like power and authority in respect to the control, removal, dismissal and discharge of committees of the person or estate of any person found by inquisition to be a lunatic or habitual drunkard, as are now possessed by the several Orphans' Courts and the judges thereof, in respect to guardians of minors." A committee may be removed for neglect to file his account.* 88. Contracts of lunatics. Since this subject is purely equitable and belongs to specific per- formance, it, with kindred practice, will be treated in its proper place. 89. Commitment to hospitals for the insane. It does not come within the scope or purpose of this volume to treat of the matter of restraint and detention of persons in asylums and hospitals for the insane or inebriates, which is purely statutory. 'Henry, in re, 24 C. C. 79. WEAK-MINDED PERSONS. 337 90. Weak-minded persons. The various acts in relation to lunatics and habitual drunkards did not cover persons who were merely weak-minded, and to meet the necessities of such persons the act of June 25, 1895, P. L. 300, was passed, Sections one and six of which were amended by the act of June 19, 1901, P. L. 574, all of which were consolidated in the act of May 28, 1907, P. L. 292, with some changes of phraseology. The act of April 27, 1909, P. L. 185, provided for the appointment of a trustee for a weak-minded person residing beyond the state, to care for his property within the state. None of these acts provides for finding how long the person has been weak-minded and the acts are prospective only.^ Where a distributee in the Orphans' Court is by reason of mental imbecility incapable of managing her estate a trustee will be appointed for the fund until her mental status can be adjudicated under the acts, supra.' These acts are held to be "in pari materia with the general lunacy acts and should receive a construction upon the same general lines." They establish "a legal status or condition intermediate between normal mental capacity and insanity or idiocy, a state of weak or enfeebled mind, neither mens Sana nor non compos mentis. A decree placing a person in this class raises a presumption that he is incap- able of making a will but the proponent may show testamentary capacity affirmatively.' These acts should not be invoked unless in clear cases for the benefit of the person and the care of his estate.* In such cases, however, a disinterested party, as directors of the poor, may apply from proper motives, and the acts are consti- tutional.? But the relationship of the petitioner not only to the accused but to his property, with a view to the uncovering of any secret or selfish motive in the proceedings should always be made a specific point for the keenest and most searching judicial inquiry.* A weak-minded person may also become a lunatic. So proceedings under the act of June 19, 1901, P. L. 574, do not prevent an inquiry into lunacy.'^ 91. Who may apply for guardian. Section i of the act of May 28, 1907, P. L. 292, provides: "That whenever hereafter any person, being a resident of this state, shall become insane or feeble-minded or epileptic, or so mentally defective that he or she is unable to take care of his or her property, and in consequence thereof is liable to dissipate or lose the same, and to become the victim of designing persons, it shall be lawful for either the mother, father, brother, sister, husband, wife, child, next of kin, creditor, or, in the absence of such person or persons, or their inability, any other person, to present to the Court of Common Pleas of the county in which said person to be cared for resides, his or her petition, under oath, setting forth the facts, praying the * Gorgas v. Saxman, 216 Pa. 237. "Hanker's Est., 176 Pa. 19. "Hoflfman's Est., 209 Pa. 357. 'Bryden's Est., 211 Pa. 633; Colt's Case, 215 Pa. 333. "Colt's Case, 215 Pa. 333; Brown, in re, 20 D. R. 812. "MulhoUand's Est., 217 Pa. 65. 'a Hartman's Lunacy, 21 D. R. 708. Vol. 4 Practice — 22 338 EQUITY PRACTICE IN PENNSYLVANIA. court to adjudge such person to be unable to take care of his or her property, and to appoint a guardian for the estate of such person." Under this section the directors of the poor may apply.' But it had to be shown that the person was not a lunatic under the acts prior to this of 1907.' It will be noticed that the word "insane" is interpolated in the above section, but the scope of the act has been construed in harmony with the decisions upon the preceding acts consolidated in it as embracing only clear cases, and mere eccentric actions without impairing his property will be insufficient to call for an examination of the subject. The proceedings assimilate to those for the appointment of a committee for a lunatic and the petitioner may be required to pay the costs; but where the husband is the petitioner and the estate to be conserved was deeded as a gift to his wife, he ought not, in conscience, be charged with the costs. Counsel fees cannot be fixed by the minimum fee bill, in such a case." d2. Notice of hearing. Section 2 of the act, supra, provides: "Thereupon it shall be the duty of the court to fix a day for the hearing on such application, and direct that ten days' written notice thereof to be given to the person against whom the petition is pre- sented, and also to the other members of his or her family residing within the jurisdiction, and, if such person or persons cannot be found, then by notice such publication as the court may think proper." 93. Hearing in presence of subject — ^testimony. Section 3 of the act, supra, provides : "Upon the day fixed for the hearing the court shall require the presence of the person against whom the petition is presented, unless there is positive testimony to the effect that such person cannot be brought into the court with safety to him or herself. A such hearing the court shall take the testimony of all the parties in interest, and of such other witnesses as the petitioner and the person against whom proceedings are instituted, or any member of his or her family, he or she may see fit to summons, on the question of the inability of the person against whom the proceedings are taken to care for his or her property because of mental deficiency. If the court, on such hearing, shall be satisfied that the person against whom the proceedings are taken is not able, owing to insanity or weakness of mind, to take care of his or her property, then it shall be the duty of the court to decide, and enter a decree accordingly, and appoint' a guardian to take care of the same." This section also interpolates "insanity" to be passed upon by the court. Prior to this act, the cases of insanity were clearly confined to procedure under the act of 1836 and its supplements. ' Colt's Case, 215 Pa. 333. ° Albro, in re, 22 C. C. 70; McLaughlin, in re, 22 C. C. 268; Heft, in re, 22 C. C. 289 ; Sunderland's Est., 29 C. C. 267 ; Sturgeon's Case, 31 C. C. , 406; Wood, in re, 10 D. R. 374; Ellerman, in re, 32 C. C. 241. " Sigler v. Sigler, 18 D. R. 345. "Giering's Est., 10 Northam. 137. WEAK-MINDED PERSONS. 339 94. Demand for jury trial. Section 4 of the act, supra, provides: "If a person against whom the proceedings are taken shall demand in writing prior to the decision of the court on such application, a trial by jury, it shall thereupon be the duty of the said court to award an issue, framed to determine the question of fact involved, and such trial shall be granted." This conserves the constitutional rights of the subject." 95. Decree notice of incapacity. Section 5 of the act, supra, provides : "From and after a decree that the person, against whom the same is entered, is insane, or so weak in mind that he or she is unable to take care of his or her property, the said person shall be wholly incapable of making any contract or gift whatever, or any instrument in writing, and the entry of such decree shall be notice of _ such incapacity, and said person shall be a ward of the court appointing such guardian." 96. Powers and duties of guardian. Section 6 of the act, supra, provides : "The guardian, so appointed, shall have precisely the same powers, and be subject to the same duties, as a committee on lunacy in the State of Pennsylvania. The court appointing such guardian shall have full power over the same, in directing an allowance for the said ward and for the support and maintenance of his wife, or his or her children, and the education of his or her minor children; and shall enter a decree of sale, mortgaging, leasing, or conveyance upon ground rent of the real estate, or any part thereof, of the said ward, whenever in the opinion of the court, it is necessary for the support and maintenance of the said ward or his family, or the education of his or her minor children, or the payment of his or her debts, or where it is for the interest and advantage of the said ward that the same shall be sold, mortgaged, leased, or let on ground rent; and all absolute sales in fee simple, except as hereinafter provided, shall be by public sale or vendue, and may be either entirely for cash or partly on credit, and after full advertisement for at least twenty days by handbills, posted in at least twenty of the most public places in the city or county where the said premises shall be situated, and in at least two newspapers, not less than three times in each: Provided, That if the court shall be of the opinion that, under the circumstances a better price can be obtained by private sale than at public sale, the court may decree and approve the same. Such sale, mortgaging, leasing, and letting on ground rent shall be upon terms and rates to be approved by the court. When the said real estate is situated in the same county in which the said person shall reside, or in another county, or counties, and the court shall be satisfied of the propriety of a sale, mortgaging, or leasing, or letting . on ground rent, upon such real estate, or any part thereof, not within their jurisdiction, it shall be lawful for such court to make an order or decree authorizing such guardian to sell, mortgage, lease, or let ' Colt's Est., 215 Pa. 333. 340 EQUITY PRACTICE IN PENNSYLVANIA. upon ground rent all the real estate of the ward, or so much thereof as the court may think necessary and as it may designate. Thereupon it shall be the duty of the Court of Common Pleas of the county wherein the r.eal estate so designated is situated, upon the petition of such guardian, to make an order for the sale, mortgaging, leasing, or letting upon ground rent of said real estate, or so much thereof as the court appointing said guardian by its order shall designate; and such guardian shall, in all cases, make a return of his proceedings to the said court, in the county in which the real estate was sold, mortgaged, leased or let upon ground rent shall be found, only. If the same be approved by the court, it shall be confirmed and said guardian shall make a return of said proceedings to the court by which said guardian was appointed. The said guardian shall give such bonds and file such accounts, at such periods, as the court shall determine." A guardian appointed under this section cannot interfere with the administration of a trust estate under a testamentary trust." A trustee cannot be appointed to take charge of an estate because of ignorance and physical disabilities, not impairing the normal relations of the mind to the body of the subject." A guardian appointed under this act has powers similar to a guardian for a minor and he may collect a claim due his ward prior to his appointment." Conversely, the subject may be sued upon a note made by him prior to his dis- ability and service be made upon him and his guardian." The court has power to appoint a receiver under this act," and the discretion will not be reviewed when done pending proceedings." 97. Restoration to normal status. Section 7 of the act. supra, provides : "If, ' at any time after the decree has been entered, the person against whom such proceedings are taken shall become able to care for his or her property, he or she,, or any of his or her family, or next to kin, may petition to the court, setting forth such fact; and, after a hearing, of which due notice shall be given to such person so afflicted, and to all members of the family and next of kin of the said person, if the court shall find that the said person so afflicted has regained the ability to care for his or her property, the court shall so decree, and shall discharge the guardian ; and thereupon the said person shall be, so far as the care of his or her property or person shall be concerned, for the future, the same as if the pro- ceedings against him or her had never been taken." 98. Appeals. Section 8 of the act, supra, provides : "Any person aggrieved by the final decree of the Courts of Common Pleas may, within three months from the time of the entry of said decree, appeal to the Superior Court of the State, and such court "Hancock's Est., 29 C. C. 191. " Beers v. Fenner, 30 C. C. 652. " Mosebach's Guardian v. Hess, 13 York 123. " Quarryville Natl. Bank v. Hill, 16 D. R. 693. " Parke's Case, 41 Supr. C. S3i- " Misselwitz's Lunacy, 177 Pa. 3S9- WEAK-MINDED PERSONS. 341 may confirm, reverse, or modify the decree entered in the lower court," 99. Appointment of guardian for non-resident subject. Section I of the act of April 27, 1909, P. L. 185, provides as follows : "That in the case of a person residing out of this Commonwealth, and duly found or proved to be incapacitated by reason of mental weakness to properly care for his or her property according to the laws of the place in which he or she shall reside, it shall be lawful for the Court of Common Pleas of any county of this Commonwealth to admit copies of the proceedings in such case duly authenticated, as sufficient proof for the appointment of a guardian of the estate of such person, situate in this Commonwealth." 100. Bond of guardian. Section 2 of the act, supra, provides : "The Court of Common Pleas appointing such guardian shall require from him a bond, with sufficient surety or sureties, in a sum double the estimated value of the personal property of said weak- minded person, situate in the Commonwealth of Pennsylvania, to be approved by said court; conditioned for the faithful performance of his duty as said guardian." 101. Powers of guardian. Section 3 of the act, supra, provides : "Upon such guardian being duly qualified by appointment by said court and by approval of his bond, he shall have all the powers over the real and personal estate of said weak-minded person, situate in this State, that are conferred upon guardians of residents of this State, appointed under the provisions of the act to which this is a supplement and all supplements thereto." 102. Power of sale and mortgaging, etc., of real estate. Section 4 of the act, supra, provides: "The court appointing such guardian shall have jurisdiction to decree the sale, mortgaging, leasing, or conveyance upon ground-rent of the real estate, or any part thereof, of the said ward, whenever in the opinion of the court it is necessary for the support and main- tenance of the said ward or his family or the education of his minor children, or the payment of his debts, or it is for the interest and advantage of the said ward that the same should be sold, mortgaged, leased, or let on ground-rent. And all absolute sales in fee simple, except as hereinafter provided, shall be by public sale or vendue, and may be either entirely for cash or partly on credit and partly for cash, after full advertisement, for at least twenty days, by hand- bills posted in at least twenty of the most public places in the city or couny where the premises shall be situated, and in at least two newspapers of general circulation, and in the legal periodical, if any is published in the county and designated by rule of court for the publication of legal notices not less than three times in each: Pro- vided, That if the court shall be of the opinion that under the circumstances a better price can be obtained at private than at public sale the court may approve and decree a private sale. And such, 342 EQUITY PRACTICE IN PENNSYLVANIA. mortgaging, leasing and letting on ground-rent shall be upon terms and at rates to be approved by the court. When the real estate is situated in another county or counties, or in the same and in another county or counties, and the court appointing the guardian shall be satisfied of the propriety of a sale, mortgage or leasing, or letting upon ground-rent such real estate or any part thereof not within their jurisdiction, it shall be lawful for such court to make an order or decree authorizing such guardian to sell, mortgage, lease, or let upon ground-rent of the real estate of the ward, or so much thereof as the court may think necessary and as it may designate; and thereupon it shall be the duty of the Court of Common Pleas or Orphans' Court of the county wherein the real estate so designated is situated, upon the petition of such guardian, to make an order for sale, mortgaging, leasing or letting upon ground-rent of the real estate, or so much thereof as the said court appointing said guardian by its order shall designate, and such guardian shall in all cases make a return of his proceedings to the said court of the county in which the real estate so sold, mortgaged, leased or let upon ground- rent lies; when, if the same be approved by the court, it shall be confirmed; and he shall make a return of his said proceedings to the court appointing him. The said guardian shall give such bonds, and file such accounts at such periods, as the court shall determine." The forms under this law must follow closely the language of the act. See forms under "The Price Act." Vol. 3, Johnson. CHAPTER XIX. IIANDAMTJS f a. — ^Alternative. I b. — ^Peremptory. 1. Mandamus not strictly but quasi an action at law. 2. Writ either alternative or per- emptory. 3. Jurisdiction of the Supreme Court. 4. Jurisdiction of the Common Pleas. 5. Jurisdiction generally, as to cor- porations. 6. Jurisdiction of the Quarter Ses- sions. 7. Petition for writ — parties — re- lator. 8. What the petition must set forth. 9. Form of petition. 10. Form of order for alternative writ. 11. Form of alternative writ. 12. Form of answer or return. 13. Form of peremptory writ. 14 Form of petition for attachment for disobedience. 15. Form of order for attachment. 16. Form of attachment, 17. When mandamus goes out. 18. Demand and refusal, 19. Municipal corporation as de- fendant. 20. Private corporation defendant;— peremptory writ. 21. Writ against incorporated body. 122. Time and service of alternative writ — return. 23. Intervention of persons inter- ested, etc. 24. Court to direct notice. 25. No abatement by termination of office. 26. No abatement by death or re- moval of fiduciary. 27. No abatement by death, etc., of defendant. Defects in alternative writ amendable. Peremptory writ — service. Superseding or quashing. Motion to quash — appearance de bene esse. Return to alternative writ. Time to make return. Demurrer to return — effect of. Certainty required in return. Issues of fact or law. Pleadings. 38. Damages and costs for plain- tiff—bar. Costs for defendant. Costs when discretionary. Damages, ascertainment — ex- ecution. Judgment for plaintiff — time of issuance. Appeal to Supreme Court. Supersedeas of peremptory writ. Appeal to be heard in any dis- trict. 46. Manner of certifying original cases. 47. Powers of Supreme Court. 28. 29. 30. 31. 32. 33- 34- 3S- 36. 37- 39- 40. 41. 42. 43. 44. 45- 1. mandamus not strictly an action at law. The writ of mandamus, like that of habeas corpus, is not strictly but quasi, an action at law. It is a "high and extraordinary remedy," partaking in its practice of both legal and equitable features. That It is not an action at law proper, is obvious from the language of Section 2 of the act of June 8, 1893, P- L. 345, which requires the 343 344 EQUITY PRACTICE IN PENNSYLVANIA. petitioner to show that he "is without other adequate or specific remedy at law." He must establish a specific legal right as well as the want of any other specific legal remedy to prevent injustice. All this must be shown in the petition and must be established by a preponderance of proof.' The question as to whether mandamus is a legal remedy was recently before the Supreme Court in Williamsport v. Citizens Etc. Co., 232 Pa. 232, and it was held by the majority of the court (Mes- trezat and Potter, J. J., dissenting) that a bill in Equity was not the proper remedy to compel a chartered water company to disclose its earnings to a municipality, which sought to acquire its plant under Clause 7 of Section 34, act of April 29, 1874, P. L. 73; but that the statutory proceeding by mandamus was the proper remedy. 2. Writ either alternative or peremptory. A writ of mandamus may be either alternative or peremptory. To justify the issuance of an alternative writ, it is sufficient if the right is stated in the petition with a certainty to a common intent: i. e., with sufficient precision to express the right of the petitioner and the duty of the respondent, in such manner that the ordinary mind, disregarding technicalities in pleading, might easily apprehend them and the want of a specific legal remedy." AH the requisites of the law must be complied with, however, or the writ will be quashed, on motion,' and the order made by the court must correspond with the petition.' Whether a peremptory or an alternative writ only shall issue depends upon the exigencies of the case largely. A peremptory writ should not issue in the first instance, unless, in the opinion of the court, the exigency requires it and "the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it." As a rule, if the substance of a cause for mandamus appears by the petition, an alternative writ will be granted, without a preliminary rule to show cause.' " Mercur v. Media Electric Light Co., 19 Supr. C. 519, citing Comth. v. Commissioners, 16 S. & R. 317; Comth. v. Henry, 49 Pa. 530; James v. Commissioners, 13 Pa. 72; Comth. v. Pittsburg, 34 Pa. 496; Douglass v. McLean, 25 Supr. C. 9; Brown V. McCroskey, 10 D. R. 583; Loucks v. Thompson, 11 D. R. 563; P. & L. Dig., vol. 11, col. 19445; 2 C. R. A., col. 3196; 4 C. R. A., col. 1444. "Comth. V. City Controller, 7 Phila. 29; County Treasurer v. Shannon, SI Pa. 221; Central Etc. Telg. Co. v. Comth., 114 Pa. 592; Comth. v. Heck, I Northam. 393; Long v. Water Co., 8 Del. Co. 151. = Isaacs V. Ford, 8 Kulp 80; Mongh. City v. M. E. L. Co., 3 D. R. 63; Boyle v. School Dist., 8 D. R. 436; Comth. v. R. Co., 6 D. R. 266. * Davis V. Patterson, 12 Supr. C. 479. " Section 2, Act of 1893 ; Comth. v. Ayre, 5 D. R. 575 ; Longenecker v. Barron, 10 D. R. 429 ; Kell v. Rudy, i Supr. C. 507 ; Davis v. Patterson, 12 Supr. C. 479- ^ Comth. V. Commissioners, 37 Pa. 277; Phcenix Iron Co. v. Comth., 113 Pa. 563; Miller v. Clement, 205 Pa. 484; Comth. v. Fleming, 23 Supr. C. 404; Comth. V. Knorr, 25 C. C. 244. "A mandamus, though a pre- rogative writ and demandable of right in a proper case, will be granted only in extraordinary cases, where there would otherwise be a failure of justice." Birmingham Etc. Co. v. Kuehneisen, 92 Pa. 72; Comth. ▼. Phila., 30 C. C. 180. MANDAMUS. 345 3. Jurisdiction of the Supreme Court. By Sec. 3, Art. 5, of the Constitution (Vol. i, Johnson, P. 90), the Supreme Court was limited in its original jurisdiction of manda- mus "to courts of inferior jurisdiction" and the power does not extend to executive officers;' neither is such jurisdiction conferred upon the Common Pleas, by the rule of exclusion.' It will not grant the writ to compel a judge to seal a bill of exceptions, since that is regulated by Statute of Westminster II," and probably now covered by act of May 11, 1911, regulating the manner of taking exceptions on the trial. But if a duty is made imperative by law, mandamus will lie from the Supreme Court to enforce it upon the inferior court. Such is the duty to proceed to hear and determine, and thus to certify a record.^" But in a matter which is discretionary the lower court will not be directed by mandamus." 4. Jurisdiction of the Common Fleas — special of Dauphin County. By Section one of the act of June 8, 1893, P. L. 345, it is provided : "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 Common 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 manda- mus to the Lieutenant-Governor, Secretary of the Commonwealth, Attorney-General, Secretary of Internal Affairs, Superintendent of Public Instruction, State Treasurer, Auditor General, Insurance Commissioner and Commissioners of the Sinking Fund (and, by act of April 28, 1899, P. L. 84) ; the Medical Council of Pennsylvania, and the several Boards of Medical Examiners, the Board of Under- takers, the Board of Dental Examiners, and the Board for the Examination of Accounts for the State of Pennsylvania. 5. Jurisdiction, generally, as to corporations. The act of March 19, 1903, P. L. 32, ignoring the amendment of 1899, just quoted, amends the section above by providing that the writ shall issue also "to any corporation doing business or having its property in whole or in part within the county : Provided, The relief, act, duty, matter or thing, the performance of which is sought, should be given or performed within such county." This refers to Courts of Common Pleas in other counties than Dauphin. The acts of 1893 and 1903, supra, are construed in pari materia giving jurisdiction to "the courts in the counties where the chief place of business is located, or where the corporation transacts its business, or has its property in whole or in part," "to compel the performance of any act, duty, matter or thing which should be per- 'Comth. V. Hartranft, y7 Pa. 154. 'Comth. V. Wickersham, 90 Pa. 311. 'Robert's Digy p. 92, vol. i, Johnson 178; Newlin's Pet., 123 Pa. 541. "Dechert v. Cfomth., 113 Pa. 229; Radenbusch's Pet., 120 Pa. 328; P. & L. Dig., vol. II, cols. 19500-1 ; 2 C. R. A. 3199. " Comth. V. Judges, 3 Binney 273 ; Newlin's Pet., supra. 346 EQUITY PRACTICE IN PENNSYLVANIA. formed in such county."" Mandamus is not the remedy, but quo warranto, where one is actually in office, and another claims it." But where a duty is cast upon one in office, though the office be only chairman of a partisan county committee a peremptory writ may issue." Officers of corporations may be compelled to perform their duties." A director of a corporation created in another state, but having offices and doing business in this state, can compel inspection of its books by mandamus."'' Whilst quo warranto is the proper writ to try title to office, mandamus will lie to compel de facto officers to perform ministerial duties."** 6. Jurisdiction of the Quarter Sessions. An obiter remark of Justice Woodward in Collins' Election Case, 2 Grant, 214, has been taken as a dictum that "the Quarter Sessions has no jurisdiction of mandamus." That was a case in which the parties mistook their remedy as well as their forum. Since then jurisdiction has been by statute conferred upon the Quarter Sessions. The act of March 31, 1864, P. L. 162, provides: "That when it shall be shown to the Court of Quarter Sessions of any county of this state that the debts due by any district or township in said county shall exceed the amount which supervisors or overseers may collect in any year by taxation, as at present regu- lated, or when the proper officers refuse to levy a tax, for the purposes set forth in the Seventh Section of the act of the 25th of February, one thousand eight hundred and thirty-five," it shall and may be lawful for said court, after ascertaining, by proper means, the amount of indebtedness, of any particular district or township, by a writ of mandamus to direct the proper officers, by special taxation, to collect an amount sufficient to pay the same : Provided, always. That if the amount of such indebtedness, is so large as to render it unadvisable to collect the same, in any one year, taking into considera- tion other necessary taxation, the said court may direct the same to be levied, and collected, by annual installments, or proportions, as may be adjudged reasonable and proper, and may order such special taxes to be levied, and collected, during such successive years, as may be required for the payment of the same." As this act did not include boroughs, the act of April 22, 1887, P. L. 61, was passed, giving the Quarter Sessions power to compel by mandamus the levy and collection of a sufficient tax to pay indebted- ness, other than bonded debts. These acts are in full force, notwithstanding that Section 6 of the act of June 8, 1893, provides for issuing a mandamus generally "Neiubert v. Armstrong Water Co., 211 Pa. 582; approving Loraine v. R. Co., 205 Pa. 132; Einwer v. Trafford Water Co., 15 D. R. 876. "Caffrey v. Caffrey, 28 Supr. C. 22, citing Gilroy's Ap., 100 Pa. 5; Goldsworthy v. Boyle, 175 Pa. 246; Comth. v. Risser, 3 Supr. C. 196. "Longenecker v. Barron, 10 D. R. 429, approved in MacDonald v. Shafer, 13 D. R. 571; see also Becker v. Stucker, 18 C. C. 587; Ginter V. Scott, 22 C. C. 14s. "Bacon v. Hoover Wagon Co., 13 D. R. 16. "aMachen v. Machen Etc. Co., 134 Jan'y T., 1912, Supreme Ct. "b Hatton V. Brooks, 21 D. R. 817. " P. L. 46. Authority to levy and collect a rate to discharge any just debt due a former supervisor or overseer of the poor. MANDAMUS. 347 against a municipality. The jurisdiction of the Quarter Sessions is exclusive in these cases and can be reviewed only as on certiorari." Be,fore a mandamus will issue the court must have before it evidence of the value and classification of subjects of taxation, and the amount and kind of indebtedness; and to attain this knowledge, leave will be given to take depositions," or a commissioner or auditor may be appointed to ascertain and report the facts." The investigation should be full and fair.'" The act of 1864, supra, was held not to apply to school districts, the word "district" evidently meaning a poor district." 7. Petition for writ — ^parties — ^relator. Section three of the act of 1893 declares that the writ of mandamus "may issue upon the application of any person beneficially interested." Section 4 provides: "When a writ is sought to procure the enforcement of a public duty, the proceeding shall be prosecuted in the name of the Common- wealth, on the relation of the attorney-general : Provided, however. That said proceeding, 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 duty affectjng a particular public interest of the state, it shall be on the relation of the officer entrusted 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 defendant, and the action shall be docketed as in ordinary cases, namely: , plaintiff versus , defendant." If the duty be a private one the Commonwealth should not be made a party; as, where a constable acts as bailiff in a distress for rent, before his public duty commences,'" or where an alderman seeks to compel the delivering of docket, etc., by his predecessor in office." One who shows no beneficial interest which would entitle him to sue in his own name, was held to have no standing as a relator, under the old law." But the cases decided prior to the act of 1893, supra, are rather instructive than applicable, and now it is held that citizens have a sufficient interest to entitle them to the writ as, for example, where the clerk of the Quarter Sessions refuses them the right to inspect the record of license applications;* and "citizens resident in the region traversed by the line" of a street railway, to compel the attorney-general to institute proceedings against such "Lehigh Etc. Co.'s Ap., 112 Pa. 360; Marcy Twp. Indebtedness, 9 Kulp 424; Plains Twp.'s Ap., 206 Pa. 556, affirming 21 Supr. C. 68; Hewer's Ap., 127 Pa. 134. "Brown v. Rush Twp., 18 C. C. 394; 397. "Marcy Twp.'s Case, 10 Kulp 43. "Jenkins Twp. v. Yatesville Boro, i Kulp 190. " School Dist. of Pittston Twp., in re, 15 D. R. 663. " Comth. V. Huttel, 4 Supr. C. 95 ; Comth. ex rel. Lynch v. County Commissioners, 14 D. R. 683. ''Wadsworth v. Reel, 15 C. C. 440. "Commissioners v. Phila., 7 Phila. 298; Comth. v. Gas Co., 6 Kulp 328. "Comth. v. Bair, s D. R. 488; Comth. v. Weaver (Rev. Deavor's Case), 14 D. R. 302; following Biddle v. Walton, 5 D. R. 287. 348 EQUITY PRACTICE IN PENNSYLVANIA. street railway company/" having first presented to him a prima facie case." Judges who were beneficiaries under an act of assembly to increase their salaries, during the term for which they were elected, although not "public officers," were held by one judge of the Supreme Court, speaking for all, to be entitled to a mandamus in the name of the Commonwealth against the state treasurer to pay such in- creased salaries." The parties showing a direct beneficial interest, of their own, are entitled to the writ in their own names." If the interest or duty be a public one mandamus will be only at the suit of the attorney-general or district attorney of the county concerned." An incorporated church, it was held, cannot avail itself of mandamus ; but an individual member may seek to compel his restoration to his rights.'' Under the act of June 8, 1893, P. L. 345, citizens who show no special interest may not intervene to defend against a peremptory mandamus by a claimant against a city under contract; * but the municipality on application of the mayor may intervene, when it is alleged that the writ would require the city to pay "a large sum of money not justly or legally due."'*'' 8. What the petition must set forth. Section two of said act provides that "any person desiring to obtain a writ of mandamus shafl 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 facts upon which he relies for the relief sou'ght, 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 petitioner is without other adequate or 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: Provided, 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 performing it, a peremptory mandamus may be awarded in the first instance and directed to issue forthwith." But if a rule to show cause be first granted and an answer is made thereto, it will be treated as a substitute."* This writ may issue in term time or vacation." 9. Form of petition. To the Honorable Judges of the Court of Common Pleas of Dauphin County : ^Cheetham v. McCormick, 178 Pa. 186. " Comth. v. Doylestown Supervisors, 16 C. C. 161 ; Comth. v. Bore, 17 C. C. 187; Comth. v. R. Co., 6 D. R. 565; Comth. v. Boro, 2 Lack. L. N. 181 ; Baugh v. Elkin, 9 D. R. 577. " Comth. V. Mathues, 210 Pa. 372. "Comth. ex rel. v. County Commissioners, 16 D. R. 341. " Stegmaier v. Jones, 203 Pa. 47. "Davies v. First Welsh Baptist Church, 4 Lack. Jur. 181; vol. 11, P. & L. Dig., col. 19, 504 ei seq. "aVare v. Walton, Controller, 21 D. R. 77. "bVare v. Walton, Controller, 21 D. R. 127. "cKell V. Rudy, i Supr. C. 507. "Schwears v. Muhlenberg, 19 Supr. C. 388. MANDAMUS. 349 The petition of Harry Kilmore, a citizen of the County of Dauphin and State of Pennsylvania, humbly showeth: (Here state fully and concisely the matter complained of as by Section 2, supra, including demand or refusal, or both, that there is no other specific and adequate legal remedy, and set forth definitely the relief sought.) Your petitioner therefore prays that a writ of mandamus may issue to , commanding him to (perform what is specifically required in the case), or that a rule on him, the said , may be granted, to appear and show cause why a mandamus should not be issued for the purposes, aforesaid. And he will ever pray. Harry Kilmore. [Affidavit.] If a peremptory writ be asked the petition should show clearly the exigency and that irreparable injury will result by delay. 10. rorm of order for alternative writ. The petition being allowed by the court, an order is endorsed thereon as follows: Now, July 7, 191 1, the within petition having been presented and read, the court, upon consideration thereof, and on motion of , Esq., attorney for the plaintiff, do order that an alternative writ of mandamus be issued to said (if an officer mention his title), as therein prayed for, returnable on the day of , A. D., at — M, service to be made in accordance with the act of assembly in such case made and provided. Per Cur. 11. Form of alternative writ. Dauphin County, ss. The Commonwealth of Pennsylvania, To (official char- acter), greeting: Whereas, , of the county aforesaid, has filed his petition in our Court of Common Pleas for the County of Dauphin, setting forth that (here give the substance of petition), and praying that atn alternative writ of mandamus might issue, to you directed, com- manding you to take action upon (here state the matter which is requested to be done) ; and whereas, in pursuance of the prayer of said petition, the said court did order that an alternative writ of mandamus should issue accordingly. We, therefore command you, the said , as aforesaid, that you do (whatever is sought to be done), or not doing so, that you show cause why you do not, in answer to this writ, on the day of , A. D., 19 — , at o'clock — M. and herein fail not. Witness, etc. [Seal.] , Prothonotary. 12. Form of answer or return. [Title of case.] (official character, if any), defendant, for return to the alternative writ of mandamus issued out of the Court of Common Pleas of Dauphin County, to him directed, bearing date the day of , A. D. 19 — , says : 350 EQUITY PRACTICE IN PENNSYLVANIA. 1. (Here admit as much of the relation as is true, and deny what is challenged specifically.) 2. For further return he says: (Here give such reasons of fact or law or both, as he may have, why he should not be commanded to do as 'prayed for.) Wherefore, the defendant, showing the premises, respectfully asks that he be hence dismissed, with his reasonable costs in this behalf unjustly sustained. . [Affidavit of truth of answer.] 13. Form of peremptory writ. The form of a peremptory writ after an alternative, recites the petition, avers that defendant has been duly warned and required to make answer and proceeds to command that the thing required to be done shall be done forthwith. If made upon showing of irreparable loss by delay, it should disclose that such fact was made to appear. 14. Form of petition for attachment for disobedience. [Title of case.] To the Honorable, etc.: The petition of , plaintiff, respectfully shows that on the day of , A. D. 19 — , your honorable court made an order (here recite what was commanded in the peremptory writ), that said writ duly issued under the seal of the court and was duly served upon , the defendant, on the day of , A. D. 19 — , as by the oath of , Esq., sheriff of said county to said return attached duly appears ; that said , has wholly disregarded and wilfully disobeyed the order and command of this honorable court, wherefore he prays that an attachment as for con- tempt issue against him the said . And he will ever pray. [Affidavit to the truth.] 15. Form of order of attachment. The petition having been presented and read, the court will endorse in brief: Now, to wit, attachment awarded returnable forthwith, as prayed for. 16. Form of attachment. County of Dauphin, ss. The Commonwealth of Pennsylvania. To , Esq., sheriff of Dauphin County, greeting: We command you to attach , so that you have him before our Court of Common Pleas of said county forthwith, then and there to answer as well touching a contempt which he hath committed against us, as it is alleged, in disobeying the peremptory writ of mandamus issued out of the said court, to him directed, bearing date the day of last past, as also such other matters as shall be laid to his charge, and further to abide the order of our said court in this behalf. Hereof fail not. Witness, etc. , [Seal.] Prothonotary. MANDAMUS. 351 17. When mandamus goes out. The writ of mandamus is a command to do that which defendant ought legally to do, and will go out only where there is a clear legal right in the relator and a corresponding duty in the defendant." In this respect it differs from a writ of prohibition, which is an equitable arm to reach out and restrain the doing of what ought not to be done. A stockholder of a corporation has a right to inspect the books of a corporation, with a view to protect his interest, if necessary by a bill in equity, which may be enforced by mandamus." The plaintiff must have a specific right to enforce, complete and legal, for which there is no other specific legal remedy." The manda- mus law was not meant to be a substitute for a summons and the ordinary proceedings and trial. It will lie to compel a city controller to sign a warrant on the treasurer, when the matters of objection do not come within his discretion." But he will not be compelled to certify a contract, for which no appropriation has been made." A mandamus will issue to re-instate an officer who has been dismissed contrary to law." It will go out against the president of a borough council to compel him to sign an order authorized by the council to pay a contractor.™ A borough council may be compelled to fill a vacancy which the law makes its duty to fill." Generally, where a duty is imposed by law or ordinance its performance may be enforced by mandamus." If the duty is plain, but the manner of exercising it is discretionary, the writ will go out, but not to control such discretion." If there is another legal remedy, however, mandamus will not be awarded." . 18. Demand and refusal. Section 2 of the act of 1893, supra, prescribes the necessity for an averment in the petition of demand and refusal to perform, and the want of such averment may be fatal." The refusal to do the act must clearly appear.'" ''Comth. v. Fitler, 136 Pa. 129; Comth. v. Kessler, 222 Pa. 32; Comth. v. McClure, 204 Pa. 196. '^Hodder v. George Hogg Co., 223 Pa. ig6; Comth. v. Phoenix Iron Co., los Pa. 563; Phoenix Iron Co. v. Comth., 113 Pa. 563; Neubert v. Armstrong Water Co., 211 P^- 582; Kuhbach v. Irving Cut Glass Co.,_220 Pa. 427 ; but not against a foreign corporation. Kinney • v. Mexican Plantn. Co., 233 Pa. 232. °°Heffner v. Comth., 28 Pa. 108; Underwood v. Gendell, 227 Pa. 214. "Comth. V. Phila., 176 Pa. 589; approving Comth. v. George, 148 Pa. 463; Comth. v. Phila., 180 Pa. 12; Comth. v. Larkin, 216 Pa. 128; Comth. v. Smith, 10 Northam. 340. "Comth. V. Foster, 215 Pa. 177. "Truitt V. Phila., 221 Pa. 331. "Breslin v. Earley, 36 Supr. C. 49. "Comth. V. James", 214 Pa. 319. " P. & L. Dig., vol. xi, col. 19461 ; 4 C. R. A., col. 1446. *" Comth. V. Williamstown Etc. Directors, 16 D. R. 707 ; 4 C. R. A., col. 1447; P. & L. Dig., vol. II, col. 19488. "Spatz V. Berks County, 34 C. C. 198; Comth. v. Girard Etc. Directors, IS D. R. 731 ; Comth. v. Twenty-fifth Ward Directors, 17 D. R. 716 ; P. & L. Dig., vol. II, col. 19514- "Isaacs V. Ford, 8 Kulp 80; Comth. v. Penna. R. Co., 6 D. R. 266; Boyla v. Lansford Etc., 8 D. R. 436; P. & L. Dig., vol. 11, col. 19563. "Miller v. Henderson, 212 Pa. 263; Comth. v. Pittsburg, 209 Pa. 333. 352 EQUITY PRACTICE IN PENNSYLVANIA. 19. Municipal corporation as defendant. Section six of the act of 1893 provides that, "when the writ is sought against a municipal corporation, the alternative writ shall be directed to such of the corporate authorities in their official capac- ity as are concerned in the execution of the thing required, and service thereof upon any of such officers shall be sufficient." " It is not necessary to name the members of the town council in the writ. It may be served by giving a copy to the president of council and also to the burgess." 20. Private corporation defendant — ^peremptory writ. "Section 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 corpora- tion 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." Where an officer of a political club is joined, upon whom the duty does not rest, the mandamus may issue against the corporation and the officer whose duty it is to do what is commanded." Mandamus will compel the restoration of a member of a church who has been expelled contrary to the laws of the church." 21. Writ against unincorporated body. "Section 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 capacity 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 shall be sufficient." 22. Time and service of alternative writ — ^return day. "Section 5 of the act of 1893 provided that all writs in the alterna- tive form shall be in force for three months from their date and may be served by the plaintiff, or any one 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 awarding the writ. They shall be returnable at such time, not less than five days after the service thereof, as the court may direct." In this section "may" means "shall." The return must show service by giving the defendant personally a copy, etc. Any other form of return is insufficient.™ The section above, as to service has been " Comth. v. Westfield, i D. R. 495 ; Comth. v. Killinger, i Pearson, 257 ; Trust Company's Pet., 3 D. R. 205; Comth. v. Martin, 170 Pa. n8. " Comth. v. Council of Norristown, 17 C. C. 187. "McClintock v. Young Reps. Etc., 210 Pa. 115. ■" Davies v. First Welsh Baptist Church, 4 Lack. Jur. 181. "" Boyle V. Lansford Etc., 7 D. R. 709. See Comth. v. Council of Nor- ristown, 17 C. C. 187. MANDAMUS. 353 held to be repealed by the act of July 9, 1901, P. L. 614, and that the writ may be served like a summons, wherever defendani is found> The act of May 11, 191 1, P. L. 264, amends Section 13 of the act of July 9, 1901, so as to provide _after "summons," "in proceedings in quo warranto. Where the sheriff of the county in which a cor- poration had its principal office, or where from the records in the office of the secretary of the Commonwealth or of the auditor-general it appears that said office was intended to be located, returns that he is unable to locate such corporation, or is unable to find the principal officers thereof, the court in which such proceedings in quo warranto are then pending shall order and direct notice of a time when such corporation shall aopear and make return, and such order shall be published in at least two newspapers of said county, once a week for a period of three weeks, and, upon due proof of said publication having been made, the court shall thereupon proceed to a hearing in said cause as if the said corporation had been actually served." 23. Intervention of persons interested — usufructuary parties — judgment. "Section 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 proceedings at his own expense, or to take such part therein, and on such terms as to the court 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 afore- said, to frame the return and conduct the subsequent procedings, to use the name of the party to whom such writ shall have been directed, for the 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 judg- ment or to appeal to the Supreme Court : 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 in whole or in part by the person permitted as aforesaid to conduct the proceedings." A collector of delinquent taxes appointed by a former county treas- urer has no interest which entitles him to intervene under this section, on an application to compel the county commissioners tO approve the bond of his successor."' "a Tobias v, Natl. Slavonic Soc, 20 D. R. 427. "Mattern v. Allegheny Co. Commissrs., 12 D. R. 244. Vol. 4 Practice — 23 354 EQUITY PRACTICE IN PENNSYLVANIA. 24. Court to direct notice. "Section lo: The court may direct what notice shall be given of all papers filed in the proceeding subsequent to the granting of the alternative writ." The time, manner and form of notice is thus left with the court to determine and fix in the order awarding the writ. 25. No abatement by termination of office. "Section 23: When the writ is sought by a public oflScer 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." 26. No abatement by death or removal of fiduciary. "Section 24: When the writ is sought by an executor, admin- istrator or trustee, the death of the plaintiff or his removal from position by resignation or otherwise shall not abate the writ, but the action may be continued by his successor." 27. No abatement by death, etc., of defendant. "Section 25 : The death, resignation or removal from office by lapse of time or otherwise, of any defendant, shall not have the effect to abate the suit, but his successor may be made a party thereto and any perempory writ shall be directed against him." 28. Defects in alternative writ amendable. "Section 26: Defects in substance in the alternative writ may be taken advantage of at any stage of the proceeding. Amendments may be allowed as in other civil actions save as hereinafter mentioned." Section 28 provides that a peremptory writ may be superseded or quashed but not amended. 29. Peremptory writ, service. "Section 27: The peremptory writ shall be directed to the same person as the alterantive 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." 30. Superseding or quashing. "Section 28: The peremptory writ, though issued, may be super- seded or quashed, for such cause as to the court may seem just, but no amendment thereto shall be allowed." The court will not supersede or quash a writ against election officers to require them to sign returns of the election; nor will the court suffer them to excuse themselves on the ground that they were prevented by other members of the board." 31. Motion to quash — appearance — de bene esse. "Section 1 1 : 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 fails he shall be permitted to file his return as in this act mentioned, and to proceed as if such motion had not been made.'' "" Dougherty v. McBride et al., 10 Kulp 551. MANDAMUS. 355 This supersedes demurrer to the petition. The defendant must move to supersede or quash."' On a motion to quash for informality, in a proper case, an alternative writ may be amended." The use of "issued" instead of "awarded" in the order awarding the writ is such an error as may be waived by the defendant."" 32. Return to alternative writ. "Section 12: The defendant shall file in the office of the prothon- otary 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." The return must be certain to the greatest possible intent, not inferential, argumentative or evasive."^ 33. Time to make return. "Section 14: The court applied to for the writ shall allow the plaintiff and defendant respectively, such convenient time to make return, plead, reply, rejoin or demur as shall be just and reasonable." 34. Demurrer to return — effect of. "By demurring to the return the plaintiff admits everything well- pleaded therein, and, so far as the facts affect the case the demurrer must stand or fall on such facts set forth in the petition as are admitted in the return, and such additional facts set forth in the return as are relevant and material." "' But immaterial or irrelevant matters are not admitted by a demurrer."' 35. Certainty required in return. "Section 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 correction thereof, as to the court shall seem just and reasonable." For want of such a return judgment may be given by default.' It should be full and unambiguous meeting the issue squarely.'' On demurrer, a return will be set aside for lack of precision in setting forth the defects relied upon.' General denials based merely upon inferences and information are insufficient.* A return is bad which ""Plymouth Twp. Comrs. v. Sweeney, 10 D. R. 617. "* Myers v. Union League, 17 D. R. 301. "" Kuhbach v. Irving Etc. Co., 220 Pa. 427. ""aComth. V. Twenty-fifth Etc. Directors, 17 D. R. 716; Comth. v. Meadville Telephone Co., 35 C. C. 4S6. "Reppert, P. J., in Longenecker v. Barron, 10 D. R. 429. "Truitt V. Hiila., 221 Pa. 331. 'Kell V. Rudy, I Supr. C. 507; Comth. v. School Directors, 4 D. R. 314; School Dist. V. Humrich, 18 C. C. 322. 'Comth. V. Coxe, i Foster 89; Comth. v. Thompson, 2 Foster 394. 'Comth. V. Phila., 176 Pa. 588. ' Comth. V. Hawk, 7 Lack. L. N. 125. 3S6 EQUITY PRACTICE IN PENNSYLVANIA. is argumentative/ or evasive and hypothetical,' or that raises an objection on immaterial matters.' Whilst it is true that a return may be amended in the court below, by leave, it cannot be amended in the Supreme Court.' 36. Issues of fact or law. Issues of fact or law may be raised, and, as in other cases, those of law are for the court, and those of fact are for the jury; and when there are disputed facts they must be passed upon by a jury before a peremptory writ will be issued.' An issue of fact cannot be submitted to the court or an auditor without an agreement of the parties.'" 37. Pleadings. "Section 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." 38. Samag^es and costs for plaintiff — ^Bar. "Section 16: If 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 dicet, or for want of an answer by non sum informatus or other pleading, he shall recover his damages and costs." "Section 18: If damages are recovered against any person making return as aforesaid, such recovery shall debar every other action for making such return." 39. Costs for defendant. "Section 17: If judgment is given for the defendant he shall recover his costs." " 40. Costs, when discretionary. "Section 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 according to the discretion of the court."" 41. Damag^es, ascertainment of— execution. "Section 21 : Damages sustained by the plaintiff shall be ascer- tained by the jury trying the issue in fact; if no such issue is tried they shall be ascertained by the court in such manner as may be deemed just and reasonable." " Comth. V. Penna. R. Co., 6 D. R. 266. ' Comth. V. Pittsburg Councils, 34 Pa. 496. ' Comth. V. Comrs., 32 Pa. 218. ' Comth. V. Phila., 180 Pa. 12. 'Smith V. Comth., 41 Pa. 335; County Treasurer v. Shannon, 51 Pa. 221; Comth. V. School Directors, 4 D. R. 314; Comth. v. Warwick, 1S5 Pa. 623; Seabolt v. Comrs., 187 Pa. 318; Long v. Water Co., 8 Del. Co. 151 ; Taylor V. Entrikin, 214 Pa. 303. "Kell V. Rudy, i Supr. C. 507; Longenecker v. Barron, 10 D. R. 429. "Lesh v. Meminger, 17 D. R. 841. " Comth. V. Hanna, 17 D. R. 308. MANDAMUS. 357 "Section 20: Damages and costs may be levied by execution as in other cases." 43. Judgment for plaintiff in peremptory form — ^time of issuance. "Section 22: Whenever, in accordance with this act, judgment is given for the plaintiff, the court may award that a peremptory man- damus shall issue 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, requires it, in which event, the court may direct that said writ shall issue forthwith." 43. Appeal to Supreme Court — supersedeas. "Section 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, decree, or in cases where the granting of said writ is required by the first section of this act, at any time within twenty days after refusal to grant said writ, into the Supreme Court by appeal as other actions at law, and such appeal shall supersede any peremptory writ awarded by the court and also any execution for damages or costs, upon bail to be given as in other civil cases." Since the creation of the Superior Court, appeals may be taken to it, when brought within its jurisdiction." See Vol. I Johnson, P. no, as to appeals. 44. Supersedeas of peremptory writ. "Section 30 : Such appeal shall also supersede any peremptory writ issued within twenty days after final judgment, order or decree: Provided, however, That the certiorari in consequence of such appeal be lodged in the office of the prothonotary of the court awarding the writ before the mandate thereof shall have been fully complied with : Provided further. That said appeal shall be made returnable forth- with." 45. Appeal to be heard in any district where returnable forth- with. "Section 31 : Every such appeal may be made returnable forth- with, 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." 46. Manner of certifying original eases. "Section 32: The Supreme Court in 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 prothonotary of said court in the "Mercur v. Media Electric Light Co., 19 Supr. C. 519. 3S8 EQUITY PRACTICE IN PENNSYLVANIA. district within which it shall be next in session, and so to be certified from district to district until finally decided." 47. Powers of Supreme Court. "Section 33: The Supreme Court in such cases shall .dispose of all issues of fact 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 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." Sec. 12 of the act of May 19, 1897, P. L. 67 (see Vol. i, Johnson, no), provides that an appeal shall not be a supersedeas, unless so ordered by the court below or the Appellate Court. This chapter must be read in connection with Chapter 9, Vol. i, Johnson, P. 107. CHAPTER XX. PARTITION AT COMMON LAW AND IN EQITITY. 1. Partition a,t the common law. 2. Where the action arises. 3. Bar when adverse holding. 4. Jurisdiction. 5- Parties interested. 6. Right of remainderman. 7. Plaintiflfs. 8. Defendants. 9. Life estates. 10. Equity jurisdiction. 11. Interest necessary to maintain a bill. 12. Requisites of bill. 13. Answer to bill. 14. Demurrer. 15. Distinction between master and referee. 16. Practice under Supreme Court rules. 17. Reference to master, 18. Functions of master. 19. Cotenants out of possession may recover share of rentals. 20. Effect of confirmation. 21. Sale when partition cannot be made. 22. Protection of the widow. 23. Approval of sale — deed — bond. 24. Proceedings to obtain posses- sion. 25. Form of bill. 26. Form of notice to defendants to appear. 27. Form of notice to answer. 28. Service of bill. 29. Service beyond the jurisdiction. 30. Service by publication. 31. Form of order for publication. 32. Form of decree pro confesso — quod partitio fiat. 33. Form of answer. 34. Form of master's report against division. 35. Form of rule to accept or re- fuse. 36. Form of order of sale. 37. Form of return of sale. 38. Form of decree confirming sale. 39. Final report of master. 1. Partition at the common law. The writ of partition at the common law is still a factor in Penn- sylvania practice, as betw^een tenants in common, but it is so seldom undertaken, since the equity proceeding authorized by the act of July 7, 1885, P. L. 257 that an elaboration of the subject is not justified. Those who are interested in that form of partition are referred to the thorough and exhaustive work of Dr. William Trickett, Dean of Dickinson Law School, in which the subject is presented in all its details. A few matters in practice, as to when and by ,whom it may be maintained, will be given here as illustrative of the procedure and preliminary to what will be presented in the form of a bill in Equity, because this seems requisite to enable a plaintiff to draw a proper bill and proceed to a decree that partitition be made and a master appointed. It has been held that the act of 1885 does not confer any new jurisdiction but creates a new forum.' 'Doyle V. Brundred, 189 Pa. 113. 359 36o EQUITY PRACTICE IN PENNSYLVANIA. 2. Where the action arises. At the common law the writ of partitione facienda was applicable only to coparceners, but by the statute of 31st year of Henry VIII, Ch. i,^ it was extended to joint tenants and tenants in common; and by 32nd Henry VIII, Ch. 32,° to the same for life or years. In Pennsylvania it may be had even as to an equitable estate,* notwith- standing a judgment or mortgage against the common estate," or an encumbrance secured by the retention of legal title by the vender.' It has been held not to apply to "an undivided portion." ' The proper averment of a tenancy in common to which it applies is that "the demandants and defendants together and undivided, do hold, etc."' A church property is not subject to partition although held by two distinct religious bodies.' The act of May 14, 1874, P. L. 156, provides for partition of lands and coal and timber rights therein, notwith- standing the rights of the parties are not in the entirety. Where a part of land containing iron ore is incapable of division, a covenant that it remain undivided as a source of supply to the residue, confirmed by a decree of partition of other lands, will bind the successors in title as long as the ore is not exhausted." Wild lands may be parti- tioned though the parties be out of possesion." Where the parties being sui juris execute a partition by parol and go into possession of their respective purparts, a bill of peace, known in Chancery, >vill lie to maintain possession."*' 3. Bar. Partition is not the proper action where one of the tenants holds adversely to the others and the plea is in bar — the proper form being ejectment." But a judgment of quod partitio fiat and the proceedings to decree of sale is no bar to an action by another tenant for the same land." 4. Jurisdiction. The jurisdiction of the action is vested in the several Courts of Common Pleas of the county wherein the land lies by various acts and the constitution of 1874." ' Robert's Digest 217. ' Robert's Digest 224. 'Willing v. Brown, 7 S. & R. 467. "Bavington v. Clarke, 2 P. & W. 124; McLanahan v. Wyant, 2 P. & W. 279; Long's Ap., yy Pa. 151. 'Longwell v. Bentley, 23 Pa. 99. ' Sweeney v. Meany, i Miles 167. 'Biddle v. Starr, 9 Pa. 461. 'Brown v. Church, 23 Pa. 495. "Coleman v. Coleman, 19 Pa. 100; Coleman v. Grubb, 23 Pa. 393; Blewett v. Coleman, 40 Pa. 45; Coleman v. Blewett 43 Pa. 176; Cole- man's Ap., 62 Pa. 252. "Bellas V. Graham, 3 Am. L. J. 64. "* Kennedy v. Kennedy, 43 Pa. 413. "Law V. Patterson, i W. & S. 184; McMasters v. Carothers, i Pa. 324; McMahan v. McMahan, 13 Pa. 376 ; Longwell v. Bentley, 23 Pa. 99. " Mitchell V. Harris, 4 Penna. L. J. 231. " See Act of April n, 1799, 3 Sm. L. 386; Clawges v. Clawges, 2 Miles 34; Act March 28, 1806, 4 Sm. L. 335; Act April 7, 1807, 4 Sm. L. 398; Coleman v. Coleman, 19 Pa. los; April 21, 1846, P. L. 426; McMichael V. Skilton, 13 Pa. 215; April 11, 1835, P. L. 199; Gourley v. Kinley, 06 Pa. 270, PARTITION. 361 5. Parties! interested. By provisions of the act of April 11, 1835, P. L. 199, all the persons interested in the land shall be made parties, and the writ lies "not- withstanding there may be a life estate in part or parts of the property, with remainders over in fee." 6. Bight of remainderman. The same act provides "that those in remainder have the right to take such part as shall be awarded them, on giving sufficient security, to be approved by the court, for the payment of the annual interest of such part to the tenant for life, unless it shall appear to the court that such tenant for life is entitled to the exclusive possession of any part of the premises described in the writ of partition, in which case the proceedings shall not interfere with the right of possession of such tenant without his consent, but may be had subject to such possession, or such part of the premises may remain undivided during the existence of the life estate, unless otherwise disposed of by the agreement of the parties interested." One who is not made a party, may interplead on showing his in- terest in the land." All the parties must be interested in all of the land described," and must be tenants of the freehold." Parties not named in the declaration are not bound by the judgment." Where no injustice was done a party in interest not notified, the proceedings will not be set aside." 7. Plaintiffs. Parties, plaintiff or demandant, must show a freehold.'" If too many plaintiffs join, advantage may be taken of the misjoinder by demurrer, in arrest of judgment or by writ of error." Where one joins who has no fight, as a tenant at will, the writ will be abated.'" It was doubted whether a tenant by the curtesy could be a demandant in law."" A widow of an intestate tenant in common has been held to have no standing in an action at law for partition." The dower interest of a widow is not changed by partition, it remains realty and is an annual charge upon the land partitioned." A vendee of several tenants in common may demand partition." Cestuis que trustent have been held not entitled to demand partition of lands held by an active trust when they receive only the income from the land." All persons who have derived title from one of the original tenants in common has a right to demand.'" "Wickersham v. Young, i Miles 395. " Snyder's Ap., 36 Pa. 166. "Brown v. Lamberton, 2 Binney 34. "Blackwell v. Cameron, 10 Wright 236. "Sheetz V. Emerick, 5 Phila. igo. ""Mark v. Mark, 9 Watts 410. "Lockhart v. Power, 2 Watts 371. ^Lockhart v. Power, 2 Watts 372. "Walker v. Dilworth, 2 Dallas 257. "Brown v. Adams, 2 Wharton 188; Power v. Power, 7 Watts 205. "^ Mann's Ap., 14 Wr. 375. " Longwell v. Bentley, 23 Pa. 99. " Hutchinson's Ap., 82 Pa. 509. " Harlan v. Langham, 69 Pa. 235. 362 EQUITY PRACTICE IN PENNSYLVANIA. An heir who has become a tenant in common under the intestate laws, may have a bill for partition immediately after the death of the intestate. He need not wait a year."* 8. Defendants. Under the saving force of Section 13 of the act of February 24, 1834, a widow may be joined as defendant;" and a married woman who may be compelled to make partition may join in an amicable action and be bound thereby, when fully assenting ;'" so may minors, by their guardian.'" Where a plaintiff aliens, after suit, his alienee may be suggested and substituted on the record.'' But one who has not a freehold should not be joined." 9. Life estates. Under Section I, act of June 3, 1840, P. L. 593, as amended by Section 9, act of April 5, 1842, P. L. 234, the writ was extended to parties having legal or equitable life estates as well as those having a fee, "notwithstanding there be a limitation of an estate or interest in the premises or some part thereof to a person or persons not in existence at the issuing of the writ." It was further provided "that for the protection and security of the interest of any unborn person or persons the court shall have authority to make such order in regard to the purparts in which he may become interested, as equity and justice may require. And in all such cases, the like proceedings may be had in regard to service of the writ, valuation, division into convenient purparts, and in all other respects, and with the same effect as if all persons to become interested in the premises were in existence, and were made parties to the said partition." 10. Equity jurisdiction of the Common Fleas. Section 3 of the act of March 17, 1845, P. L. 158, conferred upon the Supreme Court for the Eastern District of Pennsylvania and the Court of Common Pleas of Philadelphia County, each, all the power and jurisdiction of a Court of Equity, in all cases of dower and partition arising within that county. By act of February 14, 1857, P. L- 39. every Court of Common Pleas in the state was invested with "the same Chancery powers and jurisdiction," then vested in the Common Pleas of Philadelphia, with a like right of appeal. This act was held to entitle the widow to file her bill to set out her interest in the land." In all cases where the title is clear these acts conferred the power to partition in the Equity side of the Common Pleas." The act of April 13, 1859, P. L. 605, relating to partitions in Equity in Allegheny County is re-enacted almost verbatim, in Sections: 2, 3 and 4 of the act of 1885, constituting the body of this act." "^ Rea V. Corbett, 60 Pitts. L. J. 228. " Davis V. Reeves, 4 Pa. L. J. 93. '" McConnell v. Carey, 12 Wright 345. " Wetherill v. Mecke, Brightly 135. " McClure v. McClure, 7 Leg. Int. 195. ""Mark v. Mark, 9 Watts 410; Power v. Power, 7 Watts 205; Davis v. Reeves, 2 Clark 314. "Brown's Ap., 84 Pa. 457; Worthington v. Worthington, 9 Kulp 513. "' Sheridan v. Sheridan, 136 Pa. 14. *■ Stewart v. Allegheny Natl. Bank, loi Pa. 342. PARTITION. 363 Section i of the act of July 7, 1885, P. L. 257, is virtually a re- enactment of the equity power given above. The purpose is stated in the opinion of the Supreme Court by Justice Dean : " "This act conferred no new powers on the courts in proceedings in partition; theretofore equity was enforced or attempted in actions in partition in the Common Pleas, but the proceedings were cumbersome and often inadequate in reaching equitable partition ; that by bill, is much more convenient and effective. The act provided a new court for the exercise of powers already possessed." Hence, it js well to bear in mind the principles above stated as to parties to an action; for where a defendant is not a tenant in common in the same right, but holds adversely, a bill will not lie."* A bill will lie for account and partition upon an equitable title held in trust, in the county where the lands are situate although the trustee resides in another county, and it is no defense that a bill for an account is pending in another county, brought by a different plaintiff." The act of 1885, supra, is not a procedure act and as it is silent upon the subject of bidding upon purparts before the master and commissioners, if they refuse to receive bids they cannot be reviewed for such refusal. "In order to make the possession of one tenant adverse to the others it must be shown by acts of exclusion of an unequivocal character, and not for a short period of time which would not raise a presumption of ouster." 11. Interest necessary to maintain a bill. In order to sustain a bill, actual possession is not necessary, where there is a right to the immediate possession; a mere constructive seisin being sufficient in the absence of proof of an actual ouster.' This is so, because the possession of one tenant in common is the possession of all. The title of the plaintiff must be clear.' If the facts are not disputed the court may determine the question of title," If the plaintiff's title is legal and the defendant's equitable, a Court of Equity will decide and award partition by way of relief.* There are cases too, in which the disputes are of such character that the court will not remit the parties to an action of ejectment but unravel the skein itself." 12. Requisites of bill. A bill for partition should clearly aver the title of the plaintiff, its character and real object;' all the names and residences of the "Doyle v. Brundred, 189 Pa. 113. "Kelly v. Thomas, 2 Lack. L. N. 37; McMasters v. Carothers, I Pa. 325; Wister's Ap., 115 Pa. 246; Bradfords v. Kent, 43 Pa. 480; Ihmsen v. Ormsby, 32 Pa. 201 ; Old Man's Home v. Penna. Etc., 17 W. N. C. 173. "Hanna v. Clark, 189 Pa. 321. "Hanna v. Clark, 204 Pa. 149. " Carey v, Schaller, 16 Supr. C. 350. ' Carey v. Schaller, 16 Supr. C. 350, citing 3 Kerr on Real Property, Sec. 2019. 'Johnson v. Kite, 9 D. R. 584; Hayes' Ap., 123 Pa. no; Lee v. Lee, 28 C. C. 604; Jenkins v. Coray, 14 Luz. L. R. 113. 'Muenich's Est, 52 Pitts. L. J. 191. *Kelsey's Ap., 113 Pa. 119. ° Sill v. Blaney, 159 Pa. 264 ; P. & L. Dig., vol. 15, col. 25301. Hayes' Ap., 123 Pa. no; Johnson v. Kite, 9 D. R. 584. 364 EQUITY PRACTICE IN PENNSYLVANIA. parties and their respective quantity of interest and that they are all the parties in interest;' and if there are incumbrances upon the land what they consist of and who entitled, as well as the improve- ments." If a partnership be alleged, it should show that the land is partnership land and how it is connected with the partnership, for which an accounting is prayed for ;° as the court cannot, in settling an account give the plaintiffs larger interests than those they have set up in their pleadings." Since the act of June 24, 1895, P. L. 237, the rental value becomes an integral part of a bill. Judge McCarthy thus summarized the requisites of a bill to justify a decree quod partitio Hat, as follows." "i. He must sho.« by what title he claims to hold any part of the real estate described in the bill and how the same is derived. 2. He must show the quantity of the purpart which he claims to hold as owner in common with the other owners of the said real estate. 3. He must set out the title and quantity of the parts or purparts of all the other owners respectively without exception." " The averment of title by trust requires the setting forth of so much of the deed that will show whether the trust is ended. The prayer of the petition, should be that partition be made of the premises and not for a commission in partition, which the Supreme Court by rule has abolished." Where part of the real estate is omitted and this is apparent by other references in the bill, demurrer will lie; otherwise it must be raised by plea." Where the land is that descending, the bill should give the names of all the children and the widow, if any, and aver that they are all the parties in interest." A bill is multifarious which joins with partition an ac- counting as administrator and as partner of the intestate, and it is bad when one plaintiff is a life tenant, etc., and other claimants in remainder." Where parties do not demur or answer the opening of the decree pro confesso, is a matter of grace." It has been held where the bill fully set out the names of all the parties entitled and the shares and purparts by description, which each was entitled to the decree of partition did not need to repeat the description of allot- ment to each. A bill is not demurrable on the ground that it does not include all the land, unless the bill shows that the parties are the owners in common of other lands. " If the testimony shows that plaintiff had no title partitionable, the finding below will not be ' Johnson v. Kite, 9 D. R. 584. ' Purcell V. Purcell, 23 C. C. 330. " Purcell v. Purcell, 9 D. R. 188. "° Fulton v. Miller, 192 Pa. 60. "Hancock v. Watson, 9 D. R. 113. "Required by Act of Feb'y 5, 1821, 7 Sm. L. 353. " Palethorp v. Palethorp, 184 Pa. 585 ; Chester Tr. Co. v. P. W. & R. R. Co., 180 Pa. 432. " Stickles V. Oviatt, 212 Pa. 219. " Dawson v. Lancaster, 12 D. R. 501. " Caughey v. Harrar, 21 Lane. L. R. 353. "Verstine v. Yeaney, 210 Pa. 109. " Bishop V. Hill, 9 Del. Co. 522. See form of allotment and decree, Price Act, vol. 3, Johnson's Practice. '"Love v. Robinson, 213 Pa. 480. PARTITION. 36s reversed on differences of opinion.^ If the court be asked to take account of rents and profits under the act of June 24, 1895, P. L. 237, the bill should also aver the facts showing in what manner they arise and are a part of the case." 13. Answer to the bill. An answer to the bill which denies some or all of the material allegations is sufficient; but one which admits the allegations and sets up appreciation of the property by vacation of a street in front of it is insufficient, and partition will be decreed." So is the setting up of an account in setoff against the ancestor.^' 14. Demurrer. For matter apparent on the face of the bill the defendant may demur; but where it is claimed that not all the land is brought into the proceeding, unless the bill discloses facts to justify the conclusion, it is not demurrable on that ground. The question must be raised by plea in abatement." 15. Distinction between master and referee. The late Judge Arnold pointed out:*" "Since we have two officers in such cases, one the referee to decide who are entitled to the prop- erty and the other the master to divide it, this confusion will occur, besides the double charges for the fees of said officers. When the title and interests of the parties are correctly set forth in the bill and are admitted in the answer there is no necessity for a referee. A decree for partition will be made on the bill atid answer, and a master will be appointed to make the partition." 16. Practice under the Supreme Court rules. Under the Supreme Court rule and the act of 1885, before the master can be appointed there must be a judgment quod partitio Hat, by which the right to partition is adjudged, and the parties and their respective rights and titles are settled.* After this judgment a writ of error was granted by act of April 5, 1842 ; and the plaintiff could not be nonsuited." 17. Reference to master. Section 2 of the act of July 7, 1885, P. L. 257, provides : "Whenever a bill shall hereafter be filed in any court having the jurisdiction of Courts of Equity, in cases of partition, it shall be lawful for the said court, after a decree for partition'" shall have been made, to refer the cause to a master, or a master and commis- sioner, to decide and partition the lands and tenements into purparts, "Locher v. Beyer, 218 Pa. 574. ""Slifer V. Slifer, 34 C. C. 107. "Stockham v. Stockham, 185 Pa. 337. ''Enyard v. Enyard, 24 C. C. 319. "Holmes v. Fulton, 193 Pa. 270. ^Lancaster v. Flowers, 9 D. R. 241 ; 198 Pa. 614. "Rainey v. Frick Co., 8 D. R. 144; MacMunn v. Haverkamp, 8 D. R. 680; Lyons v. Lyons, 10 D. R. 594. "Mitchell V. Harris, 2 Clark 443. " Quod partitio fiat, in the action at law. 366 EQUITY PRACTICE IN PENNSYLVANIA. and to value the same and to ascertain the amounts that shall be paid, or charged thereon for owelty, or which shall be paid or secured to the parties to whom no purparts can be allotted in the manner now authorized by law, under writs of partition issued out of the courts of common law. And the said master, after such partition and valuation has been made, shall award and allot the said purparts to and among the parties entitled, together with the sum to be charged thereon and payable as for owelty of partition,"* and when the premises cannot conveniently be divided into as many purparts as there are parties entitled, to award and allot the amount or sum to be paid or secured to them respectively, and the times when such payments shall be made, and the purparts out of which the same shall be payable." Where the master receives bids, which he is not required to do, he may charge the land with defendant's share and no bond need be taken from the plaintifif who took the land at his bid. If the master searched the record for liens and found none, notice will not be required, if there is no proof that there were creditors." 16. Duty of court on master's report. Section 3 of the act of 1885, supra, provides : "It shall be the duty of the court, upon the report of the said master or master and commissioner's being returned to examine the same; and it shall be lawful for the court to refer the same for alteration or correction, or to set aside the report and direct a new partition and valuation, and, when such report shall be approved, to confirm the same, and direct conveyances to be made whenever such conveyances are requisite for the purpose of vesting a complete legal title to the purparts in the parties to whom the same shall be allotted." Under this section the court has power to pass upon the existence or non-existence of a trust."* "The legal title is before the court and conveyances can be ordered if partition be decreed. There is no need therefore, for a bill of revivor against the heir, and as for the doctrine of disseisin and descent cast, although it might have to be considered if this were a partition at law, it has no place here." "^ Where not all the parties have been joined and the plaintiff acquires title, his vendee may file a bill in the nature of a revivor joining all the parties." 17. Amendments. After demurrer, the court may give leave to amend by adding the widow and prayers for decree quod partitio Hat, and general relief." If parties have been omitted judgment for partition may be vacated and leave be given to amend. Section i of the act of June 26, 1895, P. L. 381, provides that when it appears that one of the defendants is a lunatic and has no " See Owelty "Partition," vol. 3, Johnson. ™ Monroe v, Monroe, 26 Supr. C. 47. '" Chadwick v. Stroud, 27 C. C. 393. '"'Allison J. in Kelsey's Ap., 113 Pa. 119. °° Holmes v. Fulton, 193 Pa. 270; see Holmes v. Woods, 168 Pa. 530. '^ Cowan's Ap., 2 Mona. 609. ""Hancock v. Watson, 9 D. R. 113. PARTITION. 367 committee, the court shall appoint a committee ad litem and Section 2 regulates the giving security. 18. Functions of master. The amended Equity rules do not change the functions of master in partition; his appointment is of right after judgment quod partitio ■Rat, whether adverse or confessed.*" His duties are not only to value and divide the property but to call before him the parties, allot the purparts, dispose of questions of owelty and the manner of securing the same, in short, to complete the whole partition." A master, once appointed is an officer of the court. A motion to vacate his appointment is not of course. Notice must be given to the parties and a hearing had in accordance with rule yy, Equity.^ 19. Covenants out of possession may recover share of rental. The act of June 24, 1895, P. L. 237, provides: "That in all cases in which any real estate is now or shall be here- after held by two or more persons as tenants in common, and one or more of said tenants shall have been or shall hereafter be in possession of said real estate, it shall be lawful for any one or more of said tenants in common, not in possession, to sue for and recover from such tenants in possession his or their proportionate part of the rental value of said real estate for the time such real estate shall have been in pos- session as aforesaid; and in case of partition of such real estate held in common as aforesaid, the parties in possession, shall have deducted from their distributive shares of said real estate the rental value thereof to which their co-tenant or tenants are entitled." 20. Effect of confirmation of partition. Section 4 of the act of 1885, supra, provides: "Whenever a decree confirming a partition as aforesaid shall have been or shall be made, such decree shall have the same effect as a judgment of a court of law, in like cases, that the partition remain firm and stable in vesting the title to the purparts in the parties re- spectively and in severalty to whom such purparts shall have been or shall be allotted." 21. Sale when partition cannot be made. Section 5 of the act of 1885, was amended by the act of July 14, 1897, P. L. 268, so as to read as follows : "Whenever a bill shall have been or shall hereafter be filed in any court having equitable jurisdiction in cases in partition, and the mas- ter or the master and commissioners to whom the proceedings have been or may be referred have reported or shall hereafter report that the lands or tenements cannot be divided without prejudice to or spoil- ing the whole, and the parties in interest have refused or shall here- after refuse to take the same at the valuation, or if the master or the master and commissioners have reported or shall hereafter report that the parties in interest, or either or any of them, have refused to take any purpart or purparts at the valuation thereof, then, in such case, " Hasson v. Hasson, 8 D. R. 297 ; Ellis v. Ellis, 8 D. R. 722. " Honnett v. Thompson, 37 Pitts. L. J. 103. " Gibbon's Ap., 104 Pa. 587. 368 EQUITY PRACTICE IN PENNSYLVANIA. the said court may order the master to make sale of such purpart or purparts, or of the whole, so reported, to have been refused, at public auction, giving like notice that is required in sales under proceedings in partition in common law courts." By act of May 22, 1895, P. L. 114 the court may order a private sale, or approve, ratify and confirm a private sale if satisfied that under all the circumstances a better price can be obtained. When it has been ascertained that the property cannot be divided without loss, the master may call upon the parties interested for bids, or to accept or refuse it at the valuation, and if they take no steps, upon report, the court will order a sale.^ A party is bound by his agreement that the land cannot be divided and will not after sixteen months' delay be permitted to rescind.*" Title is divested only when the deed is delivered and the purchase money paid."^ 22. Protection of the widow. The act of March 16, 1905, P. L. 42, provides: "That whenever, upon a bill for the partition of real estate, filed in any court having equitable jurisdiction, the land or any purpart thereof shall be adjudged to any party, or an order shall be made for the sale thereof, the court, in the order or orders made in the premises, shall make such provisions as may be necessary to secure the interest of any widow in her deceased husband's estate therein, in such manner that she shall receive, semi-annually or annually, the income therefrom to which she shall be entitled, to be collected by distress or action at law ; and that, upon her decease, the principal shall be paid to the party or parties entitled thereto; and such income and principal shall remain charged on such land or purpart until the decease of such widow, and until paid or otherwise discharged: Provided, That upon agreement by such widow, filed and entered of record, such land or purpart may be sold, discharged of her interest therein." 23. Approval of sale — deed — ^bond. Section 6 of the act of 1885, supra, provides: The master to whom the said order shall be directed, shall make return of the sale to the court wherein the said order was issued, and, if the same shall be approved, the court shall make an order or decree directing the master to make a deed of the property sold, to the purchaser or purchasers, upon the purchase money being paid or secured to be paid according to the terms of the sale. And before the said deed shall be made and delivered, and before the purchase money, or securities shall be received by the said master, he shall give bonds to the Commonwealth for the use of the parties interested, in such sum as the court may direct, for the due payment and faithful application of the proceeds of the sale to be received by^him. And it shall be the duty of the said master to make distribution thereof amongst the several parties and report the same to the court afore- said." " Palethorp v. Palethorp, 198 Pa. 395. "Black v. Black, 216 Pa. 116. ■"a Stanton v. Stanton, 40 C. C. i. PARTITION. 369 24. Proceedings to obtain possession. Section 2 of the act of March 16, 1905, P. L. 42, provides: "The party to whom such land or any purpart thereof shall be adjudged or sold may proceed to obtain possession thereof, in like manner as if the same had been sold by virtue of any execution." This is regulated by act of April 20, 1905, P. L. 239, for practice and forms under which see Vol. 2, Johnson, P. 504. 25. Fonn of bill. In the Court of Common Pleas of County, sitting in Equity. Between : Eva McDonald, Plaintiff, and James McDonald, Florence McDonald and Annie Moore, and her husband, Joseph Moore. To the Honorable the Judges of said Court : Your oratrix complains and says : 1. That she and the parties named as defendants above, together and undivided, do hold the following described real estate, situate in said county, which is all of the real estate which they so hold, to wit : [Here describe each parcel separately.] 2. That the title of said parties is derived from (here set out whether by deed, will or descent, quoting, if by will, and stating all the necessary facts to show a clear title in common). 3. That the names and residences of the parties in interest, who, as here stated, are all of the parties interested in said land, are as follows: (Here give all the names, and if married, the names of spouses, if minors, their ages and the names of their guardians, and if lunatics the names of committees. If there are minors withouf guardians, guardians ad litem will be appointed ; and if lunatics with- out committees, committees ad litem will be appointed, upon whom service shall be made.) 4. That your orator desires to have partition made of said land, and that the parties may hold their respective shares in severalty, and the parties hereto have refused to make partition thereof. Your oratrix therefore prays: 1. That the defendants above named may be required to appear and answer the matters hereinbefore complained of by your oratrix. 2. That said real estate be partitioned according to the act of July 7, 1885, and its supplements, and divided among the respective parties, in severalty. 3. That if such allotment cannot be made, without prejudice and injury to the parties, then that a decree be made that the same be sold b)' the master and the proceeds divided, as the interest of each party may appear. Vol. 4 Practice — ^24 370 EQUITY PRACTICE IN PENNSYLVANIA. 4. Such other and further relief as to your honors shall seem meet and equitable. , Solictor for the plaintiff. 26. Form of notice to defendants to appear. Rule 4 of the amended Equity rules of the Supreme Court requires every defendant to be served with a printed copy of the bill (unless the law has provided otherwise), with a notice endorsed thereon in this form: To (name of defendant) : You are hereby notified and required, within fifteen days after service hereof on you, to cause an appearance to be entered for you in the Court (of Common Pleas of the county where the lands lie), to the within bill of complaint of the within named (name of plain- tiff), and to observe what the said court shall direct. You are also notified that if you fail to comply with the above directions by not entering an appearance in the prothonotary's ofiice within fifteen days you will be liable to have the bill taken pro confesso, and a decree made against you in your absence. Witness my hand at Honesdale, in Wayne County, Pa., this day of , A. D. 19 — . Solicitor for the plaintiff. Law office at No. street, [Or No. in Building or Block in large cities.] 27. Form of notice to answer. Under rule 5 of the Supreme Court, if the plaaintiff desires he may in such notice add "and to file your answer within thirty days," after the request for an appearance, and the same words after "fifteen days" in the notice that on default judgment will be taken pro confesso. 28. Service of bill. Service of the bill shall be made personally upon all defendants within the jurisdiction. This being a proceeding affecting real estate, where there are minors concerned service must be made as provided in actions real, by sections 79 and 83 of the act of June 13, 1836, P. L. 572 (Johnson's Pr., Vol I, P. 403, Par. 26). Under this act, if the minor be over 14 years of age, service shall also be made upon him, as well as his guardian, and if he have no guardian a guardian ad litem shall be appointed on petition setting forth the facts. (See also rule 7, Supreme Court, Equity.) If defendant be a lunatic and have no committee the proceedings shall be according to the act of June 26, 1895, P. L. 381, which per- mits service upon the next of kin of such lunatic, in the first in- , stance; but on the day that plaintiff might take judgment by de- fault were the defendant of sound mind, he must apply to the court for the appointment of a committee ad litem, who shall be notified and act, in law, for said lunatic. 29. Service beyond the jurisdiction. If the defendant resides beyond the jurisdiction an affidavit stating where he resides and a petition praying for leave to have service PARTITION. 371 made at such place may be presented to the court, which will, if proper, make an order as follows: Now, to wit, day of , A. D. 19—, it appearing by affidavit filed that , a defendant named in the bill, resides at , and on motion of , plaintiff's attorney, it is ordered that the bill of complaint in this cause and a copy of this order, cer- tified by the prothonotary, be served upon at the place named, or wherever he be found, and that compliance with the re- quirements of this bill be made within days after such service; and that any further process or notice required in the cause be served in like manner, and that compliance with the requirements thereof be made within the like period. Affidavit of service to be made be- fore any one authorized by law to administer an oath or affirmation. Per cur. 30. Service by publication. Where the residence of a defendant is unknown, an affidavit that after diligent inquiry, his whereabouts remain unknown, will be sufficient to base an order for publication, with the same effect as if served personally. 31. Form of order for publication. [Title as above.] Now, to wit, March 12, 1909, it appearing to the court by the af- fidavit of Eva McDonald, the plaintiff in this bill, that the names and residences of the parties interested in the premises mentioned in the bill of complaint as owners of an individed two-fifths part thereof, after diligent inquiry, remain unknown to her, the court on motion of William R. Follmer, Esq., attorney for the plaintiff, do order that notice of this proceeding be given to said parties by publication once a week for six successive weeks before the return day of the said writ in the and weekly newspapers published and printed in said county, and that in default of an appearance within days after the last publication the bill may be taken pro con- fesso, as against said person; and that any further process, rule, order, notice or decree, of which service is required, may be made in like manner, with a like period of time for compliance therewith. Per cur. Before any further order can be taken affidavit of the publishers, with a copy of the advertisement, showing compliance with the order of publication, must be filed in the cause. 32. Form of decree pro confesso, quod partitio fiat. Title of case ( N°- ^""^ '^^'■™' ^ $ , cash. , general partner, , $ (when and how). limited liability, , $ (when and how). limited liability, , $ (when and how). [If the name of a limited partner appears in the firm name, the word "Registered" must be added.] Witness our hands this day of , A. D. 19 — . At . 406 EQUITY PRACTICE IN PENNSYLVANIA. 70. Liability of special partner. Section 3 of the act of 1899, provides : "No member of any such partnership thus formed, recorded and published, whose liability is stated as intended to be limited in the manner hereinbefore set forth, shall be liable for its debts under any circumstances, saving to the extent of the amount of his or her subscription, with interest on unpaid subscriptions from the date or dates at which the same became actually due and payable. Pay- ment of the amount of the subscription of such member of the partnership, with interest as aforesaid, shall exonerate such partner from all further liability. A partner or partners whose liability is thus limited shall not be precluded from transacting business with or for the partnership." 71. Organization, by-laws, etc. Section 4 of the act of 1899, provides: "It shall be lawful for said partnership to adopt such by-laws, rules and regulations as a majority of the number in interest of the part- ners, from time to time, may prescribe for the regulation of the affairs of the partnership. Official positions for the transaction of the business of the partnership may be constituted by such by-laws, rules and regulations, and the powers and duties of the respective officers prescribed therein. The partners may provide that certain only of the members shall have active charge of the business and be authorized to enter into contracts, undertakings or engagements whereby the partnership shall be held liable, and may change the same as they see fit. It shall be optional with the partnership, if such provision be made, to state the same in the original articles of part- nership, or in amendments thereto, or in any statement subscribed by the partners. If the partners shall desire, any such statement may be acknowledged, and may be recorded in the office of the said recorder of deeds. The partnership may at its option, adopt and use a common seal." 72. Posting^ list of partners and reference to record. Section 5 of the act of 1899, provides : "It shall be the duty of said partnership to keep posted in the place designated as its principal office or place of business, in some place therein accessible to the public during business hours, a plainly written or printed list of the partners with the amount of capital subscribed by each, the amount paid in by each partner, and in the case of any partner whose liability is limited, the words "Limited Liability" shall be added to his name where it appears in such list. This notice shall also state the volume and page of the record of the articles of partnership in the office of the recorder of deeds. If on the signs used by the partnership or if on any bill-heads, letter-heads or other publications of the partnership, the names of the several partners should be stated, the words "Limited Liability" shall be added to the name of the partner whose liability is limited in the way herein provided. A violation of any of the provisions of this section shall be a misdemeanor. Each member of the partnership who shall participate in such violation shall be liable to prosecution for such misdemeanor, and upon conviction, shall be sentenced to pay a fine PARTNERSHIPS AND ACCOUNTS. 407 of not less than one hundred dollars, and not more than five hundred dollars, for each violation of the provisions of said section." 73. False statement a misdemeanor. Section 6 of the act of 1899, provides : "If any partner whose liability is limited in the manner herein provided, shall obtain credit, money, goods or other valuable thing by a false statement to the effect that he is a general partner, he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be sentenced to pay a fine of not less than one hundred dollars and not more than five hundred dollars." 74. Character of partnership interest — chang:e of owners — publication not required. Section 7 of the act of 1899, provides : "Interest in said partnership shall be personal estate and may be transferred, given, bequeathed, distributed, sold or assigned, under such rules and regulations as may, from time to time, be prescribed by a vote of the majority in number and interest of the partners; but, in the absence of such rules and regulations, the transferree of any such interest shall not be entitled to participation in the sub- sequent business of the partnership unless elected as a partner therein by a vote of the majority in number and interest of the remaining partners. And any change of ownership, whether by sale, death, bankruptcy or otherwise, which shall occur in the absence of such rules and regulations, and which shall not be followed by election to member- ship, shall entitle the owner or transferree to the book value of the interest so acquired, as ascertained and fixed, as hereinafter provided, at the last period preceding the date at which the member parted with or lost his interest, with interest from such date. It shall be the duty of the partnership at the close of each calendar year to ascer- tain and fix the book value of the several interests, a copy of which statement shall be delivered to each partner, and this settlement shall be conclusive and final upon all members of the said partnership, and upon all subsequent owners or transferrees of any interest. The tranfer of any interest, however occurring, shall not dissolve the partnership, nor shall said partnership be dissolved by reason of the death of one or more of the partners, unless the articles of association shall prescribe to the contrary. In case of a change in the members of the partnership by reason of death, transfer or otherwise, it shall not be necessary to make any publication of the fact thereof." This section has a number of features partaking of the character of a corporation, and entirely different from a limited partnership created under the act of 1836. 75. Expiration and renewal. Section 8 of the act of 1899, provides: "If at the expiration of the time fixed for the duration of the partnership, if any time be so fixed, the persons then constituting the partnership shall desire to renew the same, they may do so by articles specifying the fact of such renewal and the length of time fixed for the duration of the renewed partnership. Such agreement of 4o8 EQUITY PRACTICE IN PENNSYLVANIA. renewal shall be recorded and published in the way and manner here- inbefore provided in the case of an original partnership." 76 Seal estate, manner of acquiring, holding, etc. Section 9 of the act of 1899, provides: "The partnership may tdie, hold, mortgage, incumber, lease or convey, in fee simple, or for any less estate, real estate or interests therein, in the firm name. The place of record of the articles of partnership shall be stated in all instruments of writing relating to real estate, but failure so to state shall not invalidate the instrument. Any instrument relating to real estate may be signed or sealed by one or more of the partners for the partnership and in the partnership name, if the by-laws, rules or regulations shall so provide, but in case less than all the partners are vested with this power the fact shall be stated in the original articles of partnership or in amend- ments thereto, or in a statement duly signed and acknowledged by the partners and recorded in the office of the said recorder of deeds. 77. Dissolution and liquidation — ^notice. Section 10 of the act of 1899, provides : "Partnerships may be dissolved at any time by a vote of the majority in number and interest of those who at such time shall constitute the partnership, unless the aricles of association shall provide to the contrary. In case of dissolution for any cause, whether by expiration of the period fixed for the partnership or otherwise, notice thereof shall be published in one newspaper pub- lisched in the county designated as the place wherein the principal office or place of business is located, for six consecutive issues, and immediately upon the commencement of said advertising said part- nership shall cease to carry on its business, except so far as may be required for the beneficial winding up thereof. In case of dissolution, one or more liquidating partners sliall be elected by a vote of the majority in interest of the partners, who shall have full power, and be charged with the duty of settling the affairs of the partnership and distribution of the assets thereof after payment of its debts among the partners in proportion to their interest." If partners for six years after dissolution of the firm neglect to take steps to ascertain the balance between them, the statute of limitation may be pleaded in bar. A bill of review after twenty-one years cannot avail. 78. Suits by and against partnersMp. Section 11 of the act of 1899, provides: "The partnership shall sue and be sued in the partnership name, and not by or in the individual names of the partners. Service in case of suit may be had upon any partner in the county designated as that in which the principal office or place of business, of the partnership may be located. If no partner can be served in such county, service may be made upon any one or more of the partners in any county of the Commonwealth in which service can be had." This section provides for a different practice than that in regard to general partnerships and limited partnerships under the act of 1836, "" Borland's Ap., 234 Pa. 280. PARTNERSHIPS AND ACCOUNTS. 409 where the names of all the partners must be set out fully in the praecipe, writ and pleadings, if known, or registered. If the part- nership has complied with the act of 1899, a suit against the individual partners is wrong and the proper mode of objecting is not by plea in abatement but by motion to quash.^ The property and franchise of a limited partnership, under act of May 9, 1899, P. L. 261, may be sold under a A. fa. as provided by the act of April 7, 1870, P. L. $8.<^ 79. Form of Disso'lution of general partnership. Whereas, by agreement made the tenth day of August, A. D. 1906, and , of , did enter into copartnership, for the purpose of carrying on the business of merchandising, for the term of two years: — And whereas, the said , wishing to discontinue and de- cline the joint partnership entered into as aforesaid, he, the said , hath proposed to his said partner, , a dissolution, to which proposition the said hath assented: — The parties therefore mutually consent and agree, by these presents, that the said partnership heretofore existing between them be this day dissolved, and it is accordingly dissolved. And it is further stipulated and agreed mutually between them that do take the entire stock of goods and merchandise now on hand, belonging to the partnership, at a valuation to be set upon the same by three competent persons mutually appointed to value the same; and that he also have power to collect the debts now due to the partnership, and to recover all and any part of the same, in the name of the firm, by suits at law or otherwise. And that finally, the said do pay over to the said , or his legal representative, the full share and profits which shall appear to be due to the said , in six months after the date thereof. Witness our hands and seals, the first day of July, A. D. 191 1. Sealed and delivered in presence of . L.S.] L.S.] L.S.] 80. Form of notice of dissolution of general partnership. Notice is hereby given that the partnership lately subsisting be- tween Irl Hicks and James Spencer, of Lewisburg, Pa., under the firm name of Hicks & Spencer, expired on the 19th day of July, A. D. 1911 (or was by mutual consent or otherwise dissolved). All debts due said firm are to be paid to and recived by Irl Hicks, and all demands on the said firm shall be presented promptly to him for payment. Irl Hicks, James Spencer. ' St. R. Pub'g Co. V. Connor, 29 C. C. 236. See this case for effect of plea in abatement. ^Keystone Bank v. Donnelly, 21 D. R. 621. 4IO EQUITY PRACTICE IN PENNSYLVANIA. 81. Porm of notice of dissolution of limited partnership. Notice is hereby given that the limited partnership heretofore existing at , in the business of , has been mutually dis- solved and that in accordance with section lo of the act of May 9th, 1899, and the by-laws of said firm, of , was by a vote of the majority in interest of the partners duly elected liquidat- ing partner, who is charged with the duty of settling the affairs of the partnership to whom all claims shall be presented and all debts due shall be paid. Dated, . , 82. Executions against partnership property. The act of April 8, 1873, P. L. 65, provides for a special form of execution to sell partners' interests in partnership property which must be followed.' The act does not create a new remedy but en- larges one that previously existed.* If an ordinary fi. fa. is issued against a partner, it will be controlled by the court so that it will not be used oppressively .° If a H. fa. issues against a partner for his individual debt and afterwards one issues for a partnership debt the latter takes priority as to partnership interests.' In such case the firm property cannot be levied,' but only the interest of the partner, and the purchaser takes only what is left after the partnership is settled, which gives him a standing in Equity to call for an account.' As to attachment execution see Vol. 2, Johnson's Pr., P. 435, Par. 38. 83. Form of prseeipe to levy partner's interest. If the execution be desired as against an individual partner's in- terest in a firm, the praecipe may be in the following form : George B. Winship f Court of Common Pleas, Monroe V. \ County. George H. Walsh. ( No. , Term, 19 — . Issue H. fa. commanding the sheriff to levy upon the interest of George H. Walsh in the firm of M. H. Jewell & Co. returnable Burke Corbet, Plaintiff's Attorney. Date, , . If defendant has other property liable to execution a general fi. fa. may issue with directions to levy generally on defendant's property and specially upon the partnership interest. ' See vol. 2, Johnson's Pr., p. 349. ' Hare v. Comth., 92 Pa. 141 ; Kaines' Ap., 92 Pa. 273. ' * Dengler's Ap., 125 Pa. 12 ; Wise v. Vosburg, 4 Supr. C. 221. ' Little v. Lane, 15 W. N. C. 380. "Richard v. Allen, 117 Pa. 199; Doner v. Stauffer, i P. & W. 198. ' Balliet v. Stever, 6 Northam. 197. ' McCrossin v. McCrossin, 2i C. C. 3Z- PARTNERSHIPS AND ACCOUNTS. 411 84. Fartnership property. Whatever form of partnership, the property constituting the com- mon stock belongs to the partners equally. They may contribute money, goods, real estate, knowledge of the business, skill, or what- ever, by their agreement they value as an interest." But if one contributes the money and another the skill and is paid a salary, if all is lost, the latter must pay one-half the money to the former.'" Land may be partnership property although held in an individual's name, as between partners;" but when so held and the partner dies, complications may result which will estop the partners from alleging it." The safer course is to take the property in the partnership name as indicated supra. If an error is made in a conveyance to a surviving partner, under order of the Orphans' Court, the deed may be set aside and a proper deed executed to the partnership." The point to be met is that the deed shall not create a tenancy in common, so that separate creditors would prevail over partnership creditors." The doctrine of conversion of realty into personalty is carried out only so far as necessary for the purposes of the partnership." Upon renewal of a partnership, where one furnishes the capital and the other the "experience," this capital will still belong to the one who furnished it, and at. his death goes to his estate." The current profits descend under the intestate law as personalty." Where there is a complication of facts, the unraveling of them belongs to the jury." A lease to partners, as for mining, etc., is a chattel real, although not recorded in the name of the partnership." An unex- pired leasehold is a part of the assets of the firm," and carries with it the expectancy and right of renewal." 85. Firm name, goodwill, etc. The firm name is a thing of value, if properly protected. If it be an assumption of corporate character which does not exist, it is a fraud upon the public and not within the protection of the law.*" When the partnership is ended and a sale of the property for distri- bution made, the purchaser does not acquire an absolute right to use the late name. He can only claim to be successor."" A partner who " Everly v. Durborrow, 8 Phila. 93 ; Rowland v. Miller, 7 Phila. 362. "Emerick v. Moir, 124 Pa. 498; P. & L. Dig., vol. 15, col. 25801. "Marren v. Wallace, 56 Pitts. L. J. 93; Cundey v. Hall, 208 Pa. 335. "Marshal v. Foltz, 221 Pa. 570; Higgins v. Higgins, 216 Pa. 397; P. & L. Dig., vol. IS, col. 25802; Cundey v. Hall, 208 Pa. 335; Slammer's Ap., 58 Pa. 168. "Nimick's Est., 179 Pa. 591. " Pontius V. Walls, 197 Pa. 223. "Welles' Ac, 191 Pa. 239; Sweeney v. Horn, igo Pa. 237; Foster's Ap., 74 Pa. 391 ; P. & L. Dig., vol. 15, col. 25833, et seq; Moore v. Moore, 153 Pa. 495. "Raffert/s Est., 18 Phila. 14. "Leafs Ap., 105 Pa. 505. " Heere v. Penn. Natl. Bank, 160 Pa. 314. "Chamberlain v. Dow, 16 W. N. C. 532; Brown v. Beecher, 120 Pa. 590. "° Eaton's Ap., 66 Pa. 483. '"Johnson's Ap., 115 Pa. 129. "" McNair v. Cleave, 10 Phila. 155. ^'Chesterman v. Seeley, 5 D. R. 757. 412 EQUITY PRACTICE IN PENNSYLVANIA. sells out his interest and goodwill, is not estopped from using guardedly his former connection with the firm. Such transfer, in the absence of an agreement in restraint, does not prevent a partner from engaging in the same business in the same town." A master's finding that a goodwill after dissolution had no value, confirmed by the court, will not be reversed." A license to use a name which had no value at the time, may become irrevocable when the licensee has made it valuable.^' A trade-mark, registered in the joint names of the firm, belongs to each member equally, and when one dies if it is not sold as an asset, the survivor and the legal repre- sentative of deceased may each use it.'* 86. Interest of partner in common property. The interest which a partner has in the partnership property is the proportion of the surplus after payment of all the partnership debts, which the agreement secures to him.^' Therefore, only such re- sultant interest, ascertainable by account can be sold by execution,"" under an ordinary H. fa. notwithstanding the act of April 8, 1873, supra.^ His interest cannot be attached for his individual debt." A party who acquires a partner's interest, unless by agreement with the other partners, acquires only the right to an account." A pledge or assignment of a share in a projected partnership is valid in Equity in favor of the pledgee as against other creditors of the pledgor." 87. Good faith among partners. The relation of partners requires the utmost good faith, fair co- operation and harmony, each protecting the interest of the others in the common property. So a partner must not use the firm property for his own advantage and to the detriment of his copartners." But a partner may reserve his right to transact business independently in the same line," and after dissolution, the mutual tie is at an end." " Wiederhold v. Holtzman, 27 Pitts. L. J. 33. "White v. Trowbridge, 216 Pa. 11. *■ Lyons v. Lyons, 207 Pa. 13; " Harris v. Brown, 202 Pa. 16. ^ Lewis v. Smith, 8 C. C. 327; Laughman's Ap., 128 Pa. i. ^Leisenring v. Black, 5 Watts 303; Taylor v. Henderson, 17 S. & R. 453; Manhattan Ins. Co. v. Webster, 59 Pa. 227; Nixon v. Champion, 29 Leg. Int. 76; Brown v. Beecher, 120 Pa. 590; Oliver's Est., 136 Pa. 43. " Kreamer v. Smith, 215 Pa. 330. "Wanamaker v. Buchanan, 33 Supr. C. 138. "^ Gushing v. McKenna, 51 Pitts. L. J. 373. "Baker's Ap., 21 Pa. 76; Wallace's Ap., 104 Pa. 559; P. & L. Dig., vol. IS, col. 25854. "Collins' Ap., 107 Pa. 590. ""Page V. Vankirk, 6 Phila. 264; Devall v. Burbridge, 6 W. & S. 529; Katz v. Johnson, 178 Pa. 346 ; McCutcheon v. Smith, 173 Pa. 101 ; Mer- chant's Etc. Bank v. Baeder Glue Co., 164 Pa. i. " Coursin's Ap., 79 Pa. 220 ; Lefever v. Underwood, 41 Pa. 505 ; Laf- ferty's Est., 181 Pa. 51; Smyth v. Glendenning, 194 Pa. 550; Eureka Knitting Co. v. Snyder, 36 Supr. C. 336; P. & L. Dig., vol. 15, cols. 25877, et seq. "' Kelley v. Shay, 206 Pa. 215. "Browne v. Scull, 27 Supr. C. 513. PARTNERSHIPS AND ACCOUNTS. 413 88. Compensation of partner. In the absence of an agreement in terms a partner is not entitled to compensation for services.'" It is hard to establish such agree- ment by parol." 89. When acts of one bind all. The general rule with regard to the act of one partner's binding the firm, is that the act is within the scope of the partnership busi- nes and done in good faith.*' It may be the case that a partner as manager of the business is invested with agency, and in such event, he may generally transact the business of the firm, and borrow money, for the use of the firm ;*" execute a note for firm purposes in the firm name." This right may, however, be limited in the articles, but if it is not prima facie it will be held to have been done in the scope of the business." It will also be necessary to show that the transac- tion was such as to put the party dealing with the partner upon notice.* The general rule is that a partner can only bind himself by the execution of an instrument under seal, unless the others authorize him or assent thereto." Where a partner signs and seals a note con- fessing judgment, in the firm name, with the assent of another partner, the latter is bound, and his assent may be proved by the usual methods of proof.' One partner may confess a judgment against the firm for a firm debt which will bind the firm property, but no more,' unless the other partners assent and ratify.' 90. Receipt of money for the firm. Each partner has a right to receive money due the firm and such payment is a discharge. So payment of a partnership debt by a partner is payment for all.' A partner has a right to receive pay- ments until he is enjoined.* " Lindsay v. Stranahan, 129 Pa. 635 ; Delp v. Edlis, igo Pa. 25. "Helb V. Hake, 203 Pa. 626. "Crawford v. Willing, 4 Dallas 286; Hoist's Ap., 74 Pa. 166; Hale v. Hale, 33 C. C. 526 ; Doyle v. Longstreth, 6 Supr. C. 475 ; De Temple v. Rorhbach, 4 Berks Co. 210 ; Canfield v. Johnson, 144 Pa- 61 ; Garabrant v. Wood, 4 Supr. C. 291. For cases illustrating the principle see P. & L. Dig., vol. IS, col. 25893 et seq. "Hoskinson v. Eliot, 62 Pa. 393; Guillou v. Peterson, &9 Pa. 163; P. & L. Dig., vol. IS, col. 25903-5 et seq. "Mitchell V. Beatty, i Phila. 133; Chatham Natl. Bank v. Gardner, 31 Supr. C. 13s ; Merchant's Etc. Bank v. Gardner, 31 Supr. C. I43- " Ridge Ave, Bk. v. Bruner, 24 Lane. L. R. 172. "Kensington Natl. Bank v. Ware, 32 Supr. C. 247. See P. & L. Dig., vol. IS, cols. 25926, et seq., for a variety of cases within or without the rule. * P. & L. Dig., vol. IS, col. 25940-9 ; Schmertz v. Shreeve, 62 Pa. 457. ' Myers v. Sprenkle, 20 Supr. C. 549 ; P. & L. Dig., vol. 15, col. 25950-63. 'McCleery v. Thompson, 130 Pa. 443; Boyd v. Thompson, 153 Pa. 78. 'Miller v. Royal Flint Glass Works, 172 Pa. 70. *Hoge v. Rush, 173 Pa. 264. "Tyson v. Pollock, i P. & W. 375- "Brown v. Gray, 17 Supr. C. 563. 414 EQUITY PRACTICE IN PENNSYLVANIA. 91. Dormant partners. Whilst a dormant partner is in the firm he is liable on all contracts made during such time,' as a participant in the profits.' 92. Married woman. A married woman, as a member of a partnership is subject to the same liabilities, rights and duties as any other member.' 93. Majority rule. The minority of a firm must yield to the majority, when acting in good faith, within the scope of the partnership.'" 94. Contribution and subrogation. When a partner has paid more than his share of losses he is en- titled to contribution;" and one who contributed no money may become liable to contribute to pay the losses." In some cases a solvent partner may have to make up the deficit caused by an insol- vent one." Subrogation applies where the agreement gives the rjght to one partner who pays a debt or claim, to demand a share from the other;" but not where the accounts are unsettled and the rights unascertained." 95. Rights of creditors to the firm property. The right of creditors to have the firm property first applied to the payment of firm debts, springs from the nature of the partnership engagement, which is called the Equity of the members." There is no such relation where persons hold land as tenants in common;" nor where one partner sells his interest to the other and all are insolvent." Creditors who are not partners are preferred to those who are part- ners." And the claims of partnership creditors, in execution, will take priority in right, though later in time as against individual creditors."" If the property is individual property, the rule is different." 'Hill V. Voorhies, 22 Pa. 68. ' Graeff v. Hitchman, 5 Watts 454 ; Callender v. Robinson, 96 Pa. 454. °Loeb V. Mellinger, 12 Supr. C. 592; Little v. Hazlett, 197 Pa. 591. '" Peacock v. Cummings, 46 Pa. 434 ; Clarke v. Slate Valley R. Co., 136 Pa. 408; Markle v. Wilbur, 200 Pa. 457. ■^ Erben v. Heston, 202 Pa. 406, distinguishing Bunting v. Bunting, 199 Pa. orj. " Yohe v. Barnet, 3 W. & S. 8i ; Emerick v. Moir, 124 Pa. 498 ; Bren- ner V. Carter, 10 D. R. 457. "Magilton v. Stevenson, 173 Pa. 560; P. & L. Dig., vol. 15, col. 26018-20. " Brown v. Black, 96 Pa. 482 ; Scott's Ap., 88 Pa. 173. "Bailey v. Brownfield, 20 Pa. 41; Fessler v. Hickemell, 82 Pa. 150; Knouf's Ap., 91 Pa. 78. "Doner v. StaufFer, 1 P. & W. igS; Snodgrass' Ap., 13 Pa. 471; Deal V. Bogue, 20 Pa. 228; Baker's Ap., 21 Pa. 76; Bullitt v. Chartered Fund Etc., 26 Pa. 108; Manhattan Ins. Co. v. Webster, 59 Pa. 227; Bixler v. Kresge, 169 Pa. 405; Stewart's Est., 193 Pa. 347; P. & L. Dig., vol. 15, col. 26031. " Cundey v. Hall, 208 Pa. 335. "Hogg's Est., 219 Pa. 486; P. & L. Dig., vol. 15, col. 26031-2. " Babb v. Reed, 5 Rawle 151 ; Datesman's Ap., 77 Pa, 243 ; P. & L. Dig., vol. IS, col. 2604s; Gazette Pub'g. Co. v. McMurtie. 7 Supr. C. 617. ^Coover's Ap., 29 Pa. 9; King's Ap., 9 Pa. 124; Kountz's Ap., 18 Pitts. L. J. si; Richard v. Allen, 117 Pa. 199; P. & L. Dig., vol. 15, col. 26053, et seq. "'Scull's Ap., 115 Pa. 141. PARTNERSHIPS AND ACCOUNTS. 415 96. Set-off. Since a partner cannot pay his own debts with firm money without the assent of his copartners, a debtor of the firm cannot set-off his claim against a partner, without the assent of the other members.^ An express agreement does not seem requisite, for knowledge and acquiescence are sufficient assent.'' A claim against the firm cannot be set-off against a partner's individual demand.''* But where a suit is brought by a surviving partner in winding up the business a set- off against the late firm is allowable,'" except where the claim is the surviving partner's separate estate." Without assent, a member of a firm cannot set-off the debt due the firm against an individual suit against him."' But a surviving partner may set-off a partnership claim against a suit for his individual debt, because he has the sole settlement and accounting for the late partnership.'" Where several partners are sued, they may set-off separate claims against the plain- tiff.''' A new firm may set-off a debt to the old firm against a claim made under employment of the new, where the parties are virtually the same.*" A deposit in bank assigned to a copartner, when the bank has failed, may be set-off against a promissory note of another partnership whereof defendant is a member, sued upon by said bank.'" An attachee cannot set-off his claim against a partnership after one of the partners has died against an attachment of the debtor's assets in his hands."" An unascertained belance alleged to be due from one member of a firm to another on an unsettled ac- count is not available as a set-off in an action by one partner on the individual promissory note of the other.'' Nor can a partner set-off his claim on his firm against his debt to a third party." 97. Dissolution. A partnership may be dissolved by operation of law, on the death of a member, unless the articles provide for a continuance,'' in ^Archer v. Dunn, 2 W. & S. 327; Fargo v. Brown, 4 Leg. Gaz. 197; Todd V. Lorah, 75 Pa. 155 ; Norcross v. Benton, 38 Pa. 217. '"Leonard v. Smith, 162 Pa. 284; P. & L. Dig., vol. 15, col. 26070. ^ McDowell V. Tyson, 14 S. & R. 300 ; Milliken v. Gardner, 37 Pa. 456 ; Jackson v. Cl3fmer, 43 Pa. 79. "'Bentz v. Bentz, 95 Pa. 216, obiter in opinion. Sec. 3, Act April it, 1848, P. L. 536; Blair v. Wood, 108 Pa. 275. '" Walker v. Eyth, 25 Pa. 216. "Wrenshall v. Cook, 7 Watts 464; Burke v. Maxwell, 81 Pa. 139; Caldwell v. Hartupee, 70 Pa. 74; Montz v. Morris, 89 Pa. 392; P. & L. Dig., vol. IS, col. 26074. '^ Craig v. Henderson, 2 Pa. 261; Henderson v. Lewis, 9 S. & R. 379. " Stewart v. Coulter, 12 S. & R. 252 ; Hurst v. Johnston, 6 Phila. 593. '" Cochran v. Cutler, 18 Supr. C. 282. " Jack V. Klepser, ig6 Pa. 187. "" Crammond v. Bank of U. S., 4 Dallas 291. "Appleby v. Barrett, 28 Supr. C. 349; Roberts v. Filler, 13 Pa. 265; P. & L. Dig., vol. IS, col. 26080; Klase v. Bright, 71 Pa. 186; Riley v. Eigo, I Supr. C. 139; Book v. O'Neil, 2 Supr. C. 306; Skiles v. Houston, no Pa. 2S4. " Trunich v. Gilchrist, 81* Pa. 160. "^ Little V. Hazlett, 197 Pa. S9i ; Smith's Est., 11 PHila. 131; Powell's Ap., 2 Supr. C. 618. "Gratz V. Bayard, 11 S. & R. 41, distinguished in Gandy v. Dickson, 166 Pa. 422 ; Laughlin v. Lorenz, 48 Pa. 27s. 4i6 EQUITY PRACTICE IN PENNSYLVANIA. which case the court will not interfere on a bill in Equity or other- wise." Where one deals with a partnership and a member dies, the former is presumed to have notice of such death and the consequent dissolution."* Where the articles provide in detail for the con- tinuance they are binding."' A partnership is also dissolved by the sale or assignment by a partner of his interest, unless otherwise pro- vided in the articles." In order to ratify a transfer all the partners must join." Where the vendee agrees that the vendor may continue until his interest is paid, the other partners cannot enjoin him from so continuing.*' The articles of agreement govern.'" The withdrawal of a partner works dissolution ;" so also the sale of the entire partner- ship property;* or assignment for the benefit of creditors by the firm; or by a member of the firm." But where the joint transactions are incompleted, an assignment does not work immediate dissolution ;" or where the partner's interest has been levied upon." A sheriff's sale of the partnership effects is a dissolution f but mere insolvency is not.^ The partners may by their acts and conduct continue beyond the term fixed in the articles.^ Where articles provide for forfeiture upon failure to perform certain acts, there can be no forfeiture, un- less all the causes required be fully and clearly made out. The bur- den is upon him who invokes forfeiture.' Courts will not decree a dissolution, where the articles clearly provide the manner of ending a partnership,'' and when they do dissolve, they will take care to pre- serve the business with Equity to all parties." Where complainant in the bill is himself guilty of fraud he cannot invoke Equity to dis- solve for fraud." Slight causes will not move Equity;' but where one partner obstructs the business, as by refusing access to the books. " Leaf's Ap., los Pa. 505 ; First Natl. Bnk. Etc. v. Farmer's Etc. 5 Cent. R. 505; Evans v. Watts, 192 Pa. 112; Brew v. Hastings, 196 Pa. 222. ■"Little v. Hazlett, 197 Pa. S9i. "'Robinson v. Floyd, 159 Pa. 165; Campbell v. Floyd, 153 Pa. 84; P. & L. Dig., vol. IS, col. 36089, for other related cases. "Cochran v. Perry, 8 W. & S. 262; Horton's Ap., 13 Pa. 67; Powell's Ap., 2 Supr. C. 618; Gwinn v. Lee, 6 Supr. C. 646; Swoope v. Wakefield, 10 Supr. C. 342. '" Cochran v. Perry, supra. " Markle v. Wilbur, 200 Pa. 457. *■ Foster's Est., 55 Pitts. L. J. 65. " Mason v. Connell, i Wharton 381 ; Slemmer's Ap., 58 Pa. 168 ; Rob- inson V. Floyd, IS9 Pa. 165; McConomy v. Reed, 152 Pa. 42; Becker v. Hill, 20 Lane. L. R. 345. "'Welles' Ac, 191 Pa. 239. "McKelvey's Ap., 72 Pa. 409. " Graham's Est., i Del. Co. 393 ; i Chester Co. 301. " Pleasants v. Meng, i Dallas 380. "Horiacher v. Bertolet, 12 Lane. L. R. 17. ™Harkins v. Buxton, 11 D. R. 159- ■ Siegel V. Chidsey, 28 Pa. 279. " Mifflin V. Smith, 17 S. & R. 165. 'Patterson v. Silliman, 28 Pa. 304. 'Stibich V. Goenner, 8 D. R. 227; Page v. 'Vankirk, 6 Phila. 264. ' Slemmer's Ap., 58 Pa. 168. •Horlacher v. Bertolet, 12 Lane. L. R. 17. '■Whelen v. Harrison, 16 Phila. 143. PARTNERSHIPS AND ACCOUNTS. 417 dissolution will be decreed.' Where a partner is adjudged a lunatic, it is equivalent to dissolution, and debts contracted after that cannot be collected from the lunatic's estate.'* 98. Notice of dissolution. The statutes and forms of dissolution have been given supra, under the different kinds of partnership. Where notice is given as prescribed by law, that is sufficient. But when the law prescribes no form or manner of notice actual notice must be given to the person concerned, even though notice be given in the newspapers.' The cases turn upon -what is actual and sufficient notice, under the circumstances. Where there is a change of firm the duty to notify persons who deal with it, is upon the outgoing member, especially if he seeks to avoid the doc- trine of equitable estoppel, as to his liability." The notice must be brought home to the individual." The mailing of registered letters ■which require the receipt of the person to whom sent is the best way to give notice, but mere mailing of letters is not of itself complete proof." But the death of a partner is held to be presumptive notice. The proof of change of firm and that the party knew of such change when he acted must be furnished;" but it may consist of circumstances in the transactions of the firm." Where notice is averred and denied, it is a question for the jury." Upon the question of notice declarations of the parties at the time are admissible in rebuttal." A witness may refresh his recollection by reference to the books and the advertise- ment. All the related circumstances are competent evidence" for the iury. 99. Effect of dissolution. Although, as between the partners, a firm may be dissolved as a "working entity, its relations to third parties and the contracts made and obligations assumed, may call for its continuance." So, even, after death of a partner, the contracts may continue;''" or after dis- 'Gowan v. Jeffries, 2 Ashmead 296; P. & L. Dig., vol. 15, col. 26104 et seq. 'a Fornof's Est., 60 Pitts. L. J. 225. • P. & L. Dig., vol. IS, col. 26107 et seq; Williamson v. Fox, 38 Pa. 214 ; Robinson v. Floyd, 159 Pa. 165, distinguishing Campbell v. Floyd, I S3 Pa- 84. "Newcomet v. Brotzman, 69 Pa. i8s. "Kenney v. Altvater, 77 Pa. 34. "Kenney v. Altvater, supra; Little v. Clarke, 36 Pa. 114; P. & L. Dig., vol. IS, col. 261 13 et seq. " Darling's Est, 7 Kulp 323 ; Herron v. Wampler, 194 Pa. 277 ; 198 Pa. 77. "U. S. V. Hegeman, 21 Supr. C. 459. " Powell V. Derickson, 178 Pa. 612. "Daniel v. Lance, 29 Supr. C. 4S4. "Little V. Clark, 36 Pa. 114. "Brown v. Clark, 14 Pa. 469. "Forrest v. Wain, 4 Yeates 337; P. & L. Dig., vol. 15, col. 26123, for cases illustrative; Spencer v. Emery, 8 Lack. L. N. 278; Marcy v. Hag- gerty, 28 C. C. 33S. "Johnson v. Judge, 16 Supr. C. 137. But see Murdock v. Martin, 1J7 Pa. 203. Vol. 4 Practice — 27 4i8 EQUITY PRACTICE IN PENNSYLVANIA. solution." The late partners cannot bind each other by a new promise after the dissolution, nor are they agents for each other except in the course of liquidation.^ But in the latter case each partner may receive payment of a debt due the firm and give an acquittance or release. Delivery to one partner, as per contract, is delivery to the firm, even after dissolution." But he can receive money only as agent for the firm and according to the contract; and must not appropriate it to his own use.^ A debtor who has notice of a dissolution and that one partner alone is authorized to settle the partnership, will not be discharged, if he pays to another.''" Where a partner agrees that his copartner shall collect all debts and settle the business, he cannot interfere afterwards, unless such agreement is rescinded.^' In settling up the partnership a partner may give a note for a debt it owes,^ and if one who has ceased to be a partner utters a fraudulent instrument which passes into the hands of an. innocent holder for value, and without notice of his withdrawal, the firm is bound." But one partner cannot confess a judgment which will bind the late firm. It will be good only against himself.** Where all the debts are paid the court may divide the property in specie, if a sale would give one partner an advantage in the bidding." After dissolution a partner cannot by assent toll the statute of limitations so as to bind his copartners.*" Where a partner withdraws and gives personal notice, the suit must be brought within six years from such withdrawal." Dissolution revokes a power of attorney to act for the firm"* and ends a covenant in consideration of the part- nership."* A dormant partner need give no notice of withdrawal, as he is not supposed to be known or credited as a partner, and he is only liable for debts contracted while he is a partner." 100. Semedy for wrongful dissolution. For wrongful dissolution the form of action is now assumpsit." The measure of damages is the actual value of the plaintiff's in- terest in the business when it was dissolved.™ The reasonable and "Jarecki v. Hays, i6i Pa. 613. ^McCahan v. Smith, 9 Supr. C. 318; Reppert v. Colvin, 48 Pa. 248; McKelvejr's Ap., 72 Pa. 409; P. & L. Dig., vol. 15, col. 26127. " Riddle v. Etting, 32 Pa. 412. "Kenney v. Altwater, "jy Pa. 34. "'Kutz V. Naugle, 7 Supr. C. 179. " Clark V. Reed, i W. N. C. 44. " Esterly v. Bressler, 15 Supr. C. 455. ™ Petrikin v. Collier, i Pa. 247 ; Ward v. Tyler, 52 Pa. 393. '" Potts v. Taylor, 140 Pa. 601 ; Meyran v. Abel, 189 Pa. 215. "Mair v. Beck, 2 Atl. 218; McCleery v. Thompson, 130 Pa. 443. " Kelly V. Shay, 206 Pa. 208. ■"Levy V. Cadet, 17 S. & R. 126; Searight v. Craighead, i P. & W. 135; KauflFman v. Fisher, 3 Grant 302; Wilson v. Waugh, loi Pa. 233; Mc- Cahan v. Smith, 9 Supr. C. 318. "Robinson v. Floyd, 159 Pa. 165. " Schlater v. Winpenny, 75 Pa. 321. ""Mebane v. Anwyl, 6 Kulp 323; P. & L. Dig., vol. 15, col. 26140. "'Armstrong v. Hussey, 12 S. & R. 315; Shamburg v. Ruggles, 83 Pa. 148; Shamburg v. Abbott, 112 Pa. 6; Rowland v. Estes, 190 Pa. iii. "" Addams v. Tutton, 39 Pa. 447; McCoUum v. Carlucci, 206 Pa. 312. "° Reiter v. Morton, 96 Pa. 229. PARTNERSHIPS AND ACCOUNTS. 419 probable pecuniary loss should be considered as well as the profits probable.'' 101. Rights and powers of liquidating partner. The one who, after dissolution settles up the business, sells the property, collects the dues, pays the debts and accounts, is the liquid- ating partner.*" To him are committed all powers necessary to ef- fectuate the purpose, but no new powers."' Where a debtor of the firm is shown to be insolvent the liquidating partner should not be surcharged.^" If an administrator of a deceased partner misapplies funds of his estate by way of liquidation he and all concerned are liable.°^ The services of the liquidating partner cannot be charged for unless the contract permits it." A liquidating partner may bind the firm in an executory contract for the purpose of liquidation, but no other.°° It is his first duty to reduce all property of the firm into a condition for the payment of debts and distribution of the balance. If he sells he should do so at public sale." He will be compelled to account," but he will not be charged for "goodwill," where he con- ducts a business independently at the place of liquidation.™ A liquidating partner who takes the stock without appraisement and carries on the business in his own interest is liable for the value of the stock at the date of dissolution." A surety on a bond given by such partner is liable for the value of the assets at the execution of the bond, and if a receiver is appointed, at the time of such appointment." 102. Bights and powers of surviving partners. The surviving partner, when the firm is dissolved by death and there is no provision to continue the business has the sole right to settle the partnership accounts, without intermeddling by the ad- ministrator of the decedent.* The survivor may sue for the claims in his own name.' He is entitled to the custody of the partnership books.' He is entitled to at least one year to close up the business.* A surviving partner who enters into new contracts with the funds of the partnership must answer for their safety, and, if he has " Becker v. Hill, 20 Lane. L. R. 345. ""Garretson v. Brown, 185 Pa. 447. "Davis' Est, 5 Wharton 530; P. & L. Dig., vol. is, col. 26147, et seq. "Lyons v. Lyons, 207 Pa. 7. "Hibberd v. Hubbard, 211 Pa. 331; 338. ^ Stockdale v. Maginn, 207 Pa. 226. "Riddle v. Etting, 32 Pa. 412; Jack v. McLanahan, 191 Pa. 631. " Nixon v. Champion, 29 Leg. Int. 76. "Gyger's Ap., 62 Pa. 73; Eaton's Ap., 66 Pa. 483. " Musselman's Ap., 62 Pa. 81. " Hay's Ap., 91 Pa. 265. " Delo v. Banks, loi Pa. 4S8. 'Shipe's Ap., 114 Pa. 205; Holden v. McMakin, i Parsons 270; Seybert V. Robinson, 2 D. R. 403. 'Davis V. Church, I W. & S. 240; Hill v. Prescott, i W. N. C. 25. 'Stief's Est, 10 D. R. 446. 'Kalbfell's Est., 47 Pitts. L. J. 273; 17 Supr. C. 255. As to rights of survivor .under agreement to purchase at a valuation, see Rohrbacher's Est., 168 Pa. 158. 420 EQUITY PRACTICE IN PENNSYLVANIA. profits, share them." The rate of interest is six per cent.' If he acts in good faith, however, he will not be dealt with too strictly.' If not pressed to account, for more than six years, the statute of limitations applies,' though its running may be tolled by acknowl- edgments and references.' A surviving partner, in the absence of contract authority is not entitled to compensation for settling the partnership,"" unless there are special circumstances rendering it just and equitable to allow it." If there is an agreement, of course, it will be enforced," and it may be by parol." A surviving partner has been allowed compensation without such agreement where in wind- ing up the business he did it at a profit." He is presumed to wind up the business at once and as fast as the nature of it permits." A partner who has sold his interest is entitled to compensation;" and so is the son of a liquidating partner on proof of promise to pay." The necessary expenses of settlement are payable." In winding up a mercantile business, purchases made to enable the partner to dis- pose of it to the better advantage will be allowed. Where the partner was also administrator of his deceased partner charge of commission was disallowed;^ but under exceptional circumstances it was allowed,"' and also where the terms of the will warranted it." If any compensation be allowed to an executor it must come out of the general partnership assets.'" Where the articles of partner- ship give the survivor a right to take the whole business at a valua- tion to be made in a prescribed manner, a Court of Equity will not change the agreement.'* For construction of a deed purporting to convey, but not conveying partnership assets and lands see note." If the executor of a deceased partner is sued with the survivor, the error is amendable."* " Brown's Ap., 89 Pa. 139. ' Pickens' Est., 16 Phila.. 354. 'Herron v. Wampler, 194 Pa. 277; 198 Pa. ^T, Fidelity Etc. Co. v. Bell, 188 Pa. 637; Sutcliff v. Mariner, 202 Pa. 557. 'Guldin V. Lorah, 141 Pa. 109; Hamilton v. Hamilton, 18 Pa. 20; Mc- Kelvy's Ap., 72 Pa. 409; Everhart's Ap., 106 Pa. 349. ' Shellmire's Ap., 70 Pa, 281. "Beatty v. Wray, 19 Pa. 516; Brown v. McFarland, 41 Pa. 129; Brown's Ap., 89 Pa. 139; McCullough v. Barr, 145 Pa. 459; P. & L. Dig., vol. 15, col. 26170. " Zell's Ap., 126 Pa. 329. "Garretson v. Brown, 185 Pa. 447; McCullough v. Barr, 145 Pa. 459; Herron v. Wampler, 198 Pa. "jy. "Shirk's Ap., 3 Brewster 119. "Musselman's Ap., 62 Pa. 81. ''0'^feill V. Duff, II Phila. 244. "Lacy v. McLean, i W. N. C. 508. "Galbraith's Est., 12 Phila. 20. "Brown v. McFarland, 41 Pa. 129; Musselman's Ap., 62 Pa. 81; Meskill V. Stratton, 7 Phila. 395; People's Union Bank of Newville, 16 W. N. C. 127; Book V. O'Neil, 2 Supr. C. 306. "Kalbfell's Est., 44 P'tts. L. J. 210. "Pickens' Est., 16 Phila. 354; Smith's Est., 37 Pitts. L. J. 33. " McCullough V. Barr, 145 Pa. 459. =■ Allen's Ap., 125 Pa. 544. '" Miller's Ap., 18 W. N. C. 485. " Kauf mann v. Kaufmann, 222 Pa. 58. "Jackson v. Gunton, 218 Pa. 275. , '"a Justice T. Scranton, 13 Lack. Jur. 29. PARTNERSHIPS AND ACCOUNTS. 421 103. Liability of new partner. The liability of one partner for the acts of his copartner is im- plied from the general agency within the scope of the partnership business and an incoming partner is not liable for anything that antedated his membership of the firm unless he expressly assumes that relation and burden when he enters f nor can he be made liable by the endorsement by an old partner of the new firm name on a note for an old firm debt." The assumption of the old debt must be clear and it must be the undertaking of the new partner by some act or acceptance which is undoubted. A new member of a co-opera- tive company is presumed to know its by-laws and is bound by them;" and the same applies to the articles of a partnership."" The time of delivery and credit becomes important sometimes; and so of a deposit of money by a retiring member, with the new firm to pay an old firm debt, this being a trust which must be executed by the new firm."^ Where the partners are tenants in common as to a land contract, the interests are not subject to partnership rules,"* and the wife of a partner acquires her rights in the realty which JEollow the fund on sale of the land." 104. Bigfhts and liabilities of retiring partner. The rights of a retiring partner are measured largely by his con- tract on retiring; but if there be some consideration not therein passed, as, for example, a subsequent recovery of damages which were sustained and accrued during the copartnership, the remaining partner must divide the same with the one who has retired." The agreement controls if carried out in good faith." If the evidence is conflicting the question is properly left to the jury." Where the retiring partner stipulated in his agreement that the remaining part- ner shall pay firm debts an action upon the contract is the only means of enforcing the obligation.*' The Equity among the partners gov- erns, and that is to have the assets of the partnership applied to the debts of the firm." Where the partner retiring agrees to have lands held as tenants in common made available for the debts the land is " Bewley v. Tarns, 17 Pa. 48s ; Babcock v. Stewart, 58 Pa. 179 ; Sham- burg V. Ruggles, 83 Pa. 148; Shamburg v. Abbott, 112 Pa. 6; 121 Pa. 443; Kountz V. Holthouse, 85 Pa. 23s; Ash v. Werner, 12 Supr. C. 39; Mor- rison's Ap., 93 Pa. 326. " Riegel v. Irvin, 4 W. N. C. 537- "Christy v. Sill, 131 Pa. 492; Clarke's Ap., 107 Pa. 436; Powell's Ap., 2 Supr. C. 618; White v. Thielens, 106 Pa. 173; Earon v. Mackey, 106 Pa. 452 ; Adams v. Leeds Co., 195 Pa. 70 ; 189 Pa. 544. , "'Logan v. McNaugher, 88 Pa. 103; Swoope v. Wakefield, 10 Supr. C. 342. *°Zaepfel v. Baumgardner, 6 Lane. Bar 141. "Johnston v. Warden, 3 Watts loi; Scottin v. Stanley, l Dallas 129; Babcock v. Stewart, 58 Pa. 179. *■ Fries v. Ennis, 132 Pa. 195. "Lefevre's Ap., 69 Pa. 122. " Harris v. Rosenberg, 161 Pa. 367. "° Blackiston's Ap., 81* Pa. 339. "Wilson V. Fenimore, 3 Atl. 795. "Draucker v. Arick, 161 Pa. 357. "Bullitt V. Chartered Fund Etc., 26 Pa. 108. "Prow's Est, 73 Pa. 459. 422 EQUITY PRACTICE IN PENNSYLVANIA. virtually pledged for that purpose and can be made available in equitable ejectment and by conditional verdict." Where a retiring partner seeks to cancel the contract on a claim of fraud, he must tender a return of the money paid him and place the other partners in statu quo ante.*^ An agreement to retire, which is without con- sideration and covinous in purpose will be cancelled, on a bill." The rule that a release of a partner by a firm creditor must be based upon a good and lawful consideration cannot apply, where the debt was created after the creditor had notice of the partner's having re- tired from the firm.'" Upon an agreement to pay the retiring part- ner profits on goods to be sold, but not yet paid for, the action is assumpsit." Former partners who are compelled to pay debts of the partnership cannot be paid out of funds in the hands of a receiver on a subsequent dissolution.*" Where the remaining partners assume the debts, the retiring partner is still liable as surety for the payment of the firm debts due at his withdrawal, and he will not be released by forbearance or extension of time." So a promise made to release a retiring partner, by a creditor, without a legal consideration is nudum pactum, unenforcible." But the old partner may be released when the creditor accepts the obligations of the new firm for his claim;* this, however, being a matter of intent and understanding under the circumstances." An agreement without consideration, to give time to pay to the continuing partner does not release the re- tiring one." Junkin, P. J., said:" "A parol promise of a partner, in purchasing the interests of copartners, with the consent and approval of the remaining partners, to pay all that the retiring partners are or shall be liable to pay, and to take their share of the profits, ex- tinguishes the liability of the retiring partners to make contribution to losses, releases them as original debtors, and substitutes the liability of their assignee, and it is not collateral to the liability of another, but original, and not within the statute of frauds." An agreement made with one partner to give a bonus is a personal engagement which binds him and not the firm.™ A partner, who upon retiring covenants not to engage in the same business in the same place is bound and will be enjoined from so engaging, although it is a partial restraint of trade.^ A retiring partner is not liable for debts of the new firm contracted with one who knew that the had retired.' An affidavit of defense averring such a state is sufficient.' " Biddle v. Moore, 3 Pa. 161. " Lyle V. Shay, 165 Pa. 637. "McGinnis v. Fink, 198 Pa. 404. " Scrantonian v. Brown, 36 Supr. C. 170. ■" Farrell v. Young, 26 Supr. C. 135. " Stockdale v. McGinn (No. 2), 207 Pa. 227. " Campbell v. Floyd, 153 Pa. 84; as to this shifted relation see Shamburg V. Abbott, 112 Pa. 6; American Bank's Ap., 153 Pa. 98. "Walstrom v. Hopkins, 103 Pa. 118; Clark v. Brooks, 19 W. N. C. 333. "Kaufman v. Kaufman, 2 Woodward 98; Laucks v. Martin, 20 W. N. c. 93. "Kimberiys Ap., 7 Atl. 75. "• Wood V. Rhoads, 24 W. N. C. 124. " Rupp V. Teihl, 3 Leg. Op. 312. " Rigby V. Oppenheimer, 12 Supr. C. 97. ^ Cooper V. Edeburn, 198 Pa. 229. ' Hartley v. Kirlin, 45 Pa. 49. ' Rhoads v. Fitzpatrick, 166 Pa. 294. PARTNERSHIPS AND ACCOUNTS. 423 105. Sights, powers and liabilities of remaining partners. After dissolution by withdrawal the remaining partner has the right of exclusive control of the property and assets for the purpose of paying the debts and closing the business.* This right even extends to an assignment of the property for his own debt.° The liability of the remaining partner to pay the debts of the firm, when he so agrees, may be enforced by the retired partners.' The suc- cessor is entitled to the protection of the lien of a judgment given by the firm as collateral, until the payment of a balance due on a renewal of one of the notes admitted to have been covered by the collateral note.' The continuing partners must account to the re- tiring, for assets as of the time of his withdrawal,' when they con- tinue the business with such assets." But when they carry on busi- ness with their own capital they are not liable for profits." A con- tract of a surety for a continuing partner that he will pay all debts of the late partnership and save harmless the retiring partner is severable, upon which separate actions may be brought on distinct assignments of breaches." As to liability of continuing partner to third party on his assumption of the debts, see note." 106. The right to account. The right to account is an incident of every partnership, nor can it be defeated by negligence of demandant in the conduct of the partnership." It is not satisfied by an answer to the bill, that there will be no balance due the plaintiff; for the account is the only way to demonstrate that fact." But if the articles provide for continuance for a term of years, notwithstanding the death of a partner, an ac- count cannot be demanded by the legal representatives, until the term has expired." The account must show in detail the assets and property at the dissolution ; what was done with them ; the debts and liabilities ; what debts were paid and what amounts, with vouchers; and if a balance how much; if losses, what, since the partners must share the losses proportionally. If the remaining partner makes up a statement, not an account, showing the status as it appears to him at the time it will not have the force of an account stated so as to fix liability by acquiescence, when the other partner files a bill for an account." 'Horton's Ap., 13 Pa. ()T, Wilson v. Black, 164 Pa. 555; Clark v. Wilson, 19 Pa. 414. 'Baker's Ap., 21 Pa. 76; Powell's Ap., 2 Supr. C. 618; P. & L. Dig., vol. IS, col. 26207. "Miles V. Everson, 123 Pa. 292; Case v. Cushman, 3 W. & S. 544; Thropp V. Richardson, 132 Pa. 399; P. & L. Dig., vol. 15, col. 26210, et seq. 'Adair v. Decker 34 Supr. C. 153. ' Parker v. Broadbent, 134 Pa. 322. "Waring v. Cram, I Parsons 516; Fithian v. Jones, 12 Phila. 210. "Plumly's Ap., I Mona. 177. " Wolf V. Welton, 30 Pa. 202. " P. & L. Dig., vol. IS, col. 2621S, et seq. "Bradly v. Jennings, 201 Pa. 2473. " Bradley v. Jennings, supra. "Brew V. Hastings, 206 Pa. ISS. "Adams v. Hubbard, 221 Pa. 511. See form of bill, answer, etc., infra. 424 EQUITY PRACTICE IN PENNSYLVANIA. If the business is illicit a bill for an account will not lie;" and where the agreement is executory and does not constitute a partner- ship, the party has his remedy at law." It is not a necessary con- comitant of a bill for an account that the partnership should be dis- solved. Judge King," examining all the English Chancery cases, found a clash of authority there, but the later cases took the posi- tion that in Equity a partner might demand an account by bill, with- out dissolving the partnership f and accordingly the English rule last declared was adopted in Pennsylvania. In order to sustain a bill the accounts must be mutual,'" unless it be a bill for discovery of pertinent matter.^ In order to sustain a bill it must show that the defendants had capital invested as well as the plaintiff." A partner who has withdrawn and has a contract of indemnity must sue on his contract: he cannot file a bill." A withdrawing partner, under his agreement, may give notice, and demand an account.'' A trust relation is not a partnership and a bill for account does not lie." Where one partner dies, the onus is on the survivor, and he must account: he cannot require the legal representative of the deceased member to account." If a partner as an individual sells goods to his firm, he cannot have account but must sue the firm as a distinct legal entity.^ 107. Liability to account. A liquidating partner is bound to state an account for his copart- ner regardless of the latter's conduct,'* unless it appears of record in the proceeding that the affairs are all settled up and no account is necessary."" A mere financial assistant to a partner cannot be joined in a bill," but the husband of a partner who is also general agent and treasurer of the partnership."* The bill may be sus- tained by the testimony of the plaintiff and the circumstances." A pending reference to ascertain the balance is a continuing admis- sion of a liability to account."* When the defendant admits in his " Vandegrift v. Vandegrift, 35 C. C. 389. "Bunyea v. Robinson, 9 Del. Co. 12; Hoffman v. Hoffman, 53 Pitts. L. T. 43. Hudson V. Barrett, I Parsons' Ca. in Ch. 414. ""Wallworth v. Holt, 4 Mylne & Craig 619; Richardson v. Hastings, 7 Beavan 301 ; Fairthorne v. Westen, 3 Hare's Ch. R. 387. " Parker v. Broadbent, 134 Pa. 322. ^''Balliet v. Stever, 6 Northara. 197. "'Brenner v. Brenner, 9 D. R. 511. " Clarke's Ap., 107 Pa. 436. "' Houghtaling v. Brinckle, 7 D. R. 518; Yoos v. Doyle, 4 Lack. L. N. 128. " Brenner v. Brenner, 9 D. R. 511 ; Keller v. Keller, 26 C. C. 443. "Miller v. Coffman, 16 W. N. C. 423; Quinn v. Quinn, 8 Del. Co. 257; Wylie's Ap., 90 Pa. 210. " Krall v. Forney, 182 Pa. 6. "Wilson V. Keller, 195 Pa. 98; Kent v. Norcross, 9 D. R. 754, ""Harkins v. Buxton, 11 D. R. 159., " Dilworth v. Kennedy, 49 Pitts. L. J. i ; 201 Pa. 388. ""Bradly v. Jennings, 201 Pa. 473. "" Dilworth v. Kennedy, 201 Pa. 388. " Shelmire's Ap., 70 Pa. 281. PARTNERSHIPS AND ACCOUNTS. 425 answer that he is an "equal copartner," it does not preclude his showing that a third person has a claim against the firm, for which he is liable." An account will be awarded where an attachment execution issued, but a final decree will not be entered until the proceedings are ended on the attachment;" but where there is ap- parently nothing to account for but "a barren ideality," no account will be decreed. ' Upon a bill for discovery, accounting by partners and to compel payment of amount found due, when it appears that one of the parties to the original transaction was not joined, and there was nothing to show that he had withdrawn and that a sub- stitution was made, his relation to the firm becomes material and a decree for account will be reversed with a procedendo and the plain- tiff directed to amend his bill by making such party a defendant, or his bill be dismissed." A bill will lie where there is a dispute as to the proportion of profits each is entitled to;" or where a cancella- tion of contracts and accounting is demanded." 108. Form of bill for account. T«i,„ n.,;., A^ot^e f In the Court of Common Pleas No. John Qumcy Adams I ^_ ^^^^^^ ^^ Philadelphia, f In the Court of J 4, County of '. J Sitting in Equity (_ June Term, 1896 -George L. Hubbard, et al. \ ^^\:^,^; n,. ,,, To the Honorable the judges of said court: John Quincy Adams, of Atco, County of Camden, State of New Jersey, brings this bill against George L. Hubbard, [names of all defendants]. And thereupon your orator complains and says: I. That on the first day of June, 1876, George K. Hubbard, John Quincy Adams and Edwin Halpen, entered into a copartnership for the term of four years, and at that time articles of partnership agreement were signed of which your orator has no copy, the original being in the possession of the defendant. At the expiration of said term by verbal agreement the partnership existing between the above named parties, was continued for a period of two years, to wit: from June first, 1880, to June first, 1882. On the first day of June, 1882, articles of copartnership were signed by the above named George K. Hubbard, John Quincy Adams and Edwin Halpen, for a period of one year. At the expiration of said term Edwin Halpen withdrew from the partnership receiving the sum of $15,500 for his interest. On June ist, 1883, by verbal agreement the part- nership between George K. Hubbard and John Quincy Adams was continued, trading under the firm name of George K. Hubbard & Co., until December ist, 1892, at which time your orator retired from the firm, which said firm was then dissolved, except so far as was necessary for final liquidation and settlement of the business. An agreement was entreed into at this time between your orator and "Nichols V. English, 3 Brewster 260. "Lyons v. Lyons, 199 Pa. 302. "Lafferty v. Lafferty, 174 Pa. 536; Merzlac v. Barbie, 49 Pitts. L. J. 314; Keller v. Swartz, 137 Pa. 65; Fitzsimmons v. Robb, 193 Pa. 518. " Heck v. Collins, 231 Pa. 358. "Frazer v. Linton, 183 Pa. 186. "Boyd V. American Etc. Co., 182 Pa. 206; P. & L. Dig., vol. 15, col. 26230. 426 EQUITY PRACTICE IN PENNSYLVANIA. George K. Hubbard, a copy of which is hereto annexed and marked "Exhibit A," whereby George K. Hubbard was to continue the business and certain terms were made in reference to the settlement of your orator's interest in the said partnership which will fully appear by reference to the annexed agreement. II. The partnership between George K. Hubbard and your orator extended over a period of sixteen and one-half years continuously from June first, 1876, until June first', 1882. Your orator's interest in the accounts of said firm date from nine months previous to June first, 1876, as the firm of George K. Hubbard & Company bought the business from Joseph Wilkins & Company which said company commenced business September first, 1875. III. Your orator further showeth that after he retired from the said firm December i, 1892, the business was continued by George K. Hubbard, now deceased, and the above named defendant who formed a partnership trading under the firm name of George K. Hubbard & Company which said new firm of George K. Hubbard & Company agreed to take the stock in trade and book accounts of the old firm, of which your orator was a member, an inventory of said stock being made; the stock of the old firm was taken by the new firm at an aggregate price or valuation of upwards of $41,000 and certain stock rebates, etc., were left for George K. Hubbard to the best advantage at a valuation of about $5,000. IV. The books of account have been and are now in possession of the new firm and there has been no settlement nor account rendered to your orator, although he has often requested the same to be done and has also requested the books of account of the old firm of which he was a member to be delivered to him, which has not been done. V. Your orator further shows that in April, 1895, George K. Hubbard died and that he has never made any settlement with your orator, nor rendered an account for your orator's interest in the partnership of the old firm of George K. Hubbard & Com- pany, although often requested to do so. VI. Your orator owned certain valuable trade marks on brands of flour and corn which have been used by the new firm of George K. Hubbard & Company, whereby they have made large profits, the said trade marks being used without your orator's consent. VII. Your orator further showeth that he is informed and believes that the books of account and the assets of the old firm of George K. Hubbard & Company have been and are being changed, lost and wasted by the defendants above named. VIII. And your orator further showeth that his interest in the said partnership was three-eighths and that of the aforesaid George K. Hubbard five-eighths. IX. Plaintiff offers to pay what, if any thing, shall be found due by him on the statement of the said account." X. Plaintiff annexes and sets forth copies of the articles of copartnership mentioned in his bill, marking the same respectively "Exhibits B" and "C." "This and the next paragraph were added by way of amendment, after demurrer on these and other grounds. PARTNERSHIPS AND ACCOUNTS. 427 Wherefore your orator needs equitable relief and prays: I. That the said defendant be decreed to account to your orator for all stock in trade, moneys, and assets received by said defendant belonging to the old firm of George K. Hubbard & Company, of which your orator was a member and that an account be taken of all and each of the said partnership transactions. II. That the said defendant may be decreed to pay to your orator what, if any thing, shall upon the stating of said account, be found to be due him by the said defendant. III. That the said defendant may be decreed to account for and pay to your orator what is due for the use of the aforesaid trade marks. IV. And further that your orator may have such further and other relief in the premises as to your honorable court shall seem meet. J. Quincy Adams, Complainant. J. Barton Rettew, Wm. J. Wagenknight, Solicitors for complainant. 109. "Exhibit A" agfreement of dissolution. This agreement made the 30th day of December, 1892, between George K. Hubbard and J. Quincy Adams, heretofore trading to- gether under the firm name of George K. Hubbard & Company, is wholly dissolved, except so far as may be necessary for the final liquidation and settlement of the business thereof. It is agreed and understood that the said George K. Hubbard shall continue the business heretofore carried on by the late firm of George K- Hubbard & Company; that he shall take, hold and keep the merchandise and partnership assets which he desires to retain and keep for that purpose at prices to be agreed upon be- tween the said parties. (This does not include the trade marks and copyrights owned by the said firm of George K. Hubbard & Com- pany.) It is agreed that the remammg partnership assets, merchandise and other property which shall not be taken and kept by the said George K. Hubbard will be sold to the best advantage of the said parties. It is agreed that the said George K. Hubbard shall take the store, fixtures and teams heretofore used by and belonging to the late copartnership for $3350. It is agreed that the said J. Quincy Adams shall retire from the said firm of George K. Hubbard and Company, and shall take an advance payment on account of the distribution to be made in final settlement of the said partnership affairs as follows: One store and contents, situated in Camden, New Jersey. . $1200.00 One store and contents in West Philadelphia for 4359.81 Cash 2140.19 It is also agreed between the parties that the premises situate at the corner of Twelfth street and Diamond street shall be valued and appraised at the sum of $3500 subject to a mortgage of $5500 and that the said J. Quincy Adams shall have the right and privilege of taking the said premises should his share of the partnership 428 EQUITY PRACTICE IN PENNSYLVANIA. assets upon final distribution exceed the sum of $3500 in addition to what has been already advanced under this agreement as before set forth, to wit, the sum of $7000. In witness whereof we have hereto set our hands and seals the day and year first above written. Signed, . 110. Form of answer to bill. [Title of case.] First. We admit that George K. Hubbard, John Quincy Adams and Edwin Halpen on the first day of June, 1876, entered into articles of copartnership, as contained in Exhibit B of complainant's amended bill. We have no knowledge of a verbal agreement continuing said partnership to the first of June, 1882. We admit that articles of copartnership were made between the said parties dated the first day of June, 1882, as appears by Exhibit C of amended bill. We have no knowledge of the withdrawal of said Halpen and receiving the sum of $15,000 for his interest, and your respondents say that if said facts are material to the issue, the said Edwin Halpen should be made a party defendant in said bill for the purpose of answering the averments and allegations contained in the same. Second. We have no knowledge other than what is set forth in the bill, of the manner in which the agreement made on the first day of June, 1883, between George K. Hubbard and J. Quincy Adams whereby the firm continued in existence until the first day of Decem- ber, 1892, and which was dissolved by the said J. Quincy Adams' retiring therefrom, except what is set forth in the bill of complaint and pray that the same may be proved. Your respondents aver and say that the said bill is defective in this that it does not set forth the terms of the said parol agreement, either as to the contribu- tion of the capital of said copartnership concern, or the interest of said partners therein or the division of the profits thereof, and they further say without proof that no accounting can be had to determine the interest of the respective partners in said copartnership. Third. [Admits Exhibit A as a true copy.] Fourth. [Admits the partnership but denies the plaintiff's interest.] Fifth. [Denies that the new firm of George K. Hubbard & Company made any agreement or had any knowledge of any inventory of goods as set forth in the third paragraph of the bill.] Sixth. [Explains how the books came into possession of the new firm and denies that no account was rendered plaintiff, etc.] The remaining eight paragraphs of the answer contain explana- tions and denials and state finally that complainant is indebted to the old firm, and concludes: And your respondents further say that if your honorable court shall decree that an account shall be taken between the said com- plainant and the said George K. Hubbard, administrator of the estate of George K. Hubbard, deceased, and it shall appear so your re- spondents aver, that the said complainant is indebted to the said PARTNERSHIPS AND ACCOUNTS. 429 copartnership, that the said complainant shall pay the costs of these proceedings. Signed, . Joseph L. Tull, Solicitor for respondents. Sworn to truth. George K. Hubbard. 111. Jurisdiction and practice. The Court of Common Pleas, sitting in Equity, has the same power in relation to partnership accounts as a Court of Chancery, as conferred by act of assembly, supra!' but if a bill does not aver a partnership expressly, it will not take jurisdiction.*" There are only these two ways to secure a partnership accounting, by bill or action of account render.** The certificate of a want of an adequate remedy at law, is no longer necessary, under the re- vised rules of the Supreme Court.'" Where one purchases an interest of a partner at sheriff's sale, in Philadelphia, it was held, the bill must be filed in the court out of which the execution issued." The remedy by bill for account as to partners in oil wells is not taken away by the act of May 6, 1891, P. L. 41, authorizing actions." Although, prima facie, on the pleadings a balance appears due to defendants, a decree for an account will be entered. In case of a deceased partner, his executors are properly made a legal party." Upon the pleadings the court will enter an interlocutory decree that the defendant is liable to account to the plaintiff, if he is so liable." If there are no assets and no accounts to settle the court may settle the equities of the parties, and decree who shall pay the losses, if any.* If there are several defendants and one answers denying the partnership, this question must first be settled; if there be no partnership, there can be no accounting.' The court may refer the books to an accountant, where they are mixed up.' But where the master and the expert book-keeper disagreed, the master's finding was sustained.* A bill is multifarious where a partnership is organ- ized into a corporation and a member joins the copartners with the receivers of the corporation.' " Elwell, P. J., in Roberts v. Dunham, i C. P. R. 136. "Krall v. Forney, 182 Pa. 6. "Sennett v. Johnson, 9 Pa. 336; Crow v. Green, iii Pa. 637; Murray V. Herrick, 171 Pa. 21; P. & L. Dig., vol. 15, col. 26232; Weigley v. Coflfman, 144 Pa. 489. ■"See rules, infra, as to form of bill. "Bryan v. Dailey, 14 Phila. 90. "Johnston v. Price, 172 Pa. 427. "Oplinger v, Oplinger, 9 Northam. 316. ■"DeHaven's Ap., 44 Leg. Int. 38. " Stibich v. Goenner. 8 D. R. 227. 'Magilton v. Stevenson, 173 Pa. 560. 'Christy's Ap., 92 Pa. 157. 'Wall v. Hughes, 49 Pitts. L. J. 95- *Lobb's Ap., 3 Walker 374. " Bovaird v. S^fang, 200 Pa. 261. See P. & L. Dig., vol. 15, col. 26237. 430 EQUITY PRACTICE IN PENNSYLVANIA. 112. Inventory and appraisement. Where, on dissolution, the partners agree to bring in and settle everything, a list of firm debts included in the settlement, will not be cause for reversal." When the agreement is to inventory the stock "at the original or wholesale cost thereof," it means the price when the goods were originally bought, whether by them or their predecessors.' 113. Account under special agreement. Where the partners agree that all property owned by either shall be owned by both in equal shares, it embraces every species of property.' One who contributes real estate may lose his right to withdraw it at the original valuation by delay, as where the buildings are destroyed, etc.* The agreement made by themselves will b'e literally enforced as a rule." 114. Capital and profits. In a partnership capital consists of shares and not stock; in a cor- poration, it is termed "capital stock." When a partnership is dis- solved and solvent, each partner is entitled to the capital he put in and his proportionate share of the unpaid profits." If one furnishes all the material capital and the other "skill and knowledge," the latter can withdraw only his contribution and one-half the profits from an equal partnership." In the absence of a particular agree- ment, the division of property is equal or in proportion to the shares put in." The burden of showing that the division was to be unequal is upon the defendant." But the written agreement cannot be altered by parol evidence." All the circumstances attending the partnership, and their transactions, alterations and construction placed upon it, will be taken into consideration." 115. Statement of account. In settling and stating an account it should be final, and, where there are three or more partners, it should show the interest and status of each so that the decree may be comprehensive and specific." But another and distinct partnership cannot be embraced," except to ascertain the interest of each partner derived from a preceding one." So, an inquiry into a general partnership following a limited one, does not authorize an examination into the accounts of the "Wright V. Smyth, 4 W. & S. 527. ' HoUoway v. Frick, 149 Pa. 178. ' McCullough V. Barr, 145 Pa. 459. 'Clarke's Ap., 72 Pa. 142. " Brooks V. Hughes, S3 Pitts. L. J. i ; Gray v. Frank, 26 Pitts. L. J. 37. " Pluml/s Ap., I Mona. 177. "Rowland v. Miller, 7 Phila. 362. "Christman v. Baurichter, 10 Phila. 115; Richard's Est., i Woodward 362 ; Cresson's Ap., 91 Pa. 168 ; Unruh's Est., 13 Phila. 337 ; Fulmer's Ap., 90 Pa. 143; Hentz v. Penna. Co. Etc., 134 Pa. 343. " Harris v. Donavan, So Pitts. L. J. 286. " Pollock V. Segel, 2 Blair Co. 3S7. " Southmayd's Ap., 8 Atl. 72. " Eaton's Ap., 66 Pa. 483 ;' Johnson v. Sale, 4 Leg. Gaz. 2. " Beeson's Ap., 2 Atl. 683. "Breneman v. Breneman, 10 Lane. L. R. 387. PARTNERSHIPS AND ACCOUNTS. 431 limited partnership." Partition cannot be considered in account." An inventory of stock taken before a sheriff's sale and found in a safe two years later is inadmissible to prove the value of a partner's interest sold at sheriff's sale." 116. Credits and charges. The manner of stating the account with credits on one hand and charges on the other is similar to any other account. Where there has been a net loss and one partner advanced all the money, he should be credited with the whole sum and charged with half the loss." Where a partner dies his estate will not be surcharged for laxity in keeping the books,- or an overvaluation, unless fraud and improper motives be shown." It requires culpable negligence to hold a partner for loss." Speculative profits will not be allowed on a share not fully paid in." The real value of real estate at the time of sale is the proper measure." So of personalty at the time of a sheriff's sale."* As between an insurance adjuster's valuation and the amount realized on a receiver's sale, the latter was accepted in one case." 117. Interest. Unless so agreed between them a partner is not generally allowed interest on money advanced for partnership purposes." But there are exceptions and courts are inclined to measure up the equities to the circumstances of each case. Interest should not be allowed, generally, before settlement." Except in cases of fraudulent reten- tion or improper application of partnership funds interest will not be charged against a partner for firm money in his hands." The date from which interest is chargeable is that of actual settlement, in general.^* One of the circumstances determining whether interest be allowed or not is whether or not the firm had the use of the money." So a partner owing his firm was held not to be liable without an agreement to pay interest;" but a partner in default has been charged interest from the time he ought have filed an account," "Tindel v. Park, 154 Pa. 36. "Baldes v. Henniges, 7 Kulp 143. " Crawford v. Shriver, 139 Pa. 239. "Finletter v. Baum, 207 Pa. 361. "Knipe v. Livingston, 209 Pa. 49; 19 Montg. 17. " Lyons v. Lyons, 207 Pa. 7 ; 199 Pa. 302 ; Fairfield v. Kreps, so Pitts. "Delp V. Edlis, 190 Pa. 25. "Crawford v. Spotz, 11 Phila. 255. " Meskill V. Stratton, 7 Phila. 395 ; Barclay's Ap., 8 Atl. 169. "Delp V. Edlis, igo Pa. 25. As to various mixed accounts see vol. 15, P. & L. Dig., col. 26249, et seq. "°Ahl V. Ahl, i86 Pa. 99. " Goodwill V. Heim, 212 Pa. 595. "Kelley v. Shay (No. 2), 206 Pa. 215; Van Loon v. Lindsay, 12 Luz. L. R 93. "Gyger's Ap., 62 Pa. 73; Grubb's Ap., 66 Pa. 117. "Carter v. Producers' Oil Co., 200 Pa. 579. ^Brenner v. Carter, 203 Pa. 75. "Magilton v. Stevenson, 173 Pa. 560; Steiger v. Bradley, 34 W. N. C. 123; Jones V. Farquhar, 186 Pa. 400, 432 EQUITY PRACTICE IN PENNSYLVANIA. or where he failed to pay his contribution." A partner in default will not be entitled to interest." But rent based on an agreement is different from interest and will be allowed a partner." 118. Costs and expenses. In Equity, costs are in the sound discretion of the court, and are generally charged to the partnership, in case of bill for account,* but they may be put on complainant when he alleges fraud and proves none;" or on the defendant when he persistently denies the partnership and refuses to account.*' A master appointed to state an account should recommend what decree should be made as to costs." A long neglected duty to account may bring upon the de- linquent the penalty of costs." The costs of an expert accountant before the master have been allowed.* As to expenses, a partner is entitled to none, prior to the partnership," nor for improvements of the firm's real estate." 119. Appeals. When defendants are mere stake holders, they have no standing to appeal from decree in interpleader dismissing exceptions to the master's report." An order for an account is interlocutory only and an appeal from it premature." A decree of dissolution and for a receiver and accounting is not a subject of appeal. There must first be an account stated and decree." 120. Settlements — conclusiveness. When partners have settled an account between themselves and passed receipts a Court of Equity will be loath to open it, unless there be evidence of fraud, misrepresentation, mistake or denial of opportunity to examine the books and papers.^ But a former distri- bution of another fund raised from partnership property, with notice, is not res judicata as to a later fund.' After the lapse of many years and the death of the parties an account will not be reopened." "Delp V. Edlis, 190 Pa. 25; Duffy v. Gilmore, 7 Lack. L. N. 114; Harris v. Rosenberg, 161 Pa. 367. "Miller v. Billington, 194 Pa. 452. "Ahl V. Ahl, 186 Pa. 99; 176 Pa. 466, and see Miller v. Billingrton, supKa. ." Gyger's Ap., 62 Pa. 73 ; Gordon v. Moore, 134 Pa. 486 ; Helb v. Hake, IS York no. " Foulke V. Hitzeroth, 14 W. N. C. 241. " Steiger v. Bradley, 34 W. N. C. 123. "Burr V. Black, i Lack. Jur. 163. "Jones V. Farquhar, 186 Pa. 400. "'Gordon v. Moore, 134 Pa. 486. " Willock V. Dubbs, 49 Pitts. L. J. 250. " Braun's Ap., 105 Pa. 414. " Crawford v. Shriver, 139 Pa. 239. " Keller v. Swartz, 137 Pa. 65. "■ Pantall v. Mclntyre, 197 Pa. 520. 'Shirk's Ap., 3 Brewster 119; Pennell's Est., 2 W. N. C. 372; Bitten- bender v. Kemmerer, 185 Pa. 13s; Eyre v. Lesher, 14 Montg. 189; Sack- ett's Est., 30 Pitts. L. J. 372. 'Stockdale v. Maginn (No. 3), 207 Pa. 229. 'DeCoursey's Est., 211 Pa. 92; Varner's Ap., 2 Mona. 228. PARTNERSHIPS AND ACCOUNTS. 433 Evidence of declarations is admisisible to show what was settled.* A contradiction between a receipt and account may be explained by competent evidence." When a stated account is pleaded in bar, the plaintiff must amend his bill and point out particular errors, otherwise the account stated will be a bar.* After seven years from dissolution an iniquitous partner has no standing in Equity to demand an account.' An account stated may be set aside for fraud.' The lapse of one year from presenting a stated account, when no acquiescence is shown, is not enough to bind the recipient, nor can a copy be admitted without notice to produce the original.* A settlement wrongfully procured by fraud or duress does not conclude the matter." A mere summary or statement is not an "account stated," " it must be a full account showing all the debits and credits from books of original entries. A less specific writing or memorandum does not amount to a bar," and especially so when one of the parties says he does not think it is right." Where the parties agree to refer the account to an expert accountant and in his report he makes an error of $4,200, he cannot re-examine and revise his report." A statement made up for partners by clerks is binding as to all items assented to by them." A statement of firm debts is admissible as an admission by the partners prima facie only;" and a statement by a remaining partner on dissolution is not an "account stated," so as to bind him." The administratrix of a partner has power to make settlement and in the absence of fraud, it is binding upon her and descendants." A decree, on settlement which is joint and several, in favor of one partner and against the others fixes the character as against each and cannot be attacked collaterally." 121. Injunctions as to acts contrary to Equity. In preservation of the rights of a partner or the firm from fraud and irreparable injury Equity steps in with the strong and dextrous hand of injunction. So if a partner is about to pledge the partner- ship assets for his private debt, he may be restrained by an injunc- tion, upon a proper bill." Any acts of a partner which would be a fraud upon and injury to his copartners may be restrained. The form of the bill is for an account and injunction." So where a 'Adams v. Uhler, 2 Walker 96. ' Grier v. Huston, 8 S. & R. 402. " Cruise v. Walker, 6 Phila. 294. ' Iredell's Ap., 22 W. N. C. 30. 'Ryman v. Machell, 8 Kulp 316. •Killam v. Preston, 4 W. & S. 14. " Abrahams v. Hunt, 26 Pa. 49. "Ginn v. Benner, 180 Pa. 396. " Hocker v. Hoerner, 2 Pearson 78. " Seaton v. Shaner, 158 Pa. 69. " Hartley v. Henderson, 189 Pa. 277. "Rehill V. McTague, 114 Pa. 82. "Biddle v. Moore, 3 Pa. 161. "Adams v. Hubbard, 221 Pa. 511. " Holmes' Ap., 79 Pa. 279. " Collins' Ap., 107 Pa. 590. "Stockdale v. UUery, 27 Pa. 486; Unangst's Ap., SS Pa. 128. ^ Moir V. Emerick, 3 Montg. 161 ; Katz v. Johnston, 178 Pa. 346. Vol. 4 Practice — 28 434 EQUITY PRACTICE IN PENNSYLVANIA. withdrawing partner has agreed not to engage in the same business, etc., his violation of the agreement will be restrained.^" And so will a surviving partner who uses machinery to his personal account to the detriment of the estate of the deceased."' However small plaintiff's interest, he may have his bill to restrain the use of the firm name for private purposes." 122. Account in other cases. The acts of October 13, 1840 (P. L. I, 1841), April 16, 1845, P. L. 542, and February 14, 1857, P. L. 39, confer jurisdiction in Equity, in all fiduciary relations, and they cover the pledge of collateral security." The right to account must first be established,' and then it does not matter whether anything be due or not.* A finding of act that there was a consignment of the goods for which an account is asked, based on sufficient evidence will not be reversed, although the evidence is disputed." If there be an adequate legal remedy, however, a bill will not lie.* But if the nature of the case be such that Equity affords a more convenient and complete remedy, a bill for account will be sustained.' A bill for account is the proper remedy where the facts cannot be otherwise elicited as readily;' as between principal and agent;' or, as between tenants in common." ""Lukens v. Kelley, 2 Phila. 380; Slobig's Ap., S Atl. 670. "' Stanhope v. Suplee, 2 Brewster 455. " Page V. Vankirk, 6 Phila. 264. ' P. & L. Dig., vol. S, col. 8768. 'Corey v. Jenkins, 5 Lack. L. N. 115. ' P. & L. Dig., vol. s, col. 8770. * Bradly v. Jennings, 201 Pa. 473. "John Church Co. v. Guernsey, igo Pa. 284. * Sprigg V. Comth. Etc. Co., 206 Pa. 548; Holland v. Hallahan, 211 Pa. 223; Graham v. Cummings, 208 Pa. 516; Bunyea v. Robinson, g Del. Co. 12 People's Natl. Bank v. Kern, 193 Pa. 59. 'Bradly v. Jennings, supra; Kane v. Laughlin, 190 Pa. 598; Kane v. Schuylkill Etc. Co., 199 Pa. 198; P. & L. Dig., vol. 5, col. 8773. 'Brighton Laundry Co. v. Johnston, 53 Pitts. L. J. 106; Lewis v. Heath, 50 Pitts. L. J. 348. "Haller v. Meads, 14 York 17; P. & L. Dig., vol. 5, col. 8792. " Engle V. Conrad, 12 Montg. 76. CHAPTER XXII. PARTNEBSHIF ASSOCIATIONS. 1. Limited partnership associa- 9. Loan of credit, etc., prohibited. tions. 10. Dissolution. 2. Association may adopt a com- 11. Liquidating trustees to be mon seal. elected. 3. Capital may consist of personal 12. Distribution by voluntary action. ^ and real estate. 13. Renewal or continuance — pro- 4. Liability of members limited. ceedings. 5. Use of the word "Limited." 14. Limited a,ssociations may adopt 6. Transfer of interests in part- by-laws. nership. 15. Managers to be chosen by bal- 7. MAtings — managers — salaries — lot. debt limit. 16. Service of process. 8. Dividends. 1. limited partnership associations. The act of June 2, 1874, P. L. 271, provided for limited partner- ship associations of a quasi-corporate character, for certain purposes. Section I of the said act was amended by the act of June 7, 1907, P. L. 432, so as to read as follows: "When any three or more persons may desire to form a part- nership association, for the purpose of conducting any lawful business or occupation, including the construction, equipment, installation and operation of a telephone or telegraph line, within the United States, or elsewhere, whose principal office or place of business shall be established and maintained within this state, by subscribing and contributing capital thereto, which capital shall alone be liable for the debts of such association, it shall and may be lawful for such persons to sign and acknowledge before some officer competent to take the acknowledgment of deeds, a statement, in writing, in which shall be set forth the full names of such persons, and the amount of capital of said association subscribed for by each; the total amount of capital, and when and how paid; the character of the business to be conducted, and the location of the same; the name of the association, with the word "limited" added thereto as part of the same; the contemplated duration of said association, which shall not in any case exceed twenty years, and the names of the officers of said association, selected in conformity with the provisions of this act; and any amendment of said statement shall be made only in like manner, which said statement and amendments shall be recorded in the office of the recorder of deeds of the proper county : Provided, however. That the capital stock of any telephone or tele- graph company, incorporated or created in accordance with the pro- visions of this act, shall not be capitalized at more than the sum of five thousand dollars." In order to form an association under this act it must be strictly 435 436 EQUITY PRACTICE IN PENNSYLVANIA. complied with in all its details/ and it requires at least three persons," whose names shall be such as they usually employ in their business and by which they are known in the community/ Such association assimilates a corporation but has been held to be none.* The form of articles of association is in many respects similar to those required for a limited partnership under the act of 1899; see preceding chapter. 2. Association may adopt a common seal. The act of February 18, 1875, P. L. 3, provides: "Whenever any association formed under the act to which this is a supplement, shall have occasion to execute any deed of convey- ance, or bonds with or without coupons, and mortgages, to secure, purchase, or borrow moneys, suah association shall have a right to adopt and use a common seal, and to acknowledge such instruments or writings by their chairman or secretary." The adoption of a seal is permissive and not compulsory." 3. Capital may consist of personal and real estate. Section i of the act of May i, 1876, P. L. 89, provides : "It shall and may be lawful for any person desiring to form a partnership association, under the act to which this is a supplement, to make contribution to the capital thereof in real or personal estate, mines or other property, at a valuation to be approved by all the members subscribing to the capital of such association: Provided, That in the statement required to be recorded by the first section of the said act, subscriptions to the capital, whether in cash or in property, shall be certified in this respect according to the fact; and when property has been contributed as part of the capital a schedule containing the names of the parties so contributing, with the description and valuation of the property so contributed, shall be inserted." The statement required must be detailed and not a lumping de- scription, the purpose ■ being to enable creditors to ascertain pre- cisely of what the property consists and to judge themselves of its value." If the requirements are not substantially complied with there is no payment of the capital and consummation of a limited association,' and any false statement as to subscriptions will result in vitiating the limitation and cause them to be liable as general partners.' But a failure to record the articles before negotiations " Hill V. Stetler, 127 Pa. 145 ; Maloney v. Bruce, 94 Pa. 249. ' Collins' Ap., 107 Pa. 590. 'Laflin Etc. Co. v. Steytler, 146 Pa. 434; Gearing v. Carroll, 151 Pa. 79- *Oak Etc. Co. Ltd. v. Rogers, 108 Pa. 147. " Stevens v. Ball Club, 142 Pa. 52. 'Maloney v. Bruce, 94 Pa. 249; Sheble v. Strong, 128 Pa. 315; Laflin Etc. Co. V. Steytler, 146 Pa. 434. 'Rehfuss V. Moore, 134 Pa. 462; Cock v. Bailey, 146 Pa. 328; Haslet V. Kent, 160 Pa. 85; Gearing v. Carroll, 151 Pa. 79; Van Horn v. Cor- coran, 127 Pa. 255. 'Bement v. Brick Co., 12 Phila. 494; Keystone Ktc. Co., Ltd., v. Schoelkopfs Sons, 11 W. N. C. 1.32; Elliott v. Himrod, 108 Pa. 569; Hite Nat. Gas Co.'s Ap., 118 Pa. 436; Lauder v. Logan, 123 Pa. 34; Hill V. Stetler, 127 Pa. 145- PARTNERSHIP ASSOCIATIONS. 437 commenced which were not consummated until after the recording will not make them liable as general partners.* Where an existing business is contributed, a fairly certain itemized statement of the property is suificient." But where an association expires by limita- tion of time and is insolvent, a new association formed on the same basis, without complying with the law, will render the associ- ators liable as general partners." If the statement is not signed, acknowledged and recorded it is futile and all become liable gener- ally." Two cannot take in a third as a "straw partner," and after- wards be heard to deny his full interest as a partner." Such a partnership may be created by two persons and their wives con- jointly." The members may accept real estate at an agreed valua- tion as capital stock, which is liable to taxation under the act of June 7, 1879," 4. Liability of members, limited. Sectioa 2 of the act of June 2, 1874, provides: "The members of any such partnership association shall not be liable under any judgment, decree or order which shall be obtained against such association, or for any debt or engagement of such company, further or otherwise than is hereinafter provided; that is to say, if any execution, sequestration or other process in the nature of execution, either at law or in Equity, shall have been issued against the property or effects of the company, and if there cannot be found sufficient thereof, whereon to levy or enforce such execution, sequestration or other process may be issued against any of the members to the extent of the portions of their subscriptions, respectively, in the capital of the association not then paid up: Provided always. That no such execution shall issue against any member, except upon an order of court, or of a judge of the court, in which the action, suit or other proceeding shall have been brought or instituted; and the said court or judge may compel the production of the books of the association, showing the names of the members thereof and the amount of capital remaining to be paid upon their respective subscriptions, and from them or other sources of informa- tion, ascertain the truth in regard thereto and may order execution to issue accordingly; and the said association shall be and it is hereby required to keep a subscription list book for that purpose and the same shall be open to inspection by the creditors and members of the association at all reasonable times." If the subscription list book above required is not kept, the liability becomes general." The articles must provide a fixed time at which the subscriptions shall be paid, and the schedule must disclose the "Hinds V. Battin, 163 Pa. 487. "Robbins Elec. Co. v. Weber, 172 Pa. 635. "Lee, et al., v. Burnley, 195 Pa. 58. "Chatham Natl. Bank v. Gardner, 31 Supr. C. 135. " Sturgeon v. Apollo Etc. Co. Ltd., 203 Pa. 369. J Bernard Etc. Co. v. Packard & Calvin Ltd., 64 Fed. R. 309. Comth. V. S. R. Imp. Co., 3 Dauphin Co. 116; Comth. v. Natl. Gas Ca, 2 Dauphm Co. 130. See Ltd. Partnerships, 18 C. C. 87. First Natl. Bank Etc. v. Creveling, et al., 177 Pa. 270; Mantel Co.'s Assigned Est., 4 Supr. C. 106. 438 EQUITY PRACTICE IN PENNSYLVANIA. liens upon real estate contributed at a fixed value. Otherwise the partners will be liable generally." Members need not pay the assess- ments to pay debts of the firm, there being no authority to levy assessments. In the case of Comth. v. Standard Oil Co., loi Pa. 151, on a motion for reargfument the court held "there is no such a thing as a- share of stock in limited partnerships" and that "the two kinds of partnership are identical, with the exception of a limited liability." A limited partnership association is liable to double and treble damages for trespass by its manager or authorized agent, in mining coal, under the act of May 8, 1876, P. L. 142." The validity of such association may be attacked in a suit against the members, and if the law was not followed they will be held generally liable.'" In a suit upon a promissory note given by a limited partnership an affidavit of defense is sufficient which denies liability on the ground that it was not given for any purpose within the scope of the partnership, but was given by a member without the knowledge or consent of his partners and in fraud of the partnership." As between a limited partnership and a bank and a member of the association it was held that bankers' liens do not exist in Pennsylvania and that the partnership could not loan its credit to a member.^ A member cannot be adjudged a debtor to the association for unpaid subscription without notice and an opportunity to be heard. A rule upon the association or its attorney of record is insufficient. If the member be a non-resident an order for service as the case requires should be made by the court." If an association files a statement which is false as to its capital subscriptions, the court may, on bill filed enjoin the transfer of assets, decree a dissolution, appoint a receiver and grant full relief." If the capital is actually paid in and no fraud or evasion shown and no one misled, the law is substantially obeyed." Parties who do business under a defective certificate are liable as general partners to a common law action and creditors are not confined to the remedy provided by the above section.'* If the valuation in the schedule is grossly excessive when made in good faith and due form, it will not make the partners generally liable to creditors." A member who sues a limited part- nership on a promissory note endorsed by it sues as a creditor of the concern and not as a partner. An affidavit that the secretary had no authority to endorse it is insufficient to prevent judgement.*' The assignees of partners take subject to the limitations of the agreement and are bound by it." The mortgage given by the " First Natl. Bank Etc. v. Creveling, et ah, 177 Pa. 270. "Farmers' Sup. Co. Ltd. v. Foulke, 18 C. C. 566. "Oak Ridge Coal Co. Ltd. v. Rogers, 108 Pa. 147. "Eliot v. Himrod, 108 Pa. 569. "Lerch Etc. Co. Ltd. v. Bank, 109 Pa. 240. "^ Liggett Etc. Co. Ltd. Appeal, iii Pa. 291. "Lauder v. Tillia, 117 Pa. 304. "Hite Natl. Gas Co.'s Ap., 118 Pa. 436. ™ Lauder v. Logan, 123 Pa. 34. ' "Van Horn v. Corcoran, 127 Pa. 255; Sheble v. Strong, 128 Pa. 315. "" Rehfuss V. Moore, 134 Pa. 462, distinguishing Sheble v. Strong, 128 Pa. 315, where there was no schedule, " MacGeorge v. Chemical Mfg. Co., 141 Pa. 575. "Egbert V. Kimberly, 146 Pa. 96. PARTNERSHIP ASSOCIATIONS. 439 association is a valid Hen on the partnership property mortgaged, although there are defects in the recorded statement and irregular- ities in the management.™ If the holders of bonds, secured by mort- gage purchase the property, having it conveyed to a trustee desig- nated by them, the bonds are extinguished by merger.'' While the association is liable for tort, as for cutting timber, its members and officers are not personally liable unless they participate in the tres- pass.^ It is not ultra vires for an association to purchase with its surplus, the stock of a steel corporation, to secure steel for its man- ufacturing purposes.'* A member of such an association may claim as a creditor of the assigned estate and receive his pro rata share." A contract entered into by one manager only may be ratified so as to bind all.'° An unpaid balance of a cash subscription due may be collected from the subscriber personally, under execution." An association may be enjoined from carrying on a noxious business in a populous community." The managers will be restrained from selling the entire property, without the consent of all the shareholders, at the suit of one having a mere equity in the capital." If the itemized statement gives the names of the parties, although it is not signed, it is held to be sufficient to prevent them from becoming generally liable." If checks are issued by the treasurer without authority, for a new liability and without ratification, recovery cannot be sustained."" One who advances money to pay claims for wages cannot obtain priority by assignment of such claims against an assigned estate.'" A partnership may assign for the benefit of creditors by one or more of the partners unless dissented from.^ 5. Use of the word "Limited." Section 3 of the act of 1874, provides: "The word "limited" shall be the last word of the name of every partnership association, formed under the provisions of this act; and every such association shall paint or affix, and shall keep painted or affixed, its name on the outside of every office or place in which the business of the association is carried on, in a conspicuous posi- tion, in letters easily legible, and shall have its full name mentioned in legible characters in all notices, advertisements and other official publications of such association, and in all bills of exchange, prom- issory notes, checks, orders for money, bills of lading, invoices, "Briar Etc. Co. v. Atlas Works Ltd., 146 Pa. 290. ^ Cock v. Bailey, 146 Pa. 328. "Whitney v. Backus, 149 Pa. 29. " Lavng V. Spring Co. Ltd., 149 Pa. 308. ''Globe Ref. Co.'s Est., 151 Pa. 558. "Porter v. Beacon Etc. Co., 154 Pa. 8; Yaryan Co. v. Penna. Glue Co. Ltd., 180 Pa. 480. "" Cox V. Watts Etc. Ltd., 157 Pa. 93. " Evans v. Reading Etc. Co., Ltd., 160 Pa. 209. " Carter v. Producers' Etc. Co., Ltd., 164 Pa. 463. "Robbins El. Co. v. Weber, et al., 172 Pa. 635. " Straw & Woods v. Murray, et al., Ltd., 182 Pa. 642. "Fair Etc. Est., 183 Pa. 96. "'Mill Work Etc. Est., 4 Supr. C. 106, citing Hodenpuhl v. Hines, 160 Pa. 466. 440 EQUITY PRACTICE IN PENNSYLVANIA. receipts, letters and other writings used in the transaction of the business of the partnership association: Provided, That the omis- sion of the word "limited" in the use of the name of the partnership association shall render each and every person participant in such omission, or knowingly acquiescing therein, liable for any indebted- ness, damage or liability arising therefrom." In transacting its business the full name with the word "limited" must be used to escape general liability;' although the abbreviation "Ltd." has been held sufficient for the word." The neglect to use the word in a contract does not bar the right to recover on it.' 6. Transfer of interests in partnership. Section 4 of the act of 1874, as amended June 25, 1885, P. L. 182, provides : "Interests in said association shall be personal estate and may be transferred, given, bequeathed, distributed, sold or assigned under such rules and regulations as such partnership associations shall from time to time, prescribe by a vote of a majority of the members in number and value of their interests ; and in the absence of such rules and regulations the transferree of any interest in any such association shall not be entitled to any participation in the subse- quent business of said association, unless elected to membership therein by a vote of a majority of the members in number and value of their interests; and any change of ownership, whether by sale, death, bankruptcy or otherwise which occurs in the absence of any rules or regulations of such associations regulating such transfer, and which is not followed by election to membership in such associations, shall entitle the owner or transferree only to the value of the interest so acquired at the date of acquiring such interest at a price and upon terms to be mutually agreed upon, and in default of such agreement, at a price and upon terms to be fixed by an appraiser to be appointed by the Court of Common Pleas of the proper county, on the petition of either party, which appraise- ment shall be subject to the approval of said court." This provision is intended only for the control of the interests of partners as among themselves, and not to convert real estate against which there are judgments, into personalty, except as to the individual interests.* Where a person acquires shares of such a partnership and asks to be elected a member, the members must either elect or reject as to the whole interest he acquired. In appraising the value of shares, when there has been no sale in the open market, the appraiser may consider the books and accounts showing the amount of money invested, the cost of operating, the earnings and losses, the assets and liabilities and such other com- petent and relevant evidence as affects the book values or some of them. Interest is generally allowed from the date of acquiring the shares, unless the delay is due to the purchaser." Property may be ' German v. Moodie, 9 W. N. C. 221 ; Sellersville Nat. Bk. v. Banks, g C. C. 92; B. & O. R. Co. v. Wilkins, 10 C. C. 269. ""Bernard Etc. Co. v. Packard Etc., 64 Fed. R. 309; Abington Dairy Co. v. Reynolds, 24 Supr. C. 632. 'Ulysses Elgin Butter Co. v. Ins. Co., 20 Supr. C. 384. *Fair Etc. Assigned Est., 183 Pa. 103. " Carter v. Producers' Oil Co., Ltd., 200 Pa. 579. PARTNERSHIP ASSOCIATIONS. 441 pledged and 'By agreement left in possession of the pledger without affecting the right of the pledgee, except as to bona fide purchasers for value without notice. The act, supra, makes no distinction between a transferree of stock who is a member and one who is not; but a purchaser cannot vote his shares unless he becomes a member. The association is not restricted as to its rules and regulations like a corporation.' 7. Meetings, managers — salaries — debt limit. Section 5 of the act of 1874 was amended by the act of May 10, 1889, P. L. 183, so as to read as follows : "There shall be at least one meeting of the members of the association in each year. At one of the meetings there shall be elected not less than three nor more than five managers of the association, one of whom shall be the chairman, one the treasurer and one the secretary, or, the offices of both treasurer and secretary may be filled by one person, who shall hold their respective offices one year and until their successors are duly installed. The board of managers are authorized to fix the salary and compensation of such officers and the salary and compensation of other employes, but the president, secretary and treasurer shall not receive, as salary or compensation, after such association has been in existence for five years, a sum in the aggregate greater than the amount of net earnings actually earned during the year preceding, unless by the consent of two-fhirds of all the members of the association ; and the salary of the president, secretary and treasurer shall be fixed for the ensuing year, by a two-thirds vote of the value of interest present at the annual meeting of the association, and after the annual report has been made. No debt shall be contracted or liability incurred for such association except by one or more of the managers, and no liability greater than five hundred dollars except against the person incurring it shall bind the association, unless reduced to writing and signed by at least two managers." Where the by-laws provide that the annual meeting shall be held at a certain time, the terms of the officers begin then, although they may be elected afterwards ; and if they also provide that each member shall have one vote for each share, the vote must be by shares on all questions.' A contract of insurance effected and executed cannot be defeated on a plea of ultra vires, because the application had not been signed by at least two managers." However, strangers dealing with an association are bound by the limitations imposed upon the power of the individual members." As between them- ' Collins' Ap., 107 Pa. 590. ' Carter v. Producers' Oil Co., Ltd., 182 Pa. 551. 'Comth. V. McCarty, 23 C. C. 145. •Inter-state Etc. Co. v. O. D. Brownback & Co., Ltd., I Supr. C. 183, citing Railroad v. McCarthy, 96 U. S. 258; McClure v. Comth., 80 Pa. 167; Oil Creek Etc. Co. v! Penna. Etc. Co., 83 Pa. 160; McGeorge v. Chemical Mf'g Co., 141 Pa. S7S- "Pittsburg Melting Co., Ltd., v. Reese, 118 Pa. 355; Walker v. Key- stone Brewing Co., 131 Pa. 546; Mercantile Etc. Bank v. Lauth, 143 Pa. S3. 442 EQUITY PRACTICE IN PENNSYLVANIA. selves an agreement in writing giving a member special charge of the mills and manufacturing, subject to a vote of the majority is binding, and the superintendent thus employed is entitled to receive his salary to the end of the term." This restrictive act has no application where a party agrees to protect bills of a limited asso- ciation, and renewals as well. Where creditors gave up notes of a limited partnership debtor and took new notes from a corporation which succeeded it, whether or not this amounts to a novation and discharges the debtor depends upon the circumstances, as showing whether they gave up the original debtor, or merely accepted the notes of the new company as a means of payment, without in- tending to release the debtor." There can be no liability incurred, as a rule except on strict compliance with the law." But the man- agers may ratify a contract made by one manager only." If an association be a quasi-corporation a single shareholder has not the right to interfere with the management and examine the books of the association." But the correctness of this may well be doubted. 8. Dividends. Section 6 of the act of 1874, supra, provides: "The association may, from time. to time, divide the profits of its business in such manner and in such an amount as a majority of its managers may determine, which profits so divided shall not at the time diminish or impair the capital of the said association; and any one consenting to a dividend which shall diminish or impair the capital shall be liable to any person or persons interested or injured thereby to the amount of such diminution or impairment." 9. loan of credit, etc., prohibited. Section 7 of the act of 1874, provides: "It shall not be lawful for such association to loan its credit, its name or its capital to any member of said association, and for such loan to any other person or association, the consent in writing of a majority in number and value of interest shall be requisite." " 10. Dissolution. Section 8 of the act of 1874, provides: "Such association may be dissolved: First. Whenever the period fixed for the duration of the asso- ciation expires. Second. Whenever, by a vote of a majority in number and value of interest, it shall be so determined, and notice of such winding "Jennings, et al, v. Beale, 146 Pa. 125. (See forms of bill, supple- mental and cross-bills in this case.) " Robbins, et al, v. Robinson, et al.. 176 Pa. 341. "Tasker v. Brown, 8 C. C. 390; Andrews v. Youngstown Coke Co., 7 C. C. 67; Bank v. Walton, i D. R. 422. "Pittston Engine Co. v. Fuller, i D. R. 299; Porter v. Beacon Co., IS4 Pa. 8; Phila. Bdse Ball Club v. Lajoie, 10 D. R. 309. " Church J. in Patterson v. Tidewater Pipe Co., Ltd., 12 W. N. C. 452. "See Liggett Spring Co.'s Ap., in Pa. 291; Layng v. Co., Ltd., 149 Pa. 308; Lerch Etc. Co. v. Bank, 109 Pa. 240. PARTNERSHIP ASSOCIATIONS. 443 up shall be given by publication in two newspapers published in the proper city or county at least six consecutive times, and im- mediately upon the commencement of said advertising, said asso- ciation shall cease to carry on its business, except so far as may be required for the beneficial winding up thereof." An association which ends by limitation is dissolved by the "voluntary act thereof."" Having passed a resolution to wind up its business, it cannot thereafter confess judgment." The modes of dissolution here prescribed are exclusive of all others." After dissolution, although the decree was rescinded five years later, the dissolution may be offered as a defense to a foreign judgment ob- tained after the dissolution." A debt payable by an association at its option becomes due when dissolution ocurs."^ The form of notice of dissolution for a limited partnership may be adjusted to suit 11. Liquidating: trustees to be elected. Section 2 of the act of May 10, 1889, P. L. 183, provides: "Three liquidating trustees, not more than two of whom shall have been a manager of the association so dissolved and in liquidation, shall be elected by the members of the association, who shall have full power to Settle the affairs of the association, and distribute "the assets thereof after the payment of its debts, among the members under the direction of the Court of Common Pleas of the proper county." Trustees for liquidation may be called to account by petition and rule from the Common Pleas, but a bill in Equity will lie.™ A partner serving as liquidating trustee may recover for his services as such." The mode of voting adopted by the association will apply to the election of trustees, and the members may settle their respec- tive interests with this in view." The court may appoint a receiver on bill by creditors," or a member who alleges fraud, etc."' 12. Distribution by voluntary action. Section 9 of the act of 1874, provides: "When any such partnership association shall be dissolved by the voluntary action thereof, its property shall be applied and distributed as follows: First. To the payment of all debts for the wages of labor. Second. To the satisfaction of its other liabilities and indebtedness. Third. After payment thereof, the same shall be distributed to and among the members thereof in proportion to their respective "Tindel v. Park, 154 Pa. 36. "Crowther v. Upland Etc. Assn., i Del. Co. 264. " Harley v. Lincoln Ave. Pharm., 50 Pitts. L. J. 150. "Billington v. Gautier Steel Co., 19 W. N. C. 339; see Githens v. Chester Grocery Co., 2 Del. Co. 452. ""Brown v. Banner Syphon Co., 18 W. N. C. 50. "McKee v. Smith, 48 Pitts. L. J. 369. "Jennings, Beale & Co.'s Case, 157 Pa. 630. "Imperial Steel Co., in re, 2 D. R. 826. "'Hillborn v. Covenant Pub'g Co., 12 W. N. C. 548; Edwards v. Kroll Furniture Co., i Lehigh 235; Hite Natl. Gas Co.'s Ap., 118 Pa. 436. " Frank, et al., v. Lewis Etc. Co., 41 Pitts. L. J. 33 ; Tindel v. Park, IS4 Pa. 36. 444 EQUITY PRACTICE IN PENNSYLVANIA. interests. (The fourth clause is superseded by Section 2 of the act of 1889, supra. Par. 11.) Benewal or continuance — ^proceedings. Section i of the act of June 8, 1895, P. L. 186, provides: "That it shall and may be lawful for a majority in number and value of interest of the members of any partnership association formed under the provisions of the act of assembly to which this is a supplement," to renew or continue such partnership association for a period of time not exceeding twenty years beyond the time originally fixed for its duration, under the following conditions and restrictions, to wit: First. A meeting of the members of the association shall be called, of the time, place and object of which meeting due notice shall be given by publication once a week for two successive weeks preceding such meeting in one newspaper published in the county in which the principal office or place of business shall be established, and by such further notice as shall be prescribed in the by-laws; and at such meeting the resolution for the renewal or continuance of the asso- ciation shall be considered, and a vote by ballot, in person or by proxy, taken for the adoption or rejection of the same; and if a majority in number and value of interest of the members of such association shall be in favor of such renewal or continuance, then a statement in writing shall be signed and acknowledged by three or more members, in which shall be set forth the full names of the members desiring to renew or continue such association, and the contemplated duration or continuance, which shall not in any case exceed twenty years beyond the time originally fixed for the dura- tion of the association. Second. Upon the filing of such statement such association shall be renewed and may be continued for the extended time herein mentioned. Third. That if any member of any such partnership association shall be dissatisfied with or object to any such renewal or continu- ance, then the owner shall be entitled to his interest in the association at a price and upon terms to be mutually agreed upon ; and in default of such agreement, the price and terms shall be fixed by an appraiser appointed by the Court of Common Pleas of the proper county, subject to the approval of the said court, and, upon the payment of the interest as aforesaid, the said member shall transfer his interest to said association to be disposed of by the managers, or be retained by them for the benefit of the remaining members." 14. Limited associations may adopt by-laws. Section 2 of the act of 1895, supra, provides: "That all associations organized under the act to which this is a supplement, shall have the power, bv the vote of a majority in number and interest of its members, to adopt by-laws for the "June 2, 1874, supra. '" " A majority in number and interest," means not only the vote of a majority of the members, but such majority shall also represent the ma- jority of the shares. PARTNERSHIP ASSOCIATIONS. 445 regulation thereof, fixing therein the number of managers, which number shall not be less than three nor more than nine, and designating the principal executive officer either as president or chairman." 15. Kanagers to be chosen by ballot. Section 3 of the act of 1895, provides: "The managers of all associations, organized under the act to which this is a supplement, shall be chosen by ballot, in person or by proxy, by a majority in value of interest of the members thereof voting at such election." " 16. Service of process. The act of June 10, 1881, P. L. 115, provides: "Any partnership association under the said act and the several supplements thereto may, in addition to the methods already author- ized, be served with legal process in any county in this Common- wealth where said association shall maintain and keep an office for the transaction of business, by serving such process upon any agent, chief or any other clerk, or upon any director or manager of such association, and such service shall be good and valid in law, to all intents and purposes, as service upon such association." When the summons is against the association and so served, whilst the statement names the individuals, where the plaintiff does not seek individual liability, a judgment against the association will stand.™ ""Majority in value of interest," seems to be distinguished from "'majori^ in number and interest," as above required. "Wilkinson v. Evans, 34 Supr. C. 472. CHAPTER XXIII. QUO WARRANTO. 1. Nature of the writ. 2. When the writ applies. 3. When the Supreme Court issues it. 4. Jurisdiction of the Common Pleas. 5. When attorney general to pro- ceed. 6. When district attorney to act. 7. Form of writ 8. At whose instance the writ may issue. 9. Writ may issue against whom. 10. Issuing and return of writ. 11. Rule to show cause. 12. Service — judgment by default. 13. Requisites of suggestion. 14. Motion to quash. 15. Form of suggestion against a corporation. 16. Form of affidavit. 17. Form of allowance. 18. Form of praecipe. 19." Form of suggestion against one usurping office. 20. Several defendants may be joined. 21. Answer of defendant — plead- ings — issue. 22. Form of answer. 23. Demurrer. 24. Form of demurrer to sugges- tion. 25. Issue from Supreme Court to Common Pleas. 26. Discontinuance. 27. Judgment of ouster, with costs. 28. Form of judgment and order for injunction. 29. Opening judgment. 30. Enforcement by injunction. 31. Form of injunction. 32. Costs for defendant — county when liable. 33. Opening injunction on judg- ment by default 34. Execution notwithstanding ap- peal. 35. Substitution of names of par- ties. 36. Judgment of ouster — new elec- tion. 37. On ouster, trustee may be ap- pointed. 38. After ouster of corporation, of- ficers to hold in trust 39. Appointment of receiver. 1. Nature of quo warranto. "The quo warranto is an extraordinary remedy and not a writ of right, and is to be used sparingly."^ It is a writ to test the right, warrant or authority by which a person exercises an office or a franchise," and though a high and extraordinary legal remedy, the procedure follows the manner of Equity practice. At the common law it was a writ of right on behalf of the Sovereign directed against the usurper of a franchise.' Although in form ' Comth. V. R. Co., 8 Lane. Bar. 1 14. ' Comth. V. Gray's Etc. Co., 20 Phila. 405 ; President Etc. of Road Co. v. McConaby, 16 S. & R. 140; Christ's Church Charter, 8 C. C. 28; Bir- mingham Etc. Turnpike Road v. Comth., i Penny. 458. " Blackstone, vol. 3, 261. 446 QUO WARRANTO. 447 criminal, it is not a suit or prosecution within the clause of the constitution ordaining the right of trial by jury.* It is remedial in character and will be construed favorably to advance the remedy," and its allowance is in the sound discretion of the court.' For a lucid statement of the progress of the practice from the 9th Anne, Chapter 20, down to 1847, see opinion of Chief Justice Gibson in Comth. V. Burrell, 7 Pa. 34. 2. When the writ applies. It is the proper remedy to determine by what warrant one exercises the functions of a public office and an injunction will not lie to restrain the incumbent until his right has been settled by quo warranto;^ and to ascertain this it is the exclusive remedy. For neglect or abuse of office, it will not lie unless the omission or acts amount to a forfeiture of the office by the incumbent." It has been held to lie where a person claimed the right to exercise a part of the duties of an office." It will lie to contest the election of directors of a corporation," and a proceeding by bill in such case is wrong;" nor will the action by mandamus take its place." It will lie against a borough councilman who becomes a stockholder in an electric light company having a contract with the borough, ^e must let go one or the other." The Commonwealth stands dis- interested between the parties contending, whilst declaring the usurpation by way of suggestion," and the burden rests upon the defendant to show by what warrant he holds." It will lie to oust one from the office of treasurer of a school district or council, where the councilman has removed from the ward." It lies to ascertain by what right an association or number of persons "exercise any of the franchises or privileges of a corporation"" and whether or not a contract between two corporations is ultra vires, as to both or either." It lies to determine the right of a warden or matron of * Comth. v. Phila. Co. Comrs., i S. & R. 382; Resp. v. Wray, 2 Yeates 429. "Comth. V. Cluley, 56 Pa. 270. 'Comth. V. Reigart, 14 S. & R. 216; Murphy v. Farmers' Bank Etc., 20 Pa. 415 ; Comth. v. Jones, 12 Pa. 365 ; Comth. v. Phila. Etc. R. Co., 20 Pa. 518; Comth. v. Cluley, 56 Pa. 270; Comth. v. McCarter, 98 Pa. 607; Comth. V. Davis, 109 Pa. 128; Comth. v. Dillon, 61 Pa. 488. 'Gilroy's Ap., 100 Pa. 5. 'Updegraiif v. Crans, 47 Pa. 103; Brown's Ap., 62 Pa. 17; Minnig's Ap., 82 Pa. 373; Kerr v. Trego, 47 Pa. 292; Hagner v. Heyberger, 7 W. & S. 104; Murphy's Election Case, 8 D. R. 445. "Cleaver v. Comth., 34 Pa. 283; Comth. v. Kempsmith, 13 C. C. 667. "Comth. V. Wahlers, 7 Lack. Jur. 147. " Jenkins v. Baxter, 160 Pa. 199. "O'Shea v. Flannery, 26 C. C. 89; Strange v. Williams, 12 Luz. L. R. 321; Roddy V. Reynolds, 31 C. C. 145. " Caflfrey v. Caffrey, 28 Supr. C. 22. * Comth. V. Farmers' Bank, 2 Grant 392; P. & L. Dig., vol. 17, col. 29015, " Comth. V. D. & H. Canal Co., 43 Pa. 295 ; Clark v. Comth., 29 Pa. 129. "Comth. V. Miller, 30 C. C. 610; Comth. v. Heller, 31 C. C. 267; Comth. V. Coml. Bank, 28 Pa. 387 ; People v. Thacher, 55 N. Y. 529. "Comth. V. Yeakel, 3 D. R. 665. "Comth.v. Order of Solon, 166 Pa. 33. "Comth. V. D. & H. Canal Co., 43 Pa. 295, but not a suit of a private relator ; Comth. v. Phila. Etc. R. Co 10 W. N. C. 400 ; Comth. v. Wisler, II W. N. C. 513- 448 EQUITY PRACTICE IN PENNSYLVANIA. a prison, appointed by county commissioners, to exercise the duties without interference by the commissioners."" One having a right to an office may have the writ on his own suggestion." It lies to ascertain the rights of trustees of a normal schooP or a borough auditor." An incumbent's right can only be questioned by this writ." To determine the title of a de facto public officer it is the only remedy." The payment of "cash" subscription by check in proceedings to incorporate is illegal and quo warranto lies to forfeit the charter.*^ 3. When the Supreme Court issues writ. Section i of the act of June 14, 1836, P. L. 621, provides: "Writs of quo warranto may be issued by the Supreme Court, in the form and manner hereinafter provided, in all cases in which the writ of qrto warranto, at common law, may have been issued, and in which the said court has heretofore possessed the power of granting information, in nature of said writ." The constitution of 1874 restricts it to "officers of the Common- wealth whose jurisdiction extends over the state."'' 4. Jurisdiction of the Common Fleas. , Section 2 of the act of 1836, supra, provides : "Writs of quo warranto, in the form and manner hereinafter provided, may also be issued by the several Courts of Common Pleas [concurrently with the Supreme Court] in the following cases, to wit: I. In case any person shall usurp, intrude into, or unlawfully hold or exercise any county or township office within the respective county. II. In case any person, duly elected or appointed to any such office, shall have done, suffered, or omitted to do any act, matter or thing, whereby a forfeiture of his office shall by law be created. III. In case any question shall arise concerning the exercise of any office, in any corporation, created by authority of law, and having the chief place of business within the respective county. And in any such case, the writ aforesaid may be issued upon the suggestion of the attorney general, or his deputy, in the respective county, or of any person or persons desiring to prosecute the same. IV. In case any association or number of persons, shall act as a corporation, or shall exercise any of the franchises or privileges of a corporation, within the respective county, without lawful authority. V. In case any corporation as aforesaid, shall forfeit by mis-user, or non-user, its corporate rights, privileges or franchises, or shall " Brewer v. Kantner, 190 Pa. 182 ; Graeff v. Felix, 200 Pa. 137. ''Comth. V. Reno, 25 C. C. 442. = Comth. V. Yetter, 190 Pa. 488. ""Comth. V. Willis, 10 Kulp 300. "* Humer v. Cumberland County, 8 D. R. 528. "Clark v. Comth., 29 Pa. 129; Campbell v. Comth., gi6 Pa. 344; Comth. . Clemmer, 190 Pa. 202. "a Comth. V. Finn Con. Co., 60 Pitts. L. J. 183. "b Comth. V. Skinner, 14 C. C. 347; Comth. v. Dumbauld, 97 Pa. 293. QUO WARRANTO. 449 do, suffer or omit to do, any act, matter or thing, whereby a for- feiture thereof shall by law be created, or shall exercise any power, privilege or franchise not granted or appertaining to such corporation. And in any such case," the writ aforesaid may be issued upon the suggestion of the attorney general, or his deputy, in the respective county, or of any person or persons desiring to prosecute the same." The Common Pleas may oust a school treasurer who is also a director." The act of July 10, 1901, P. L. 637, confers jurisdiction upon the several Courts of' Common Pleas "in all cases, except tax cases, where the Commonwealth is a party.'' By act of April 7, 1870, P. L. 57, the Court of Common Pleas of Dauphin County was given jurisdiction co-extensive with the state, as follows : "For the purpose of hearing and determining all suits, claims and demands whatever, at law and in equity, in which the Commonwealth may be a party plaintiff, for accounts, unpaid balances, unpaid liens, taxes, penalties and all other causes of action, real, personal and mixed." Section two authorizes the issuance of a writ of foreign attach- ment for debts due the Commonwealth. Section 3 limits attorney general fees. This act does not authorize the issuance of a mandamus to state officers, or writs of the same kind.'" But the Dauphin County Court took jurisdiction in qtio waranto on acceptance of service, where the corporation was located in another county,™ and in a later case it was intimated that the jurisdiction was nebular" though Simonton J. maintained that the Common Pleas of Dauphin County had jurisdiction of quo warranto under the act, co-extensive with the state." 5. When attorney general to proceed. Section 3 of the act of 1836, supra, provides : "Whenever the attorney general shall have reason to believe that any association as aforesaid has acted as a corporation, or exercised any of the franchises or privileges thereof, without lawful authority, or that any corporation has forfeited its corporate rights, pi:ivileges or franchises, as aforesaid, or exercised any power, privilege or franchise, not granted or appertaining to such corporation, it shall "be his duty to file, or cause to be filed, a suggestion as aforesaid, and to proceed thereon for the determination of the matter." Where the cause is public, as to the right to hold a public office or a corporate franchise, the attorney general only can make the suggestion.^ Woodward, J., said:'' "No person except the attorney general, or other officer of the Commonwealth, may have the writ '"As enumerated in IV and V, Comth. v. Burrell, 7 Pa. 34. i" Comth. v. Haeseler, 161 Pa. 92 ; see Comth. v. Skinner, 14 C. C. 347. "'Comth. V. Wickersham, 90 Pa. 311, citing 2 Wallace Jr. 72. "^ Comth. V. Order of Solon, 166 Pa. 33, '"Comth. V. Phila., 193 Pa. 236. "Comth. V. Penna. Etc. R. Co., 14 W. N. C. 60; Comth. v. Towanda Water Works, i Mona. 500, affd. by Supreme Court. 'Comth. V. Jones, 12 Pa. 365. ^Murphy v. Bank, 20 Pa. 415. Vol. 4 Peactice — 29 4SO EQUITY PRACTICE IN PENNSYLVANIA. to redress a purely public wrong, such as the usurpation of an executive office, or the abuse and forfeiture of a corporate fran- chise." The writ may issue on suggestion of the attorney general by way of information, or of private relators. Said Sharswood, J. :' "The one is for a public wrong, the other for redress of private injuries. Though their end or object may be the same, they are instituted on different grounds — diverso intuitu. A mere stranger, who has no interest in a corporation, is not entitled to the writ; he must show some interest to be affected or that he suffers some wrong to be redressed by it." * An information is amendable at any time before or on the trial. The form of pleading under the act of 1836 is the same as before it. The attorney general may disclose in his suggestion the specific grounds of forfeiture or he may merely set forth the franchises alleged to have been illegally exercised and call upon the defendant to show by what authority they are held." 6. When district attorney to act. The act of May 3, 1850, P. L. 654, gives the district attorney of the county power within his county, but does not take away the authority of the attorney general.' It is provided in Section 1 of this act that the district attorney shall "conduct in court all criminal or other prosecutions in the name of the Commonwealth, or when the state is a party, which arise in the county for which he is elected and perform all the duties which now by law are to be performed by deputy attorneys general." Prior thereto, a deputy attorney general represented the Commonwealth in such cases, but now the district attorney has full power to suggest a writ as against county officers.' But the district attorney cannot file a suggestion as to a state officer." 7. Form of writ. Section 4 of the act of 1836, provides: "Writs of quo waranto shall be in the following form, to wit: County, ss. The Commonwealth of Pennsylvania. To the sheriff of said county, greeting: We command you that you summon so that be and appear before our court to be holden at , in and for the , on the day of next, and then and there to show by what authority claim — to exercise the office of in the county of or to show by what authority ' Comth. v. Dillon, 81* Pa. 41 ; see also Comth. v. Phila. Etc. R. Co., 20 Pa. 518; Comth. V. City of Pittsburg, 14 Pa. 177. * Comth. V. Farmers' Bank, 2 Grant 392; P. & L. Dig., vol. 17, col. 29015, et seq.; Comth. v. Lentz, 13 D. R. 3^; Comth. v. Winterstown Etc., 17 D. R. 775. ' Comth. V. Coml. Bank Etc., 28 Pa. 383 ; Comth. v. Penn Park St. R. Co., 19 York 193. ° Comth. v. Coml. Bank, 28 Pa. 391. 'Comth. V. Allen, 15 C. C. 257, citing Gilroy v. Comth., 105 Pa. 484; Rowand v. Comth., 82 Pa. 407; Comth. v. Wallace, 114 Pa. 411; Comth. V. Kistler, 149 Pa. 34s ; Comth. v. Miller, 14 D. R. 667 ; Comth. v. Shrontz, 52 Pitts. L. J. 317; 213 Pa. 327. 'Comth. v. Reilly, 14 D. R. 531; Con. Stock Ex., 31 C. C. 226. QUO WARRANTO. 451 he or they exercise within the said county (or county of ), the liberties and franchises following, to wit: (Setting them forth or otherwise, as the case may be), and have you then and there this writ. Witness, etc. 8 At whose instance the writ may issue. It has been seen that when a private interest rather than a public one is involved the writ may issue on the relation of the individual showing his interest. He is called "the relator" and the writ then issues in the name of the Commonwealth ex relatione v. . It will not issue at the instance of a private relator to determine the existence of a public corporation nor to dissolve such corporation, nor to determine the right of a person to hold an office or the usurpation thereof, unless the relator himself has a claim thereto." A private relator in such case need not have the relation of the attorney general or district attorney." 9. Writ may issue against whom. Against what persons, corporations or societies the writ may issue or not, has been passed upon in numerous cases. Since this is not a digest of decisions, reference is made for all these cases to Vol. 17, P. & L. Dig., Col. 29018 et seq. When one holds a constitutional office and his title is undisputed the writ will not lie against him to determine whether the exercise of duties placed upon him by dubious and confiscatory legislation may be performed by him. Such question must be raised in another form." It lies against one who claims to be a school controller from a ward which is not legally constituted." It will lie against a water company for supplying impure water notwithstanding the act of April 29, 1874 (Sec. 34) P. L. 73." It lies against a school director, who on a tie vote, refuses to draw lots as required by the act of April 11, 1862, P. L. 471, and is appointed by the board." It may issue against the treasurer of a corporation who neglects- his duties and is expelled by the board of directors." It is the proper remedy to settle the rights of two competing street railways which have secured charters for practically the same route." It lies against a corporation where the subscribers have failed to pay in their capital stock as required by law;" or where it abuses its franchise by issuing stock for no consideration." 'Comth. V. Grover, i Chester Co. 477; see cases cited supra; Comth. v. Straus, 32 Supr. C. 389. "Comth. V. Bowditch, 217 Pa. 527; Comth. v. Gillespie, 16 D. R. 244; 4 C. R. A., col. 2017, for late lower court cases. "Comth. V. Warren, 217 Pa. 163. "Comth. V. Parsons, 217 Pa. 435. "Comth. V. Potter Co. Water Co., 212 Pa. 463. "Comth. V. Meaner, 167 Pa. 92. "Comth. V. Jankovic, 216 Pa. 615. "Myersdale Etc. R. Co. v. Penna. Etc. R. Co., 219 Pa. 558. "Comth. V. Pitts. Etc. R. Co., 32 C. C. 401. "Comth. V. Pitts. Etc. R. Co., supra; Comth. v. Altoona Etc. R. Co., 32 C. C. 449. 452 EQUITY PRACTICE IN PENNSYLVANIA. 10 Issuing and return of writ. Section 5 of the act of 1836, provides : "The writ aforesaid may be issued out of the Supreme Court, with the leave of the said court in term time, or of any judge of the said court in vacation, and out of the respective Court of Common Pleas, with the leave of the said court in term time, or of the presi- dent judge thereof in vacation, and such writ may be made returnable at any time within term, at the discretion of the court or judge granting the same." But the writ will not issue at the instance of a senator elect to test the constitutionality of the apportionment law constituting his district.™ Where the officer whose right to hold is questioned is an officer of a municipality it will issue without the relation of the attorney general.''^ 11. Eule to show cause. A rule to show cause why the writ should not issue may be dis- pensed with, and where the attorney general applies, or some one representing the Commonwealth, it is usually granted without the rule."" In case of a private relator, however, there is a reason why a rule should first issue since upon this rule may be determined the interest of the relator and his standing to invoke the Commonwealth on his behalt. Its issuance is in the discretion of the court."' The old practice by distringas to bring defendant in, is no longer used." 12. Service of the writ — ^judgment by default. Section 6 of the act of 1836, provides : "The writ aforesaid, shall be served at least ten days before the return day, in the same manner as a writ of summons in a personal action, and if the party against whom such writ shall be issued, shall not appear, judgment by default may be taken, without further process, in the manner allowed in a personal action." But the act of May 11, 191 1, P. L. 264, amending Section 13 of the act of July 9, 1901 provides: "Section thirteen. Service of the writ of quo' warranto and the writ of mandamus may be made upon the defendant wherever found, as in the case of summons, in proceedings in quo warranto. Where the sheriff of the county in which a corporation had its principal office, or where from the records in the offi'ce of the Secretary of the Commonwealth or of the Auditor General it appears that said office was intended to be located, returns that he is unable to locate such corporation, or is unable to find the principal officers thereof, the court in which such proceedings in quo warranto are then pending shall order and direct notice of a time when such corporation shall appear and make return, and such order shall be published in at least two newspapers of said county, once a week for a period of three weeks, and, upon due proof of said publication having been made, the court shall thereupon proceed to a hearing in said cause as if the said corporation had been actually served." "Comth. V. Crow, 218 Pa. 234, Act Feb'y 17, 1906, P. L. 31. " Comth. V, Bowditch, 217 Pa. 527. "Comth. V. Bank Etc., 10 Phila. 156; Comth. v. Dailey, 3 W. N. C. 133; Comth. V. Walter, 83 Pa. 105. " Gilroy v. Comth., 105 Pa. 484 ; Comth. v. Kistler 149 Pa. 345. "Comth. V. Sprenger, 5 Binney 353, q. v. QUO WARRANTO. 453 Under the act of 1836 it was held that the court could order service of the notice of information on persons residing beyond the state." The manner of service is the same as if it were a summons in a personal action." Irregularity in the service is waived by filing an answer." 13. Requisites of suggestion. Section 7 of the act of 1836, provides : "Every suggestion as aforesaid shall set forth the facts as fully as has heretofore been required, in information aforesaid; it shall be verified by affidavit, and filed of record in the cause, and in every case, the name of the person at whose instance the writ shall issue, shall be indorsed thereon." Although the writ is a civil one,'' the form is similar to a criminal proceeding by information, and the allegations in the "suggestion" must be stated with a certainty so particular and complete that the defendant may answer with certainty and the court render judgment in due and legal form." Where the Commonwealth proceeds on its own notion the suggestion need not be verified,"" but otherwise when ex relatione of an individual. When the attorney general moves the defendant has the affirmative to show by what warrant or title he holds a franchise or office" and when judgment has gone against the defendant, as a rule, the court will not look back and inquire into the character of the suggestion, as to whether it was too general or not." Although under the old rule an information must be as specific as to time, place, manner and persons as an indictment,"' a suggestion need not be so technical. It is enough under the act of 1836, if it allege the facts in general terms showing ground of challenge.'* If defendant is alert he will move to quash and have his day in court, as on a rule to show cause and his motion will be granted "only for some defect in the suggestion, which goes to the foundation of the proceeding, as want of jurisdiction in the court or right in the relator."" On a motion to quash defects of form that can be amended will not be considered." 14. Motion to quash. A motion to quash must be directed, not to mere formalities, but to defects in the suggestion itself and not for any matters outside of it." For failure to serve the writ on the defendant more than ten days before the return day the motion should be to set aside " Comth. v. Dillon, 61 Pa. 488. "■Comth. V. Quinn, i W. N. C. 313- "Comth. V. Helms, 8 C. C. 410. "Comth. V. Browne, i S. & R. 382; Comth. v. Burrell, 7 Pa. 34. "Comth. V. Coml. Bank, 28 Pa. 391. "Comth. V. P. & R. R. Co., 3 Leg. Gaz. 371. '' Comth. V. Steelton Etc. Assn., 2 Dauphin 200. "Comth. V. Sturtevant, 182 Pa. 323. "S Bacon's Abr. 178, citing King v. Roberts, 3 Salkeld 198. "^ Comth. v. Sturtevant (Dean J.), 182 Pa. 323-34- '° Simonton P. J. in Comth. v. Steelton Etc. Assn., 2 Dauphin Co. 200, citing Comth. v. Graham, 64 Pa. 339; Comth. v. Swank, 79 Pa. 154. "Comth. V. Graham, 64 Pa. 339; Comth. v. Coml. Bank, 28 Pa. 383. "Comth. v. Graham, supra. 454 EQUITY PRACTICE IN PENNSYLVANIA. the service and not to quash." If the court would allow a writ on a rule to show cause, it will refuse a motion to quash." It will consider not only the legal questions raised but the justice and propriety of issuing the writ.*" A prima facie title to an office is sufficient to sustain the suggestion." After pleading the motion to quash is too late." 15. Form of suggestion against a corporation. Following is a form of suggestion against a corporation for abuse or non-use of its privileges: The Commonwealth of Penn- sylvania, ex relatione , attorney general of ( In the Court of Common Pleas said Commonwealth > of Dauphin County, V. ( No. , Term, 19 — . [Name of corporation.] Now, to wit, , 19 — , comes into court the Hon. attorney general for the Commonwealth of Pennsylvania and hereby files this suggestion against ; and hereby gives the court to understand and be informed that [Here set out by paragraphs distinctly the fact of the incorporation, when and by what authority; the fact that said corporation has forfeited its corporate rights, privileges and franchises, by what acts, when and where, specifying the same particularly and concljide :] Wherefore the said Commonwealth prays the consideration of the court here in the premises, and that due process of law be awarded against , and that it be adjudged that the said hath forfeited its said charter, franchises and privileges and that it hath no longer power to exercise any corporate right or privilege whatever, and that its officers and members be forbidden to act under said incorporation, or to do, or to claim to do any act, matter or thing hereunder; and that the said and its officers and members from all rights, privileges and franchises under said act of assembly be henceforth altogether excluded. And that a writ of qtw warranto, in due form be issued against the said , to show by what warrant or authority they claim to be longer a body politic and why they should not be ousted therefrom and their charter be declared null and void. Attorney General. [A copy of the charter may be attached and marked Exhibit "A.'T 16. Form of affidavit. [Title of case.] Dauphin County, ss. "■ Comth. v. Getz, 4 D. R. 391. "Comth. V. Hosier, s Luz. L. R. 158. " Comth. v. Dillon, 81* Pa. 41. "Comth. V. Swank, 79 Pa. 154. "Comth. V. Dillon, supra. QUO WARRANTO. 4SS being duly sworn (or affirmed) says that the facts set forth in the foregoing suggestion are true, and further saith not. Sworn to, etc. 17. Form of allowance. Now, day of , 19 — , writ allowed as prayed for, return- Per cur. 18. Form of praecipe. [Title of case.] Issue writ of quo warranto as allowed in this case, returnable To , Esq., , Prothonotary. Attorney General. Date . 19. Form of suggestion against a person usurping office. [Title of case and premise same as above.] That , since the — — day of hath unlawfully exer- cised and still doth so exercise the office, franchise, rights, duties, powers and prerogatives of (name of office), in and for , and usurps the same, which office is a public office created by law, to wit: [Specify same; or if a corporate office what and how authorized.] Conclude with prayer as above. 20. Several defendants may be joined. Section 8 of the act of 1836 provides: "If it shall appear to the court or judge as aforesaid, that the several rights of different persons may be properly determined by one writ, it shall be lawful for such court or such judge to make such order or orders, for the introduction or addition of such persons into the writ, or for notice to such persons to appear, and take defense, as shall be reasonable and just." It has been held that the title to different offices may be determined under the writ." Under this section the title to all members of a borough council may be determined in one proceeding, and the burgess may be a proper relator. Objections as to form may be met by amendment and a motion to quash will be denied."* 21. Answer of defendant — ^pleadings — tissue. Section 9 of the act of 1836, provides: "The defendant in such writ shall answer, plead or demur to the suggestion filed, as aforesaid; he may traverse all or any of the material facts contained therein, as in other cases, and the person or persons at whose instance such writ shall have been issued, shall reply, take issue or demur, and thereupon issue shall be joined in ■"Comth. v. Stevens, 168 Pa. 582; see Comth. v. Masonic Etc., 20 C. C. 465, for the reasoning on which the case rests, "a. Comth. V. Wolfgang, 21 D. R. 193. 4S6 EQUITY PRACTICE IN PENNSYLVANIA. due course, as in other cases; and the court shall make such orders from time to time, in respect to such pleadings, as shall expedite the decision of the cause, consistently with reasonable convenience to the parties." This section assimilates to the old Equity practice, the new rules of the Supreme Court having made an excision of pleas generally. If the defendant does not set forth in his plea and answer a valid title and sustain it by legal proof, judgment of ouster will be pro- nounced against him." "The plea should either deny the facts (disclaim) or set forth the authority. The replication may then allege fhe facts relied on as working a forfeiture. This may be denied or demurred to by the defendant." " "The defendant cannot plead non usurpavit; for the object of the proceeding is to ascertain, by enforcing the defendant to set forth by what warrant or authority he holds." " For form of suggestion against a consolidated corpora- tion, plea, craving oyer of contract of consolidation replication of nul tiel record, demurrer to replication and rejoinder see Comth. v. Atlantic Etc. R. Co., 53 Pa. 9. A plea that defendants have a right to exercise the franchise, accompanied by a negation of the allega- tions of the writ, is not a plea of non usurpavit, or a disclaimer, but a valid plea. A party having had the option to reply or demur, by demurring admits that he has no ground for denial or traverse. A general demurrer is only for defects of substance ; a special demurrer for defects of form which must be specially assigned." When an officer is charged with having forfeited his office he must by his plea disclaim or justify, or judgment of ouster will be given." He should show by what authority he came in and continues to hold and fully answer the suggestion." The plea of "not guilty," though it is a denial, is bad, but when set up with the facts answering fully the suggestion, is not wholly lost.™ Where one claims to hold office under a law held to be unconstitutional, he cannot on appeal claim that the validity of the law was not raised by the pleadings." A vague and general answer either to a rule to show cause or to the suggestion will be insufficient." A demurrer to an answer will be overruled where the answer states sufficient facts to make out a good title, if proved."' The state is bound to show nothing as to want of right or authority to hold. The burden is on defendant." But as to a private relator who claims an office held by another he must make out his title to it, although defendant does not hold by warrant of law.°° " Comth. V. Hargest, 2 Dauphin 409 ; P. & L. Dig., vol. 17, col. 29039. " Simonton, P. J., Comth. v. Steelton Etc. Assn., 2 Dauphin 200. " Angell & Ames on Corpns., Sec. 756. *' Comth. V. Cross Cut R. Co., 53 Pa. 62. " Comth. V. Shepp, 10 Phila. 518. "Comth. V. Gill, 3 Wharton 228. "Comth. V, M' Williams, 11 Pa. 61. "Comth. V. Denworth, 14s Pa. 172. "'Comth. V. McCutchen, 2 Parsons 205. "Comth. V. Jenkins, 6 Kulp 17. " Comth. V. Heller, 31 C. C. 267 ; Comth. v. Miller, 14 D. R. 667. "Comth. V. Whitlock, 12 D. R. 791; Kocher v. Lentz, 9 Northam. 75; Comth. V. Campbell, 12 Luz. L. R. 149; Comth v. Green, 7 Kulp 151. QUO WARRANTO. 457 22. Form of answer. [Title of case.] The defendant , excepting and reserving all manner of exceptions to the errors both in form and substance makes answer to the information, viz. : [Numbering paragraphs, admit what is not denied, and then deny specifically what is not admitted, stating the facts cogently; or disclaim.] Defendant. [Sworn to the truth.] 23. Demurrer. A demurrer, whether special or general, brings the whole record up for review and judgment will go against the one who fails.^ Although a motion to quash has been denied, the defendant may set up the same facts by way of demurrer.' 24. Form of demurrer to suggestion. [Title of case.] And the said defendant by his attorney — — , Esq., comes and defends the wrong and injury when, etc., and says that the said information and suggestion and the matters therein contained, in manner and form as the same are above stated and set forth are not sufficient in law for the said plaintiff to have or maintain the action aforesaid against the said defendant and he, the said defendant, is not bound by law to answer the same; and this he is ready to verify. Wherefore, by reason of the in- sufficiency of the said information and suggestion, in this behalf, the said defendant prays judgment and that the said plaintiff may be barred from having and maintaining the aforesaid action thereof against him. And the said defendant, according to the form of the statute in such case made and provided, states and shows the court here the following specific causes of demurrer to the said in- formation and suggestion, to wit: [Here state the causes seriatim, if any.] Attorney for defendant. 25. Issue of fact sent to Common Pleas by Supreme Court. Section lo of the act of 1836, provides : "Whenever any issue of fact shall be joined upon any writ of quo warranto as aforesaid, issued by the Supreme Court, in any district, it shall be lawful for the said court, by an order to be made in the cause, to direct such issue to be tried in the Court of Common Pleas of the county in which the matters complained of took place, or upon cause shown, in any other county of such district; and thereupon, a copy of the proceedings in such cause shall be certified to the said Court of Common Pleas and such issue shall be de- termined in like manner as issues of fact in causes originating in such court, and when judgment shall be rendered upon such issue 'Comth. v. Pittsburg Etc. R. Co., 58 Pa. 26. ' Comth. V. Steelton Etc. Assn., 2 Dauphin 200. 458 EQUITY PRACTICE IN PENNSYLVANIA, in the Court of Common Pleas, the same shall be certified to the Supreme Court, who shall proceed thereupon, to the final adjudica- tion of the cause." Section 3 of Art. 5 of the constitution limits the original juris- diction of the Supreme Court in quo warranto "to all officers of the Commonwealth whose jurisdiction extends over the state." ' 26. Discontinuance by consent. After judgment for defendants on demurrer to replication by relators, the latter can discontinue only by consent of the defend- ants,* and leave of court. 27. Judgment of ouster, with costs. Section 11 of the act of 1836, provides: "If the defendant in any quo warranto as aforesaid, whether a natural person, or persons, or a corporation, be found or adjudged guilty of usurping or intruding into, or unlawfully holding or exer- cising the office, franchise, privilege or power mentioned in such writ, the court shall give judgment that such defendant be ousted, and altogether excluded from such office, franchise, privilege or power, and that the Commonwealth or party, suing the writ, as the case may be, recover costs from the defendant." Judgment of ouster will be reversed where the record shows almost an entire absence of pleading," or where the issue was tried without a jury under act of April 22, 1874, P. L. 109, and no findings of fact appear on the record.' Forfeiture of corporate franchises are not easily obtained in Pennsylvania. Courts handle such complaints with gloved hands and not "the mailed fist." ' Where a demurrer in the nature of a plea in abatement is overruled the court will not give judgment of ouster but to answer over.' The appellate court, in reversing a judgment sustaining a demurrer to the sugges- tion, if it appear that defendant is disqualified from holding the office in question, will give final judgment. of ouster not respondeat ouster.' One who holds incompatible offices may defeat judgment of ouster by resigning one of them." He may elect which." It was held, however, in one case that the acceptance of a second office, when incompatible, is a vacation of the first." If not necessary to forfeit the entire franchise of a private corporation, the practice is to forfeit only so much as is usurpative or prohibited," but as 'The Act of Mar. 17, 1853, P. L. 685, gave the Supreme Court certain powers as to corporations, now obsolete. *Comth. v. O'Donnell, BrightVs N. P. in. "Comth. V. Taylor, 159 Pa. 451. • Comth. V. Equitable Ben. Assn., 137 Pa. 412. ' Comth. V. Monan. Bridge Co., 216 Pa. lo8. ' Comth. V. Young, 2 Pearson 163. "Comth. V. Walter, 86 Pa. 15. "DeTurk v. Comth., 129 Pa. iSi- "Comth. V. Haeseler, 161 Pa. 92. " Care/sCase, 3 Leg. Gaz. 78. " Comth. V. D. & H. Canal Co., 43 Pa. 295 ; Comth. v. Phila. Inquirer, 3 D .R. 742. QUO WARRANTO. 459 to a municipal corporation there is no splitting of hairs." Third parties are bound to take notice of the pending litigation.'' 28. Form of judgment of ouster and injunction. [Title of case.] And now, day of , 19 — , it is adjudged that (state the fact found), and that judgment be entered in favor of the Common- wealth, and that said defendant be ousted and altogether excluded from said office, franchises and privileges. And it is further adjudged that (state the fact). And it is ordered that a perpetual injunction issue restraining the defendant from exercising or claiming to exercise, the said office of (designating same) and from acting therein and from retain- ing custody of the books, papers, etc. And it is further adjudged that the defendant pay the costs. President Judge. 29. Opening judgment. When a judgment of ouster has been entered against one claiming to be an officer of a corporation, without the knowledge of the officers, and said corporation is not a party, it may intervene and have a rule to open judgment and take an appeal from the order discharging the rule." 30. Enforcement by injunction. A judgment of ouster is enforced by injunction, the order for which is made part of the judgment. A writ of assistance directed to the sheriff may be employed to enforce possession;" or an attach- ment to enforce the order may be asked.'' Section 13 of the act of 1836, provides: "If judgment of ouster and exclusion, as aforesaid, be given against any defendant, execution thereof shall be had by a writ of injunction, which shall be awarded by the court against such defend- ant, whether a natural person or persons, or a corporation; such injunction shall recite the judgment of the court and shall enjoin the defendant or defendants from exercising the office, franchise, privilege or power mentioned therein, and obedience thereto may be compelled by attachment and sequestration in like manner as in other cases of injunction." 31. Form of injunction. [Seal.] The Commonwealth of Pennsylvania to — and and each of you: Whereas by decree of our Court of Common Pleas of the county of , entered , it was amongst other things ordered and adjudged that a judgment of ouster be entered against you, and "Comth. V. Pittsburg, 14 Pa. 177. ''Comth. V. Dieffenbach, 3 Grant 368. "Comth. V. O'Donnel, 188 Pa. 23, reversing Comth. v. Masonic Home, 7 D. R. 103. '■ Comth. v. Dieffenbach, 3 Grant 368. "Comth. V. Small, 26 Pa. 31. 46o EQUITY PRACTICE IN PENNSYLVANIA. each of you, in a certain suit therein pending, of No. Term, 19 — , wherein you were defendants and the Common- wealth upon the relation of , was plaintiff; Noiv, therefore, you , and , and each of you are perpetually enjoined and restrained from exercising or claiming or attempting to exercise the office of (name the same), etc., and herein fail not. Witness the Honble., Etc. , Prothonotary. 32. Costs for defendant when successful — ^when county to pay. Section 12 of the act of 1836, provides: "If judgment be given for the defendant in any such writ, and the proceedings have been instituted on the relation of any private prosecutor, the court shall also give judgment, that the defendant recover his costs of such relator, to be levied by execution as in cases of debt. If the proceedings have been instituted by the attorney general at his own instance, it shall be lawful for the court, in their discretion, on giving judgment for the defendant, to order that the costs be paid by the county in which the matters complained of were alleged to have taken place." 33. Opening of injunction on judgment by default. Section 14 of the act of 1836, provides : "If such injunction shall have been issued upon a judgment rendered by default, as aforesaid, the defendant therein may never- theless, upon the payment of costs, and reasonable notice to the adverse party and such other terms as the court shall deem equitable, plead to the suggestion as aforesaid, and thereupon the parties shall proceed to issue and trial, in like manner as if the defendant had appeared at the return day of the writ, and had pleaded in due course; and if judgment shall be rendered in favor of such defendant, the judgment by default shall be taken off and the injunction afore- said, shall thenceforth be dissolved." The procedure is equitable by petition and rule to show cause why the judgment by default should not be taken off, an issue granted and the injunction dissolved. 34. Execution notwithstandinsr appeal. By Section 15 of the act of 1836, supra, the Common Pleas was authorized to issue an execution, in its discretion, notwithstanding a writ of error was taken. Section 12 of the act of 1897 (Vol. I, Johnson's Pr., P. no), provides that an appeal from a judgment in quo waranto shall not be a "supersedeas, unless so ordered by the court below, the appellate court, or any judge thereof, either by general rule or special order, and upon such terms as may be required by the court or judge granting the order of supersedeas." Appeals in quo warranto, mandamus and election contest cases are now regulated by the act of 1897, supra, and supplements. 35. Substitution of names of parties. Section 12 of the act of April 13, 1840, P. L. 319, provides: "It shall be lawful for any court within this Commonwealth, in which any trial or question arising on a writ of quo zvarranto is or QUO WARRANTO. 461 may hereafter be pending, on the expiration of the term of office, or the resignation of the relator or relators, or person or persons against whom the same has or may have issued, if said court shall be of opinion that the attainment of substantial justice and the trial of the rights in question require the substitution of the person or officer elected or appointed to fill the place of such relator or relators, defendant or defendants, to order and decree that the person or persons so elected or appointed, shall be substituted in the room or stead of the person ,or persons so resigning, or whose time of office has expired, and direct such notice to be served on the person or persons so substituted, as to said court shall seem just and reason- able, after which the cause shall proceed to final hearing and adjudi- cation, in the same manner as though no change had taken place." An order continuing the trial until substitution can be made is interlocutory and no appeal lies from it." 36. Judgment of ouster from ofice, and new election. Section 13 of the act of 1840, supra, provides:^ "In all questions arising on writs of quo warrt^to between per- sons claiming to be duly elected to fill any office, it shall be lawful for the court trying the same, to decide both on the legality of the election of the party claiming said office, as also of the party in possession of the same, and if judgment of ouster is given against the party in possession, said court may decree that the office shall be held by the person or persons who they shall be of opinion is duly elected; and after judgment of ouster, when it cannot be ascertained who is duly elected, said court may order a new election to fill said office, to be held at such times thereafter as shall be appointed by such court." 37. On ouster, trustees may be appointed. Section 14 of the act of 1840, supra, provides : "When the persons claiming to be officers of any corporation shall be ousted by the judgment of any court, on a writ of quo warranto, it shall be lawful for said court to appoint not less than three nor more than nine trustees to take charge of said corporation, who shall be elected and chosen by the said court, out of such persons as are, by the charter of said corporation, competent to be elected officers thereof; and said trustees so appointed shall exercise and perform all the duties of officers of the said corporation, until others shall be elected in their stead, pursuant to the law regulating said corporation, or the order of court, where there is no sufficient law providing for the same." 38. After ouster of corporation, officers to hold in trust. Section i of the act of April 4, 1872, provides: "Whenever any corporation, incorporated under the laws of this Commonwealth, shall have been dissolved by judgment of ouster, upon proceedings of quo warranto, in any court of competent jurisdiction, all the estate, both real and personal, of which such corporation is in any way seized or possessed, shall pass to and vest in the persons "Comth. v. Moore, 199 Pa. 160. 463 EQUITY PRACTICE IN PENNSYLVANIA. who at the time of such dissolution are the officers of such corpora- tion, in trust to hold the same for the benefit of the stockholders and creditors of the corporation." 39. Appointment of receiver. Section 2 of the act of 1872, provides: "The Supreme Court * * * shall upon the petition of any stockholder or creditor of such corporation, appoint a receiver, who shall have all the powers of a receiver appointed by a Court of Chancery, to take possession of all the estate, both real and personal, thereof, and make distribution of the assets among the persons en- titled to receive the same according to law: Provided, That written notice, as may be directed by the court, shall be given to the persons, or a majority of them, who were at the time of the dissolution officers of the corporation, of the intention, time and place of presenting such petition: And, Provided further. That it shall be the duty of such receiver to give notice of his appointment, time and place of meeting, to all the stockholders of such corporation, and to advertise the same as the court may direct." Only the Supreme Court has jurisdiction, under this act to appoint a receiver." "Comth. V. Order of Vesta, 156 Pa. 531; Fraternal Guardians' Est., 159 Pa. 603. CHAPTER XXIV. BECEIVEBS AND RECEIVERSHIPS. 1. Chancery jurisdiction. 2. Receivers defined, 3. Object sought by appointment. 4. Appointment a matter of sound discretion. 5. Receivers for corporations. 6. Receivers for partnerships. 7. Receivers for limited partner- ships. 8. Receiver in lieu of trustee. 9. Receivers for mutual insurance companies. 10. Receivers for insolvents. 11. Bill for a receiver. 12. Notice, — appearance, — selection, etc. 13. Form of bill for dissolution of partnership, receiver, and injunction. 14 Form of answer. 15. Form of order appointing re- ceiver, etc, 16. Form of bond by receiver. 17. Form of bond for injunction. 18. Form of petition for attach- ment. 19. Security by receiver. 20. Appeal from appointment. 21. Rights, duties and liabilities of receivers. 22. Receiver's right to possession — writ of assistance. 23. Form of application for writ of assistance. 24. 25- 26. 27. 29. 30. 31- 32. 33- 34- 3S- 36. 37- 38'. 39- 40. 41. 42. 43- 44. 45- 46. 47- 48. Form of order. Form of writ. Right of receiver to rents. Duty of receiver to take re- ceipts and account. Right of receiver to assets. Action to collect insurance as- sessments. Actions against receivers and corporations. Service of process. Effect of receivership. Right of creditor to execution. Sales by receivers — effect, on liens. Form of petition for sale of perishable stock. Payments by receivers. Examination of books in the hands of receiver. Receiver's certificates. Nature of receiver's certificates. Receivers for foreign corpor- ations. Foreign receiver's rights and relations. Compensation and expenses of receiver. Liabilities of receiver. Receiver's account. Form of receiver's account. Filing and passing of account. Removal o'f receiver. Discharge of receiver. 1. Chancery jurisdiction. It is said by Kerr:^ "The jurisdiction of the Court of Chancery to appoint a receiver has been assumed for the advancement of justice and is founded on the inadequacy of the remedy to be obtained in the courts of ordinary jurisdiction. There are few cases that can be stated in which the court has not jurisdiction where it is essential to the justice of the case to interfere by appointing a receiver.' If the remedy afforded by the courts of ordinary jurisdiction is inad- equate for the purposes of justice, the Court of Chancery will, on a proper case being made out, ex debito justitiae, appoint a receiver." ' ^Kerr on Receivers, Bispham's Ed., p. i. 'Citing Bainbrigge v. Baddeley, 3 Mac. & G. 419. 'Ch. Bland in Williamson v. Wilson, i Bland 420. 463 464 EQUITY PRACTICE IN PENNSYLVANIA. 2. Receiver defined. "A receiver is an indifferent person between the parties, appointed by the court to collect and receive the rents, issues and profits of land, or the produce of personal estate, or other things in question pending the suit, which it does not seem reasonable to the court that either party should do; or where a party is incompetent to do so, as in the case of an infant.' A receiver can only be properly granted for the purpose of getting in and receiving funds which this court at the hearing, or in the course of the cause, will have the means of distributing among the persons entitled to those funds." ' The American doctrine is expressed by James L. High, Esq., of the Chicago Bar:' "He is not the agent or representative of either party to the action, but is uniformly regarded as an officer of the court, exercising his functions in the interest of neither plaintiff nor defendant but for the common benefit of all parties in interest.' Being an officer of the court, the fund or property intrusted to his care is regarded as being in custodia legis." "A receiver is frequently spoken of as 'the hand of the court,' and the expression very aptly designates his functions, as well as the relations he sustains to the court." '* 3. Object sought by appointment. "The object sought by the appointment of a receiver may be generally described to be to provide for the safety of property, pending the litigation which is to decide the right of litigant parties, or during the minority of infants or to preserve property in danger of being dissipated or destroyed by those to whom it is by law entrusted, or by persons having immediate but partial interests there- in."' "The remedy is regarded as in the nature of a sequestration rather than as an attachment of the property, and it ordinarily gives no advantage or priority to the person at whose instance the appoint- ment is made, over other parties in interest.' Nor does it change the title to or create a new lien upon the property; its purpose in this respect being rather, like that of an injunction pendente lite, to preserve the subject matter until the rights of all parties may be judicially determined." " Said Baldwin, J:" "In the exercise of this summary jurisdiction, a Court of Equity reverses, in a great measure, its ordinary course of administering justice; beginning at the end, and levying upon the property a kind of equitable execution, by which it makes a general instead of a specific appropriation of the issues and profits, *Kerr on Receivers, p. 2, Note of B., citing Booth v. Clark, 17 Howard 331 ; Beverley v. Brooke, 4 Grattan, 208. See also High on Receivers, p. 2. Kerr on Receivers. ' High on Receivers, 1894, p. 2. 'Citing inter alia, Meier v. Kansas Pac. R. Co., s Dillon 476; Hooper v. Winston, 24 111. 353. 'aEccleston, J., in EUicott v. Warford, 4 Maryland 85. ' Kerr on Receivers, p. 3. ' High on Rec, p. 6, citing Ellis v. Boston Etc. R. Co., 107 Mass. i. "High on Rec, p. 6, citing Union Bk. Etc. v. Kansas City Bank, 136 U. S. 223. " Beverley v. Brooke, 4 Grattan 187. RECEIVERS AND RECEIVERSHIPS. 46s and afterwards determining who is entitled to the benefit of the quasi process. But acting, as it often must, of necessity, before the merits of the cause have been fully developed, and not infrequently when the proper parties in interest are not all before the court, it proceeds with much caution and circumspection, in order to avoid disturbing unnecessarily or injuriously legal rights and equitable priorities." 4. Appointment a matter of sound discretion. "The appointment of a receiver is a matter resting in the sound discretion of the court." In exercising its discretion the court pro- ceeds with caution, and is governed by a view of the whole cir- cumstances of the case." Before the court will exercise its discretion in the appointment of a receiver for a corporation, it must be appre- hended, for sufficient reasons, that mischief is impending;" and so, where the life tenant refuses to make repairs and pay the taxes, the remainderman sufifers such an injury as entitles him to have a receiver appointed;" and when the property is injured or likely to become so, by one in possession who is financially irresponsible.'^ The court must first be satisfied it is necessary to lay its strong hand upon the property, by this extraordinary remedy." On demurrer, a bill for a receiver will be dismissed when there is another remedy and the corporation is solvent and a receivership would prove in- jurious." The power is to be sparingly exercised and only where injury would result irreparably, if a receiver is not appointed." Where the joint owners of an oil lease cannot agree and in conse- quence damage results to all a receiver may be appointed." In case all the substantial averments of the bill are denied by the answer and the plaintiff does not sustain his bill by proof, a receiver will not be appointed.™ The plaintiff must establish such a right and such an apprehension of immediate injury to it, as will move the con- science of a chancellor." In a dispute as to the legal title, when there is no privity nor fraud. Equity will not interfere. "An in- junction and a receiver are resorted to in any case only to preserve property in statu quo, pending a contest." *" Under the act of June S, 1883, P. L. 79, a writ of estrepement may issue for waste as to oil producing wells, and a receiver may be appointed. A receiver may be appointed to take charge of machinery on property in dispute, " Skip V. Harwood, 3 Atkyns 564 ; Kerr on Rec, p. 3. Note by Bispham, citing Sloan v. Moore, 37 Pa. 217. "Denney v. Susq. I. & S. Co., 21 Lane. L. R. i. "Laughlin v. Crookston, 52 Pitts. L. J. 187. "Keller v. Lamb, 11 Kulp 249. "Chicago Etc. Co. v. U. S. Pet. Co., 57 Pa. 83; Pottsville Etc. Co. v. Kopitzsch Soap Co., 2 D. R. 802; Fox v. Curtis, 176 Pa. 52; Eaton v. East- em B. & L. Assn., 7 D. R. 440. "Bacon v. Hoover Wagon Co., 13 D. R. 16. "Fox v. Curtis, 176 Pa. 52. See Savidge on Corporations (Penna.), vol. 2, p. 6g6 et seq. "McKnight v. Park, 55 Pitts. L. J. 113. "Crombie v. Order of Solon, 157 Pa. 588; Farrow v. Farrow, 16 D. R. 978. " Chicago Etc. Co. v. U. S. Pet. Co. 57 Pa. 83. " Schlecht's Ap., 60 Pa. 172 ; Sharswood, J. Vol. 4 Practice — 30 466 EQUITY PRACTICE IN PENNSYLVANIA, pending the litigation, to preserve it for the lawful owners."' So, also where one tenant in common excludes the other from possession of land and refuses to account for the rents ;" and where the interests conflict and injury is imminent." But where the parties have another remedy to work out their interests and preserve them a receiver will not readily be appointed.^ The pendency of proceedings in the U. S. court, will not prevent a receivership to prevent the spoliation of mortgaged property meantime." 5. Receivers for corporations. When a bill is filed by a stockholder of a corporation, to have a receiver appointed, on the grounds of insolvency and mismanagement he must show an undoubted right and imminent danger of loss or abuse of power.^ Insolvency is defined to be a state wherein the corporation has not sufficient assets, when turned into cash, to pay its debts.'" In determining whether a corporation should be placed in the hands of a receiver it is necessary to consider its present status and its future prospects, rather than its past.°° A mere irreg- ularity, when insolvency is not set up, is insufficient." Where the insolvency is not denied, the objection of a creditor that it will delay him in the collection of his claim, will not prevent a receivership.'' A receiver will not be appointed where the cor- poration has been dissolved and its effects in course of distribution." A wrongful diversion of the property by the directors is a good ground for receivership;'* also gross mismanagement by the officers," or if the directors take a transfer of book accounts to secure an individual preference.'" If the only effect would be to delay the collection of , valid claims, a receivership will be refused;" or If there is an adequate remedy at law;" or where the complaint of the stockholder was fully met by the injunction restraining the corporation from the acts complained of." A receiver will be ap- pointed where the corporation and execution creditors concur, in order to save the imperiled assets." If the corporation is insolvent "McFadden v. Nolan, 15 Phila. 187. " Carey v. Schaller, 10 Kulp 475. " Marvine v. Drexel, 68 Pa. 362. "Phila. V. Dobson, 10 C. C. 34; Kennedy v. McCloskey, 170 Pa. 354. "McGeorge v. Hancock Etc. Co., 11 Phila. 602. "o-Erdner v. Erdner, 234 Pa. 500. " Gracey v. Pitts. Trolley Co., 45 Pitts. L. J. 109. "•Mueller v. Men. Etc. Co., 183 Pa. 450. "Barrie v. Natl. Etc. Co., 14 D. R. 816. "Becker v. Becker Silk Garment Co., 22 Montg. 215; Thoma v. East End Etc. Co., 47 Pitts. L. J. 230. "Gazzam v. Bair Etc. Co., 55 Pitts. L. J. 189. "Ewing V. Con. Etc. Co., 52 Pitts. L. J. 253. '*Dare v. Bennett-Bretz Piano Co., 30 C. C. 481. "Arnold v. Russell, 31 C. C. 38; 212 Pa. 303. "Cook V. Columbia Brush Co., 21 Lane. L. R. 17. "Bell V. Wood, 181 Pa. 175. "Gormerly v. Port Etc. Assn., 3 W. N. C. 11; (but see O'Rourke v. West Etc. Assn., 93 Pa. 308) ; GrifTen v. Burden, 10 Mont. 184. "Devine v. Frankford Etc. Co., 205 Pa. 114. " Line v. Carlisle Etc. Co., s D. R. 642. RECEIVERS AND RECEIVERSHIPS. 467 and mismanaged a receiver will be appointed on the bill of a stock- holder or his legal representative." Where the officers of a life insurance company are squandering and absorbing the assets a receiver will be appointed, without first requesting the managers to apply." A receiver will be appointed for a railroad company, more readily, on the ground of public policy and use; than for a man- ufacturing company, which is not so affected." When the charter of a building association has expired and there is no provision for distribution a receiver may be appointed." But a stockholder who has given notice of his withdrawal cannot maintain the bill."" A creditor whose execution has been returned nulla bona, may maintain a bill to have a receiver to collect unpaid stock subscriptions." A receiver may be appointed for an insolvent corporation created under the general law of 1874." A receiver will not be appointed for a foreign corporation, on bill of stockholder and creditor in Pennsylvania when it is not averred that it has assets here."* The act of April 26, 1893, P. L. 26, provides: "Whenever any corporation incorporated under the laws of this Commonwealth shall be dissolved by judgment of ouster upon proceedings by quo warranto in any court of competent jurisdiction, the said court, or, in vacation, any one of the law judges thereof, shall have power to appoint a receiver, who shall have all the powers of a receiver appointed by a Court of Chancery to take possession of all the estate both real and personal thereof, and make distribu- tion of the assets among the persons entitled to receive the same according to law. The powers of such receiver may continue as long as the court deems necessary for said purposes, and he shall be held to supersede an assignee of the corporation, in possession. 6. Keceivers for partnerships. The Court of Common Pleas has ample power to appoint a receiver for a partnership and wind up its affairs;" and this, although the articles contain a requirement of six months' notice of intention to dissolve." But jurisdiction to appoint a receiver for a vessel in the maritime service is exclusively in the U. S. District Court," which has admiralty jurisdiction." A receiver may be appointed on the application of one partner.^ Where a partnership has been ended by the withdrawal of a member, a formal decree of dissolution is not "Farry v. Hanover Machine Co., 12 York loi. "Treat v. Penna. Mut. Life Ins. Co., 203 Pa. 21. "Cowan V. Penna. Plate Glass Co., 184 Pa. i. "Morrison v. Carbondale Bld'g Assn., i Lack. Jur. 437. "Eaton v. Eastern Etc. Assn., 7 D. R. 440. *a Lemon v. Glass Co., 60 Pitts. L. J. 185. ■" Bailey v. Pittsburg Etc. Co., 139 Pa. 213. "Dunn's Ap., 105 Pa. 49. " Sloan V. Moore, 37 Pa. 317 (see Partnerships, supra), " Page V. Vankirk, 9 Phila. 264.- ""Schacht V. Eschbacher, 7 D. R. 437. By Act of Congress, 191 1, the jurisdiction of the U. S. Circuit Court will be exercised by the U. S. District Court after January i, 1912. (See vol. 2, Johnson's Pr.) " Inskeep v. Hook, 8 D. R. 241. ' Sloan V. Moore, 37 Pa. 217. 468 EQUITY PRACTICE IN PENNSYLVANIA. a pre-requisite to the application;" and a partner may be appointed receiver, because of his knowledge and experience.' A receiver may- be appointed for an insolvent partnership association created under the act of June 2, 1874, P. L. 271, and supplements.* If a partnership is insolvent a receiver will be appointed before answer and final decree where it is apparent that the partnership must be dissolved for breach of duty." The ground on which Equity interferes is that the assets of the partnership are primarily liable for the debts of the firm.' Where one partner attempts to transfer all the assets to the wrong of the others, a receiver will be appointed.' Where the purpose has wholly failed a partner may ask for a receiver and an account.' Where the agreement was obtained by misrepresentation, and the one deceived files a bill presenting equitable reasons why he should be permitted to rescind, the partnership may be dissolved and a receiver be appointed.' Where the bill alleges mismanagement and the answer denies and the evidence is conflicting, a receiver will not be appointed." "A mere breach of trust unaccompanied by injury does not furnish sufficient ground for the appointment of a receiver." " If plaintiff would not be entitled to a dissolution at the hearing a receiver will not be appointed." Plaintiff must show that there is a partnership." If the material facts are in dispute and doubtful no receiver will be appointed." If there be no limitation of time, a partnership may be dissolved at any time, but the court will not appoint a receiver except for fraud and mismanagement shown." If the agreement provides a mode of dissolution and settlement the court will not readily interfere." There must be a clear abuse of trust shown." After one has sold out his interest, he has no standing to ask for a receiver." ^ Becker v. Hill, 20 Lane. L. R. 345. ' Nolan v. Nolan, 8 Lack. L. N. 291 ; Warren v. Stagner, 7 W. N. C. 127. ' Edwards v. KroU Furniture Co., i Lehigh Co. L. J. 235. 'Gowan v. Jeffries, 2 Ashmead 296. 'March v. Hendry, i Leg. & Ins. Record, 90; P. & L. Dig., vol. 17, col. 30136. ' Fox V. Curtis, 176 Pa. 52 ; Leimbach v. Leisner, 1 W. N. C. 199. ' Magilton v. Stevenson, 173 Pa. 560. 'Jones v. Weir, 217 Pa. 321. " Beaumont v. Beaumont, 166 Pa. 615. " Schuyler, P. J., in Miller v. Walsh, i Northam. 194. "Keller v. Young, i Lane. Bar, No. 26; Yoos v. Doyle, 4 i^ack. L. N. 128; Gowan v. Jeffries, 2 Ashmead 296. " Simms v. Brouse, 10 Phila. 13 ; McDonough v. Bullock, 2 Pearson igi ; Baxter v. Buchanan, 7 Phila. 315; Shoenberger v. Ruth, 17 Lane. L. R. 92. " Post V. Weeks, 3 D. R. 380. "Dolphin V. Steell, 2 Lack. L. N. in. " Curtis V. Hale, i W. N. C. 371 ; Monroe v. Thompson, i Law Times (N. S.) 9S; Stickel v. Null, 39 Pitts. L. J. 403. "Hoffman v. Steinbeisser, 11 W. N. C. 383. "Clarke's Ap., 107 Pa. 436. RECEIVERS AND RECEIVERSHIPS. 469 7. Beceivers for limited partnership. The court may, for fraud and misconduct of the managers, ap- point a receiver for a limited partnership association ;" but for unwise investments, where the allegation of fraud is not sustained, a receiver will not be appointed.'" Upon showing that an attempt is being made to transfer the assets beyond the reach of creditors a receiver will be appointed ;"" so, also, in case of insolvency and threatened loss.*" 8. Beceiver in lieu of trustee. Where an assignee for the benefit of creditors was also officer of the corporation and identified with its alleged fraudulent insolvency, he may be displaced by a receiver.*' In case the court substitutes a trustee for one appointed by a will and he fails to give the required security, a receiver may be appointed instead.'" So a receiver may be appointed where the trustee refuses to act;^ or where the chattels are in the hands of a de facto trustee and the de jure trustee has filed a bill for an account.™ But no receiver will be appointed in Philadelphia, where a board of gas works is created by city ordi- nance," or where a deed of trust is executed, revocable only at the pleasure of the trustee." 9. Beceivers for mutual insurance companies. When a mutual insurance company has been dissolved and a re- ceiver appointed under the act of June 23, 1885, P. L. 137, the court may authorize such receiver to levy and collect assessments upon the members to pay debts and losses," and fix the amount to be raised in its discretion," although it is larger than the liabilities." When application is made for the appointment, the members of the mutual company need not be made defendants in the bill, nor the Insurance Commissioner a party, either, where he has had actual notice and has assented thereto.'^ The appointment of a receiver in Dauphin County on suggestion of the Attorney General will term- inate proceedings for account in another county." 10. Beceivers for insolvents. Under the state insolvency act of June 4, 1901, P. L. 404, the peti- tion for a receiver must be presented in the county in which the in- " Frank v. Lewis Etc. Co., 41 Pitts. L. J. 33 ; Tindel v. Park, 154 Pa. 36. " Patterson v. Tidewater Pipe Co., 12 W. N. C. 452. ''Hite Natl. Gas Co.'s Ap., 118 Pa. 436. " Hillborn v. Covenant Pub'g Co., 12 W. N. C. 548. Tailey v. Stockwell, 2 D. R. 197. '''Johnson's Ap., 9 Pa. 416. "' Derustaf jaell v. Derustafjaell, 43 W. N. C. 56. " Fidelity Etc. Co. v. Huber, 13 Phila. 52. "Phila. v. Phila. Gas Works Trustees, 12 W. N. C. 477. "Milliken's Ap., 4 Walker 95. " Solly V. Moore, I D. R. 688. "Comth. V. People's Etc. Co., 22 C. C. 257. "Wood V. Standard Etc. Co., 154 Pa. 157; Stockley v. Hartley, 12 Supr. C. 628. "Int. Etc. Co. V. Kleber, 29 Supr. C. 200; Eichman v. Hersker, 170 Pa. 402; Treat v. Penna. Etc. Co., 199 Pa. 326. ^ Becker v. Hanover Etc. Co., 8 Montg. Co. 134. 470 EQUITY PRACTICE IN PENNSYLVANIA. solvent resides." But this act, having been passed subsequent to the national bankrupt law of 1898, is inoperative except as to two classes of persons, farmers and laborers, who cannot be forced into in- voluntary insolvency.'" The insolvent himself cannot appeal from an order discharging a rule for the appointment of a receiver taken by an unsecured creditor.^ 11. Bill for a receiver. A bill for a receiver does not necessarily carry in it a prayer for an injunction, and one may be appointed for a corporation without it;* and a bill praying for general relief warrants the appointment of a receiver, if deemed necessary to afford relief/ But where a bill prays to restrain a creditor from levying upon a corporation, which is not a party to the proceeding, a receiver will not be appointed.' The claim that a receiver could realize more than the sheriff is not sufficient to warrant a receivership.'' A bill is multifarious which combines a prayer for a receiver for a partnership, an accounting and a discovery of transactions between the partnership and one of its creditors." But the rule of Chancery as stated by Kerr is :' "Objections to the bill on the ground of misjoinder, multifarious- ness, or want of parties, are no answer on the application for a receiver, if a case for the appointment of a receiver be shown." But the record should be in such a state as will enable the judge to de- termine who is to take out of court the fund which the appointment of the receiver shall have brought into court.' In case the suit is a matter of public interest the attorney general should be made a party.' A motion for a receiver will not be prevented by the fact that a plea to the amended bill is pending.' Nor will exceptions be al- lowed to certain statements in the bill and affidavits which are rele- vant to the relief sought; as, where a receiver is asked for because the party is a bad character and with drunken habits, exceptions for scandal and impertinence will not be entertained." The court may grant the prayer as far as proper and refuse the rest." The appointment may be vacated where the court learns that it was im- providently made." Among the acts of assembly providing for the appointment of receivers are these: "Dolhenty's Est., 11 D. R. 187. ""McMuUen's Petn., 26 C. C. 157; McCurdy v. Gantz, 11 D. R. 534; Emeigh's Est., 11 D. R. 296. °° Good's Insolvency, 21 Supr. C. 625. 'Treat v. Penna. Etc, Co., 199 Pa. 326. ' Derustafjaell v. Derustaf jaell, 43 W. N. C. 56. ' Gravenstine's Ap., 49 Pa. 310. *Pairpoint Mf'g Co. v. Phila. Opt. Co., 161 Pa. 17; Griffen v. Burden, 10 Montg. 184. " Luzier v. Naylor Etc. Co., 8 D. R. 632. •Kerr on Receivers, p. 11, citing Evans v. Coventry, s D. M. & G. 918. 'Kerr, p. 11, citing Gray v. Chaplin, 2 Russell 147. ' Skinners' Soc. v. Irish Soc, i M. & C. 162. "Thompson v. Selby, 12 Simons 100. " Everett v. Prythergh, 12 Simons 365. "Major V. Major, 8 Jurist 799 (Eng.) " Hagerman v. Monroe Etc. R. Co., 10 Northam. 243. RECEIVERS AND RECEIVERSHIPS. 471 Boroughs and townships, Sec. 6, June 12, 1878, P. L. 184. Banking company, Sec. 27, May 13, 1876, P. L. 161. On application of the Banking Commissioner in the C. P. of Dauphin County, when company is unsafe. Sec. 9, Feb. 11, 1895, P. L. 4. Insurance corporation, on dissolution. Sees. 49, 50 and 51, act May I, 1876, P. L. 49. Savings banks, after quo warranto. Sec. 24, May 20, 1889, P. L. 246. 12. UTotice — appearance — ^selection, etc. Except in cases of imperative necessity to preserve property from being transferred, imperiled or lost a receiver should not be appointed without noticfe to the parties in interest, which should be fixed in the order granting the preliminary rule. In case of irreparable in- jury by delay a receiver may be appointed eo instanti, with an injunction, when the defendant must come in and move to have the order rescinded and the injunction dissolved, if he can show good cause against it." In England it was held that the appointment of a receiver includes an order for an injunction," but this doctrine is not adopted here ;" nor is it the practice to refer the appointment to a master. The court will receive the suggestion of suitable persons from the parties interested and select for itself from the number, or of its own motion." Where a railroad is in the hands of a trustee under a mortgage a receiver should not be appointed without enjoin- ing the trustee from further proceeding." A receiver appointed by the Supreme Court under Sec. 2, act of April 4, 1872, P. L. 46, shall give such notice of his appointment as the court shall direct. Section 22 of the act of June 4, 1901, P. L. 404, provides that a receiver of an insolvent, after his appointment shall give notice either written or printed, to all creditors requiring them to prove their claims in due form within six months or be debarred. He shall also advertise in one daily newspaper in the county and the legal periodical, if any, once a week for four successive weeks. (See Assignments, etc., supra.) 13. Form of bill for dissolution of partnership, etc. ' V > ^°'^''t of Common Pleas of York County No. 2. •Y vij j August Term, 1905. In Equity. 1. Names and residences of partners. 2. Representations of defendants to plaintiiif to induce him to enter partnership with him, the terms and conditions and reliance thereon by plaintiff, with the consequence of an agreement of partnership, referred to as exhibit "C." 3. An assertion that such statements so relied upon were in fact false and fraudulent and that plaintiff parted with his money on the strength thereof. "Gowan v. Jeffries, 2 Ashmead 296; Monroe v. Thompson, i Law Times (N. S.) 95- "Evans v. Coventry, 3 Drewry 82. '" Boyd v. Murray, 3 Johnson Ch. R. 48. " Gowan v. Jeffries, supra. " New Castle Etc. R. Co.'s Ap., 3 Walker 281. 472 EQUITY PRACTICE IN PENNSYLVANIA. 4. That defendant was conducting the business and was misman- aging it and proposed to suspend and dispose of the business, and that he is involved in debt and financially irresponsible. 5. That defendant has failed to keep proper accounts of firm trans- actions in the regular books. 6. That the business has been unprofitable and conducted at a loss, from the beginning. 7. That defendant well knew that his representations were false and fraudulent, and were made to induce plaintiff to invest his money. 8. That if the partnership be not dissolved plaintiff will suffer great and irreparable loss. Further, the amount is stated which is imperiled by the alleged fraudulent conduct of the defendant. The bill prays: 1. That the dissolution of the partnership be decreed. 2. For an injunction against defendant, restraining him from further actions [in detail]. 3. For an account. 4. For the appointment of a receiver. 5. That the agreements marked "Exhibits B and C" be cancelled and rescinded, and that defendant be ordered to pay the plaintiff the amounts received by him under them. [Sworn to the truth.] 14. Form of answer. Same "j V. V Title of case. Same J Defendant's answer admits the partnership and agreement, but denies the allegations of fraud and misrepresentation, or that he in- duced plaintiff to enter; but, on the contrary, was solicited by him. Also denies the various other allegations, seriatim, and prays that the bill be dismissed for the reasons given. [Sworn to the truth.] 15. Form of order appointing receiver, etc. And now, Dec. 4, 1905, this cause came on to be heard at this term and was argued by counsel and thereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows: That the agreements marked "Exhibit B" and "Exhibit C," attached to the bill, be and the same are cancelled and rescinded; and that the de- fendant pay to the plaintiff $5,700, received by him from the plaintiff ; The Security Title and Trust Company of York, Pa., is appointed receiver, on filing a bond in the sum of $25,000, to be by me ap- proved, and that the defendant be perpetually restrained from buy- ing, selling or collecting for said firm and from taking any of its goods or cash, and from purchasing or incurring obligations or in- debtedness in the firm name, and from interfering in any manner with the said firm or its business or property during the receiver- ship; and that he pay the costs of this case. By the Court, John W. Bittenger, P. J. RECEIVERS AND RECEIVERSHIPS. 473 Before dissolving a partnership, appointing a receiver and award- ing an injunction the court must file an opinion and finding of facts to justify it"^ 16. Form of bond by receiver. Know all men by these presents that the Security Title and Trust Company of York, Pennsylvania, is held and firmly bound unto the Commonwealth of Pennsylvania in the sum of ($25,000) twenty- five thousand dollars, lawful money of the United States of America, to be paid to the said Commonwealth, its certain attorneys or as- signs, to which payment well and truly to be made, it obligates itself and its successors, firmly by these presents. Sealed with the common and corporate seal of the said the Security Title and Trust Company of York, Pennsylvania, and dated the 9th day of June, 1905. Whereas, the Court of Common Pleas of York County, on the 9th day of June, 1905, ordered and decreed as follows: "And now, June 9, 1905, on due consideration of the evidence, and after hear- ing of counsel and upon the plaintiff filing an injunction bond, to be approved by the court, in the sum of twenty-five thousand dollars ($25,000) to be this day filed and approved, the court orders that the injunction as issued by the court be continued during the further hearing by the court and the court appoints the Security Title and Trust Company, receiver, and orders that the receiver file a bond to be approved by the court in the sum of twenty-five thousand dollars ($25,000), which will cover the personal property, all that receiver can administer without further consent of the court." Now, the condition of this obligation is such that if the above bounden the Security Title and Trust Company of York, Pennsyl- vania, receiver, shall well and faithfully execute the said trust in all legal respects, then this obligation is to be void ; otherwise it is to remain in full force and virtue. Attest: The Security Title and Trust Company, R. S. Cannon, Sec'y. By C. C. Frick, Vice-President. Bond approved June 9, 1905, and ordered to be filed. John W. Bittenger, P. J. 17. Form of bond for injunction. Know all men by these presents that we, S. M. J., plaintiff in the suit in Equity, in the Court of Common Pleas of York County, Pennsylvania, No. 2, August Term, 1905, entitled v. , and the Security Title and Trust Company of York, Pennsylvania, surety, are held and firmly bound unto T. W. Etc. Sealed Etc. Whereas, the said S. M. J. filed' a bill of complaint in the Court of Common Pleas of York County, Pennsylvania, entitled as above, praying, inter alia, for an injunction restraining T. W. from inter- fering with the firm of , or its business or property, as therein particularly set forth, which said injunction was duly granted on entering of security in the above-mentioned sum, and has this day been continued by the said court. Now, the condition of this obligation is such, that if the said ob- ligors shall indemnify the said defendant for all damages which "a Jones v. Weir, 213 Pa. 135. 474 EQUITY PRACTICE IN PENNSYLVANIA. may be sustained by reason of said injunction, then this obligation to be void; otherwise to be and remain in full force and virtue. [Signed.] 18. Form of petition for attacliment. To the Honorable, etc.: The petition of , receiver of , respectfully represents that on the day of , A. D. 19 — , he was appointed receiver of -, by virtue of a decree filed in said case, which contained, inter alia, the following: [insert injunctional order] that on the day of , A. D. 19 — , said decree was served personally upon by , constable [or, as the case may be], as appears by affidavit of service thereof, hereto attached; that since such ser- vice of notice, said has endeavored to collect outstanding bills of said [or designate what the interference was] as follows: [Here state what he did in detail.] Your petitioner there- fore prays your honorable court to issue an attachment against said to punish him, as for contempt, in the violation of said decree, and he will ever pray, etc. Sworn to. . Now, , 19 — , rule to show cause is granted why attach- ment shall not issue as prayed for, returnable , 19 — . Per cur. Upon service of the rule the defendant may appear and show cause against it by answer denying the allegations, or admitting the facts, but showing that he acted under advice of counsel and as he believed he had a right to do and thus purge himself of all contempt. Upon the second hearing of the case of Jones v. Wier, in the Su- preme Court,"'' it was decided that on the allegation of fraud and deceit, false statements made to induce one to enter into a partner- ship are sufficient to warrant rescission and cancellation."" As a matter of practice on appeal it was also held that under rule 92, Equity, assignments of error must be filed in the Appellate Court, as well as in the court below, and the decree of the court must be set forth totidem verbis and be specific."'^ 19. Security by receiver. Unless dispensed with by the choice and agreement of the parties, a receiver must give such bond for the faithful discharge of his duties, as the judge shall approve, and it may consist of a recog- nizance with two or more sureties, or a single surety company au- thorized by law to become surety. In Chancery, such recognizance must be taken by a person authorized to administer oaths in that court. The amount should be double the value of the estate which is to come into his hands. The recognizance may be reduced by or- dering a part of the estate to be paid into court, when capable of being paid in. If the property in his hands increases in value, the receiver may be required to give additional security. The court' will not dispense with the usual security, even with the consent of the "1)217 Pa- 321 (Mitchell, Fell and Elkin, dissenting). "c Citing Smith v. Everett, 126 Mass. 304 ; Richards v. Todd, 127 Mass. 167. "3 Citing Croasdale v. Von Boyneburgh, 206 Pa. 15. RECEIVERS AND RECEIVERSHIPS. 475 parties interested, unless they are competent to agree upon their own receiver." 2Q. Appeal from appointment. Under the act of Feb. 14, 1866, P. L. 28, an appeal from the order appointing a receiver and granting an injunction covered both and both might be reversed."* But appeals now are regulated by the act of May 19, 1897, P. L. 67, for which see Vol. i, Johnson's Pr., and also Vol. 2, Ibid. 21. Bights, duties and liabilities of receivers. Williams, J., thus laid down the rights, duties and liabilities of a receiver in general terms :" "A receiver is the oiBcer, the executive hand of a Court of Equity. His duty is to protect and preserve for the benefit of the persons ul- timately entitled to it, an estate over which the court has found it necessary to extend its care. He occupies a fiduciary relation to the owners of the property under his care and to all who have claims upon it. He is subject in all things to the direction and control of the court whose officer he is, and where in doubt about his duty in any particular, it is his privilege to apply to the court for specific instructions. * * He is a trustee and bound, as such, to the ex- ercise of prudence and good faith in all his dealings with the trust estate, and to bring to the discharge of his official duties the same measure of skill and the same personal supervision that he would give if the estate were his own. * * It is the duty of the receiver to keep the trust funds separate from his own. He has no right to mingle them. In depositing them in bank, he should make sure that they are placed to his credit as receiver; for it is in this capacity alone that he is entitled to their custody, and they are at all times subject to the order of the court in whose hands, in contemplation of law, the fund actually is. If the receiver finds himself with such a sum on hand, as if it had been his own he would have invested, it is his duty to ask leave of the court to invest it, and to try, in good faith, to keep it invested for the benefit of the owners. When 5ie assets are turned into money it is his duty to make out his ac- count and submit the fund to the discretion of the court." When he is receiver for a corporation he is the representative of not only the corporate entity but also its creditors, and may take care of and enforce their particular rights in the premises." If for a partnership his duty is to wind it up and not to continue it as manager."* To continue the business of a corporation, he must have express authority from the court and within the strict limitations thereof When he continues the business of a partnership at the solicitation of all the partners, he will not be surcharged with bad "Kerr on Receivers, 151-2; Manners v. Furze, 11 Beavan 30-1. "aSchlecht's Ap., 60 Pa. 172. See Haught v. Irwin, 166 Pa. 548; Pantall v. Mclntyre, 197 Pa. 520; also Jones v. Wier, supra. "Schwartz v. Keystone Oil Co., 153 Pa. 283. See also Yeager v. Wal- lace, 44 Pa. 296 ; Kerr on Receivers, p. 182. "Cushing V. Perot, 175 Pa. 66. "Reeve's Ap., 3 Walker 199. "" Gillespie v. Blair Glass Co., 189 Pa. 50. 476 EQUITY PRACTICE IN PENNSYLVANIA. debts of the firm."" If a receiver disposes of personal property at less than the appraised value to a firm into which he thinks of entering, he will be surcharged; so, also, where he occasions loss by his neglect." A receiver appointed in another state and also as ancillary Ijy an order in this state, may confess judgment on a bond given by a resident of Pennsylvania to the building association.*' When a receiver makes settlement of a judgment subject to the ap- proval of the court, it is not satisfied without such approval."' A receiver cannot transfer a lease without the consent of the lessor when the lease so provides." The limitation of prosecution against a receiver is four years from the time the alleged offence was committed, as provided in Section 6 of the act of June 12, 1878, P. L. 196. 22. Receiver's right to possession — writ of assistance. When the order directs parties to the record to deliver possession of property held by them to the receiver, he may immediately, on having qualified, demand possession. If any refuse to deliver the receiver should report the facts to the solicitor having charge of the proceeding, who will then have personal service made upon them of the order."' If possession is still withheld, a motion may be made, ex parte, for a writ of assistance directed to the sheriff of the county in which the property is, to put the receiver in possession." Rule 87 of the Supreme Court Equity Rules provides : "When any decree or order is for the delivery of possession, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be at liberty to apply forthwith to the court or to a law judge, for an order for a writ of assistance, upon the allowance of which the prothonotary shall immediately issue the same." A writ of assistance, under eminent domain, to help a railroad company to take possession of a dwelling house condemned under the act of March 17, 1869, must issue in conformity to Sup. C. Eq. rule 87, providing therefor upon demand and refusal to obey a decree for delivery. The application should be supported by an affidavit of service of the order and of non-compliance. The writ is prepared, issued and executed in the ordinary manner.'" If tenants be in possession of real or lease-hold estates, the receiver should call upon them to attorn to him as receiver; and if they refuse he must serve upon them a copy of the order appointing him and a notice in writing requiring them to attorn and pay. If they then still refuse, they are served with a notice of a motion to attorn and pay within a time limited after service of the order.*' When served the tenants ^ McDowell's Ap., 4 Penny. 384. "French v. Pittsburg Etc. Co., 184 Pa. 161. '" Interstate Etc. Assn. v. Lewis, 48 Pitts. L. J. 83. '" Morgan's Ap., 4 Walker 406. '" Spencer v. Darlington, 74 Pa. 286. ™ Kerr on Receivers, p. 183 ; Green v. Green, 2 Simons 430. "Daniels' Ch. Pr., 1578; 1734; I73S- "■Daniels' Ch. Pr., 957; Church's Ap., 13 Atl. 756; Corath. v. Dieffen- bach, 3 Grant 368. " Kerr on Receivers, 185. RECEIVERS AND RECEIVERSHIPS. 477 may appear on the motion and inform the court whether they be in possession as tenants or not.°^ If no one appears on the day fixed, the court will take proof by aifidavit of service of notice of motion, orders, certificate and notice to attorn, and refusal to attorn, and thereupon order the tenants to attorn."" If a tenant appears and shows reasonable ground for his refusal, the order will be made without costs."' "A copy of the order indorsed in the usual man- ner is then served personally upon the person thereby directed to attorn: and upon production to the record and writ clerk of an af- fidavit of such service, and of an affidavit by the receiver of non- compliance, he will seal an attachment against the party in con- tempt." "° But process for contempt is not awarded here, except on affidavit to the court making the order, and by its order formally awarding the attachment. The prothonotary has no such power as is given the clerk in Chancery. The writ of assistance may be in- voked to obtain possession of land, as well as railroad property and goods and chattels."" In William Penn v. Lord Baltimore, i Vesey Sr. 444," the Lord Chancellor said the practice "was first begun and settled in the time of James I, but ever since done by injunction or writ of assistance to the sheriff." It has been called "extraordinary relief," but is now much used to enforce injunctions."" The writ can only issue against parties bound by the decree. Jus- tice Field said :"' "The power to issue the writ results from the principle, that the jurisdiction of the court to enforce its decree is co-extensive with its jurisdiction to determine the rights of the parties." "It is a rule of that court to do complete justice when that is practicable, not merely by declaring the right, but by afford- ing a remedy for its enjoyment. It does not turn the party to another forum to enforce a right which it has itself established." 23. Form of application for writ of assistance. Fnos Wirt ( ^^ ^^^ Court of Common Pleas of J County. Jesse Waite & Co. \ ^° — ' "j Jl^itr' Luther Frank being duly sworn according to law says that in pur- suance of an order of said court entered on the day of , A. D. 19 — , he was duly appointed receiver of said Jesse Wait & Co., and having been duly qualified by giving bond as required by said court he served [or had served by ] upon said Jesse " Reid v. Middleton, T. & R. 457- ""Hobson v. Shear wood, 19 Beavan S7S- " Hobhouse v. Hollcombe, 2 DeG. & S. 208. '"Kerr on Receivers, 185. "Church's Ap., 13 Atl. 756, and authorities cited by the Court below; Comth. V. Dieflfenbach, 3 Grant 368. See rules of Supreme Court. "'Approved in Huguenin v. Bazeley, 15 Vesey Jr. 180, and noticed in British v. De Beers, I Ch. 354 (1910). " Beatty v. De Forrest, 27 W. J. Eq. 482. " Terrell v. Allison, 21 Wallace 289 ; see loi U. S. 849 ; 123 U. S. 755 ; 144 U. S. 125 ; 124 Fed. R. 62. 478 EQUITY PRACTICE IN PENNSYLVANIA. Waite, personally the defendant in possession of the property, said order of court, as by return of service hereto attached duly appears, and' then and there demanded possession of the property by said order committed to his custody, to wit: [Describe same.] That notwithstanding such notice and demand said Jesse Waite then and there refused to comply with your said order, and refused to deliver possession of said property and still so persists. Sworn to, etc., Luther Frank. 24. Form of order for writ. Now, to wit, August 22, 191 1, upon hearing the affidavit in this case and due consideration, on motion of , Esq., solicitor for Luther Frank, receiver, it is ordered that a writ of assistance issue forthwith to , Esq., sheriff of said county, commanding him to deliver to said Luther Frank, receiver, possession of the property [or premises] described in the affidavit and embraced in the decree of this court and to enforce said decree. Per cur. 25. Form of writ. The Commonwealth of Pennsylvania to , Esq., Sheriff of the County of , greeting: Whereas, by virtue of a decree of the Court of Common Pleas of County, sitting in Equity, rendered on the day of , A. D. 19 — , in a suit pending in said court, wherein is plaintiff and are defendants, was duly appointed receiver for said defendants, and having duly qualified as such it was adjudged and decreed as follows : [Cite the decree in full] ; and whereas, it further appears by affidavit filed in this cause, that said decree [or a certified copy] was served upon , personally, and a demand was then and there made for the delivery of posses- sion to him the said receiver of the following described property, viz. : [Describe same ; if lands, by metes and bounds ; if personal property, by items], which said property was then and there in the possession of said , and who wholly refused and still refuses to deliver possession of the same as he was commanded and requested. Therefore, we command you without delay, that you go to and enter upon the said described lands and that you eject and remove there- from the said and all and every person or persons holding and detaining the same, or any part thereof from the said , receiver, as aforesaid [in case of personalty, that you seize, take and deliver the same to the said , receiver, etc.], and that you deliver to him, the said , receiver, as aforesaid, full, quiet and peaceable possession of said property without delay; and that him, the said , receiver, as aforesaid, in such possession thereof, from time to time, you do maintain, keep and defend or cause to be kept, maintained and defended, according to the tenor and true intent of the said decree of our said court. Witness the Honorable, etc. [Seal.] , Prothonotary. " This form is adapted from the writ issued by order of Chief Justice Salmon P. Chase, in Terrell v. Allison, 21 Wallace 291. RECEIVERS AND RECEIVERSHIPS. 479 The writ is executed and returned by the sheriff in the same man-, ner as a writ of habere facias possessiotu/spi, after a verdict in eject- ment. 26. Bight of receiver to rents. "A receiver is entitled to all the rents in arrear at the date of his appointment/ and to all the rents which accrue during the contin- uance of his receivership; an order may be obtained on motion or summons with notice to the tenant for payment thereof by him to the receiver, notwithstanding that he may not have attorned. The tenant will have to pay the costs of the application." If he admits a sum to be due the estate he cannot contest its collection by the receiver.' After the tenant has attorned the receiver may distrain for rent in his own name, without leave of court," or employ a bailiff to make the distress on his warrant ;* but before attornment distress can only be made in the name of the person having the legal estate,'' and leave must be had from the court, on motion," or petition, if there be any doubts as to the right of the receiver. 27. Duty of receiver to take receipts and account. Whenever the receiver pays out any money on order of the court, or otherwise necessarily, he should take receipts in due form, to be used as vouchers when he files his account, in the same manner as a guardian or trustee. In Chancery he could discharge himself on affidavit of payment for sums under forty shillings; but this is not our practice: vouchers are required for all sums, in the settlement. The account must furnish a full and complete statement of every- thing for the inspection of creditors as well as the corporation, firm or person for whom he is receiver; and if it is not so done, making it necessary to investigate it, the receiver will be mulcted in the costs.' He will be liable for interest for funds in his hands, but his disburse- ments must also be considered in determining the amount.' But, if by litigation, his hands are tied and he is not responsible for the failure to invest, no interest will be charged.* The receiver in a peculiar manner represents the creditors and differs from an as- signee." He may file a bill of discovery against the corporation of which he has been made receiver, and its stockholders, requiring them to account and collect unpaid subscriptions." The receiver can- not carry out a preference made by the company but unexecuted when he was appointed." But the court may by its orders assist ^Kerr on Rec, citing Codrington v. Johnstone, i Beavan 524. 'Wood v. Hickings, 2 Beavan 294. 'Hughes V. Hughes, 3 Brown's Ch. C. 86; Chase v. Goodale, 2 Law Times, N. S. 107. * Dancer v. Hastings, 4 Bing. 2. "Hughes V. Hughes, supra. 'Merrritt v. Lyon, 16 Wendell 410. 'Reeves' Ap., 3 Walker 199. 'McDowell's Ap., 4 Penny. 384. 'Wallace's Ap., 3 W. N. C. 468. "Duplex Etc. Co. V. Clipper Pub'g Co., 213 Pa. 207; State Bank Etc. v. Kirk, 216 Pa. 452. " Woods V. U. S. Novelty Co., 54 Pitts. L. J. 298. "Riddle V. Elder, 55 Pitts. L. J. 347. 48o EQUITY PRACTICE IN PENNSYLVANIA. .him to carry out a contract made by the company.'* A receiver will not be discharged until all the assets are turned into money and accounted for," and his account must be detailed and not lumped." 28. Bight of receiver to assets. Where there is personal property the duty of the receiver is to secure it. If in the shape of securities, books, papers, etc., and the parties holding them refuse to deliver, he should apply to the court for an order, after notifying the parties. Being the officer of the court he must have its leave and sanction to bring suit for debts, and to recover personal ' chattels, etc.," unless the law directs him so to do, or the practice of the state warrants it. The court will not give leave unless it appears that some fruits may be reaped by the suit." Without leave of court, he cannot maintain trover for chattels converted before he was appointed. But if taken from his possession he may." So if he has sold goods which came to him as receiver he may sue for the debt in his own name;" and also for rent of property he let as receiver.^" Leave to issue a capias ad respondendum against a defaulting treasurer has been granted nunc pro tunc^ As soon as a receiver is appointed the right to sue is in him and not the disabled party .^ This right extends to all property or dues available to pay the creditors,"" but it does not cover a claim to the secret process of an inventor;"* whilst, on the other hand, it does cover the right to the books, papers, etc., relating to a patent con- tributed to a partnership by one member as his share."'' As to growing crops, the receiver is entitled to the value of the growing grass. Where money in bank has been appropriated before the receivership a credit must be allowed accordingly for the amount."' Where goods are sold and delivered on time, the fact of insolvency does not afterwards permit the vendor to rescind and recoup."* If the receiver brings an action in the court of appointment, it is sufficient if his statement refers to the record of the proceedings and a copy thereof need not be attached to it."* After a final decree in favor of a corporation for which a receiver is appointed by the U. S. Court, "Tenth Natl. Bank Etc. v. Smith Con. Co., 19 York 149; 20 York 15. " Comth. V. Standard Trust Co., 31 C. C. 206. "Walter v. W. Branch Etc. Co., 12 D. R. 529. "Yeager v. Wallace, 44 Pa. 294; Booth v. Clark, 17 Howard 331; Wisener v. Myers, 3 D. R. 687; Nail v. Ewing, 6 W. N. C. 32. " Dacie v. John, McClellan 575. " Singerly v. Fox, 75 Pa. 112; Barry v. Nelms, 2 C. C. 440. " Phila. Etc. Co. v. Schada, 15 Phila. 285. "° Monsaratt v. Equitable Trust Co., 14 Supr. C. 541. "'Woomer v. Stanley, 18 Lane. L. R. 277. "" Cushing V. Perot, 17s Pa. 66. "Jagode V. Smalley, 10 Supr. C. 320. " Wilt V. Reed Electric Co., 187 Pa. 424. "° Rushton V. Harrington, i W. N. C. 79. "" Rodgers v. Black, 15 Supr. C. 498. "'Chase v. Petroleum Bank, 66 Pa. 169. ""Hartwell v. Carlisle Etc., 17 C. C. 565. ""Rathfon v. Locher, 215 Pa. 571. RECEIVERS AND RECEIVERSHIPS. 481 the defendant cannot move substitution in the Common Pleas.'" The receiver having filed a bill for an account by the directors, he cannot complain if they are allowed for moneys advanced and salaries for services under an agreement with the corporation."'' The receiver of a bonding company cannot maintain a bill on be- half of credtors to enforce personal liability against officers of the company on the ground of misrepresentation, etc.'"'' 29. Action to collect insurance assessments. When the receiver of a mutual insurance company sues to collect assessments, his statement is insufficient if it attaches only a copy of the decree and does not set forth the record of appointment and authorization, nor contain a reference to such record." Advantage must be taken of such defect by demurrer or affidavit of defense." The statement does not need to aver the particular losses for which the assessment is made: it is sufficient if it is alleged that the losses occurred during the life of the policy;" and attaches copies of the policies and by-laws,'* as well as the requisites above stated. A member sued upon an assessment authorized by the court cannot set up that the company was not insolvent when the receiver was ap- pointed, that the losses did not occur and that the assessment was unnecessary;'" unless the plaintiff fails to set up the record in his statement. He cannot raise a question as to the incorporation or failure to comply with the rules of the insurance department, but he may set up a defense as to his personal liability. On a suit brought in a different county than the appointment, the defendants cannot avail themselves of defenses which are properly cognizable in the appointing jurisdiction." The time limit for the payment of losses may be waived by the receiver at his option." Although claims appear to be barred by the terms of the policies, this does not relieve the receiver from including such claims in the sum for assessment." The receiver must follow the order of court and cannot enlarge it or subtract from it." Where the liability of mem- bers ceased on the cancellation of their policies they cannot be com- pelled to contribute to the expenses of the receivership." An af- " Phila. Etc. R. Co. v. Kiefer, 15 D. R. 664. '"a. Miller v. Doyle, 211 Pa. 59. '"b Kinter v. Connolly, 233 Pa. 5. '' Stockley v. McClurg, 14 Supr. C. 629 ; Susq. Etc. Co. v. Leib, 14 York 86. " Schofield V. Lafferty, 17 Supr. C. 8. " Solly v. Moore, i D. R. 666. °* Sparks v. Industrial Brick Co., 12 Supr. C. 404. '° Eichman v. Hersker, 170 Pa. 402 ; Stockley v. Riebenack, 12 Supr. C. 169; Stockley v. Schwerdfeger, 19 Supr. C. 289; Snader v. Bomberger, ii Supr. C. 629; Moore v. Riefsnyder, 22 Supr. C. 326. '" Stockley v. Cook, 47 Pitts. L. J. loi. "Wood V. Standard Etc. Co., 154 Pa. 157; Capital Etc. Co. v. Boggs, 172 Pa. 91; Snyder v. Groff, 8 D. R. 291. "Dettra v. Hoffman, 5 Del. Co. 321. "Stockley v. Hartley, 12 Supr. C. 628. "Comth. V. People's Etc. Co., 22 C. C. 257. " Capital Etc. Co. v. Boggs, 172 Pa. 91 ; Snyder v. Groff, 8 D. R. 291. ^ Knipe v. SchoU, 16 Montg. 209. Vol. 4 Practice — 31 482 EQUITY PRACTICE IN PENNSYLVANIA. fidavit averring failure to give notice of the assessment, etc., has been held insufficient;" but one alleging failure to aver the mode of assessment, that the losses occurred while the policy was in force, and that the assessment was made according to the by-laws, was held sufficient." It is not a defense that the policy had stamped upon it a guaranty that the assessments should not exceed a certain amount, during its term;* nor that he was induced to become a member by fraud, where others joined, innocently, during the time he was a member." Under the 49th section of the act of May i, 1876, P. L. S3, the receiver of a mutual insurance company may recover a debt due the company by suit in his own name as receiver." 30. Actions against receivers and corporations. It has been held in the state courts that service of process upon a receiver without leave of the court appointing him is irregular.^ This follows Chancery, vvherein a receiver may neither sue nor defend without leave of court. But under the act of Congress of March 3, 1887, 24 St. at large, Ch. 373, and August 13, 1888, 25 Stat., Ch. 866, a receiver appointed by the U. S. Court may be sued in a state court without leave,^ because the act expressly says so. This covers an attachment execution;' though final judgment may be held in abeyance.* An attachment summoning an insurance company as garnishee, served before the receivership, holds the receiver." Where an appointment has been made the attachment is properly served upon the receiver and the attaching creditor thereby gains a preference to other attachments." The receiver alone can raise the question of jurisdiction of the court.' A receiver of a national bank may be made garnishee.' The receiver of a corporation, whose charter is annulled in New Jersey, need not pay the manager a salary he claims under a contract with the defunct New Jersey corporation.' When the receivers and a railroad company are joined in a suit for trespass committed while the road was in the hands of the re- ceiver, a verdict cannot be supported, where the corporation was not served and did not appear. The suit, in such case, should be brought against the corporation by name, "in the hands of," or "in the possession of" a receiver, without naming him." To sue the cor- " Snader v. Hurst, 16 Lane. L. R. 102. ** Snader v. Baker, 16 Lane. L. R. 102. "Moore v. Lupfer, 49 Pitts. L. J. 366. "Dettra v. Kestner, 147 Pa. 566; Backenstoe v. Jones, 12 D. R. 239; P. & L. Dig., vol. 17, col. 30173. "Tanner v. Fox Etc., 40 C. C. 136. ' Malaney v. Atkins, i Lack. L. N. 252 ; Wray v. Hazlett, 6 Phila. 155. = McConnell, J., in Hill v. B. & O. R. Co. Rec, 7 D- R- 473- 'Patterson v. Penn Etc. Co., 6 D. R. 4i9- * Conshohocken Tube Co. v. Iron Etc. Co., 167 Pa. 592. ° Pickersgill v. Myers, 99 Pa. 602. •Mer. Natl. Bank v. Binder, 6 D. R. 633. ' Conshohocken Tube Co. v. Iron Etc. Co., 167 Pa. 589. 'Conway v. Chest. St. Natl. Bank, 189 Pa. 610. 'Loucheim v. Clawson Etc. Co., 12 Supr. C. 55. "Ault V. Cowan (No. 2), 20 Supr. C. 628. " Real Est. Etc. Co. v. Mahoning Etc. Co., 6 D. R. 409. RECEIVERS AND RECEIVERSHIPS. 483 poration, leave of court is not required." Where the cause of action accrued while the railroad was in the hands of a receiver it is error to sue the corporation." A suit brought against a corporation is not abated by the appointment of a receiver. * Suit may be brought against a railroad company under the act of 1842 in any county where the whole or a part of its property is, if service can be obtained. After the receivership a bill for account will not lie against the officers of a corporation by its members." A bill by members of a partnership against the receiver and the partnership has been de- clared multifarious." In a conflict between the federal and state courts under the act of 1888, supra, the right of the federal court to hold general Equity jurisdiction will be recognized." A sci fa. sur mechanics' lien may issue, by leave of court, against a corpora- tion in the hands of a receiver, and judgment be taken, but no further steps." A receiver appointed by the U. S. Court should apply to that court for equitable relief when sued for damages because of failure to perform a contract." A receiver, when sued in his repre- sentative capacity need not file an affidavit of defense unless required by a rule of court." 31. Service of process. When the receiver is sued service of process must be upon him, and not the officers of the corporation." If process may be served upon a foreign corporation, it may also be made in the same manner upon its receiver.™ Service must now be made in accordance with the act of 1901, and its supplements. See Vol. i, Johnson's Pr., "Summons." 32. Effect of receivership. It has been seen that, as to the corporation as a distinct entity, a receivership suspends its active functions." Where a person claims property on a purchase before the corporation was placed under a receiver, the question must be determined in the same manner as the corporation would have been obliged to proceed."" A pledgee of property to secure notes, when such property has not been set apart or delivered cannot enforce his claim against the receiver." If property is in the hands of a receiver, it cannot be replevied, the " Brosang v. Atlantic Etc. R. Co., 27 Pitts. L. J. o. " Howard v. P. & R. R. Co., 6 C. C. 589. "Wagner v. Keystone Etc. Co., 8 D. R. 231; Van Dusen v. Blake, 20 W. N. C. 45 ; Seavey v. Jenkins, 15 W. N. C. 124. "Becker v. New Hanover Etc. Co., 8 Montg. 134. "Bovaird v. Seyfang, 200 Pa. 261. "Davis Coal Etc. Co. v. Hess, 30 Supr. 193; see Krout v Phila. Etc. Co., 16 D. R. 479. "Fisher Etc. Co. v. Susq. Etc. Co. (No. 2), 23 Lane. L. R. 398. "Hallowell v. Williams, 217 Pa. 501. "Speck V. Lansdale Etc. Co., 21 Montg. 215. But see' Hays v. Pitts- burg Etc. R. Co., 27 Pitts. L. J. 105. ^ Hintermeister v. Williams, 33 Pitts. L. J. 365. "^ Hill V. B. & O. R. Co. Rec, 7 D. R. 473. "^ Treat v. Penna. Etc. Co., 199 Pa. 326 ; Schlecht's Ap., 60 Pa. 172. '* McClure v. Penna. Etc. Co., 2 Law Times (N. S.) 243. " Sholes V. Asphalt Etc. Co., 183 Pa. 528. 484 EQUITY PRACTICE IN PENNSYLVANIA. sheriff being liable for contempt if he executes the writ." The ap- pointment of a receiver supersedes and suspends the duties of the officers, but the corporation still exists for the purposes of the law and an election of officers may be held, notwithstanding they are enjoined from transferring the assets."" When a receiver has been appointed in the U. S. Court it has been held that the funds cannot be attached in his hands.''' An order appointing a receiver for a partnership carries with it an injunction to restrain interference.** The rights of creditors are fixed at the time of the appointment of a receiver." A creditor who has levied on all the property before a receiver is appointed is entitled to the priority due to his vigilance." On the audit, a Court of Equity has power to entertain a claim based on the ground that certain property did not belong to the insolvent corporation.^ The appointment implies an adjudication that the cor- poration is insolvent." When a receiver is appointed for a manu- facturing company the rights of all creditors are fixed as of that time, and a subsequent judgment gains no priority."' The court cannot by an order nunc pro tunc, make a judgment relate back." So, when an insurance company passes into the hands of a receiver the rights of policy holders become fixed and the provision as to bringing suit within a specified time ceases. Claims are to be made upon the receiver without action."" Where the business of a manu- facturing corporation is continued so as to use up the raw materials on hand, the bondholders are entitled to come in on the fund."' The distribution is made pro rata." The landlord has a lien for the rent accruing during the receivership."" Wage claimants are also protected as to the proceeds of crops but not of an insurance policy." The lien claimants cannot have their claims reduced by allowance of counsel fees and receiver's commissions." A bank which re-dis- counts notes already discounted by a bank which goes into receiver- ship may claim a dividend on such as fall due after the appoint- ment, which were not paid by the makers at maturity." 33. Right of creditor to execution. After a receivership duly instituted and receiver appointed, an execution cannot issue and a valid levy be made upon any of the property thus in custody of the law.' If the plaintiff has any reason "Comth. V. Young, ii Phila. 606, Elwell, P. J. " Comth. V. Overholt, 23 Supr. C. 199. "" Bethlehem Steel Co. v. Damon Etc. Co., 4 Lack. Jur. 386. "'Jones V. Weir, 217 Pa. ,321. "McIIvain v. Excelsior Etc. Co., I Berks 103; Dean's Ap., 98 Pa. loi; Comth. v. State Ins. Co. Etc., 10 D. R. 339- "Phila. Etc. Co.'s Rec, 25 Lancaster L. R. 377. " Groff V. City Etc. Co., 23 Lane. L. R. 273. " Comth. V. State Ins. Co. Etc., 10 D. R. 339. " Cowan V. Penna. Plate Glass Co., 184 Pa. i ; 188 Pa. 542. " Cowan V. Penna. Plate Glass Co., 184 Pa. i ; 188 Pa. 542. " Comth. V. Niagara Etc. Co., 6 D. R. 666. " Gehr v. Mont Aho Iron Co., I7;4 Pa. 430. " Hooven Mer. Co. v. Evans Mining Co., 193 Pa. 28. ""Lane v. Washington Hotel Co., 190 Pa. 230. "Jones' Ap., 102 Pa. 285. " Moore v. Lincoln Park Etc. Co., 196 Pa. 519. "Oyster v. Short, 177 Pa. 601. » Robinson v. O. & P. R. Co., 2 Pitts. 2S7. RECEIVERS AND RECEIVERSHIPS. 48S 'o believe that the property should not pass into the hands of the receiver, he should in proper form apply to the court, state his reasons and have such property discharged out of custody." Dean, J., said:' "There may be many cases in which the appointment of a receiver does not change the status of the corporate property or sus- pend the ordinary remedy of the creditor, still there are many in- stances where the ordinary remedy of the creditor is absolutely sus- pended." The court will not permit its process ' to be used, even by consent, to the injury of anyone/ A misuse of process against prop- erty in custody is contempt," and an attachment may issue in proper form after due showing.' But where execution process has issued, and the property is levied or attached, the subsequent receivership does not change its status. It is then, too, in custody of the law and protected.' The appointment will not prevent a sale on a lev. fa. on a prior mortgage where the receiver has not taken actual possession of the property.' ft 34. Sales by receivers — effect on liens. The court having ordered a receiver to sell at auction, will leave him to act on his best judgment and his own responsibility. It will not advise him.' The court cannot by order of sale divest judgment creditors of the priority of their liens." The title will pass to the purchaser subject to the liens, where the order makes no mention of prior liens, and there is no notice to the owners of such incum- brances." A railroad company cannot maintain ejectment for part of its roadbed, on the allegation of fraud, where the receiver sold the property and franchises." The creditors may claim interest down to the date when their claims are adjudicated ; it does not stop at the sale." If a prospective purchaser, after the sale offers to bid a much larger sum and files a bond to make good, the sale will be set aside." A bidder who accepts the terms must comply with them and cannot amend them by giving his note and then offering a claim as a set-off." Such a sale is a judicial sale and wages claimants must give notice as required by the act of April 9, 1872, P. L. 47, and its 'Robinson v. Atlantic Etc. R. Co., 66 Pa. 160; Frailey v. Central Etc. Co., 9 Phila. 219; Longstreth v. Phila. Etc. R. Co., 11 W. N. C. 94; 309; Thompson v. McCleary, 159 Pa. 189. ' Cowan v. Penna. Plate Glass Co., 184 Pa. i. * Taylor v. B. & L. R. Co., 7 York 174. 'Line v. Carlisle Mfg. Co., 5 D. R. 642. ' Cromer v. Wellman Etc. Co., 7 Del. Co. 69. 'Pairpont Mf'g Co. v. Phila. Etc. Co., 161 Pa. 17; Lowry v. Phila. Etc. Co., 161 Pa. 123; Merchant's Bank v. Petersburg Railroad, 12 Phila. 482; Hays V. Lycoming Fire Ins. Co., 99 Pa. 621; Natl. Bank Etc. v. Lycoming Fire Ins. Co., 12 W. N. C. 321 ; Pollock v. S. & L. R. Co., 2 W. N. C. 182. ' Darling v. Wyoming Etc. Co., 2 Kulp 142. 'Givin V. Givin, 2 Leg. Gaz. 85. "Lebanon Brewing Co., 3 D. R. 260. " Fidelity Etc. Co. v. Schenley Etc. R. Co., 189 Pa. 363. " New Castle N. R. Co. v. New Castle Etc. Co., 152 Pa. 96. " McCay v. Black, 14 Phila. 635. "Patterson v. Patterson, 207 Pa. 252. "Kidney v. Beemer, 27 Supr. C. 558. 486 EQUITY PRACTICE IN PENNSYLVANIA. supplements." Interest will be due from the time of payment." If the purchaser fails to pay and the land is resold for less under dif- ferent circumstances the first purchaser is not liable for the dif- ference." Third parties are not bound by the sale of property as partnership property, which is not such." One who sells to a re- ceiver property to carry on the business, knowing under what au- thority he is acting, cannot recover the same.™ The act of May ii, 191 1, P. L., provides as follows: Section i. Be it enacted, &c.. That from and after the passage of this act, the Courts of Common Pleas of the several counties of this Commonwealth, in all cases where, under existing laws, the court has the power to order the sale of real estate of any corporation in the hands of a receiver duly appointed, for the payment of debts and for other purposes, the said court may decree and approve a private sale, if in the opinion of the court, under all the circum- stances, a better price can be obtained at private than at public sale, as where the interest shall be undivided, or for any other sufficient cause. Section 2. At least ten days' notice of the intention to present such petition to the court shall be given by the petitioner to all known creditors and other parties in interest, previous to the presentation of the same to the court. Under Sec. 20, act June 4, 1901, P. L. 404, a receiver may not bid at his own sale. See act May 22, 1878, P. L..83 (Vol. 3, Johnson's Pr., p. 50), leave to bid. 35. Form of petition of receiver for sale of perishable stock. To the Honorable the judges of said court: The petition of , receiver, etc., respectfully represents that on the day of , 19 — , he presented his petition to your honorable court, asking for permission to sell certain perishable stock which is located in the factory of the , among which per- ishable stock was listed a large number of boxes of different grades of candy. That thereupon your honorable court granted permis- sion to sell said perishable stock as specified, among which was the candy hereinbefore mentioned. That your petitioner has made every effort to sell said candy and stock and thus far has received the following bids for the same, to wit:' [Here state names and amounts.] Your petitioner avers that the said candy is rapidly spoiling and is in danger of soon becoming unsalable and thinks it advisable to sell it as soon as possible; and to the said bidders, as the highest and the prices the best received, and that the prices bid are fair and reasonable, and that cash will be paid. He further avers that he has no interest, directly or indirectly, in the purchase of said candy. " Mould V. Mould, 28 Supr. C. 318. "Comth. V. Guarantor's Finance Co., 30 C. C. 569. " Helfrich v. Freck, 18 W. N. C. 523- " Foster v. Barnes, 81 Pa. Z77- "Lewis V. Linden Steel Co., 183 Pa. 248. RECEIVER'S AND RECEIVERSHIPS. 487 He therefore prays your honorable court for authority to sell said candy to the said highest bidders for cash, and he will ever pray. [Sworn to the truth.] . [Upon which is endorsed the order of court granting leave and the terms, if any.] 36. Payments by receivers. When a receiver pays out money, as ordered, it is proper to require a refunding bond in double the amount paid over by him. Such order cannot be appealed from, being interlocutory only, unless im- providently made." If he pays a creditor twice by mistake, he may recover it.^ But if the order or decree has been procured by fraud or mistake the court may order restitution.'' A receiver appointed, under Sec. 6 of the act of June 12, 1878, P. L. 184, cannot pay a judgment creditor without an order of court." 37. Examination of books in hands of receiver. The court will give leave to examine the books and accounts in the hands of the receiver, although sought by the prosecutor and district attorney for use in the prosecution of the president for knowingly receiving money when the company was insolvent." The receiver need not be made a party to a mandamus requiring the cor- poration to permit examination of the stock books." On a bill of dis- covery the books will be kept accessible to both parties." The re- ceiver of a mutual insurance company who has sued members for assessments must permit them to see and examine the books." 38. Receiver's certificates. The court may in its discretion authorize the receiver to issue cer- tificates for the completion of a railroad, at the request of the presi- dent and a large majority of the bondholders, if the decree is with- out prejudice to the non-consenting bondholders." But receiver's certificates can be legally issued only after due notice to all parties in interest, and after full hearing upon the necessity or propriety of the proposed issue.'" Where the street railway company is a growing concern and the necessity is apparent; the court will authorize cer- tificates and the appointment of a capable superintendent.'' It will authorize certificates for the purchase of a locomotive as an impera- tive necessity." Where the recipient of such certificates with priority of lien surrenders them and accepts later certificates with no priority, "Sykes v. Thornton, 152 Pa. 94. "'Kerr v. Ames, 39 Leg. Int. 392. =' Palmer v. Truby, 136 Pa. SS6- " Jordan v. Blakely Boro', 3 Law Times (N. 'S.) 205. '°McElree v. Darlington, 187 Pa. 539. =°Comth. v. P. & R. R. Co., 3 D. R. 115. =" Haught V. Irwin, 166 Pa. 54^. " Becker v. New Hanover Etc. Co., 8 Montg. 134. '"Rutherford v. Penna. Mid. R. Co., 178 Pa. 38. "McConnell, J., in Cort's Appn., 7 D. R. 536, quoting Beach on Re- ceivers, Sec. 383. " Bucks Co. R. Co. Rec, 22 C. C. 170. »" Taylor v. B. & L. R, Co., 7 York 174. 488 EQUITY PRACTICE IN PENNSYLVANIA. the latter lose their preference.'' One who loans money on a re- ceiver's certificate need not look beyond that and the order for their issuance. If such order does not require them to be paid out of a special fund they will be payable out of the general fund. The purchaser is not affected by the want of notice to creditors, of the application for the order." 39. Nature of receiver's certificates. These certificates are only justified upon the theory that operating expenses of a "going concern," must be preferred to the mortgage bondholders because imperatively necessary to the preservation of the property itself and its capacity to earn money and pay them." There has been high authority against issuing them as a preferred claim for wages even."" The doctrine of the United States Courts is that the court having taken over the property, it is a trust, which must be preserved, and the cost of such preservation may be made a pre- ferred lien upon the property itself. This power must be exercised only cautiously and founded upon necessity, and, if possible, with the consent or acquiescence of the parties in interest." They will be authorized upon application, only for such expenses and repairs as are necessary to keep the railroad or trust estate in operation;'* or the further construction, completion and equipment of a railroad to preserve its franchises and enable it to produce an income." Such certificates have been held to be non-negotiable paper, but may be transferred by assignment or even by delivery if payable to bearer, but the holder for value by such assignment, delivery or hypotheca- tion can recover upon them only to the extent that the original holder could." "The negotiation and sale of the certificates is a trust personal to the receiver which he cannot delegate to an agent. And when one has purchased the certificates from an agent or broker of the receiver at a large discount, the agent not accounting to the receiver for the proceeds, the purchaser cannot enforce the certifi- cates." * If a bondholder, however, desires to question the authority to issue or the validity of the issuance, he must do so before they are sold, or he will be estopped." After a final decree of foreclosure and pending an appeal and supersedeas, if the court orders an issue of receiver's certificates, an appeal lies from such order, as a final "Lewis v. Linden Steel Co., 183 Pa. 248. '* Neafie's Ap., 22 W. N. C. 31. =" Taylor v. P. & R. R. Co., 7 Fed. R. 377; Wallace v. Loomis, 97 U. S. 146. " Met. Trust. Co. v. Tonawanda V. R. Co., 103 N. Y. 245. "Wallace v. Loomis, 94 U. S. 146; Investment Co. v. Ohio Etc. R. Co.. Z6 Fed. R. 48. "Union Tr. Co. v. Illinois Mid. R. Co., 117 U. S. 434- '' Kennedy v. St. Paul & Pac. R. Co., 2 Dillon 448; s Dillon 519; Sv.ann V. Clark, no U. S. 602. "Staunton v. A. & C. R. Co., 2 Woods 506; Union Trust Co. v. C. & L. H. R. Co., 7 Fed. R. 513. " High on Receivers, p. 410, Sec. 3986, citing Union Trust Co. v. C. & L. H. R. Co., 7 Fed. R. 513- "Humphreys v. Allen, loi III. 490; Langdon v. Vermont & C. R. Co., 53 Vermont 228. RECEIVERS AND RECEIVERSHIPS. 489 determination of the rights of the parties." The purchaser at fore- closure will not be heard to question the certificates, regularly issued." The consent of the mortgage trustee to the issuance estops the bondholders and the purchasers." They may be made a lien and enforced in a subsequent suit for foreclosure against a new company which acquired the property under the prior foreclosure." Where certificates have been sold at a discount, by order of court, the holders may recover face value." The petition for the issuance of receiver's certificates must show the necessity for the expenditure, by a full presentation of the facts warranting it. McConnell, J., said: "The receiver is but the hand — not the head — of the court. * * * If the right to issue such certificates exist in the case of a business corporation it must be shown that there are extraordinary circumstances which are sufficient to prompt the court to take this unusual course." " 40. Receivers for foreign corporations. Unless a foreign corporation has complied with the law in regard to doing business in this state (act April 22, 1874, P. L. 108), a receiver will not be appointed here, although one has been appointed in the state of its origin." But, having registered and being engaged in business, one may be appointed at the instance of a stockholder, for cause shown.' It is a matter within the discretion of the court and may be refused where no good purpose would be served.' But an ancillary receiver may be appointed to protect creditors in this state, as to the distribution of a fund within the state.* 41. Foreign receiver's rights and relations. A receiver appointed in another state will be accorded no standing or privileges as against the rights of citizens of this state. So, in case of attachment of property, whether made before or after this appointment, he gains no priority over citizens of Pennsylvania.' His appointment will be recognized by comity, but he gains no authority thereby, and an ancillary receiver will have legal custody of the funds.' But, in case of a mutual association of New York, a Pennsylvania member is bound by the laws of that state as to the association.' So, also, one who was a resident of another state " Farmers' Loan & Trust Co. Petnr., 129 U. S. 206. "Swann v. Clark, no U. S. 602; Cent. Trust Co. v. Sheffield Etc. R. Co., 4i Fed. R. 526. " Kneeland v. Luce, 141 U. S. 491. *" Mercantile Tr. Co. v. Kanawha & O. R. Co., 50 Fed. R. 874. "Union Trust Co. v. Illinois Midland R. Co., 117 U. S. 434. "Cort's Appn., 7 D. R. 536. ' Filley v. Ithica Etc. Co., 3 Kulp 396. 'Schmitz V. Metallic Condense Co., 11 D. R. 442; Arnold v. Russell Etc. Co., 31 Pa. 38. 'Borton v. Brines-Chase Co., 175 Pa. 209. '' Frowert v. Blank, 205 Pa. 299. 'Solis V. Blank, 199 Pa. 600. Lower Court Cases, see P. & L. Dig., vol. 17, col. 30207, et seq. ° Bagby v. Atlantic Etc. R. Co., 86 Pa. 201 ; Frowert v. Blank, 205 Pa. 299. ' McKean v. New York Etc. Assn., 10 D. R. 197. 490 EQUITY PRACTICE IN PENNSYLVANIA. when the receiver was appointed, but subsequently removed here, gains no right to immunity and will not be preferred." The foreign receiver having obtained possession of the effects with the knowledge of a citizen of this state, the latter is secondary in right." Where the stock of a foreign corporation is liable to assessment in case of insolvency, the receiver is entitled to the assessments as against the claims of a Pennsylvania creditor.'" Generally, however, the Penn- sylvania creditor will be preferred." If the receiver's claims do not conflict with the rights of any citizen of this state they will be recognized, by comity, as against every one else." But a foreign attachment issued in this state prior to the appointment will be recognized and sustained, although the plaintiff be a non-resident;" but not if issued subsequent thereto." 42. Compensation and expenses of receiver. A receiver, being an officer of the court, will be allowed by it for his services, time, trouble and expenses what they were fairly and reasonably worth, and what was necessarily and bona fide expended in the true execution of the trust; and for neglect, inatten- tion or abuse of his trust the same rule will be applied to him as to a trustee or guardian, as to deduction or loss of compensation. The duties and rules as to remuneration are laid down compre- hensively by Williams, J. in the case cited below." For mal- administration he may be surcharged with the loss caused thereby." A receiver is not to be surcharged, however, for delay, when hindered and resisted by the officers of the corporation and where no assets were lost and he acted in good faith, he is entitled to his fair compensation." He is entitled to the cost of suretyship on a bond for a clerk made necessary to transact the business." A receiver for a partnership will not be deprived of his commissions, because of delay occasioned by the partners." But if he has been wilfully derelict and unfaithful, he shall receive nothing." Where a partner is appointed receiver, his compensation will not be fixed by the standard of the articles of association."' Maritime liens on a vessel cannot be reduced by charges of receivers' com- ' Hintermeister v. Ithica Etc. Co., 3 Kulp 490; P. & L. Dig., vol. 17, col. 30211. 'Lett V. Kirkpatrick, 15 C. C. 212. " Jagode V. Smalley, 10 Supr. C. 320. "Lucas V. Diggins, 11 W. N. C. 77; Pairpont Mf'g Co. v. Phila. Etc. Co., 161 Pa. 17. "Bagby v Atlantic Etc. R. Co., 86 Pa. 291; Perkins v. Clear Spring Paper Co., 17 Phila. 168; P. & L. Dig., vol. 17, col. 30214. "Solis v. Blank, 199 Pa. 600; Warren v. Union Natl. Bank, 7 Phila. 156; Clark Co. v. Toby Etc. Co., 3 D. R. 518. " Paladini v. Maryland Silk Co., 18 C. C. 175. " Schwartz v. Keystone Oil Co., 153 Pa. 283. " Pangburn v. Am. Vault Etc. Co., 205 Pa. 93. "Comth. v. Textile Mut. Fire Ins. Co., n Dauphin 51. " Groflf V. City Etc. Co., 23 Lane. L. R. 273. Appeal quashed, 32 Supr. C. 416. "McDowell's Ap., 4 Penny. 384. " Reeves' Ap., 3 Walker 199. "Lennig v. Lennig, 15 Phila. 283. RECEIVERS AND RECEIVERSHIPS. 491 missions and counsel fees, which must be paid out of other property of the steamship company.'" An agreement by all the parties to accept an auditor's report will be held binding as to commissions allowed by him." Where the landlord's claim for rent exhausts the fund, no commissions or counsel fees will be allowed, but the land- lord may be taxed with a share of the auditor's fee." The parties having agreed to the receivership, his claim for pay and counsel fees cannot be upset because security was not given, as required by the act of May 6, 1844, P. L. 564, when an injunc- tion is prayed for.''" A receiver who has been ordered by the court to make sale of mortgaged premises, in lieu of the trustee, is entitled to compensation only for services after the decree of foreclosure, out of the fund raised by the sale.'"' An attorney employed by a board of directors of a building association to resist the appointment of a receiver is entitled to payment for his services, out of the fund." A counsel fee of $55 in a case involving $485 was held to be reasonable."" A receiver is not entitled to charge costs, etc., in a suit against him and his sureties, where the firm was not con- cerned in the matter in controversy."" A charge of one per cent, has been held reasonable.'"^ The lower court having fixed the compensation, it will not be reversed except for manifest error."'' Compensation of a receiver may be allowed in his final account at the same rate as in partial accounts acquiesced in by the parties."''^ 43. Liabilities of a receiver. "A receiver is responsible for any loss occasioned to the estate from his wilful default."" If he places the moneys received by him in what he knows to be improper hands, he will have to answer the loss out of his own pocket. A receiver, however, is not expected, any more than a trustee or executor, to take more care of the property intrusted to him, than he would of his own. If he deposits the moneys for safe custody with a banker in good credit, to be placed to his account in the character of receiver, he will not be answer- able for the failure of the banker.^ The money must, however, be deposited to the account of the receiver in that character, or be otherwise ear-marked. If a receiver pays money which comes into his hands as receiver, to his private account with a banker, and not to a separate account as receiver, or otherwise mixes up the money '" Moore v. Lincoln Etc. Co., 196 Pa. 519. "' Kerlin v. Ewen, 149 Pa. 58. "Lane v. Washington Hotel Co., 190 Pa. 230. "Crouse v. Bedell, 11 Supr. C. 598. '"Girard Etc. Co. v. Bedford Etc. Co., 20 Supr. C. 304. "' Comth. V. Penn Etc. Assn., 204 Pa. 29. "'Jordan v. Blakely Boro, 3 Law Times (N. S.) 205. "•Dehart v. Yeager, 6 Leg. Gaz. 118. "°a Haddock v. Plymouth Coal Co., No. 336, Jan'y T., 191 1, Sup. Ct. ""bYork Trust Co. v. Pullman Etc. Co.i 289 Jan'y T., 191 1. "■" Haddock v. Coal Co., 16 Luz. L. R. i. ""Kerr on Receivers, p. 209. 'See cases cited supra, par. 21. " Knight v. Ld. Plymouth, 3 Atkyns 480. " Rowth V. Howell, 3 Vesey Jr. 565 ; Wren v. Kirton, 1 1 Vesey Jr. 381 ; Salway v. Salway, 4 Russell 60. 492 EQUITY PRACTICE IN PENNSYLVANIA. which he collects as receiver, with his own money, he shall be liable for the loss if the banker fails." ^ 44. Eeceiver's account. It is the duty of the receiver to report and account to the court whenever required, and particularly when his business as receiver is ended. Under the old Chancery practice he was required to account annually, but now it is at the discretion of the judge, having regard to the nature of the estate. In his account, he must furnish a complete statement of his acts for the inspection of creditors as well as the firm, corporation or entity for which he is receiver. If he does not, and an investigation becomes necessary he may have to pay the costs thereof." When a receiver files a partial and first account, the only matter considered is what he has received; questions of surcharge and mismanagement go over to the filing of a final account.°° Under the act of June 3, 1893, P. L. 273,"° the surety of a receiver (and other fiduciaries), may petition for an account and removal of his principal for waste or mismanagement of the estate. 45. Receiver's account, ordered by court. To the Honorable, etc. , receiver for , appointed by your honorable court, begs leave to submit the following acount of his receivership : By decree of this court entered , 19 — , your accountant was appointed receiver for , and filed a bond as required in the sum of $ , approved by this court. That he took possession of the property, stock, furniture, etc., of , as ordered, and by your authorization sold the same and collected the book accounts as far as he was able to do so. That he kept the plant insured and in repairs, and employed a day and night watchman in order to keep the insurance effective, whom he paid out of the funds coming into his hands as receiver. That much of the stock was perishable and he sold the same as by the orders of court. That the indebted- ness of said , as far as has come to his knowledge, is as follows: [State same in detail.] That he received the following sums of money from the persons named : [Here set out receipts in detail.] That his disbursements as per vouchers filed herewith were as follows : [Set out same ia detail.] That the total receipts were $ That the total disbursements were $ Balance on hand $ '"Wren v. Kirton, 11 Vesey Jr. 381; Jewett v. Miller, 10 N. Y. 402; see cases cited supra, par. 21. "Reeves' Ap., 3 Walker 199. '" Groff V. City Etc. Co., 23 Lane. L. R. 273 ; 22 Supr. C. 416. "' See vol. 3, Johnson's Pr., p. 934. RECEIVERS AND RECEIVERSHIPS. 493 That there yet remains property on hand and undisposed of as follows : [Here specify same particularly.] Respectfully submitted, , Receiver. County, ss. being sworn says the above and foregoing account and report as receiver of is just, true and correct, to the best of his knowledge and belief. Sworn to and subscribed , etc. 46. Filing and passing of account. Such account is not filed in the first instance, but is presented to the judge in open court or at chambers and is by him ordered filed by the prothonotary and advertised in a designated newspaper and the legal periodical, if any. If the receivership be of an insolvent under the act of June 4, 1901, P. L. 404, the notice, time, form and manner are there pre- scribed, for which see the subject of assignments for the benefit of creditors, supra, this volume. When not regulated by statute, it is regulated by rule or order of court, as well as the time and manner of filing exceptions, before the account is confirmed absolutely. 47. Eemoval of receiver. For neglect of duty and incapacity or mismanagement a receiver may be removed. Upon a rule to file an account and resign, made absolute, the receiver still holds until his successor is appointed and is entitled to credit for necessary payments up to such date." The refusal of a petition to remove a receiver will not be reversed except for manifest abuse of discretion." 48. Discharge of receiver. As a rule a receiver will not be discharged until he has fully completed his duties and settled a final account, unless he be removed for mismanagement or incompetency, or be relieved on his ovm petition for cause shown. A formal order of discharge should be entered on a petition setting forth the grounds. To divest a receiver of possession an application is necessary." A decree of the court taking property out of his possession, however, discharges him, to that extent. A receiver will not be relieved on his own petition unless he shows urgent reasons." When he does show good cause, he may have his costs of the application out of the fund in his hands." When the duties of his appointment on behalf of the plaintiff have ceased, he cannot be continued on motion of the de- fendant, decided Lord Eldon." But this doctrine has since been qualified, so that he will be held until all the incident rights of the "Comth. V. Textile Etc. Co., 11 Dauphin Co. 51. " Hilliard v. Sterlingworth Etc. Co., 221 Pa. 503. "Thomas v. Brigstocke, 4 Russell 64. ■" Very v. Watkins, 23 Howard 475. " Richards v. Ward, Maddock 266. ■" Richards v. Ward, supra. * Davis V. Duke of Marlborough, 2 Swanston 167. 494 EQUITY PRACTICE IN PENNSYLVANIA. parties are settled;" although the defendant may be required immedi- ately to file a bill for the purpose." He may be discharged for crookedness" or bankruptcy. Where a receiver is appointed for an infant he should not be discharged until one year after he has attained his majority according to Lord Kenyon, approved by Lord Eldon." If on accounting, there appear to be sums due the receiver, he will not be discharged until he receives such sums." The proper practice is to present a verified petition and move for a discharge. Unless the parties in interest sign a formal request for such dis- charge, the court will grant a rule to show cause why he should not be discharged and direct service of it upon the parties in interest to appear on a day fixed by the court to hear if aught they have to say why he should not be discharged and his bond cancelled and his sureties released. The formal discharge is an order making the rule absolute. ** Beverley v. Brooke, 4 Grattan 187. * Whiteside v. Prendergast, 2 Barbour's Ch. R. 472 ; Milwaukee Etc. R. Co. V. Soutter, 2 Wallace (U. S.) 510. * Bertie v. Ld. Abingdon, 8 Beavan 53. " Griffith V. Griffith, 2 Vesey 400. "Anon., cited in 2 Maddock 298. "Bertrand v. Davies, 31 Beavan 436. CHAPTER XXV. TRUSTS. 1. Equity jurisdiction of trusts. 2. Jurisdiction of private trusts. 3. Equity jurisdiction to appoint trustees. 4. Procedure by petition, 5. Orphans' Court procedure adopted. 6. Citation may be returned to special court. 7. Jurisdiction over infant trustees. 8. Married woman's trust. 9. Cases in which courts may ap- point trustees. 10. Exercise oif power of appoint- ment. 11. Power to compel conveyance. 12. Trustee, durante dbsentia, etc, 13. Trustees of bequests for educa- tion. 14. Creation of a trust. 15. Definiteness of purpose — de- livery. 16. Parties necessary. 17. Trusts in lands must be in writ- ing. 18. Implied or resulting trusts. 19. Evidence of resulting trust — Act of 1901. 20. Power of married woman to sue her husband. 21. Trusts ex maleficio. 22. Kinds and nature of trusts. 23. Citation to trustee for waste. 24. Court may require security or dismiss. 25. Order concerning books, etc., on dismissal. 26. Discharge on execution of trust. 27. Discharge of trustee on his own application. 28. Filing transcript of balances. 29. Surviving trustee to execute trust. 30. Termination of trusts. 31. Cancellation of bond of trustee. 32. Form of bill to declare a result- ing trust, ex maleficio. 33. Form of answer. 34. Form of ceplication. 35. Form of final decree. 36. Form of bill for settlement of trust estate, discovery and termination of trust. 37. Form of answer. 38. Trustees of church property — character. 1. Equity jurisdiction of trusts. Equity has peculiar jurisdiction of trusts of all kinds. Testa- mentary trusts, or those created by will are wholly in the jurisdiction of the Orphans' Court and have been fully treated in Yol. 3 of this series. Section 13 of the act of June 16, 1836, P. L. 789, conferred upon the Common Fleas "the- jurisdiction and powers of a Court of Chancery," in "the control, removal and discharge of trustees, and the appointment of trustees and the settlement of their accounts." The same section conferred additional powers upon the Court of Common Pleas of Philadelphia County among which was "the care of trust moneys and property and other moneys and prqperty made liable to the control of said courts." 2. Jurisdiction of private trusts. Section 15 of the act of June 14, 1836, P. L. 628, provides: "Whenever any assignment, conveyance or transfer (excepting assignments or transfers for the benefit of creditors, as hereinbefore 49S 496 EQUITY PRACTICE IN PENNSYLVANIA. mentioned), shall have been made, or shall hereafter be made, by deed, will, or otherwise, of any estate, real or personal, to any person or corporation, in trust for, or for the use or benefit of any person, or association of persons, or corporation; also, when- ever any trust shall arise by operation or implication of law, the Court of Common Pleas of the county in which any such trustee shall have resided at the commencement of the trust, or, if such trustee be a corporation, in which such corporation is situate, or in which its principal officers shall have resided, as aforesaid, shall exercise the jurisdiction and powers given by law in regard to such trust : Provided, That nothing herein contained shall extend to trusts created by will and vested in executors or administrators, either by the words of the will, or by the provisions or operations of law, whenever such executors or administrators are by the existing laws amenable to the Orphans' Court." ^ Under this section the Common Pleas is given concurrent and not exclusive jurisdiction." A trust committed to executors virtute officii is exclusively for the Orphans' Court.' After final decree the jurisdiction of the court cannot be collaterally attacked.* The jurisdiction of the court over a trustee in a mortgage for the benefit of creditors is fixed when the mortgage is delivered and is not changed by the appointment of a new trustee residing out of the county and the execution of a new mortgage.' When the trustees die the county court where part of the mortgaged premises lie may appoint a successor and has jurisdiction.' Where an executrix sells land under the power in the will and invests the money in her own name she becomes a trustee ex maleficio and the Common Pleas of the county in which the land lies has jurisdiction of this trust.' If the trust arises by agreement among living parties the Orphans' Court has no jurisdiction to cite the trustee to account. The case is for the Common Pleas.' There are cases in which the jurisdiction of the Orphans' Court and the Common Pleas is concurrent." Under Section 15 of the act of July 27, 1842, P. L. 436, the Common Pleas has power to compel infant trustees or their guardians to make such deeds as Equity requires." Equity may by virtue of cy pres, vary ' See vol. 3, Johnson's Practice, p. 902, et seq., for Testamentary Trusts and Trustees, 'Innes' Est., 4 Wharton 179; Ebert's Ap., 9 Watts 300; Brown's Ap., 12 Pa. 333; Seibert's Ap., 19 Pa. 49; Bratton's Ap., i Pitts. 215; Stearly's Ap., 3 Grant 270. 'Baird's Case, i W. & S. 288; Jones' Ap., 3 Grant 169; Wapple's Ap., 74 Pa. 100; Sanders' Est., 5 Kulp 521; Leslie's Ap., 63 Pa. 355; Anderson V. Henzey, 7 W. N. C. 39. * Helfenstein's Est., 135 Pa. 293 ; McDonough v. McDonough, 5 Kulp 520. "Lee's Ac.^ 20 C. C. 274; Clark v. Clark, 180 Pa. 186; Hanna v. Clark, 189 Pa. 321; P. & L. Dig., vol. IS, col. 25196; P. & L. Dig., vol. 22, col. 38351-66. 'Mortgage of Susq. Canal Co., 11 Lane. L. R. 11. 'Goodwin v. Colwell, 213 Pa. 614. ' Fale's Est., 17 D. R. 125 ; Jones' Est, 15 D. R. 30. "Johnson's Ap., 9 Pa. 416; St. Margaret Mem. Hospital v. Penna. Co. Etc., 158 Pa. 441 ; P. & L. Dig., vol. 22, col. 383S5. et seq. '"Gratz V. Lex, 6 Phila. 183. TRUSTS. 497 the terms of a trust so as to fit the exigency of the re- ligious use."* 3. Equity jurisdiction to appoint trustees. By Section i of the act of April 14, 1828, P. L. 453, the several Courts of Common Pleas of the Commonwealth were "authorized and empowered to grant relief in Equity in all cases of trusts so far as regards the appointment of trustees, either in consequence of the death, lunacy or other inability of a trustee or trustees named in any last will and testament to renounce or refuse to act under such appointmennt, or where one or more of several co-trustees is dead, or non compos mentis, and the duties of the trust require the joint act of the trustees, and also to compel the trustee or trustees where the trust has expired to convey the legal estate." 4. Procedure by petition. Section 2 of the act of 1828, supra, provides: "In any of the cases aforesaid, it shall and may be lawful for the cestui que trust, or other person or persons interested in the execution thereof to apply by petition, setting forth the facts of the case, under oath or affirmation, to either of the said courts within the proper district, which courts are hereby authorized to hear and determine the matters therein contained, and upon hearing all parties concerned, to appoint a trustee or trustees in the place of those who may come within the provisions of the first section of this act, as they may deem expedient, having due regard to the original objects of the trust as fully as a Court of Equity can or might do, upon which appointment being made, all the rights, powers and authorities of such superseded trustees shall cease and determine, and the same shall be deemed and taken to vest in the person or persons so appointed, as fully to all intents and purposes as if they had been originally appointed trustees." Huston J. said:** "No act of assembly prescribes any form for these petitions; each of them ought, however, to set out enough to show the nature and ground of the claim, so that it may appear what was asked and what was done. * * "On a former citation, the will, and the fund, and the appointment and acceptance of the trustee, and the amount received by him, had all been before the same judges, and, were eventually settled in this court. The amount due to the petitioner was then settled; but as he was not the applicant on that hearing and several years have elapsed, his present petition was to obtain payment of the sum then decreed; and if his petition had recited that decree or referred to it by a prout, as it was in the same court, not much of form was requisite beyond this." 5. Orphans' Court procedure adopted. Section 33 of the act of June 14, 1836, P. L. 628, provides: "The several Courts of Common Pleas shall have the same powers and authorities, and the manner of proceeding to obtain the appear- ance of persons amenable to their jurisdiction, in cases of trusts, and "^Kramph's Est., 228 Pa. 457. The court below held this trust or gift void, because of the character of the teachings of the New Church Swed- enborgian on the relations of the sexes. " Morton, ex parte, 4 Wharton 169. Vol. 4 Practice — 32 498 EQUITY PRACTICE IN PENNSYLVANIA. to compel obedience to their orders and decrees, and enforce execu- tion thereof, shall be the same as are now by law vested in and provided for the several Orphans' Courts of this Commonwealth." 6. Citation may be returned to special court. Section 34 of the act of 1836, supra, provides: "It shall be lawful for any judge issuing a citation to any assignee or trustee, as hereinbefore provided, if the circumstances of the case shall appear to him to require it, to order such citation to be returned to a special court, to be convened for the purpose, in the manner allowed by the laws relating to the Orphans' Courts," 7. Jurisdiction over infant trustees. Section 15 of the act of July 27, 1842, P. L. 436, provides: "The Court of Common Pleas * * * * shall have full power and authority to compel any infant trustee or trustees, or their guardian or guardians, to make and execute such deeds or assur- ances of trust estates, to such person or persons entitled thereto, as shall be equitable and just, and such deed or assurances so made in execution of any such trust, shall be as good and effectual in law as if said infant trustee or trustees were of full age." The court can compel the making of such deeds as Equity requires." 8. Married woman's trust. Section 11 of the act of April 25, 1850, P. L. 569, in part, enacts that where a married woman has property secured to her and she has "no trustee for the same, it shall be lawful for any such married woman to apply to the Court of Common Pleas of the county where she was domiciled at the time of her marriage, for the appointment of a trustee of the same, and such court shall thereupon appoint a trustee of the same, not being the husband of the said petitioner; and it shall further be lawful for any such married woman to declare a trust in regard to such property, or any part thereof, in favor of any of her children. If a female trustee marries and her husband resides in another state, a co-trustee cannot be appointed under the act of March 17, 1838, P. L. 80, so long as the trustee herself resides in Pennsylvania." 9. Cases in whicli courts may appoint trustees. Section 23 of the act of 1836, provides: "The several courts having jurisdiction as aforesaid, shall have power to appoint assignees or trustees as aforesaid, in the following cases, viz.: I. When any sole assignee or trustee shall renounce the trust, or refuse to act under, or fully execute the same ; II. When any such assignee or trustee shall die, or be dismissed by the court from the trust, or shall be discharged by the court therefrom ; " Seibert's Ap., 19 Pa. 49. See vol. 3. Johnson's Pr., p. 73, et seq., ior forms and practice. "Gratz V. Lex, 6 Phila. 183. "Kayser'sEst., 18 C. C. 609. TRUSTS. 499 III. When one or more of several assignees or trustees shall re- nounce or refuse as aforesaid, or shall die or be dismissed or dis- charged as aforesaid, and the duties of the trust require the joint act of the trustees ; IV. In any case in which a trust shall have been created, and no person appointed, either by name or by description, to execute the same." 10. Exercise of power of appointment. Section 24 of the act of 1836, supra, provides: "The power of appointment as aforesaid, may be exercised on the application, by bill or petition, of any person interested in the estate or property which is the subject of the trust, and not otherwise, and after due notice to all parties concerned." Where the deed of trust gives ample authority to sell a petition is not necessary." 11. Power to compel conveyance. Section 30 of the act of 1836, supra, provides : "The several courts aforesaid shall have power, on the application of the party interested, to compel the conveyance by trustees, of the legal estate, when the trust has been executed, or has expired." The court has refused to decree a conveyance where the legal estate is executed in the cestui que trust by force of law." Yet since it clouds the title, in such case a conveyance may be decreed." 12. Trustee durante minoritate or absentia. Section 18 of the act of 1836, provides: "In case of the infancy, or temporary absence of any trustee, it shall be lawful for the court having jurisdiction as aforesaid, to appoint a trustee during such infancy or absence, and the trustee so appointed shall, during such period, have all the powers necessary for the due administration of the trust." Trustees durante absentia under the acts of April 11, 1879, P. L. 21, and March 30, 1905, P. L. yj, are treated in Vol. 3, Johnson's Pr., 910 ; also expenses of trusteeship. 13. Trustees of charitable bequests for education — ^incorporation. The act of May 28, 1907, P. L. 300, provides for the incorporation by the Court of Common Pleas, of trustees for bequests, devises, gifts, etc., to a city, for educational purposes. 14. Creation of a trust. In order to create a trust, no particular words are necessary if the intention to declare one be clear." A deed and a declaration of trust executed at the same time constitute one transaction." So an "N. B." clause between the attestation and the names of the wit- " York Trust Co.'s Petn., 12 York 78. " Rush V. Lewis, 21 Pa. 72; Kuhn v. Newman, ^ Pa. 227; P. & L. Dig., vol. 22, col. 38442. xCS-V V testes "K*? P3i ^I "Tilford's Case, 8 Watts" 531; Morrison v. Beirer, 2 W. & S. 81. "Greenfield's Est., 14 Pa. 489. 500 EQUITY PRACTICE IN PENNSYLVANIA. nesses has been held sufficient.'" The assignment of judgments has been held to create a trust under the circumstances.'" Conveyances of land, on conditions, may become trusts.'" A contingent remainder may be made the subject of a trust, by the remainderman."'' A lease of oil lands with a declaration of trust may constitute an active ad- ministrative trust," and so of an assignment.*" A reserved right of revocation does not impair a trust."" A wife joining with her hus- band in a declaration of trust does not by itself constitute her a trustee."' A transfer of stock parting with the entire ownership, is a sale and not a trust."' For cases in which the facts did not raise a trust see note."' One who is sui juris cannot create a trust to defeat his creditors."'^ 15. Sefiniteness of purpose, delivery, etc. Where a specific sum is set apart for trust purposes in an instru- ment the trust will be held certain and definite. A seal imports consideration when the instrument has been delivered, but when not, "natural love and affection" do not constitute a sufficient con- sideration."^ Equity will not enforce such executory trusts.'" 16. Parties necessary. A settlor may make himself beneficiary," and also may designate himself as trustee for others.^ A valid trust may be created without naming a trustee j*" when the court will supply one under the act of May 9, 1889, P. L. 173.'" A mother may create a trust for her minor child regardless of the estate passing under her will." A married woman who joins her husband in a declaration of trust, cannot deny it and is bound by it.'" '" Ivory V. Burns, 56 Pa. 300. '"First Natl. Bank Etc. v. Ladd, 126 Pa. 188. "" Allegheny Etc. Co. v. Casey, 79 Pa. 84 ; Cressman's Ap., 42 Pa. 147. " Richards v. Lawrence, 30 C. C. 155. " Hartley v. Phillips, 198 Pa. 9. ""Ahl's Ap., 129 Pa. 26; Nagle's Ap., i Mona. 557. " Lines v. Lines, 142 Pa. 149 ; Marvine v. Drexel, 68 Pa. 362. "Dean v. Winton, 8 Lack. L. N. 73. ""Halsey v. Tate, 52 Pa. 311. "P. & L. Dig., vol. 22, col. 37982, et seq. ""a Phila. V. Meredith, 49 Supr. C. 600. "Eshbach's Est., 197 Pa. 153; 197 Pa. 162. •"Trough's Est., 75 Pa. lis; Waynesburg College's Ap., 11 1 Pa. 130; Jones V. Drake, 6 Phila. 416. •"Smith's Est., 144 Pa. 428; Read v. Robinson, 6 W. & S. 329; Free- man V. Freeman, 2 Parsons 81 ; P. & L. Dig., vol. 22, col. 38014, et seq. °°Ashurst's Ap., 77 Pa. 464; Ash's Ap., 80 Pa. 497; Patrick v. Smith, 2 Supr. C. 113; i6S Pa. 526; Ghormley v. Smith, 139 Pa. 584. "* Dickerson's Ap., 115 Pa. 198; Eshbach's Est, 197 Pa. 153; 197 Pa. 162; Smith's Est., 144 Pa. 428; P. & L. Dig., vol. 22, col. 38021, for many C&S6S "Craige v. Craige, 9 Phila. 545. •"Johnson's Pr., vol. 5, p. 97, par. 13. ''Cotton's Est., 6 D. R. 44. •"Church V. Winton, ig6 Pa. 107. TRUSTS. 501 17. Trusts in lands must be in writing:. Section 4 of the act of April 22, 1856, P. L. 532, cuts up by the roots all parol trusts by bargain in lands." It provides: "All declarations or creations of trusts or confidences of any lands, tenements or hereditaments and all grants and assignments thereof, shall be manifested by writing, signed by the party holding the title thereof, or by his last will in writing, or else to be void: Provided, That where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or result by implication or construction of law, or be transferred or extinguished by act or operation of law, then and in every such case such trust or confidence shall be of the like force and effect as if this act had not been passed. Parol evidence is admissible to identify the beneficiaries," but not to establish the trust itself." The writing itself must contain sufficient to enable the chancellor to declare a trust and decree in favor of the beneficiaries." As this act applies to lands alone, a trust in personalty may still be proved by parol." Equity will enforce a voluntary parol trust, once created;" and after land has been converted into money, the proceeds will be held to be affected by a trust, although, by parol.* 18. Implied or resulting trusts. The doctrine in Pennsylvania enunciated by Ch. J. Gibson," is "that a purchase with trust money, in whole or in part, gives the owner of the money a correspondent ownership of the land." If one acquired land with the money of another it will be held that he is the trustee of the other." It matters not in what way the money was received, when it is the money of another." It may be a purchase money obligation or mortgage." " Seichrist's Ap., 66 Pa. 237 ; Fricke v. Magee, 15 Phila. 361. "Ash V. Ash, 4 D. R. 725. "P. & L. Dig., vol. 22, col. 38028, et seq.; Wingenroth v. Dellenbach, 219 Pa. 536. "Dyer's Ap., 107 Pa. 446; Martin v. Baird, 175 Pa. 540; Miller's Ap., 218 Pa. so; Groff v. City Etc. Co., 23 Lane. L. R. 273; 32 Supr. C. 416; Braun v. First Etc. Church, 198 Pa. 152; Brewer v. Brewer, 17 Mentg. 39; Ranney v. Byers, 219 Pa. 332; Hays v. Quay, 68 Pa. 263; Wolf's Ap., 123 Pa. 438; Lee v. Hamilton, 218 Pa. 468. " Kellam v. Kellam, 94 Pa. 225 ; Taylor v. Paul, 6 Supr. C. 496 ; Wash- ington's Est., 220 Pa. 204. "Dougherty v. Shillingsburg, 175 Pa. 56; P. & L. Dig., vol. 22, col. 38043, et seq. "Maffitt V. Rynd, 69 Pa. 380; Everhart's Ap., 106 Pa. 349; Hess' Ap., 112 Pa. 168; Bechtel v. Ammon, igg Pa. 81. " Kisler v. Kisler, 2 Watts 323 ; Robertson v. Robertson, 9 Watts 32. "Gaynor v. Quinn, 212 Pa. 362; Way v. Hooton, 156 Pa. 8; Sourwine V. Claypool, 138 Pa. 126; McMurray's Ap., loi Pa. 421; P. & L. Dig., vol. 22, col. 38051-6. " P. & L. Dig., vol. 22, col. 38057, for illustrative cases ; 2 C. R. A,, col. 4221. "Casciola v. Donatelli, 218 Pa. 624. See Lutz v. Matthews, 37 Supr. C. 354, for a different phase, where there was no trust resultant. 502 EQUITY PRACTICE IN PENNSYLVANIA. ' 19. Evidence of resulting trust. Section i of the act of June 4, 1901, P. L. 425, provides: "That whenever hereafter a resulting trust shall arise with respect to real property, by reason of the payment of the purchase money by one person and the taking or making of the legal title in the name of another, if the person advancing the purchase money has capacity to contract, such resulting trusts shall be void and of none effect, as to bona fide judgment or other creditors or mortgagees of the holder of the legal title, or purchasers from such holder without notice, unless either: (i) A declaration of trust in writing has been executed and acknowledged by the holder of the legal title, and recorded in the recorder's office of the county, where the land is situated; or (2) Unless an action of ejectment has been begun, in the proper county, by the person advancing the money, against the holder of the legal title." 20. Power of married woman to sue her husband. Section 2 of the same act provides: "If the person claiming to have advanced the purchase money be a married woman and the legal title is in her husband she is hereby empowered to bring an action of ejectment against him for the land purchased with her money." 21. Trusts ex maleficio. A trust arises by operation of law in cases of fraud and transac- tions in bad faith." If a father, being a life tenant, takes a trust estate for his children in his own name the five years' limitation of the act of 1856 will not begin to run until after his death.' For cases in which a trust ex maleficio was held not to have arisen see note.' Where two agree to buy stock and divide it, good faith requires that they so divide and one who buys holds half in trust for the other.* A bill to declare a trust ex maleficio for fraud, in making a will de- vising real estate, should be sustained upon sufficient evidence. The rule relating to the reformation of a written instrument, as to evi- dence, does not apply in such cases.** 22. Kinds and nature of trusts. These subjects have been considered in Vol. 3, Orphans' Court, -with relation to that jurisdiction, as well as the evidence required to establish the various kinds of trusts. The principles are the same as to trusts by deed or agreement. For the cases applying those principles, reference is made to Vol. 22, Pepper & Lewis' *Everly v. Harrison, 167 Pa. 355; Kennedy v. McCloskey, 170 Pa. 354; Rich V. Black, 173 Pa. 52; 181 Pa. 290; Perry v. Livingston, 191 Pa. 349; Thomson v. White, i Dallas 447; Peebles v. Reading, 8 S. & R. 484; P. & L. Dig., vol. 22, col. 38065 et esq.; Unruh v. Lukens, 166 Pa. 324; Goodwin v. McMinn, 193 Pa. 646; Walker v. Walker, 199 Pa. 435; Free- man V. Lafferty, 207 Pa. 32; Mellerio v. Freeman, 211 Pa. 202. 'Preston v. Preston, 202 Pa. 515. " P. & L. Dig., vol. 22, col. 38087, et seq. ■•Sherman v. Herr, 220 Pa. 420. *aBlick V. Cockins, 234 Pa, 261. See Miller v. Cockins, 231 Pa. 449. TRUSTS. 503 Digest. Some of the statutes, and the forms in Volume three of Johnson's Practice, Chapters 57 and 58, apply to trusts and trustees in the Common Pleas as well. 23. Citation to trustee for waste. Section 16 of the act of June 14, 1836, P. L. 628, provides: "It shall be lawful for the Court of Common Pleas, having juris- diction as aforesaid, or for any judge thereof, on the application of any person interested in .the trust estate or fund, co-trustee or co-assignee, and upon affidavit that any trustee as aforesaid, is wasting, neglecting or mismanaging such estate or fund, or is in failing circumstances, or about to remove out of the Commonwealth, to issue a citation to such trustee to appear before the court, at a time to be therein named, to show cause why he should not be dismissed from his trust." An account will not be required on the petition of the next of kin of the living cestui que trust.' Upon proof of mismanage- ment a trustee may be dismissed before he enters on his duties under a deed of trust.' 24. Court may require security or dismiss. Section 17 of the act of 1836, supra, provides : "On the return of such citation, and after due notice to all per- sons interested, the court may, in their discretion, either require security from such trustee for the due execution of the trust, or dismiss such trustee from the trust, or make such other order in the cause as may be agreeable to the rules of Equity." Attachment will not lie to compel the givjng of security.' Proceedings under the act of May I, 1861, P. L. 680, may be taken. See Vol. 3, Johnson's Pr. See also proceedings under act of May 28, 1907, P. L. 271, on petition of surety. Vol. 3, Johnson, 934. 25. Order concerning^ books, etc., on dismissal. Section 21 of the act of 1836, supra, provides : "When any assignee or trustee shall be dismissed from the trust, it shall be lawful for the court to order and direct all books, papers, moneys and effects in the hands of such dismissed assignee or trustee, to be forthwith delivered or transferred to such other person or persons as the court may appoint to receive the same, upon security being given by such receiver, according to the order of the court." It will be presumed that the court ascertained whether there was any thing in the hands of the assignee or trustee, when dismissed.' 26. Discharge on execution of trust. Section 3 of the act of March 22, 1825, P. L. 107, provides : "When any trustee or trustees have, or may hereafter execute the trust or powers delegated to him, her or them, it shall and may be lawful for such trustees to iile his, her or their accounts in the "Kuhler v. Hoover, 4 Pa. 331. "Piper's Ap., 20 Pa. 67. 'Fuller's .Est., 4 W. N. C. 49S. ■ Hirst v. Freeman, 35 W. N. C. 23s. S04 EQUITY PRACTICE IN PENNSYLVANIA. office of the prothonotary * * * * of the Court of Common Pleas of the proper county, under oath or affirmation, exhibiting a par- ticular statement of the receipts and expenditures; and thereupon the said trustees may apply to the court, setting forth the facts and praying the court to discharge them from the trust; and it shall be the duty of the court to issue a citation to any person or persons who may be interested, requiring him, her or them to appear on a day certain, not less than twenty nor more than thirty days, to show cause why such trustee or trustees should not be discharged; and the court shall, on the return of such citation, or at such other times thereafter as they may direct, proceed to hear and determine the matter, as to them may appear just and equitable; and if it shall appear that the trustee or trustees have executed the trust agreeably to their powers, such trustees shall be discharged therefrom forever." 27. Discharge of trustee on his own application. Section 22 of the act of 1836, provides: "The court having jurisdiction as aforesaid, shall have power, upon the application by bill, or petition of any assignee or trustee, setting forth such facts as in Equity would entitle him to relief, to discharge him from the trust: Provided, That no such discharge shall take place, unless the accounts of such assignee or trustee shall have been duly settled or confirmed as aforesaid, so far as he shall have acted in the trust, nor unless notice of such application shall have been given to all parties interested, either personally, or by advertisement, in such public newspapers as may be directed by the court, nor until such assignee or trustee shall have surrendered the trust estate remaining in his hands to some other assignee or trustee or other person' appointed by the court to receive the same, and shall have performed all such other matters as may be required in Equity." 28. Filing transcript of balances. By Section i of the act of April 30, 1855, P. L. 386, the act of March 29, 1832, 190, in regard to filing transcript of balance due, for lien is "extended to assignees, trustees and other accountants in the Courts of Common Pleas," * * * and under the act of April 27, 1909, P. L. 202, such balances shall become not only liens but judgments. [See Vol. 3, Johnson's Pr., P. 392; see same volume for practice on accounts.] 29. Surviving trustees to execute trusts. Section 2 of the act of May 3, 1855, provides: "Whensoever any trust, power or authority shall be, in manner provided in the act to which this is a supplement, conferred on two or more persons by name, and one or more of them shall die, renounce, or be legally discharged from fulfilling such trust, or ex- ercising such power, the survivors or suvivor, or remaining trustees shall have and exercise all the title and authority which the whole might have done, unless the trust or power conferred shall require the whole number to act, in which case the vacancies shall be filled in manner provided by the act to which this is a supplement." ' •Hunter v. Anderson, 152 Pa. 386; P. & R. R. Co. v. Lehigh Nav. Co., 36 Pa. 204. TRUSTS. SOS 30. Termination of trusts. Section 4 of the act of May 3, 1855, P. L. 415, provides: "Whenever by the agreement of competent parties, the further execution of any trust has become useless, it shall be lawful for such court to decree a reconveyance, as provided by the act to which this is a supplement, in case of a trust executed or expired." 31. Cancellation of bonds of trustees. The act of March 21, 1831, P. L. 192, provides "that upon the settlement of the accounts of any assignee or assignees, trustee or trustees, to the satisfaction of the court to which such accounts shall be presented, it shall and may be lawful for the court to order and direct the prothonotary to cancel the bond or bonds of such assignee or assignees, trustee or trustees, which bond or bonds shall remain of record." 3S. Form of bill to declare a resulting trust. M. E. A. G. et. al. i In the Court of Common Pleas v. < of Schuylkill County, sitting in E. G. Q. et. al. I Equity. No. 4, Sept. Term, 1903." To the Honorable, the Judges of said court : The complainants above named, bring this their bill of complaint and aver and say: 1. Names of plaintiffs. 2. Names of defendants. 3. Allegation of tenancy in common and description of land in- volved. 4. Allegation of ownership of land of common ancestor, and de- scription of parcels. 5. Allegation of assignment of common ancestor for benefit of creditors. 6. Allegation of death of common ancestor. 7. Statement of mortgages and judgments due from him at his death. 8. Statement of insurance policies. 9. Statement of assignment of insurance policies to plaintiff. ID. Allegation of agreement by widow of one of the heirs to relinquish the insurance money to which she was entitled, to be applied to save it for all concerned, thus resulting in a trust. The other paragraphs, from 11 to 22, relate the details of the execution of this trust and the subsequent acquisition of the property by defendants. 23. Allegation of request of defendants to carry out in good faith the agreement they entered into, etc. 24. Plaintiffs beg leave to refer to the several deeds, mortgages, etc., and, alleging that they have no adequate remedy at law, pray: r. For preliminary injunction until hearing and perpetual there- after, restraining defendants from selling or disposing of or incum- bering the land or any part thereof in question. 2. An account, etc. 3 and 4. To convey by good and sufficient deeds an equal undivided half interest in the lands described. "Gaynor v Quinn, 212 Pa. 362. So6 EQUITY PRACTICE IN PENNSYLVANIA. 5- If such conveyances should not ultimately be decreed, then that defendants be decreed to pay to plaintiff the amount of the insurance policies, $12,789.32 and interest thereon from . 6. Such further and other equitable relief as to justice and equity may belong. 7. Service of this bill by copy, etc. H. O. Bechtel, ) Solicitors A. W. Schalck, \ for James £. Reilly. i Complainants. [Affidavit to truth by plaintiff.] And now, August loth, 1903, it is directed that the bill be filed and that service thereof be made in the usual way. Per cur. Attest: Samuel H. Gore. Prothonotary. [Affidavit of service of bill by sheriff.] 33. Form of answer. [Title of case.] To the Honorable, etc.: We, and , the defendants above named, reserv- ing unto ourselves all benefits and advantages of exceptions which can or may be had to the many errors, uncertainties and other im-j perfections in the said plaintiff's bill of complaint contained, and, not admitting but denying the sufficiency of the matters and things alleged therein to entitle said plaintiffs to the equitable relief prayed for, or to any equitable relief whatever, for further answer thereunto or unto so much and such parts thereof as we, the said defendants are advised as is or are material or necessary for us to make answer unto the said plaintiff's bill of complaint, aver : I to 6. Paragraphs admitted. 7. Qualified admission, and statement of liens of record. 8. Admitted. 9. Aver want of information and request proof if material. 10 to 13th. Denied. 14th to 2oth. Denied. 21. Facts admitted but inference denied. 22. Admitted. 23. Denied. 24. Admitted in part, and denied in part; concluding: And we further aver that the said bill of complaint is argumenta- tive in form, and does not disclose such facts as would entitle the said plaintiff to equitable relief, if true, and the relief prayed for is indefinite and in the alternative and we therefore pray this Hon- orable Court to dismiss the said bill of complaint and order the plaintiffs to pay the costs of this proceeding. Signed by defendants. [AflSdavit to truth by defendants.] Daniel W. Kaercher, '\ Edmund D. Smith, I Defendants' John F. Whalen, j Solicitors. Samuel H. Kaercher. J TRUSTS. so; 34. Form of Replication. The plaintiffs join issue on the matters alleged in the answer. [Signed by plaintiffs' solicitors.] And now, leave is granted to file within replication. Per cur. 35. Form of final decree. And now, December 5th, 1904, this cause came on to be heard at this term and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows : T'irst. Granting first prayer. Second. Granting second prayer. Third. Granting third prayer. Fourth. Order that costs be paid by defendants. nination of trust. J. K. B., plaintiff, (\f 5. D. & T. G. Co., et. al. | ^^^ Form of bill for settlement of trust account, discovery and termination of trust. the Court of Common Pleas Clarion County, Pa., sitting Equity, No. 2 May Term, 1908. To the Honorable, etc.: Your orator complains and says : First. Names of parties. Second. Allegation that A. C. B., single, conveyed in fee simple to defendant, tracts of land described, with improvements, giving date and record references. Third. Conveyance of another lot to defendant by J. W. et. ux. Fourth. Allegation that defendant executed and delivered a deed of trust for said lots — said declaration Exhibit "A." Fifth. Interest of W. C. B. one of cestuis que trustent, by assign- ments set forth, passed to plaintiff. Failure of F. M. B. and husband to pay obligations mentioned, and consequently their interest vested absolutely in plaintiff. Sixth. Interest of C. N. one of cestuis que trustent became vested in V. N. Seventh, eighth and ninth. Allegations explanatory of the interests claimed by defendant S. D. & T. G. Co., under the deed and declara- tion of the trust. Tenth. Sale and conveyance of portions of the land involved, with description of lots. Eleventh. Additional lots sold by defendant. Twelfth. Designation of lots sold in which the parties have no interest. Thirteenth. Enumeration of lots remaining in the hands of de- fendant; and allegation that they belong to the plaintiff and others named. Fourteenth. The parties named are all the parties interested and the lands described all that the said parties jointly own, hold or possess. Fifteenth. The duty of defendant under its declaration. Sixteenth. That defendant has realized largely in excess of its valid claim and interest, the amount being uncertain, because wholly within the knowledge of the defendant. So8 EQUITY PRACTICE IN PENNSYLVANIA. Seventeenth. The duty of defendant in the premises. Eighteenth. That plaintiff has not received the share to which he is entitled. Nineteenth. Request for an account and unless such remedy is afforded he will suffer irreparable injury and has no adequate remedy at law. Wherefore he prays: 1. Full and complete discovery of all matters and things pertain- ing to the said trust in the hands of defendant, etc. 2. An account. 3. That defendant be ordered to collect all outstanding sums due, particularly the unpaid purchase money due on sale of lots by article of agreement as hereinbefore set forth in paragraph eleven and that the said trustee liquidate and conclude the same under direction of your honorable court. 4. That in respect to all pieces, parcels and tracts of land remain- ing unsold a decree be entered by your honorable court terminating said trust. 5. That the court decree partition of the remaining real estate, etc. 6. That the court appoint a master or a master and commissioner to make such partition. 7. That in case the lands cannot be divided, etc., to decree a sale and divide the proceeds, etc. 8. That the said trustee be restrained from conveying all or any part of said tracts of land during the pendency of this suit, except such as have already been sold on articles of agreement as aforesaid. 9. To make such further orders and decrees in the premises as may to this honorable court seem meet and proper. And he will ever pray, etc. [Sworn to the truth.] . Corbett & Rugh, ") R. A. McCullough, |- Solicitors for plaintiff. John Gates, Jr., > 37. Form of answer. [Title of case.] To the Honorable, etc.: The defendant above named, as trustee and in its own right, in answer to the bill, designated as an amended bill, now and at all times hereafter saving and reserving to itself all benefits of exceptions which can or may be had or taken to the said bill of complaint, for answer thereto says: 1. Corrects paragraph 11, as to lots sold. 2. Corrects paragraph 13, as to lots sold. 3. States amount in hands of defendant from lots sold, etc. 4. Answers paragraph 17 and denies its duty to convey to plaintiff or other cestuis que trustent, or that it has been thereto requested. 5. Admits a sum due plaintiff. 6. Gives date when it had first knowledge of plaintiff's claim of interest. Denies that any accounting is due him and avers that no demand was made upon it for any accounting prior to the filing of the original bill. 7. That plaintiff has full knowledge in respect to the lands de- scribed in the bill. TRUSTS. 509 8. Denies that plaintiff is entitled to any accounting prior to date named. Signed, ■ [Sworn to the truth.] H M Rimer / Solicitors for defendant. G. G. Sloan, solicitor for Estate of M. F. Leason. A. A. Geary, Pro. V. Neubert. 38. Trustees of cliiircli property — character. Church property is owned by the congregation, regardless of whether it be Catholic, Protestant, Hebrew or Elite. They may by a majority vote elect their own trustee. It is not a function of a chancellor to hold an election in court, although both sides consent to it." The legal status of trustees of a church property is thus defined by Stewart J.:" "Such an one is trustee for no other purpose and has nothing whatever, by reason of the fact that he holds the legal title, to do with any of the affairs of the congregation or with the property itself, no matter whether he be prelate or layman. Whoever he be, he holds the title not under any or because of any rules or regulations of any ecclesiastical body to which the congregation is affiliated or connected, but under the law of the land, which allows the member- ship to indicate him as trustee. Absolutely without power and with- out function, he is as far removed from active interference in the property or business of the congregation as he could possibly be. The ownership of the property is in the congregation to do with it as it pleases, except that it may not divert it from the uses with which it is impressed. Here the uses of this property have long been declared, and, no matter who may be trustee, the property can not be otherwise appropriated. Were the present decree to stand and Bishop Hoban to receive a conveyance thereunder, such con- veyance would invest him with no right of control over the property whatever. This much needs to be understood, for it is the law. This being so, it is quite apparent that a victory for either side would be utterly barren of any substantial results. It is a mistake to suppose that a trustee or trustees appointed to hold the legal title to church property corresponds in any way to trustees elected or appointed to exercise active duty in controlling the affairs of the congregation; and we can not avoid the conclusion that this unfortunate and expensive litigation has been entered upon because of this clear misconception. If the parties choose to prolong the controversy, it is their right so to do, which will not be ques- tioned." " Mazaika v. Kraunczunas, 10 Lack. Jur. 309 ; reversed in 229 Pa. 47. "Mazaika v. Kraunczumas, 229 Pa. 47. PART II EQUITY PRACTICE UNDER THE RULES OF THE SUPREME COURT OF PENNSYLVANIA AND THE HIGH COURT OF CHANCERY OF ENGLAND WITH FORMS CHAPTER XXVI. EQUITY JURISDICTION. 1. Chancery powers of the Court 19. of Common Pleas. 20. 2. Subjects of equity jurisdiction. 21. 3. Additional equity powers of the Court of C. P., Phila. 22. 4. Jurisdiction of cases of fraud, 23. accident, mistake or ac- 24. count. 5. Jurisdiction of accounts. 25. 6. Perpetuation of testimony of 26. lost records. 27. 7. Discovery in aid of an execu- 28. tion. 29. 8. Corporation mortgages. 30. 9. Courts which have jurisdiction. 31, 10. Equity jurisdiction as to stock- holders of corporations. 32. 11. Averment of demurrer or an- swer — decision. 23. 12. Appeal — assignment of error — 34. costs. 35. 13. Account by tenants in common 36. in mines. 37. 14. Right of account extended to 38. those claiming to be tenants 39. in common. 40. 15. Apportionment of wharfage and dockage in Phila. 41. 16. Jurisdiction in injunctions — ^bond pre-requisite. 42. 17. Injunctions to restrain public works. 43. 18. Specific performance of con- tract. Fraud and mistake. Offer to perform. Contracts concerning stocks and bonds. Compensation, rescission, etc. Removal of clouds upon title. Reformation of written instru- ment. Reformation of deeds. Adequate remedy at law. Disputed titles — ejectment bills. Rights and claims to chattels. Concurrent jurisdiction. Continuance of jurisdiction. Equity for him alone who does equity. Rule where one of two innocent parties must suffer. Equity abhors "laches." Equitable assignment. Notice of assignment. Contribution. Subrogation. Marshalling assets. Constructive notice. Remedy of deserted wife- at law or in equity. Proceedings in rem when hus- band has left the state. Dissolution of a corporation for profit. Proof of corporate existence, when unnecessary. 1. Chancery powers of the Court of Common Fleas. Section 20 of Art. 5, of the Constitution of Pennsylvania, provides : "The several Courts of Common Pleas, besides the powers herein conferred, shall have and exercise within their respective districts, subject to such changes as may be made by law, such Chancery powers as are now vested by law in the several Courts of Common Pleas of this Commonwealth, or as may hereafter be conferred upon them, by law." Pennsylvania has no Court of Chancery, like some of her sister states, the reason for which was given by Chief Justice McKean,' 'Wharton y. Morris, 1 Dallas 125. 512 EQUITY JURISDICTION. 513 to be that the governors claimed the right to act as Chancellor and the people would not consent to place so much power in their hands. Whilst the legislature has power to increase the Equity jurisdiction of the Common Pleas," it cannot transfer its common law jurisdiction to the Equity side,' so as to determine legal rights otherwise than by legal remedies.* We have thus the anomalous example of a court with two sides, one Common Law, the other Equity, each as distinct in jurisdiction, as if designated by different names, and each with its separate and distinct records and rules of practice. Moreover, we have here this further feature peculiar to Pennsylvania practice, viz.: The administration of Equity principles under the forms of law," which has been explained in the preceding volumes of this series. So Equity is a part of the law in Penn- sylvania.' Nevertheless, the Common Pleas has the powers of a Court of Chancery only so far as granted by the Constitution and the laws.' Newcomb, J., said:' "Chancery has no power or jurisdiction to lay its hands on the records of the Common Pleas, or to interfere with its proceedings. It is the exclusive privilege of every court to have control of its own proceedings and supervise its own records, subject only to review by a court of appellate jurisdiction." In construing the laws conferring Equity jurisdiction upon the Common Pleas, the courts lean more and more towards the applica- tion of Chancery principles.' Under Section 13 of the act of June 16, 1836, P. L. 784, the Common Pleas has ample Equity jurisdiction over corporations, according to the rules and principles of Chancery practice. If the court has jurisdiction of the subject matter, it is not confined to the district in which it sits." Chief Justice Allen held that Equity was part of the law before the revolution," and under the plea of payment any equitable defense was available." But, necessarily this is limited in application." Chief Justice Tilghman said:'° "Where the forms of the common law are 'McCurdy's Ap., 65 Pa. 290. 'Norris' Ap., 64 Pa. 276; Tillmes v. Marsh, 67 Pa. 507; Haines' Ap., 73 Pa. 169; Grubb's Ap., 90 Pa. 228; Washburn's Ap., 105 Pa. 480; Duncan v. Iron Works, 136 Pa. 478; Penna. Co. v. R. Co., 204 Pa. 356. * North Penna. Coal Co. v. Snowden, 42 Pa. 488. 'See vol. I, Johnson, p. 151; Dorrow v. Kelley, i Dallas 144; Stansbury V. Marks, 4 Dallas 129. • Wikoff v. Coxe, i Yeates 357; Ebert v. Wood, I Binney 218; Pollard v. Shafer, I Dallas 211; Anthony Lausatt, Jr., in an Essay, 1825, p. 18, traces it to Penn's Charter. (See i Ann. Rep. Penna. Bar Assn., p. 227), 'P. & L. Dig., vol. 5, col. 834s; Dohner's Ap., 64 Pa. 311, Sharswood, J; Rutter's Ap., 8 Atl. 170; Pitcairn v. Pitcairn, 201 Pa. 368. ' State Etc. Assn. v. Roche, 4 Lack. Jur. 278. 'Wesley Church v. Moore, 10 Pa. 273; Kirkpatrick v. McDonald, 11 Pa. 387; Yard v. Patton, 13 Pa. 278; Stockdale v. UUery, Z7 Pa. 486. "Comth. V. Bank of Penna., 3 W. & S. 184; Comth. v. Monon. Bridge Co., 29 Pitts. L. J. 126; Sanford v. Catawissa Etc. R. Co., 24 Pa. 378; Sarver's Ap., 81 * Pa. 183; Failey v. Stockwell, 2 D. R. 197. " Penn Hardware Co. v. Penn. Hardware Co., i Berks Co. 21. " Swift V. Hawkins, i Dallas 17. "Wikoff V. Coxe, i Yeates 358; Ebert v. Wood, I Binney 217. "Cope V. Smith's Exs., 8 S. & R. 115. "Jordan v. Cooper, 3 S. & R. 564- Vol. 4 Practice — 33 514 EQUITY PRACTICE IN PENNSYLVANIA. inadequate to the occasion, we may frame a declaration suited to the circumstances of the case." Chief Justice Gibson said:" "Equity is a part of our law, and I would just as willingly disturb the foundations of the common law laid in the time of Lord Coke as shake a principle of Equity settled by Lord Talbot, Hardwicke, or Worthington. We ought to disclaim everything like a discretion to adopt or reject, according to our notions of expediency; nor, if we had the power, is there one of these principles which I would wish to reject. However they may have been strained in particular instances, they are intrinsically just in their application to the most complicated cases. As we cannot hope to see a separate administra- tion of Equity, we are bound to introduce it into our system as copiously as our limited powers will admit." 2. Subjects of Equity jurisdiction. It is provided by Section 13 of the act of June 16, 1836, P. L. 789, that the several Courts of Common Pleas shall have the jurisdiction and powers of a Court of Chancery, so far as relates to: I. The perpetuation of testimony. II. The obtaining of evidence from places not within the state. III. The care of the persons and estates of those who are non compos mentis. IV. The control, removal and discharge of trustees, and the ap- pointment of trustees, and the settlement of their accounts. V. The supervision and control of all corporations other than those of a municipal character, and unincorporated societies or associations and partnerships. VI. The care of trust moneys and property and other moneys and property made liable to the control of said courts. And in such other cases as the said courts have heretofore possessed such jurisdiction and powers under the constitution and laws of this Commonwealth. 3. Additional Equity powers of the Court of Common Fleas of Philadelphia. The same section conferred additional Equity powers upon the Court of Common Pleas of Philadelphia County relating to: I. The supervision and control of partnerships and corporations other than municipal corporations. II. The care of trust moneys and property, and other moneys and property made liable to the control of the said courts. III. The discovery of facts material to a just determination of issues, and other questions arising or depending in the said courts. IV. The determination of rights to property or money claimed by two or more persons, in the hands or possession of a person claiming^ no right of property therein. V. The prevention or restraint of the commission or continuance of acts contrary to law, and prejudicial to the interests of the com- munity or the rights of individuals. VI. The affording specific relief when a recovery in damages would be an inadequate remedy. "Torr's Est., 2 Rawle 250; see also Comth. v. Archbald, 195 Pa. 317. EQUITY JURISDICTION. siS 4. Jurisdiction of cases of fraud, accident, mistake or account. By Section 39 of the act of June 13, 1840, (P. L. 1841, P. i), the Equity jurisdictioh of the Court of Common Pleas of Philadelphia was extended "to all cases arising in said city and county, over which Courts of Chancery entertain jurisdiction on the grounds of fraud, accident, mistake or account." This was extended by Sec- tion 3 of the act of April 16, 1845, P. L. 542, so as to cover all these heads whether "actual or constructive ;" and the act of February 14, 1857, P. L. 39, extended all the Equity jurisdiction of the Court of Common Pleas of Philadelphia to all the Courts of Common Pleas of Pennsylvania, and provided for appeals to the Supreme Court in the same manner as from the Common Pleas of Philadel- phia County. A bill cannot be maintained against a township to compel it to refund taxes alleged to have been paid by mistake, and for an accounting, where no account is necessary." 5. Jurisdiction of accounts. Section 19 of the act of October 13, 1840, P. L. 7, provided that the several "Courts of Common Pleas, within this Commonwealth, shall have all the powers and jurisdiction of Courts of Chancery in settling partnership accounts and such other accounts and claims as, by the common law and usages of this Commonwealth, have here- tofore 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." There was also a requirement that counsel certify at the filing of the bill 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. A bill for an account will not lie where there is no averment that the accounts are mutual and complicated." 6. Perpetuation of testimony of lost records. Section 26 of the act of April 25, 1850, P. L. 573, provides that all the powers conferred upon the Courts of Common Pleas for the perpetuation of testimony shall be "extended and made applicable to the perpetuation of testimony in cases of lost or destroyed records of any of the courts of this Commonwealth," "and the same pro- ceedings, orders, decrees and judgments shall be had therein, mutatis mutandis, as in cases now authorized by law and with the like effect ; and when proved, such record shall have the same legal operation as the original record would have had: Provided, That in all cases the application to perpetuate testimony shall be made in the same court in which the record may be lost or destroyed." This is a bill to take testimony of witnesses in anticipation of litiga- tion, when there is reasonable apprehension that the complainant may not be able to procure the testimony in futuro}' The bill must " Shenango Furnace Co. v. Township, 229 Pa. 357. "Brown v. Brown, 21 D. R. 565. "Graham v. Bank, 3 Lane. L. R. 68. Si6 EQUITY PRACTICE IN PENNSYLVANIA. show that the matter cannot be immediately investigated in a court of law; or, if it can, that the right of action is solely with the opposite party, or that he has interposed a barrier, as, e. g., an injunction.'" The facts must be clearly set forth, and if the matter relates to a will it may be set forth at length in the bill.^ If it relates to a note claimed to be a forgery, the note need not be set out in full."" 7. Siscovery in aid of an execution. Section 9 of the act of June 16, 1836, P. L. y(>2„ providing for a bill of discovery in aid of an execution has been treated of in Vol. 2, Johnson's Pr., p. 359, where are also the forms of procedure. A bill of discovery is for the one purpose alone, of obtaining evi- dence, and it cannot draw the whole case into the proceeding.' If the action in which discovery is asked has terminated the bill will be dismissed." An attorney cannot be compelled to discover what advice he gave his client." A lessee of oil may require discovery and account from subsequent lessees.* In a bill for account and discovery the latter is merely incidental, and if the right to have an account is not disclosed in the bill, or demurrer, there can be no discovery either.' The facts of the case may be of such a nature, that discovery of other related facts becomes important and necessary." A bill for discovery in aid of an execution may be brought either in the county where the judgment is or that in which the witness re- sides.' When a rule for the production of books and papers will an- swer the purpose, a "fishing bill" should not be used and demurrer to it will be sustained.* Under the rules in Phila. it is a sufficient ear- mark if the bill for discovery tdies the number and term of the judgment, when filed in aid of an execution.' A bill of discovery is favored, in aid of a proceeding at law and the defendant must answer freely all interrogatories to him." 8. Corporation mortg^ag^es. Section i of the act of May 5, 1876, P. L. 123, provides: "Each of the several courts of Common Pleas of this Common- wealth shall have and exercise all the powers of a Court of Chan- cery, in all cases of or for enforcing rights under mortgages of the property or franchises of any railroad, canal or navigation corpora- "Pettebone v. Everhart, 4 Kulp 353. ""Pettebone v. Lehigh V. Coal Co., 4 Kulp 349. "" Graham v. Bank, 3 Lane. L. R. 68. 'People's Natl. Bank v. Kern, 193 Pa. S9- " Mayer's Ap., 27 Pitts. L. J. 136 ; P. & L. Dig., vol. 5, col. 8737, et seq. "Natl. Bank Etc. v. Earle, ig6 Pa. 217. * Stone v. Marshall Oil Co., 188 Pa. 602. ° Holland v. Hallahan, 211 Pa. 223; P. & L. Dig., vol. s, col. 8758; New York Tr. Co. v. Coal Co., 227 Pa. 611. ' Venango County v. Penn Bridge Co., 14 D. R. 221 ; Ayers v. Ayers, 8 D. R. 734. ' Billmyer Etc. Co. v. Langdon, 14 D. R. 212 ; P. & L. Dig., vol. 5, col. 8759 ; Sees. 9-18, Act Tune 16, 1836, P. L. 755, vol. 2, Johnson's Pr., p. "Rice V. West, 22 C. C. 122; P. & L. Dig., vol. s, col. 8764. North V. HoUoway, 18 D. R. 1021. "Head, J., in Lesser v. Henry, No. 2, Apr. T., 1912, Supr. C. EQUITY JURISDICTION. 517 tion, where such property or franchises, or any part thereof, shall be situate or exercisable, within the limits of this Commonwealth, and belonging to or be exercisable by any domestic corporation, or any foreign corporation, under permission granted by the laws of this Commonwealth." Section i of the act of March 23, 1877, P. L. 32, enlarged this jurisdiction to apply to "any coal, iron, steel, lumber or oil, or any mining, manufacturing or transportation corporation," under sim- ilar circumstances. 9. Courts whicli have jurisdiction. Both acts, supra, by Section 2 provided: "When the corporation shall have either voluntarily appeared to any suit brought under or covered by this act, or shall have been duly served with process, the court in which such suit is or shall be pend- ing shall have jurisdiction of the subject matter, irrespective of the local situation in this state of the mortgaged premises; and its pro- cess to enforce any interlocutory or final order or decree made by such courts in relation to the preservation, custody, sale or other disposition of the mortgaged premises, may be executed within any county of the state : Provided, That where such mortgages shall have been given by a corporation having a corporate existence in this state only, the proceedings upon the said mortgage shall be had in the county within which the principal office of the said company shall be situate." 10. Equity jurisdiction as to stockholders of corporations. The act of May 4, 1893, P. L. 29, provides: "That the several courts of Common Pleas of this Commonwealth having the powers of a Court of Chancery shall have jurisdiction of all litigation and disputes between stockholders and parties claiming to be stockholders, and between creditors and stockholders and creditors and the corporation, of all corporations within this state; and in the proceedings before the court in such case, the service of process upon the company shall be held and considered as a service upon one of the principal defendants as provided in the first section of the act of April 6th, 1859, relating to Equity jurisdiction and proceedings." 10a. Equitable proceedings where it is or might hare been al- leged that there was an adequate remedy at law. Section I of the act of June 7, 1907, P. L. 440, provides : "That when a bill in Equity has been filed in any court in this Commonwealth, if the defendant desires to question the jurisdic- tion of the court, upon the ground that the suit should have been brought at law, he must do so by demurrer or answer, explicitly so stating, or praying the court to award an issue or issues to try ques- tions of fact; otherwise the right of trial by jury shall be deemed to have been waived by both parties, and the cause shall proceed to a final determination by said court, and upon appeal, with the same effect as if upon a hearing before the court, without a jury, upon agreement filed: Provided, That this shall not alter or affect the duty of the Chancellor to dismiss the bill if the facts therein averred, as showing or tending to show the right to relief, be not substan- tially proved at the trial." Si8 EQUITY PRACTICE IN PENNSYLVANIA. 11. Averment on demurrer or answer — decision. "Section 2. If a demurrer or answer be filed, averring that the suit should have been brought at law, that issue shall be decided in limine, before a hearing of the cause upon the merits. If the court shall decide that a Court of Equity has jurisdiction, the plaintiff shall not thereafter be permitted to question the decision upon that ground, nor shall a decree in defendant's favor be reversed or set aside because the suit should have been brought at law. If the court shall decide that the suit should have been brought at law, it shall certify the cause to the law side of the court, at the costs of plaintiff, and no further proceedings shall be had at the instance of plaintiff until these costs are paid, except that he may appeal from the order made. In addition, the defendant shall be entitled, at any time to enter and serve a rule to show cause why the suit should not be dismissed, unless said costs are paid within fifteen days. Said rule shall be of course, and, upon failure to pay, the court shall dismiss the bill at plaintiff's cost." 13. Appeal — assignments of error — costs. "Section 3. If upon an appeal, after a decision upon the merits, the question whether the suit should have been brought at law, is not specifically raised by the defendant's assignments of error, the ques- tion shall be deemed to have been waived, and the decree below shall not be reversed or set aside because the suit should have been brought at law. If it is so raised, and the decision of the appellate court is that the suit should have been brought at law, it shall remit the cause to the court below, with directions to transfer it to the law side of that court, all the costs in the cause to abide the final determina- tion thereof in the court of law. The plaintiff shall not be per- mitted to raise the question upon his appeal after a decision upon the merits, nor shall the decree below be reversed or set aside upon his appeal, because the suit should have been brought at law." (See Vol. I, Johnson's Practice, p. 146.) 13. Account by tenants in common in mines. Section 24 of the act of April 25, 1850, P. L. 573, provides: "In all cases in which any coal or iron ore mines. or minerals shall be held by two or more persons as tenants in common, and coal, iron ore or mineral, has been or shall be taken from the same, by any one or more of said tenants, respectively, it shall be lawful for any one of said tenants in common to apply by bill or petition in Equity to the Court of Common Pleas of the county in which the lands lie, praying that an account may be decreed and taken of all coal, iron ore or other mineral, taken by said tenants respectively ; and the said court shall thereupon proceed upon such bill or petition, agreeably to the course of a Court of Chancery, and shall have full power and authority to make all orders, appointments and decrees, inter- locutory and final that may appertain to justice and Equity in the premises, and may cause to be ascertained the quantity and value of the coal, iron ore or other mineral, so taken respectively by the respective parties, and the sum that may be justly and equitably due, by and from and to them respectively therefor, according to the respective proportion and interests to which they may be respec- ■EQUITY JURISDICTION. siP tively entitled in the lands : Provided, That all the tenants in common shall be made parties to such bill or petition and that if any of them reside out of the county in which the such lands lie, or out of this Commonwealth, the court may make such order for serving process or notice upon them, by publication or otherwise, as the said court shall deem fit and proper; and may take the bill or petition pro confesso, and proceed to final decree, or proceed by attachment and sequestration against such of them as shall fail to appear there- upon, or shall neglect or refuse to stand to, obey and abide by the orders and decrees of said court." 14. Right to account extended to those claiming to be tenants in common. Section i of the act of April 22, 1856, P. L. 502, provides that the remedy given by the act of 1850, supra, shall extend to "any person or persons claiming to be tenants in common, joint tenants, or other- wise interested in any coal or iron mines or other minerals, and which said tenancy, claim or right shall be denied or resisted by any other person or persons claiming the same." Both of the acts, supra, provided for an appeal. See act of June 24, 1895, as to the right of action. 15. Apportionment of wharfage and dockage in Fhila. Section £ of the act of April 8, 1851, P. L. 354, provides: "In all cases when the owner or owners of adjoining wharves, docks, landings, or river front or any part or portion thereof in the port of Philadelphia, shall disagree as to the proper apportionment of the wharfage or dockage payable to them in accordance with their titles, by persons making use of the same, or by vessels lying in front thereof, it shall be the duty of the master warden and board of wardens of said port, upon the written application of one or more of such owners, and the said wardens are hereby authorized and re- quired, after notice to the parties interested, and in accordance with the established custom and usages of the port, or where there is no such usage, then as justice and Equity may require, to determine the relative proportions of such wharfage and dockage belonging to the several proprietors of said adjoining wharves, docks, landings or river front, or any parts thereof : Provided, That nothing herein con- tained shall be construed to authorize the said wardens to take cog- nizance of any questions involving the title to such property; but such jurisdiction, and the power to enforce the rights of the own- ers of said wharves, docks, landings or river front, to wharfage and dockage, from persons or vessels heretofore or hereafter using or lying opposite to the same, shall exist and remain in the proper courts of law." By act of April 24, 1854, P. L. 485, owners of adjoining wharves, docks, landings or river front were given an appeal from the de- cision of the board of wardens to the Court of Common Pleas of Philadelphia, sitting in Equity; whereupon the said court shall have power and authority to hear and determine all matters in relation thereto. 520 EQUITY PRACTICE IN PENNSYLVANIA. 16. Chancery jurisdiction in injunctions — ^bond prerequisite. The Common Pleas sitting as a Court of Chancery has general jurisdiction of bills praying for injunction, but Sec. I of the act of May 6, 1844, P. L. 564, provided: "No injunctions shall be issued by any court or judge, until the party applying for the same shall have given bond with sufficient sureties, to be approved by said court or judge, conditioned to in- demnify the other party for all damages that may be sustained by reason of such injunction." The act of March 17, 1853, P. L. 208, provided that the Common- wealth as plaintiff should be excepted from the provisions of the above act, but that it shall be the duty of the court, "as far as prac- ticable to expedite the final hearing and determination thereof, by such order or orders as they may deem expedient or advisable for that purpose." And the act of Nov. 6, 1856, P. L. 797, provided that no city or county need give bond, as plaintiff, or in cases of appeal in Equity. The court has discretion to fix the amount of the bond required." 17. Injunctions to restrain public works. Section i of the act of April 8, 1846, P. L. 272, provides: "No courts within the city and county of Philadelphia shall ex- ercise the powers of a Court of Chancery, in granting or continuing injunctions against the erection or use of any public works of any kind, erected or in progress of erection, under the authority of an act of the legislature, until the question of title and damages shall be submitted, and finally decided by a common law court; and in such cases the court shall have authority to issue a venire for the summoning of a jury, to the sheriff of an adjoining county." 18. Specific performance of contract. The act of March 31, 1792, 3 Sm. L. 66, provided an equitable mode of proving and enforcing a contract of a decedent in the Common Pleas, but the later acts conferring jurisdiction upon the Orphans' Court in such cases have virtually rendered proceedings under that act obsolete. (See Vol 3, Johnson's Pr., P. 187, et. seq.) Where there is no adequate remedy at law a Court of Equity may require specific performance in other cases between the living. But if the party has an adequate legal remedy he must pursue it in the law side.^° Having been parties to another proceeding wherein their rights could be ascertained and declared, they must pursue that remedy to the end." Equity must be involved in the contract itself, for if it be inequitable and unjust, it will not be enforced in a Court of Equity.'" A contract to play ball may be enforced in " Gulick V. Heermans, 6 Luz. L. R. 227. " Vol. 5, P. & L. Dig., col. 8556, et seq.; Farber v. Lsiahach, g Northam. i8s ; West Mead Township v. Meadville Etc. R. Co., 31 C. C. 104. '^ Effinger v. Hain, 10 D. R. 107 ; Curtis v. Long, 12 Luz. L. R. 381 ; see vol. I, Johnson's Pr., p. 6; Woods v. Pitts. Coal Co., 230 Pa. 197; Pittsburg V. Railways Co., 59 Pitts. 17. " Rommel v. Summit Br. Coal Co., 18 Supr. C. 482. "Fry V. Leopold, 21 Montg. Co. 135; vol. S, P. & L. Dig., col. 8560; Spotts V. Eisenhauer, 31 Supr. C. 89; Harris v. Parry, 215 Pa. 174; Chandler v. Chandler, 220 Pa. 311. EQUITY JURISDICTION. 521 Equity, where it was in part executed and it was difficult to secure another player. The element of mutuality was held to be sufficient." The rule is that there must be mutuality of remedy." Certainty to a common intent is all that is requisite." But the minds of the parties must have met and been in accord as to all material points." Being a matter of discretion, it will not be available where there is uncertainty."' After long delay, jurisdiction will not be taken unless such delay is adequately explained; for the rule of laches may step in as a bar to the right." It is proper to join all parties to the agreement, assignees and optionees, but not strangers."^ In a bill for specific performance a description which designates the property so that it can be identified is sufficient.''" A parol contract when executed, but not all paid, may be enforced." But if the bargain was only tentative the court will not construe it." Where stock is held in trust the bill should not be for specific per- formance but to enforce the trust." Equity will not act when it would be in vain.*' In order to sustain a bill reforming evidence of a contract the mistake must have been mutual.^ Equity will reform an instru- ment which it is averred fails to express the intention of the parties by reason of fraud, accident or mistake; but if the reformed instru- ment involves a contract for the sale of lands and is affected by the Statute of Frauds, it cannot enforce specific performance in the absence of an estoppel." Equity may be invoked to enforce a contract to supply gas. One who takes with notice of an equity, takes subject to it.'° 19. Fraud and mistake. Where a party negotiates for property, falsely pretending that he wishes to use it for a certain purpose, whereas his intent was to acquire it and turn it over to another, he cannot invoke Equity; for those who come into a Court of Equity must come in with "clean hands." " But a mere mistake or misapprehension is not " Phila. Ball Club v. Lajoie, 202 Pa. 210. "P. & L. Dig., vol. S, col. 8566; Monongahela Etc. Co. v. Forsythe, 48 Pitts. L. J. 398; Sherman v. Herr, 220 Pa. 420; Potgen v. McKnight, 55 Pitts. L. J. 49. "Whiteside v. Winans, 29 Supr. C. 244; Dentzel v. Rocky Glen Park Co., 7 Lack. Jur. 213; 3 C. R. A., col. 800. "Peale v. Lathrope, 12 Luz. L. R. 31; Welsh's Est., 45 Supr. C. 115. "Cleland v. Aiken, 23 C. C. i ; P. & L. Dig., vol. s, col. 8571. " Schimpff V. Dime Etc. Bank, io8 Pa. 380 ; Flanagan's Est., 10 Kulp 179; P. & L. Dig., vol. 5, col. 8581; Note v. Patten, 38 C. C. 323. "Schaeflfer v. Herman, No. 16, Jan'y T., 1912, Supreme Court. " Haupt v. Unger, 222 Pa. 439. "Eisenberger v. Eisenberger, 38 Supr. C. 569. ^ Reynolds v. Craft, 38 Supr. C. 46. "° Smith v. Smith, 38 Supr. C. 251. " Safe Etc. Co. v. Mehaffey, 227 Pa. 48. ™ Penn Furniture Co. v. Lumberman's Etc. Co., 47 Supr. C. 77. " Safe Dep. Etc. Co. v. Diamond Etc. Co., 234 Pa. 100. See discussion of authorities by Mestrezat J. " People's Etc. Co. v. Am. Etc. Co., 233 Pa. 569. "Miller v. Fulmer, 25 Supr. C. 106; P. & L. Dig., vol. 5, col. 8609; Houston V. Graff, 24 C. C. 477. 522 EQUITY PRACTICE IN PENNSYLVANIA. sufficient to close the door to a claimant." If a material point is not established by the weight of the evidence a Court of Equity will not grant relief ;" nor where there is a full and adequate remedy at law." If the mistake be due to the party's own negligence, he can have no aid from Equity;'" nor, for a mistake in law, the facts being known." The proof in case of mistake of fact must be very clear and of a high order." Where fraud is alleged as the basis the evidence of it must also be clear, precise and indubitable." On an allegation of fraud Equity will not step in to settle a mere dispute as to title.™ But if the question of title is only incidental and subordinate it will not oust Equity, when promptly moved.'" It will not take up the conflict between contractor, builder, owner and tenant, to avoid multiplicity of action." If the remedy at law is inadequate multiplicity of suit is ground of Equity jurisdiction." A conveyance, without any consideration, is fraudulent on its face and will be set aside when made to grantor's children, to hinder and delay creditors.*' There is a confidential relation between physician and patient, and when the latter deeds a large estate to the former, the burden is on him to prove fairness and honesty. It is not necessary to prove actual fraud, where all the circumstances show constructive fraud." 20. Offer to perform. An offer to perform comes too late when made after the court has taken jurisdiction and decreed that the plaintiff shall have his relief as prayed for.* But where there has been no decree and proceedings have intervened, as the foreclosure of a mortgage, which would make the prayer vain, no relief can be given.* An action at law, if discontinued and the costs paid, will not bar a bill." 21. Contracts concerning: stocks and bonds. Equity will not enforce a contract made by a stockholder that his fellow stockholders should have an option to buy his stock after his death, the jurisdiction being in the Orphans' Court." Stocks '"Pittsburg Etc. Co. v. Giant, 46 Pitts. L. J. 113; Hallett v. Pollock, 48 Pits. L. J. 232. " Mitchell v. Dana, 19 Montg. 206. " Hyde v. Baker, 212 Pa. 224 ; P. & L. Dig., vol. s, col. 8527. ''Youngstown Etc. Co. v. Butler Etc. Dist., 21 Supr. C. 95. "Norris v. Crowe, 206 Pa. 438; Lancaster v. Flowers, 208 Pa. 199; P. & L. Dig., vol. s, col. 8541. "Ridgway's Ac, 206 Pa. 587. " Smythe v. O'Brien, 198 Pa. 223; i C. R. A., col. 2012, et seq. " Chambersburrg Etc. Dist. v. School Dist., 228 Pa. 119. "Sears v. Scranton Trust Co., 228 Pa. 126; (see form, infra). "Wiggins V. Columbian Co., 227 Pa. 511. " Central Pr. House v. Gross, 38 C. C. 21. " Chisholm v. Moore, 49 Supr. C. 132. "Matthei v. Pownall, 235 Pa. 460. " Gray v. Citizens' Gas Co., 212 Pa. 473. ■" Rommel v. Summit Br. Coal Co., 18 Supr. C. 482 ; Meehan v. Owens, 196 Pa. 69. "Holt V. McWilliams, 21 Supr. C. 137. "Fitzsimmons v. Lindsay, 205 Pa. 79. EQUITY JURISDICTION. 523 and bonds, however, constitute an exception to the rule that Equity will not enforce a contract as to chattels;" and, although the stock has no present market value, if it carries the control of the body at the election. Equity will decree performance." But if the plain- tiff has an adequate remedy at law, Equity will not interfere." Where stock has been fraudulently obtained. Equity will order restitution." But this has reference to a breach of trust and not a case of insolvency untainted with fraud."' A contract for the sale of stock carries the dividends as well." Equity will enforce a contract by a natural gas company to sell and deliver all its surplus gas to another company.™ For contracts of corporations see Vol. 5, P. & L. Dig., Col. 8658; and for contracts concerning real estate see Vol. 5, Col. 8615; also as to options see Vol. 19, P. & L. Dig., Col. 32539. Equity will take jurisdiction of an agreement by a solvent person to pledge all his real estate and personal property to a trustee for his creditors;" or to sell the standing timber on a tract, although considered personalty;" or an allowance to a wife in an agreement of separation;" or an agreement to pay an annuity." It has been held that the exercise of Chancery power in such cases is exceptional, but the power exists.™ Equity may decree the re-assignment of stock or repayment of the price," and it may control the discretion of a trustee of a corporate mortgage where he has abused it." 22. Compensation, rescission, etc. When a contract for the sale of land has been executed by delivery of the deed, the power of a Court of Equity is ended and if the title is defective the damages must be ascertained in an action at law for breach of the covenant." In the absence of fraud, accident or mistake, a deed will not be set aside, in Equity." Only to prevent manifest injustice and upon clear and convincing proofs, will a volun- "N. C. R. Co. V. Walworth, 193 Pa. 207; P. & L. Dig., vol. S, col. 8652; Sherman v. Herr, 220 Pa. 420; Eichbaum v. Sample, 213 Pa. 216; Boswell V. Buhl, 213 Pa. 450. "Rumsey v. N. Y. & P. R. Co., 203 Pa. 579; Bartol v. Shaffer, 7 Northam. 217; Brown v. Alloy Smelting Co., 48 Pitts. L. J. 265. " Henshall v. Wilkinson Mf g Co., 21 Montg. 141 ; Rigg v. Reading Etc. Co., 191 Pa. 298; Finegold v. Levy, 53 Pitts. L. J. 150. "Steinmyer v. Seibert, 190 Pa. 471. "Bucks Co. R. Co. V. Guarantor's Finance Co., 23 C. C. loi. "Rose V. Barclay, 191 Pa. 594- "Conemaugh Gas Co. v. Jackson Etc. Co., 186 Pa. 433. "Morris v. McCutcheon, 213 Pa. 349. " Strause v. Berger, 220 Pa. 367. "Adams v. Adams, 32 Supr. C. 353. "'Harris v. Parry, 215 Pa. 174. ""Spots v. Eisenhauer, 31 Supr. C. 89; P. & L. Dig., 3 C. R. A., col. 803. " Pellio V. Coal Co., 224 Pa. 379. " Struthers Etc. Co. v. Trust Co., 227 Pa. 29. " Rankin v. Hammond, 25 C. C. 45 ; P. & L. Dig., vol. 5, col. 8673 ; vol. 19, col. 33075. "Finnegan v. Walsh, 5 Lack. Jur. 266; P. & L. Dig., vol. s, col. 8682; Fink V. Van Fossen, 206 Pa. 362 ; Stewart v. Stewart, 230 Pa. 475. 524 EQUITY PRACTICE IN PENNSYLVANIA. tary deed be set aside." But where title has been obtained by actual fraud and ejectment would be inconvenient and cumber^ some, rendering it inadequate, a bill for cancellation of the deed will be proper and sustained;" especially where it affords the only method of restoring the status quo ante" But the bill must dis- tinctly aver the fraud, etc.," and must be supported by clear and precise proofs." An assignment of an interest in remainder may be set aside for clear fraud and it is unnecessary to show a confidential relation to support the bill;™ so, also, a bill for cancellation of a deed and decree for re-conveyance." But where the husband being intemperate and profligate makes a deed to his wife, a re-conveyance will not be decreed, but a trust will be declared for the husband and his family." A deed by a client to his attorney, in the absence of fraud or over-reaching, where the consideration was fair, will not be cancelled." The evidence of fraud or misrepresentation, if dubious and not convincing will not be sufficient to sustain a bill for cancellation." A deed has been cancelled where the considera- tion was one dollar and the grantor was unable to read and was imposed upon;" so, also, where a laborer executed a deed when he was led to believe it was only a mortgage.'* The mere fact, however, that the grantor was old and feeble, if he understood the nature and effect of the act, will not be sufficient to avoid it." Under such circumstances, however, if a fraud has been committed, the evidence need not be "clear, precise and indubitable," it seems." The plaintiff must move without undue delay." A sale will not be set aside for inadequacy of price or unconscion- able bargain alone, in the absence of fraud,™ and without an offer "Fuehr v. Fuehr, 51 Pitts. L. J. 294; Davidson v. McCaslin, 52 Pitts. L. J. 291; Davis' Est., 21 Montg. 162; N. Y. Etc. Co. v. Graham, 226 Pa. 348; Nolf V. Beck, 12 Northam. 170. "Clauer v. CJauer, 22 Supr. C. 39s (see forms, infra). "Wagner v. Fehr, 211 Pa. 43s (see forms, infra). "Tenbrook v. Moorehead, i Nerthumb. 130; Real Estate Etc. Co. v. Maguire, 17 Montg. 25; Sawyer v. Hirst, 7 Del. Co. 404. "Goggins V. Risley, 13 Supr. C. 316; Finnegan v. Walsh, 5 Lack. Jur. 266; Britt V. Britt, 30 C. C. 217; Cole v. Lowery, 5 Lack. Jur. 225; Miller v. Piatt, 33 Supr. C. 547. '"Obney v. Obney, No. I, 26 Supr. C. u6; No. 2, 26 Supr. C. 122. "Wagner v. Fehr, supra; Hofecker v. Pfeil, 193 Pa, 288; Clauer v. Clauer, supra; Hoch v. Hoch, 197 Pa. 387. " Ford v. Ford, 193 Pa. 530. See Heckman v. Heckman, 215 Pa, 203. " Fellows V. Smith, 190 Pa. 301. "Harvey v. Knapp, 194 Pa. 219; Moorhead v. Scovel, 210 Pa. 446; Col. Trust Co. V. Hoffstot, 219 Pa. 497 ; P. & L., C. R. A., vol. 3, col. 808, et seq.; Safe Etc. Co. v. HoUinger, 216 Pa. 64S; 'Sherman v. Del. Etc. Co., 36 Supr. C. 487; Lord v. Lord, 4 Schuylkill Co. 162; Dunn v. Columbia Natl. Bank, 204 Pa. 53. "McGough V. McGough, 53 Pitts. L. J. 141; Bixler v. Heilman, 44 Supr. C. 603. ''Cornelius v. Jahn, 2 Pitts. L. J. 171. "Moorhead v. Scovel, 210 Pa. 446; Lynch v. Joyce, 11 Lack. Jur. 327. "Spencer v. Spencer, 2 Blair Co. 142; Light v. Light, 221 Pa. 136; Frank v. Young, 9 Lack. Jur. 158. "Muehlhof v. Boltz 215 Pa. 124. "" Singer' Est., 217 Pa. 295. EQUITY JURISDICTION. 525 to place the defendant in the same position as he was before;" nor where the grantor knowingly acted under advice of an attorney and without fraud."* As to a stock transaction where the court finds the plaintiff was neither deceived nor harmed the bill will be dismissed." There is a wide difference between a proceeding to cancel a deed and one to enforce the execution of a contract of a decedent." Where there is concealment as well as fraud a deed will be cancelled and reconveyance decreed.*" A deed from father to son, irrevocable, will not be set aside, unless it be shown that it was obtained by fraud, undue influence, accident or mistake.^ In case of proof of mistake. Equity may re- lieve." An agreement made by one who knew what he was doing and was not over-reached, will not be set aside." In case of a trust ex maleficio, a surrender on payment of advances, may be decreed.' 23. Bemoval of clouds upon title. A bill to remove a cloud upon a title, quia timet, requires no allega- tion or showing of fraud, accident, mistake, trust or account. So if a deed be recorded which is in fact a will, a bill lies for relief;" also, where a notice of assignment of an interest in a trust estate is written in the margin of the record. Equity may strike it off as a cloud on the title.' Recorded deeds which are forgeries may thus be erased from the record;' also oil leases after abandonment.' But a purchaser at sheriff's sale who has received no deed and paid but part of his bid, cannot bring a bill quia timet? A bill will not lie to cancel an option to sell lands or mining rights, although the vendee has failed to exercise his option and could not have specific performance, the remedy being a rule to bring ejectment under the act of March 8, 1889, P. L. 10, and supplements;" nor will Equity anticipate and consider questions which may arise under a will." Equity has jurisdiction of the fraudulent alteration of a "Anderson v. Dempster, 55 Pitts. L. J. 31. "Dickey v. Norris, 216 Pa. 184. As to a note, deed, etc., assigned, see Canavan v. Paye, 34 Supr. C. 91. "C. Jutte & Co. V. Pfeil, 219 Pa. 520; Kerin v. Trust Co., 226 Pa. 557, where the circumstances were peculiar. "* Thomas' Est, 36 Supr. C. 186; Conrad v. Conrad, 36 Supr. C. 154. " Sarver v. Sarver, 230 Pa. 60 ; Stoka v. Klein, 59 Pitts. L. J. 14. 'Carney v. Carney, 196 Pa. 34; Kleckner v. Kleckner, 212 Pa. 515; Britt v. Britt, 30 C. C. 217; Hosie v. Hosie, 5 Lack. Jur. 44, (deed to grandson) . "Wolf V. Christman, 202 Pa. 475. "Sutcliff V. Mariner, 202 Pa. 557- For other cases in point see vol. i, C. R. A., col. 2036-7; Northup v. Hall, 228 Pa. 9. *Tetlow V. Rust, 227 Pa. 292; Stief v. Smyth, 26 Montg. 31. 'Fellbush v. Fellbush, 31 C. C. 3S0; P. & L. Dig., vol. 5, col. 8705; Heppenstall v. Leng, 217 Pa. 491. 'Cheyney v. Geary, 194 Pa. 427. ' Miller v. Minehart, 53 Pitts. L. J. 88. 'Mehaffey's Ap., 4 Penny. 502. * Murphy v. Mintzer, 31 C. C. 241. "Andrews v. Emery, 24 C. C. 210. "Arnold v. Dorney, i Lehigh 96. 526 EQUITY PRACTICE IN PENNSYLVANIA. name in a deed; but where the evidence shows that the wife con- sented thereto the bill will be dismissed." A bill to rescind an executed contract for the sale of land, when no fraud is shown, will not be sustained after four and one-half years' delay." The same rule applies to a bill to strike off satisfaction of a mortgage." The plaintiff must move without delay and while he may yet place the defendant in statu quo." A bill to remove a cloud on title to land will be dismissed, on de- murrer where the plaintiff has a remedy under the act of April 1 6, 1903, P. L. 212." On a bill for cancellation and surrender of an agreement for the sale of land the vendee may forfeit his right to refund, or to maintain a bill for specific performance and abatement of price, where he fails to act promptly upon the notice given him by the vendor that he could not procure the removal of the cloud on the title." When a lessee of real estate who has made valuable improvements upon it, tenders to a mortgagor, who is foreclosing his debt, interest and costs, he may by bill compel an assignment of the mortgage to him. But a tender to the attorney outside the state is insufficient." 24. Beformation of written instrument. The reformation of an instrument in writing, from which some material part has been omitted by accident, mistake or fraud, or which does not accurately and truly contain things material to the contract, is peculiarly within the scope of the Equity jurisdiction of the Court of Common Pleas. There are many cases illustrating the principle." The power will be exercised, however, only in clear cases and with due caution;™ and a Chancellor will not read into a contract an alleged parol contemporaneous agreement, unless the evidence comes up to the rule of being "clear, precise and indubit- able." ^ In order to reform a contract on the ground of mistake it must be mutual; and if due to plaintiff's negligence and he cannot put the defendant in the position in which he was before the con- tract, Equity will not interpose.^ Intention only serves as an index and not as ground of relief. The bill must show the actual agree- ment and that by accident or design it was not put into the instru- "Hake v. Stermer, 15 York 123; 16 York 141; Dillon v. Hegarty, 222 Pa. 166; Yonkers v. Warden, 8 Supr. C. 395; 3 C. R. A., col. 811. " Nerve Food Co. v. Robertson, 199 Pa. 486. " Cutler v. Broomall, 9 Del. Co. 417 ; P. & L. Dig., vol. S, col. 8907-10. "Muelhof V. Boltz, 215 Pa. 124; Wallace v. Stewart, 53 Pitts. L. J. 231. "Lubenguth v. Gruver, 20 D. R. 687. " Nicholson v. Ertel, 231 Pa. 105. " Hopkins Mf g Co. v. Ketterer, No. 186, Jan'y T., 1912, Supreme Court. '°P. & L. Dig., vol. 5, col. 8713, et seq.; Lilley v. Keppel, 11 Del. Co. 396; McKentley v. Nolan, 3 Berks Co. 155. " Baab v. Houser, 203 Pa. 470; Boak v. Ins. Co., 226 Pa. 493; Thornton v. Thornton, 11 Lack. Jur. 312; Penn Furniture Co. v. Ins. Co., 57 Pitts. L. J. 482; Picard v. Clone, 25 Montg. 179. "'Hinkson v. Statzell, 7 Del. Co. 474; Reynolds v. Craft, 38 Supr. C. 46. ^Youngstown Etc. Co. v. Butler Etc. Dist., 21 Supr. C. 95. EQUITY JURISDICTION. 527 ment." The evidence must preponderate upon the material point involved." 25. Beformation of deeds, etc. Where an agreement to sell lands contains a reservation of coal, and the deed subsequently does not contain such reservation, by mistake, a bill will lie to reform it."' The original agreement should control, where there is a dispute as to the understanding." A deed has been reformed so as to conform with the option." But where the grantee has notice of a restriction placed in his deed when he accepts it, he cannot complain,'" As a mistake must be mutual, where the grantor alone did not understand the terms used, he cannot seek relief in Equity;^ nor where the evidence of mistake is very slight and dubious,"" or the mistake is due to negligence." Equity will revoke a deed of trust without consideration and to promote the grantor's own interest." 26. Adequate remedy at law. In outlining the distinction between Law and Equity jurisdiction in Vol. I, Actions at Law, p. 4, par. 12, it is shown that the rule in Pennsylvania is not as strict as elsewhere, on the subject of an "ade- quate remedy at law," which is there defined, and need not be re- peated here. So it has been held here that a bill may be sustained solely on the ground that it is the most convenient remedy and the remedy by action doubtful as to its adequacy .°° If Equity will reach all phases of the controversy, it will be preferred as the forum;'" since jurisdiction depends not so much upon the want of a common law or statutory remedy as upon the adequacy of such remedy.'^ Equity may be invoked to declare a resulting trust in lands." Said Sharswood, J.:" "If a trust is created, either by deed or will, with an absolute direction to sell and distribute the proceeds either "Boyce v. Hamburg Etc. Co., 24 Supr. C. 589. " Andreas v. Steigerwalt, 29 Supr. C. i ; McClelland v. Cella, 53 Pitts. L. J. 6s ; P. & L. Dig., vol. 5, col. 8721. " Cook v. Listen, 192 Pa. 19. ; Baab v. Houser, 203 Pa. 470 ; P. & L. Dig., vol. S, col. 8728; Townsend v. Lacock, 222 Pa. 330; Butcher v. Butcher, 22 Montg. 157. "Merritt v. Getz, 19 Supr. C. 505; Zillmer v. Fauset, 51 Pitts. L. J. 353; I C. R. A., col. 2042 ; Hammond v. Dickey, 54 Pitts. L. J. 36. "Mikesell v. Wehrle, 37 Supr. C. 231. "Coppes v. Keystone Etc. Co., 36 Supr. C. 38. "Graham v. Carnegie Steel Co., 217 Pa. 34. "Holmes v. Dowler, 216 Pa. 500. "Gailey v. New Castle Etc. Co., 34 Supr. C. 533- ^ Brown v. Bertram, 3 Berks Co. 322. As to usurious contract, can- cellation and redelivery, see Roberts v. Loan & Tr. Co., 39 Supr. C. 358. °°Conemaugh Gas Co. v. Jackson Etc. Co., 186 Pa. 443; Corbett v. Oil City F. G. Co., 21 Supr. C. 80; P. & L. Dig., vol. 5, col. 8357. •* Steigerwalt v. Rife, 9 Supr. C. 363; Corbe v. Burkert, 33 Supr. C. 317; Trexler v. Kuntz, 36 Supr. C. 352. "Eaton V. Eastern Etc. Assn., 7 D. R. 440; Anderson v. Lehigh Etc. Co., 23 C. C. 343 ; Woods v. Pitts. Coal Co., 230 Pa. 197 ; Apollo T. Co. v. Safe Etc. Co., 31 Supr. C. 524; Naill v. Hanover Etc. Co., 20 York 85. "Jackson v. Jackson, 8 Atl. 870. "Foster's Ap., 74 Pa. 391. S28 EQUITY PRACTICE IN PENNSYLVANIA. among creditors or others. Equity considers that actually done which has been directed to be done, in order to accomplish the lawful intent of the grantor or testator." Matters of trust arising between at- torney and client come within Equity jurisdiction. Continuous trespass may be restrained by Equity." If all matters in controversy can be consolidated in one complaint, without being multifarious the remedy by Equity will be preferred." Whether the remedy to compel a chartered water company to produce its books and disclose its earnings in a proceeding with a view to enable a city to acquire its water works and property under clause 7, Sec. 34, act of April 29, 1874, P. L. 73, is by bill in Equity in pursuance of Sec. 13, of the act of June 16, 1836, P. L. 784, or by the extraordinary writ of mandamus, has been recently decided."" It was held by a majority of the court that the proceedings should be by mandamus and the opinion is an academic discussion of the nature of mandamus, the practice of trial by jury and the subject of "adequate remedy." Jus- tices Mestrezat and Potter dissented on the ground that the case was one peculiarly befitting an equitable remedy. The cause was re- manded to be certified to the law side, as provided by the act of June 7, 1907, P. L. 440, costs to abide the event of the suit. In a recent case the Supreme Court has sustained the contention that Equity will lie to compel a recusant board of school directors, which by arbitrary will and caprice closes a school and abandons the site and buildings, to reopen it and serve the, public interest. It will restrain such abuse of discretion.*" A threat by the officers of a municipality to shut off the water supply of a manufacturing es- tablishment employing many men calls potently for speedy inter- vention by injunction." Equity will also protect a widow against a surrender of her certificate of insurance at a reduced sum.** Among the things for which it has been decided Equity would not interpose, are these: To set aside an award for lack of notice, etc.;" to enjoin a sub-contractor from filing a mechanics' lien, on the ground of a contract against liens;" cancelling an agreement to re- duce ground rent, because of mistake;" injunction for contested office, the remedy being quo warranto;" a squabble between stockbrokers, alleging fraud and worthless stock, etc. All these have an adequate "Miller v. Fuhon, 15 York 162. "Brown v. Jermyn, 6 Lack. Jur. i; Mangel v. Lehigh Etc. Co., 24 C. C. 152. See able discussion by Van Swearingen, J., in Griffiths v. Monon. R. Co., 20 D. R. S34. " Steigerwalt v. Rife, supra.; Penna. R. Co. v. Bogert, 209 Pa. 589. Equity may cancel a deed to avoid multiplicity of actions. Sears v. Trust Co., 10 Lack. Jur. i. " Williamsport v. Citizens' Etc. Co., 232 Pa. 232. "Lamb v. Redding, 234 Pa. 481. It was formerly held narrowly that the only remedy was by removal in the Quarter Sessions. *■ Penn Iron Co. v. Lancaster, 25 Supr. C. 478. "Blair v. Supreme Council Etc., 208 Pa. 262. * North Braddock v. Corey, 205 Pa. 35. "Wolf V. Glassport Lumber Co., 210 Pa. 370; P. & L. Dig., vol. s, col. 8350 ; Getty v. Penna. Inst. Etc., 194 Pa. 571. " Norris v. Crowe, 206 Pa. 438. "Brower v. Kantner, 190 Pa. 182. ■" Price V. Hurley, 201 Pa. 606. EQUITY JURISDICTION. 529 remedy at law." In such case, under the act of June 7, 1907, the cause may be certified to the law side." 27. Disputed titles — ejectment bills. Disputes about titles are settled in actions at law, and a Court of Equity will not decree away one's title to land." These so-called "ejectment bills," which seek indirectly to settle questions of title, are not encouraged by Equity, the parties being relegated to their action at law."' But where the title is not disputed, a wrongful entry and trespass on oil lands may be enjoined." It is only where the title is in dispute that Equity will refrain j'^ and the reason is that no man can be deprived of his lands and tenements without a verdict by a jury against him. But if the paper title has been ob- tained by fraud Equity has jurisdiction to cancel the evidence of such spurious title. In respect to railroad companies and clashes of authority as to right of way. Equity takes jurisdiction." De- murrer on the ground of an adequate remedy at law, admits the title and the plaintiff is relieved of the burden of first establishing it by an action." Prior to the act of June 7, 1907, P. L. 440," when there was an adequate remedy at law, the bill was dismissed.™ This act has changed the practice, so that when the answer or demurrer declares that the plaintiff has an adequate remedy at law, the court will dispose of it in limine. It should be raised by a distinct state- ment in a separate paragraph;" but any words stating that there is an adequate remedy at law are sufficient.''' It does not apply in a case where the bill alleges a trust and demands an account and the court finds that there is no trust."" But Equity will not step in where the party by his laches has lost his remedy at law." Then there are cases where the jurisdiction at law and in Equity are con- "See vol. I, C. R. A., col. 1971 ; Hutchinson v. Dennis, 217 Pa. 290; Van Sciver v. Churchill, 215 Pa. 53; Owens v. Goldie, 213 Pa. 579. "Miles Land Co. v. Coal Co., 231 Pa. 153; Lehigh Etc. Co. v. Coal Co., 13 Luz. L. R. 367. See vol. i, Johnson's Pr., p. 146, for the Act. '" North Shore R. Co. v. Penna. Co., 193 Pa. 641 ; P. & L. Dig., vol. S, col. 8362 ; Eberly v. Spatz, 21 Lane. L. R. 259 ; Scanlan. v. Conshohocken, 18 Montg. 193; 209 Pa. 48; Penna. Etc. Co. v. Jones, 30 Supr. C. 358; Baer V. Wilmoth, 39 Supr. C. 74. "O'Neill V. McKeesport, 201 Pa. 386; Swearingen v. Barnsdall, 210 Pa. 84; Williams v. Fowler, 201 Pa. 336; Stout v. Williams, 203 Pa. 161; Lazarus v. Lehigh Etc. Co., 13 Luz. L. R. 271. " Greensburg Etc. Co. v. Fayette Co. Etc. Co., 200 Pa. 388. ■^Richmond v. Bennett, 205 Pa. 470. "Clauer v. Clauer, 22 Supr. C. 395. "Penna. Co. v. Ohio Etc. R. Co., 204 Pa. 356; 368. =' Schuler v. Schuler, 39 Supr. C. 635. "'See vol. I, Johnson's Pr., p. 146, for the Act in extenso. See also Par. 10, supra. °°Rice V. Ruckle, 225 Pa. 231; Wickham v. Taylor, 225 Pa. 246; Dil- worth Coal Co. v. Kidney, 43 Supr. C. 625 ; Marshall v. Penna. R. Co., 44 Supr. C. 68; Brinton v. Hess, 27 Lane. L. R. 249. , "Naomi Coal Co. v. Moore, 36 C. C. 321; Platzek v. Sparks, 36 C. C. 271; Kingston Coal Co. v. Coal Co., 14 Luz. L. R. 267; Winters v. Cohn, 3 Berks Co. 87; Winters v. Cohn, 20 D. R. 751. "" Bowman v. McCaskey, 27 Lane. L. R. 193. "Adrian v. Fink, 226 Pa. 448. "Pittsburg Etc. Co. v. Bridge Co., 223 Pa. 133. Vol. 4 Practice — 34 530 EQUITY PRACTICE IN PENNSYLVANIA. current, as to fraudulent conveyance." Equity will take jurisdiction where one holds a market stall by license, which has been leased to another," or it may enjoin a borough from imposing unreasonable restrictions upon the use of the streets by a water company." Where a woman has been deserted by her husband in another state, she may, in Equity, proceed against his estate in Pennsylvania, under the act of May 23, 1907, P. L. 227, as amended by act of April 27, 1909, P. L. 182." A question of title may be certified from the Equity to the law side under the act of 1907, supra." When Equity once takes jurisdiction, however, it will dispose of the whole controversy, and this principle applies to accounts of royalties upon a patent." Discovery, merely incidental to main relief, is not sufficient to give Equity jurisdiction when complainant has an adequate remedy at law." Equity will not generally interpose where there is such a remedy." 28. Rights and claims to chattels. A bill to recover personal chattels, in order to give jurisdiction, must distinctly deny title in the defendant and set up the particular quality of it, independent of its value, which entitles him to maintain it, such as some trust, or fraud in holding it;* and a value that can- not be compensated in damages, as a battle flag, for example.^ If it can be compensated in damages an action at law is the only remedy.' The property and franchises of a manufacturing corpora- tion which are in dispute cannot be made the subject of a bill in Equity.* But where a new corporation was formed and it appro- priated the plans furnished the customers of the old corporation, a bill was sustained.^ Where a lessee under bailment becomes a bank- rupt, and there are many claimants, the circumstances "render the plastic procedure of Equity a convenient, as well as an effective remedy." ° Equity will only decree money where it is incidental to a bill set- ting up some recognized ground of equitable relief."^ Jurisdiction of the person authorizes the court to make any decree affecting the person although the subject matter be without the jurisdiction.''' "° Breitweiser Co. v. Schwartz, 57 Pitts. L. J. 158; Neelv v. Peters, 56 Pitts. L. J. 380. " McTighe v. Schwartz, 223 Pa. 277. " Mountain Water Co. v. Boro, 43 Supr. C. 179. " Runnings v. Runnings, 21 D. R. 825. " Miles Land Co. v. Penna. Coal Co., 231 Pa. 155. '° Holden v. Bernstein Mf g Co., 232 Pa. 366. " Drape v. Coleman, 233 Pa. 585. " Pittsburg V. Pittsburg R. Co., 234 Pa. 193. ' Squires v. Howell, 12 Supr. C. 8 ; vol. 5, P. & L. Dig., col. 8372. '' Orbin v. Stevens, 13 Supr. C. S91 ; 3 C. R. A., col. 785. 'Murtaugh v. Delaware Etc. Co., 8 Del. Co. 544; Paxton Fire Co. v. McCormick, 27 C. C. SS3; Wallace v. B. & O. R. Co., 216 Pa. 311. ■* Keystone Etc. Co. v. People's Etc. Co., 200 Pa. 366. " Pressed Etc. Co. v. Standard Etc. Co., 210 Pa. 464. ° Mestrezat J. in Wetherill v. Gallagher, 211 Pa. 306. 'a Hosack V. Greer, 57 Pitts. L. J. 323. , «b Newman v. Shreve, 229 Pa. 200. EQUITY JURISDICTION. 531 29. Concurrent jurisdiction. There are cases in which the jurisdiction at law and Equity is concurrent.' Divorce, being an equitable procedure, and is so treated, supra, in this volume, a bill as well as a petition will lie to set aside a decree.' A bill will lie to compel satisfaction of a mort- gage, notwithstanding Sec. 14 of the act of April 3, 1 85 1, P. L. 868, provides a method.' But when one court has taken jurisdiction, another will not.** 30. Continuance of jurisdiction. When jurisdiction has once been taken the court will hold it to the end of the controversy.'" The parties will not be remitted to the law side." But if the subject itself is merely incidental, it does not draw in the main controversy for which there is an adequate legal remedy." 31. Equity only for him who does Equity. It is a maxim of Equity that a complainant who seeks Equity must come in with clean hands, if he wishes its aid." Equity will not aid inequity." Thus if the plaintiff's hand of fraud was caught in a vise. Equity will not free it." "Equality is Equity" only where the Chancellor cannot definitely ascertain the amount of Equity which each ought to have." The rule applies only to the subject matter in suit.'^ 32. Bule where one of two innocent persons must suffer. The rule of Equity is that where one of two innocent persons must suffer loss it shall be he by whose act or omission of duty the loss was occasioned." But this maxim is sometimes misapplied to cases where persons are not equally at fault, but where one owes a duty, he fails in, to do or not to do a certain thing." ' P. & L. Dig., vol. s, col. 8376 ; Hutchinson v. Dennis, 217 Pa. 290. ' Wilt v. Wilt, 2 Dauphin Co. 100. 'Dinner v. Van Dyke, 25 Supr. C. 433. ''^ Megahey v. Farmers' Etc. Assn., 215 Pa. 351 ; Donatelli v. Casciola, 215 Pa. 21; Citizens' Etc. Bank v. Osgood, 35 C. C. 284. '°Orr V. Peters, 197 Pa. 606; McGinn v. Benner, 180 Pa. 396; vol. 5, P. & L. Dig., col. 8378. "Howell V. Natl. Cement Co., No. 2, 9 Northam. 319; Saxton v. Gross, 52 Pitts. L. J. 259. " Graeff v. Felix, 200 Pa. 137 ; Williams v. Fowler, 201 Pa. 336. " Reynolds v. Boland, 202 Pa. 642 ; Houston v. Graff, 24 C. C. 477 ; Miles Med. Co. v. May Drug Co., 53 Pitts. L. J. 249. "Hukill V. Yoder, 189 Pa. 233; vol. 5, P. & L. Dig., col. 8383; Brophy v. Am. Brew. Co., 26 C. C. 628. '° Mathew's Ap., 37 Leg. Int. 157. " Irving V. Smith, 7 Del. Co. 166. "a Dempster v. Baxmyer, 231 Pa. 28. "P. & L. Dig., vol. s, col. 8389; Dowd v. Crow, 205 Pa. 214; Blair's Est., 20 Supr. C. 85. "Googe V. Gaskill, 18 Supr. C. 39; Robb v. Penna. Co. Etc., 3 Supr. C. 254- 532 EQUITY PRACTICE IN PENNSYLVANIA. 33. Equity abhors "laches." There is one little word which every lawyer and suitor should bear in mind. It is "laches" which in law ripens into a bar to the remedy and in Equity is abhorred. It is as ancient as the courts of justice that he who sleeps upon his rights, without excuse, shall have no fruits. Whilst Equity favors family settlements from public policy, in the interest of peaceful society and family amity;'* it dis- courages supineness and delay. After a lapse of years, acquies- cence will be presumed and an account will be refused." A delay .which is not unreasonable and is explained on quite natural grounds, will not cause the loss of a legal right.''' Laches is analogous to the statute of limitations and in the same way will bar a remedy by Equity."" Laches is imputable to the Commonwealth as well as an individual,"* although the maxim that time does not run against the sovereign. 34. Equitable assignment. When a contract is assigned in such a manner that the right of the assignee to the proceeds attaches, the bond does not need to contain the word "assigns," in order to enforce the remedy."* Equity will enforce the assignment of a contingent interest or expect- ancy, a mere possibility, if the agreement is fairly made and not against public policy."" There must be some evidence of acceptance of the assignment, to bind."" A bond under seal may be assigned in Equity by parol and a blank indorsement of a note under seal ac- companied by delivery, operates as an equitable assignment."' There being no fraud or concealment, mere inadequacy of consideration will not defeat an assignment by one sui juris.^ If it does not state a consideration for the assignment a good and sufficient considera- tion may be proved by parol."' If there is no consideration, a bill will lie to have the assigned property returned.^ The assignee of "Hess' Est., 27 Supr. C. 498; Geisz v. Geisz, 21 C. C. 466; P. & L. Dig., vol. 5, col. 8390. ""Tozier v. Brown, 202 Pa. 359; Kase v. Penna. R. Co., 12 D. R. 314; Brown v. Kemmerer, 6 Lack. Jur. 218; 214 Pa. 521. "'Obney v. Obney, No. i, 26 Supr. C. 116; O'Malley v. Olyphant Boro, ' 198 Pa. 525; Laughlin v. Laughlin, 219 Pa. 629; Forsyth v. Colonial Trust Co., 220 Pa. 60. ""Goggins v. Risley, 13 Supr. C. 316; Ridgway's Account, 206 Pa. 587; Altoona Etc. Co. v. Pitts. Etc. Co., 203 Pa. 102; Kase v. Burnham, 206 Pa. 330; Miller v. Fulton, 15 York 162; P. & L. Dig., vol. 5, col. 8400. " Comth. V. Wilkes-Barre Etc. Co., 12 Luz. L. R. 75; P. & L. Dig., vol. 5, col. 8402. " Citizens' Etc. Co. v. Howell, 19 Supr. C. 225 ; P. & L. Dig., vol. 5, col. 841 1, et seq. ""Day's Est., 21 Supr. C. 118; Stehman's Est., 24 Lane. L. R. 42. ""Hercules Etc. Co. v. Segal, 185 Pa. 60s; Doherty v. Ross, 189 Pa. 434; I C. R. A., col. 1991; McCleery v. Stoup, 32 Supr. C. 42. "'Biddle V. Sheep, 20 C. C. 548- "'Phillips' Est, No. 2, 20s Pa, sn; Jackson's Est., 203 Pa. 33; P. & L. Dig., vol. 5. col. 8443- ""^ Cooper V. Potts, 185 Pa. 115. "Dickey v. Stevenson, 198 Pa. 447. EQUITY JURISDICTION. 533 a bond takes it subject to all the defenses which the obligor had in the very transaction in which it was given." An assignee who takes with knowledge of claims upon the thing assigned is equitably- bound." By act of May 11, 1909, P. L. 518, an assignment of or order for wages to secure a loan of two huudred dollars or less, must be accepted in writing by the employer, to be valid against him, and the assignment must be recorded with the clerk o'f the Court of Quarter Sessions of the county where the assignor resides, or if not a resident where he is employed. No such assignment made by a married man shall be valid unless the written consent of his wife is attached thereto. Equity will enforce an assignment for advances made by a bank on goods in a factor's hands subject to his lien, but no others.°^^ A mere order to pay, unless drawn on a particular fund or specially designating it is not an equitable assignment of it.'"'' 35. Notice of assignment. An assignee of a chose in action should give immediate and formal notice of the assignment to the person who holds the fund or a second assignee who does give notice will acquire priority.'' This rule does not apply where a foreign attachment against the assignor has been served on the holder after the first assignment," nor does it apply where there are several successive unrecorded mortgages of an equitable title to real estate."" If the assignee of a judgment note fails to give notice to the maker and he pays to the payee therein, without knowledge of said assignment the debt is dis- charged." So, also where in attachment, the garnishee answers that he has funds of defendant, not knowing of the assignment." But as against the assignor and his administrator the assignment is valid." Such assignment cannot be properly recorded on the record of a pending suit ;" nor can notice of the assignment be en- tered on the margin of the record of each security in a trust estate.*" The practice in regard to mortgages, however, is to note the assign- ment on the margin and to index the same. The question of good faith in an assignment is for the jury." " Stokes v. Dewees, 24 Supr. C. 471 ; P. & L. Dig., vol. 5, col. 8444, et seg. *■ Day's Est., 21 Supr. C. 118; Brown v. Alloy Etc. Co., 48 Pitts. L. J. 26s. "a Smith V. Equitable Trust Co., No. 2, 215 Pa. 418. ""bCroyle v. Guelich, 35 Supr. C. 356; Trexler v. Kuntz, 36 Supr. C. 352; Botsford V. Lull, 30 Supr. C. 292. "Phillips' Est., No. 3, 205 Pa. 515, following Dearie v. Hall, 3 Russell I (Eng. Ch.); Flitcraft v. Comth. Etc. Co., 211 Pa. 114; P. & L. Dig., vol. 5, col. 8546; North Penn Etc. Co. v. Intl. Etc. Co., 217 Pa. S38. "Phillips' Est., No. 4, 205 Pa. 525, following Wilcocks v. Wain, 10 S. & R. 380; 3 C. R. A. 792. "Girard Trust Co. v. Tobias, 30 C. C. 473. " Lee V. Sallada, 7 Supr. C. 98. "May V. Newingham, 17 Supr. C. 469. ■" Shepherd v. Penna. R. Co., 29 Supr. C. 291. " Yonkers v. Penna. R. Co., 18 Lane. L. R. 84. "Cheyney v. Geary, 194 Pa. 427. "Gumbert v. Logan, 13 Supr. C. 622; P. & L. Dig., vol. 5, col. 8455; Bechtel v. Lauer Brewing Co., 21 C. C. 449; Fox v. Foster, 4 Pa. 119; I C. R. A., col. 1997 ; Koch v. Hinkle, 35 Supr. C. 421. 534 EQUITY PRACTICE IN PENNSYLVANIA. 36. Contribution. Newcomb, J., said:" "The doctrine of contribution, as a method of equitable relief and a branch of equitable jurisdiction is applied to cases where several persons are under a common liability to one, when Equity will distribute the burden among the obligors in propor- tion to their respective shares; or when one has already paid the whole, the rest will be forced to contribute ratably to reimburse him to the extent to which he has discharged the obligation in ex- cess of what could be justly claimed from him. * * * Contribu- tion is not founded upon, though it may be modified by contract. The right to it is as complete in the case where sureties are unknown to each other as in any other. The law, following Equity, will imply a promise to contribute in order to afford a remedy. But as this is, in most instances, a fiction in aid of an equitable right, it will never be tolerated where the relation upon which the Equity is founded is wanting." A joint obligor must show that he has paid more than his share." Possession of the bond alone does not prove that he paid the whole of it." It is no defense that plaintiff paid the whole to save himself from sacrifice of his property.* 37. Subrogationc "There can be no right of subrogation in one whose duty it is to pay or one claiming under him as against one not liable at all. In such a case payment is extinguishment."*" But if one purchases property expressly subject to an incumbrance, he thereby assumes it, and is not entitled to subrogation against other property." As long as the original debt remains unsatisfied in part, the right of subrogation has not ripened.^ A mere volunteer is not entitled.** 38. Marshalling assets. A creditor who has a lien on two funds both liable for junior liens, is not obliged to resort to one rather than the other." But where another creditor has but one fund, he cannot, unless a para- mount creditor, by his election defeat the claim of the one fund creditor."" "Goff v. Campbell, ii Kulp i68. ■"Morrison v. Warner, 197 Pa. 59; P. & L. Dig., vol. 5, col. 8489. ■" Craig V. Craig, 3 Rawle 472. " McGonnigle v. McGonnigle, 5 Supr. C. 168 ; Shoemaker v. Wood, 9 Kulp 436. "Grand Council v. Cornelius, 198 Pa. 46; i C. R. A., col. 2010; P. & L. Dig., vol. 5, col. 8494. ■" Roseberr/s Ap., 4 Walker 434 ; see Lackawanna Etc. Co. v. Goraer- inger, 236 Pa. 164, and also Hopkins Mf'g Co. v. Ketterer, No. 186, Jan'y T., 1912, Supreme Court, as to mortgage and lessee. "P. & L. Dig., vol. S, col. 8501; Norristown Trust Co. v. Smith, 19 Montg. Co. 21, following Allegheny Natl. Bank's Ap., 7 Atl. 788. "a Thompson v. Griggs, 31 Supr. C. 608; 3 C. R. A., col. 798. "Johnson v. Sharon Building Assn., 16 Supr. C. 311 ; P. & L. Dig., vol. 5, col. 8510. See Smith v. J. B. Moors & Co., 215 Pa. 421. °° Norristown Trust Co. v. Smith, 19 Montg. 21. EQUITY JURISDICTION. 535 39. Constructive notice. The rule of constructive notice is that, whenever inquiry becomes a duty and if made would lead to knowledge of the facts, by the ex- ercise of ordinary diligence and understanding, whatever puts a party upon such inquiry constitutes notice."' In order to put the principal upon such notice through his attorney or agent it is neces- sary that it arise in the matter in which he is employed.^' 40. Bemedy of deserted wife at law or in Equity. The act of April 27, 1909, P. L. 182, amends the act of May 23, 1907, P. L. 227, so as to make both husband and wife competent witnesses against each other in proceedings at law or in Equity, by a deserted wife against her husband, when he neglects or refuses to support her. Section i is as follows: "That if any man shall separate himself from his wife without reasonable cause, and, being of sufficient ability, shall neglect or refuse to provide suitable maintenance for his said wife, such wife shall be and is hereby empowered to bring her action at law or in Equity, against such husband for maintenance, in the Court of Common Pleas of the county where the desertion occurred, or where she is domiciled; and the said court shall have power to entertain a bill in Equity in such action, and shall make and enforce such or- ders and decrees as the equities of the case demand, and in such action, at law or in Equity, the husband and wife shall be fully competent witnesses." Under this act the wife can maintain a bill in Equity against her husband who has deserted her and a trustee of an estate in which he is entitled to receive an income, and as the fund becomes due and payable, order it paid to her for her maintenance."' But if the husband has been driven away from his home because of her nu- merous assaults upon his person and violent objurgations, but not- withstanding all these offered several times to return and take up with her, which offers she refused, her bill will be dismissed as baseless." The citizenship and domicil of the wife are fixed by her husband's.™ The court has authority to fix an allowance for her support and order it paid by her husband's debtor, enjoining him not to pay it to the husband.™ 41. Proceedings in rem when he has left the state. Section two of the act of April 27, 1909, P. L. 182, provides: "Whenever such husband shall absent himself from the Common- wealth, proceedings may be had against any property, real or per- sonal, of said husband, necessary for the suitable maintenance of "•Tabor St., No. i, 26 Supr. C. 167. "'Chester v. Schaffer, 24 Supr. C. 162; Mutual Etc. Assn. v. Ambrose, 19 C. C. S04; P. & L. Dig., vol. S, col. 8552, et seq. _ Siegwarth v. Siegwarth, 58 Pitts. L. J. 123; Bradish v. Bradish, 36 C. C. 76. ""Yetter v. Yetter, 45 Supr. C. 332. "° Fulford V. Fulford, 38 C. C. 142. " Nulton V. Nulton, 15 Luz. L. R. 501, Ferris, J. S36 EQUITY PRACTICE IN PENNSYLVANIA. the said wife; and the court may direct a seizure and sale, or mort- gage, of sufficient of such estate as will provide the necessary funds for such maintenance; and service upon the defendant shall be made in the manner provided in the act of assembly," approved April 6, 1859, P- L. 387. (See infra.. Equity Practice.) In order that a Court of Equity may entertain jurisdiction it must appear clearly that the desertion occurred within the county, or that the wife had acquired a domicil therein, which must also be the hus- band's, in order to constitute legal desertion. It must further appear that he not only deserted her, but in order to avoid service of pro- cess upon him, went beyond the Commonwealth, before the proceed- ing in r.em authorized by Section 2 is invocable. The husband being a non-resident, although he has property in the state, may appear specially to challenge the jurisdiction, in Philadelphia." 42. Dissolution of a corporation for profit. Under the act of April 9, 1856, P. L. 293, the Court of Common Pleas has jurisdiction to dissolve a corporation for profit organized under the general corporation act of April 29, 1874, the procedure being equitable in its character, by petition and answer. The prac- tice with forms may be found in New Castle Wire Nail Company's case, reported in 18 Supr. C. 257 et seq. Dissolution of a corpora- tion not for profit is regulated by the act of May 3, 1909, P. L. 378, the proceedings being in the Common Pleas. See Vol. 2, John- son's Practice. 43. Proof of corporation, when unnecessary. The act of June 9, 191 1, P. L. 723, provides "that in every suit or judicial proceeding in this Commonwealth, to which a corporation is a party, the existence of such corporation shall be taken to be ad- mitted, unless it is put in issue by the pleadings." " Fulford V. Fulford, 38 C. C. 142. CHAPTER XXVII. EQUITY PBACTICE. 1. Parties to a bill. 12. Trustees in suits concerning 2. Formal statement of parties. real estate. 3. Authority of Supreme Court to 13. Heirs at law may be made par- make rules. ties. 4. Parties to a bill for an account. 14. Parties under incapacity. 5. Parties in suits concerning cor- 15. Statement in bill as to infants, porations. etc. 6. Assignees as parties. 16. Statement as to parties without 7. Parties complainant. the jurisdiction. 8. Parties defendant. 17. Intervention and substitution. 9. When parties need not all be 18. Bill of revivor, supplemental brought in. bill, etc. 10. Procedure without prejudice to 19. Parties under disability in rights of absentees. Chancery. 11. Bill where the demand is joint 20. Alien amy and enemy. and several. 21. Sovereign as party. 22. Parties by representation. 1. Parties to a bill. It is a preliminary rule to ascertain the names of all the parties, both plaintiffs and defendants, who have an interest in the sub- ject matter of the bill and whose rights would be affected by the decree prayed for.* This proposition is broad enough to require parties to be joined as defendants to whom a part of the rights have passed by lease or otherwise." But amendment may be allowed to bring them in, even after reversal on appeal, with a remittitur,' and a party may be allowed to intervene on showing his interest.* If the bill prays for an injunction against persons who are not made parties it will be dismissed." A bill must state directly and not by inference, the reason why a party is not made defendant." Where a petition is filed to enforce payment of a legacy out of land sold by the devisees, the terre tenants must be joined.' For particular cases deciding what parties must or must not be joined see P. & L. Dig., Vol. 6, Col. 8807, et seq. To make a corporation a party it must be ^Phila. v. River Front R. Co., 133 Pa. 134; Alexander's Ap., 20 W. N. C. 283; Lehigh Etc. Co.'s Ap., 88 Pa. 499; Huston v. Sellers, 12 Phila. 520; Gilkeson v. Thompson, 210 Pa. 355 ; 3 C. R. A., col. 822. "Delaware Etc. Co. v. Bethlehem Etc. Co., 7 Northam. 194; Collins v. Stone, II D. R. 432; Moore v. Hirsch, 30 C. C. 7; Heiss v. McCauley, 19 Lane. L. R. 113. 'Nass V. Boyer, 14 Leg. Int. 292. * Grant Etc. Co. v. Pennypacker, 6 Dauphin Co. 89. 'Hartman v. Penna. Etc. Co., 24 C. C. 324. ' Bickley v. Paul, 2 W. N. C. 301. 'Jenkins v. Jenkins, 7 Pa. 246. 537 S38 EQUITY PRACTICE IN PENNSYLVANIA. designated by its corporate name.''^ Stockholders of a corporation may maintain a bill,'" but they must move without delay.'<= Under the act of June 8, 1893, a wife may maintain a bill against her husband, to compel a conveyance to them jointly, when he took title in himself in fraud of her rights and then deserted her/"! 2. Formal statement of parties. Rule 16 of the Equity rules of the Supreme Court provides : Every bill, in the introductory part thereof, shall contain the names of all the parties, plaintiffs and defendants, by and against whom the bill is brought. The form, in substance, shall be as follows: In the [style of court], sitting in Equity. Between ") A. B., Plaintiff, ( and ( C. D., Defendant. J To the Honorable the judges of the said court: Your orator complains and says, etc. 3. Supreme Court authorized to establisli rules of practice. Section 13 of the act of June 16, 1836, P. L. 789, authorized Chancery practice according to the rules adopted by the U. S. Su- preme Court, "unless it be otherwise provided by act of assembly or the same shall be altered by the Supreme Court of this Common- wealth, by general rules and regulations, made and published as is hereinbefore provided." In pursuance of which the Supreme Court of Pennsylvania has formulated a code of rules of practice which it holds has the force of a statute.' The rules at law, generally, apply to procedure in Equity,*^ unless otherwise prescribed. 4. Parties to a bill for an account. A bill for an account between parties jointly interested will be defective if they are not all joined.* Where one has wrongfully taken possession of trust property either the cestuis que trustent must all join, or the bill must be brought by their trustee." The executors of a deceased partner must be joined as defendants by a third party who claims to be a copartner, asking for an account."^ 5. Parties in suits conceminir corporations. Where the bill is brought to enforce the rights of a corporation it must be in the corporate name; or if brought by a stock holder in 'a Stoner v. Creitz, 3 Lehigh Co. i. '!> Comth. Etc. Co. v. Seltzer, 227 Pa. 410. '<= Streuber's Ap., 229 Pa. 184. '■iKoenig v. Koenig, 29 Lane. L. R. 133. 'Barlott V. Forney, 187 Pa. 301. 'a Lincoln v. Africa, 228 Pa. 546. 'Lance's Ap., 112 Pa. 456; Coursin s Ap., 79 Pa. 220; Amsler v. Oil Well Sup. Co^ 49 Pitts. L. J. 416; Beatty v, Brady, 51 Pitts. L. J. 132; Union Trust Co. v. Cain, 29 Supr. C. 197. " Delberfs Ap., 4 W. N. C. 294. " Pettit V. Baird, 10 Phila. 57; P. & L. Dig., vol. 6, coL 881 1 ; Myers v. Bryson, 158 Pa. 246. EQUITY PRACTICE. S39 his own name, he must declare that he made a demand upon the oflScers to bring the suit and a refusal of such demand. In a bill to restrain the improper disposition of corporation property, the corporation must be made defendant in its corporate name, and not the officers." In a bill for discovery and for a decree directing the defendant to issue stock to plaintiff, the officers, or at least some of them, should be named as defendants." But the corporation is a necessary party, and must be joined in a bill by depositors in an insolvent bank, charging the president and directors with misman- agement and praying for an account.^' The officers and the cor- poration should be joined in such bills;" also, in a bill for discovery." In a bill for accounting by stockholders of a corporation against another corporation, the presidents need not be made parties. ' In a bill to have a corporate mortgage declared void, the holders of the bonds secured by the mortgage must be joined and served as well as the trustees. On a foreclosure by bill, the trustees are the proper parties and not the bond holders.^ In a bill for an injunction not only the corporation but the members sought to be restrained should be made parties; but this can be done by amendment." A creditor's bill to recover unpaid stock subscriptions need not join all the stockholders as defendants, when the corporation is named." Nor need all the creditors be named as plaintiffs."^ Under Section 42 of the act of July 18, 1863, P. L. 1864, 1102, a bill to enforce the liability of mining officers must be brought against the individual officers and not the corporation or its officers generally." The owner of an easement which a navigation company obstructs must join such company with the owner of the land as defendants.^' The county commissioners are the proper plaintiffs to maintain a bill on behalf of the county.^ A citizen owning land abutting on a street may maintain a bill to annul a contract made by a city to pave such street when he was liable to be taxed for the cost."' Where the "Humane Fire Co.'s Ap., 88 Pa. 389; Helton v. New Castle R. Co., 138 Pa. iii; Comth. Etc. Co. v. Seltzer, 227 Pa. 410. A stockholder can- not intervene in a bill to restrain a sale, when he knows of it two months before and waited three months after the bill was filed. Streuber's Ap., 229 Pa. 184. "^ Hoffman v. Hartman, 7 Lane. L. R. 137. "Bovaird v. Seyfang, 200 Pa. 261. "Texter's Ap., 4 Walker 316; Biggert v. Biggert Co., 57 Pitts. L. J. 30; Kurtz v. Bubeck, 39 Supr. C. 370. "Hughes V. McMurray, 6 Phila. 200. " First Nal. Bank Etc. v. Bristol Etc., 12 C. C. 176. "Wolf V. Shortridge, 29 C. C. 81. "Harrisburg Etc. R. Co.'s Ap., i Mona. 692. ""McElrath v. Pittsburg Etc. R. Co., 68 Pa. n. ""Flynn v. Enterprise Etc. Assn., 6 Luz. L. R. 133; Mcllvain v. Christ Church, 2 Woodward 293. ■*• ^Bailey v. Pittsb. Coal Co., 1.39 Pa. 213. ^Cornell's Ap., 114 Pa. 153; Aultman's Ap., 98 Pa. 505. =* Sheriff V. Globe Oil Co., 7 Phila. 4; Young v. Allegheny Oil Co., 10 Phila. 525 ; Archer v. Rose, 3 Brewser 264. ^ Mulvany v. Kennedy, 26 Pa. 44. '''Venango County Cormnissioners v. Oil City Etc. Co., 3 D. R. 546; Peter/s Ap., 129 Pa. 121. "Mazet V. Pittsburg, 137 Pa. 548. S40 EQUITY PRACTICE IN PENNSYLVANIA. controversy is between rival street railway companies for the use of the public streets of a city, borough or township the municipal officers must be made parties."" A bill joining a borough with the churches, etc., to enforce a contract against a gas company is not multifarious."^ 6. Assignees as parties. An assignee for the benefit of creditors need not be made party to a bill pending when the assignment is made;* but where a judg- ment was entered before the assignment, he must be joined to rep- resent the creditors on a bill for an account of rents and profits founded on the title conferred under that judgment." 7. Parties complainant. The complainant — that is, the plaintiff, as the acts of assembly term him — must show his interest in the body of the bill. A mere designation of him as a creditor in the caption is insufficient;" nor can his interest be inferred from an exhibit attached, even if referred to in the bill as part of it/'' But an allegation that the contract on which the bill is based was made for the account and use of the plaintiff is sufficient."" A taxpayer has a standing to bring a bill for an injunction to test the constitutionality of an act abolishing a public office."* In a bill for partition all the parties should be named, and how they come to be all the parties entitled to the partition." So also in a bill to enjoin a nuisance."" Where the parties are numerous or unknown, the bill may be brought by one or more of them in behalf of the class or association."' It must be brought in the name of the real plaintiff and not, like an action at law, in the name of the legal plaintiff to his use."" If parties be joined as plaintiffs without their knowledge or assent, it should be dismissed as to them."' If parties plaintiff disclaim as such, they may be treated as defendants.*' Where there was a will uncontested the "heir at law" cannot support a bill against the devisee to have a conveyance set aside for alleged fraud."* 8. Parties defendant. Where there is a prayer for general relief every person who would be affected by a decree for the plaintiff should be made a "» Middletown Etc. Co. v. Middletown Elec. R. Co., i6 C. C. 127. "a Bellevue, et al., v. Mfgrs. Etc. Co., 20 D. R. 547. " Brown v. Gray, 2 Kulp 136 ; affd. Gray's Ap., 4 Walker 151. "° Gloninger v. Hazard, 42 Pa. 389^ '"Holton v. New Castle R. Co., 138 Pa. in. "" Seitz V. Lafayette Tr. Co., S C. C. 469. "" Railroad Co. v. Ashton, S Leg. Gaz. 13. "' Blankenburg v. Black, 200 Pa. 629. "° Dawson v. Lancaster, 28 C. C. 657. "Anderson v. Lehigh Etc. Co., 23 C. C. 343. "' Bishop V. Cowden, 5 Montg. 151 ; Hill v. Kensington Comrs., i Par- sons SOI ; Powel v. Dunn, 21 C. C. 65. "" Seibert v. Seibert, i Brewster 531 ; Aultman's Ap., 98 Pa. 505. "° Gravenstine's Ap., 49 Pa. 310 ; Craighead v. Smith, 10 C. C. 359. ■"Ford V. Terry, 17 Phila. 279. "a Green v. Sumby, 230 Pa. 500. EQUITY PRACTICE. 541 defendant." But the Commonwealth cannot be made a defendant, without its permission." It requires an act of assembly to authorize a suit against the state. Although some parties are improperly joined as defendants, the bill as to the rest is not affected. On a bill for assignment of dower, the executor is not a proper defendant." An administrator of a deceased stockholder may be properly made a defendant in a creditor's bill under the act of April 6, 1859, P. L. 387.*° A sheriff is not a proper defendant in a bill for an injunction to restrain the sale of land under an execution." If joined, the Supreme Court, on appeal, will consider the record as if amended nunc pro tunc." In a bill for an account, where some of the defendants are unknown, parties may be found debtor accountants, although their names are not added to the record." But when an injunction is prayed for the parties must be named and brought into court, or a decree cannot go against them." The corporation and stockholders may be joined, if parties to the contract, as such;°° and so of a manufacturing company and a railroad company." Taxpayers should not be joined where the suit is between school districts." When non-resident defendants appear or authorize an appearance for them, they submit themselves to the jurisdiction of the court and are subject to its decree."' 9. When parties need not all be brought in. Rule 22 of the Supreme Court Equity Rules is as follows: "Where the parties on either side are very numerous, and cannot without manifest inconvenience and oppressive delays in the suit be all brought before it, the court in its discretion may dispense with making all of them parties, and may proceed in the suit, having sufficient parties before it to represent all the adverse interest of the plaintiffs and the defendants in the suit properly before it. But in such cases the decree shall be without prejudice to the rights and claims of all the absent parties." 10. Procedure without prejudice to the rights of absentees. Rule 21 of the Supreme Court Equity Rules declares: "In all cases where it shall appear to the court that persons who might otherwise be deemed necessary or proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may, in their discretion, proceed "Thomas v. Boswell, 14 Phila. 197. " Williamsport Etc. R. Co. v. Comth., 33 Pa. 288. "Williams v. Leech, 28 Pa. 89. "Drum V. Wartman, 6 Phila. 45. ** Hamilton v. Clarion Etc. R. Co., 144 Pa. 34. ■" Shober v. Harrison, 13 Lane. L. R. 9 ; 3 Supr. C. 188. " Natalie Etc. Co. v. Ryon, 188 Pa. 138. " Seibert v. Dreisch, 12 Lane. L. R. 137. " Long V. Dickinson, 10 Phila. 108. ™ Dickinson v. Middletown Etc. Co., 17 D. R. 843. " Good v. Queen's Rune Etc. Co., 32 C. C. 419. "^ Chambersburg Etc. Dist. v. School Dist., 228 Pa. 119. "" Newman v. Shreve, 229 Pa. 200. 543 EQUITY PRACTICE IN PENNSYLVANIA. in the cause without making such persons parties ; and in such cases the decree shall be without prejudice to the rights of the absent parties." Where the decree in account between father and son is entered, it may be without prejudice to any legal claims they may have." 11. Bill where the demand is joint and several. Rule 25 of the Supreme Court Equity Rules declares : "In all cases where the plaintiff has a joint and several demand against several persons, either as principals or sureties it shall not be necessary to bring before the court, as parties to a suit concerning such demand, all the persons liable thereto, but the plaintiff may proceed against one or more of the persons severally liable. But the defendant may at once proceed by a bill in the nature of a cross-bill, against such party as is liable jointly with him and such party shall be permitted to make himself a party to the original cause, and defend the same, and the proceedings in the original cause shall, after the service of such cross-bill, be conclusive as to suGh other party, and if he shall appear thereto, be conducted as if he had been made a party thereto in the first instance." On a bill for an account a judgment shown to have been assigned may be ordered marked to the use of the plaintiff.^ 12. Trustees in suits concerning real estate. Rule 23 of the Supreme Court Equity Rules provides : "In all suits concerning real estate, which is vested in trustees, and such trustees are competent to sell and give discharges for the pro- ceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate or the proceeds, or the rents and profits, in the same manner, and to the same extent as the executors or administrators in the suits concerning personal estate represent the persons beneficially interested in such personal estate ; and in such cases it shall not be necessary to make the persons beneficially interested in such real estate or rents and profits parties to the suit, but the court may, upon consideration of the matter on the hearing, if they shall so think fit, order such persons to be made parties." 13. Heirs at law may be made parties. Rule 24 of the Supreme Court Equity Rules provides: "In suits to execute the trusts of a will, it shall not be necessary to make the heirs at law parties; but the plaintiff shall be at liberty to make the heirs at law parties where he desires to have the will established against them." 14. Parties under incapacity. Rule 7 of the Supreme Court Equity Rules provides : "Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, on petition, for infants or other persons, who are under guardianship, or otherwise incapable to sue " Albright v. Albright, 228 Pa. 552. " Watson v. McManus, 224 Pa. 430. EQUITY PRACTICE. 543 for themselves; all infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami, subject, however, to such orders as the court may direct, as to security or otherwise, for the protection of such infants and other persons." 15. Statement in bill as to infants, etc. Rule 19 of the Supreme Court Equity Rules provides: "Where infants or persons not sui juris, are parties, the fact shall be specially stated in the bill, so that the court before or after the service of process may take order thereon as justice may require." 16. Statement as to parties withont the jurisdiction. Rule 20 of the Supreme Court Equity Rules provides: "Where persons without the jurisdiction are proper or necessary parties, this fact shall be stated in the bill, and they may be brought in by service when they come within the jurisdiction of the court, or under a special order as provided by the acts of assembly." 17. Intervention and substitution. Equity rather consolidates than multiplies controversies and when a subject matter is split into several suits it may permit parties plaintiff in one bill to intervene as defendants in another bill pending and thus settle the whole controversy at one time.'' With such object in view an amendment will be allowed," and parties belonging to a class may be allowed to intervene." But, after replication and refer- ence a defendant cannot be made a plaintiff and set up new grounds for relief, without affidavit or notice to his co-defendants.* Other parties plaintiff may be added on showing interest, after preliminary injunction and appointment of an examiner on motion of defendants.' The rule as to parties in church controversies is construed with great elasticity." Necessary and proper parties defendant may be allowed to become parties on their own petition and over the protest of the plaintiff.' But if already represented, they will not be added.' If a co-defendant dies, pending suit, a decree can be made as to the survivor but not as to the deceased without having his legal rep- resentative made a party on the record.' The practice is not to have a bill of revivor but to proceed under rule 53 of the Supreme Court Equity Rules." 18. Bill of revivor, supplemental bill, etc. Rule 53 of the Supreme Court Equity Rules provides: "Whenever the circumstances are such as to require a bill of revivor, supplemental bill, or bill in the nature of either or both, 'Gaylord v. Sterling, 3 Law Times (N. S.) 6^7. 'Hopkins' Ap., 8 W. N. C. 33. 'Johnston v. Markle Paper Co., 153 Pa. 189. * Gwinn v. Lee, 6 Supr. C. 646 ; Chester v. White, 220 Pa. 646. ' Harrison v. St. Mark's Church, 14 W. N. C. 387. 'Krecker v. Shirey, 2 D. R. 24.; East End Refd. Presb. Congn. v. Mil- ligan, 40 Pitts. L. J. 7; 3 C. R. A., col. 823. ' Grant Etc. Co. v. Pennypacker, 6 Dauphin 89. ' Knavels v. Fame Hose Co., I W. N. C. 169. 'Bank of U. S. v. Biddle, 2 Parsons 31. "Cavanaugh v. Cavanaugh, i Lack. Jur. 122. 544 EQUITY PRACTICE IN PENNSYLVANIA. or where additional or different parties are required to be joined, the same shall be made by way of amendment or addition to the original bill, and copies of such amendments or additions being served on the parties to the original bill, or their counsel, on the record, shall entitle the plaintiff to proceed as on an original bill, after service. Where a new party is joined, a copy of the original bill and the amendment shall be served as is provided for in the case of original bills. But, where the personal representative of a deceased party is properly required to be joined, it may be done by stating on the record the fact of the death, and the grant of letters of such representative and by service of notice of such state- ment on such representative; and the cause, without more delay, shall proceed as if such representative had been originally a party, allowing him ten days to appear." This rule virtually extinguishes the bill of revivor, by substituting suggestion and notice. 19. Parties under disability in Chancery. Persons recognized as under disability to sue in their own right, in Chancery, are outlaws; but even such may sue en autre droit; as executor, administrator or prochein ami^ If solely interested, he cannot sue even as relator. He may, hoyvever, be made a defend- ant." Whilst infants, lunatics and idiots are under disability to be made parties sui juris, they must be represented by next friend, guardian or committee, and a proceeding in Equity, as well as at law, without thus bringing their right or title into court, by legal representation, has no effect upon them. 20. Alien amy and enemy. The law of England is that an alien enemy has no stafnding in Equity," but an alien amy has for a personal demand." As to an alien enemy, his rights are suspended during the period of bad blood, and after the letting, he may sue for his rights. 21. Sovereign as party. The sovereign may not be sued except by his permission. Where he sues it is by the attorney general, and in England, when that office is vacant, by the solicitor general. If the sovereign is not directly, but indirectly interested the suit is in the name of the sovereign ex relatiofke the attorney ; or, if the sovereign is not interested, except to protect the right of an individual, charity, etc., the suit is by the attorney general ex. rel., that individual, whose right it is bound to enforce and maintain. Now, all this is "horn book law," but we are constantly reminded by those who know next to nothing, that "it is the little things, we want to know." The relator is interested in the thing in controversy, in relation to which he prays process "Phillips v. Gibbons, i Veasy & Beames 184; Killigrew v. Killigrew, I Vernon 184. " Precedents in Chancery, 13. "" Took v. Took, 2 Vernon 198. " Lee, ex parte, 13 Vesey Jr. 64. "° Coke on Litt, 129b Ramkissenseat v. Barker, i Atkyns 51. "Story's Eq. PI. 46-7; Boussmaker, ex parte, 13 Vesey Jr. 71. EQUITY PRACTICE. 545 and motion. He is answerable to the court and the parties for the propriety and conduct of the suit, and if he dies, a new relator may be named." In England, both foreign sovereigns and foreign corporations may sue in Equity," when recognized by the British Government." A similar rule obtains here. 22. Parties by representation. The same rules as to parties, established by law, also apply to bills in Equity, such persons as are under disability must be rep- resented by a guardian, trustee, committee or next f riend.'" A receiver or committee stands as substituted by the law, but he can waive no rights which the law gives to the party represented by him.'" A receiver may be authorized by the court to sue.'"' An executor or administrator can only be impleaded as such in the courts of the county having jurisdiction of his accounts,''' as a rule; though a foreign executor, may be sued so as to attach assets he may have with him in this jurisdiction,"' unless it interferes with a prior jurisdiction."" The making of proper persons and all concerned in the subject matter parties to a bill in equity is of the first importance and cannot be too punctiliously and studiously done.™ To review the principles already stated, one who has no interest in the event of the suit should not be made a party," and where there are many persons as in case of a beneficial or other association, not incor- porated, the principal officers may be designated to represent the entire association."" In the case of a corporation a stockholder may bring suit, when he avers in his bill that he requested the corporate officers to bring suit and they have refused to do so." The officers and agents of a corporation may be made parties where it becomes important to obtain from them an answer which could not otherwise be exacted." In order to join defendants there must be a community of interest, though not identical."* The right of persons to intervene and become parties to a bill depends upon their interest and to what "Atty. Genl. v. Powell, Dickens 355. "Hallet V. King of Spain, 2 Bligh's R. (N. S) 60. "City of Berne v. Bank of England, 9 Vesey Jr. 367. See also Stor/s Eq. PI. 47-8. "°Vol. I, Johnson's Practice, p. 384, par. 32. ""Bennett v. Hayden, 145 Pa. 586; Jennings v. Bloomfield, 199 Pa. 638; Wilson V. Bigger, 7 W. & S. in. ""Yeager v. Wallace, 44 Pa. 294. It is not the purpose to travel far from Pennsylvania practice in this work. Whoever wishes to grasp the practice in the federal courts and in other states should consult Fletcher on Equity Pleading and Practice, a recent logical work by a member of the Phila. Bar. ""Magraw v. Irvin, 87 Pa. 142. "* Swearingen's Exrs. v. Pendleton's Exrs., 4 S. & R. 389 ; Evans v. Tatem, 9 S. & R. 252. "'Brodie v. Bickley, 2 Rawle 431; Laughlin v. Solomon, 188 Pa. 177. "Michigan State Bank v. Gardner, 3 Gray 305. ■"Kerr v. Watts, 6 Wharton 550. "'Hill V. Kensington Comrs., i Parsons 501; vol. i, Johnsons Practice, p. 383, par. 30. ""Helton v. New Castle R. Co., 138 Pa. in. ""Bovaird v. Seyfang, 200 Pa. 261. "Lehigh v. R. Co. v. McFarlan, 31 N. J. Eq. 758. Vol. 4 Practice — 33 546 EQUITY PRACTICE IN PENNSYLVANIA. extent they would be affected by the decree. Objection for defect of parties apparent should be taken by demurrer, and if not apparent, then by plea or answer.^ " Carey v. Brown, 92 U. S. 171. CHAPTER XXVIII. THE BILL IN EQUITY. 1. Framing of the bill. 2. Structure of bill — scandalous or impertinent matter to be expunged. 3. Division into numbered park- graphs. 4. Essential allegations. 5. Allegations of fraud. 6. Multifarious as to facts. 7. Multifarious as to relief. 8. Recital of documents. 9. Requisites of the bill of com- plaint. 10. Signing and affidavit. 11. Requisites of bill for an ac- count. 12. Allegations in bill of discovery. 13. Production of books and papers. 14. Bill to perpetuate testimony. 15. Principles upon which the bill lies in Chancery. 16. Form of the bill. 17. Defenses to bill. 18. Bill of review. 19. Bill of interpleader. 20. Bill must be printed and filed. 21. Requirement that defendant ap- pear and answer. 22. Requirement that defendant answer. 23. Printing of pleadings except in forma pauperis. 24. Equity Court always open. 25. Duty of prothonotary. 26. Docketing cause — manner of appearance — judgment. 1. Framing of the bill. Having determined who are to be the parties plaintiff and de- fendant, they should be stated fully and particularly in the first paragraph of the bill, so as to avoid the joining of improper parties and objection on the ground of being multifarious.' If the plaintiffs all claim in the same right they may be joined and objection will not avail." But where the rights are several and distinct the joinder will be multifarious as to parties.' Where the liabilities are of several defendants, the matters alleged as grounds of relief and the relief prayed for, are separate and complete.* 2. Structure of bill — scandalous or impertinent matter to be expunged. Rule 15 of the Supreme Court Equity Rules provides: "Every bill shall be expressed in as brief and succinct terms as 'Baldes v. Henniges, 7 Kulp 143; Macready v. Hart, 20 Leg. Int. 149; Fowler v. Jones, 9 Kulp 308; Riley v. Penna. Co., 32 Supr. C. 579; Elk Brewing Co. v. Neubert, 213 Pa. 171; 3 C. R. A, col. 824. 'Rafferty v. Central Tr. Co., 147 Pa. 579; Persch v. Quiggle, 57 Pa. 247; Cumberland Val. R. Co.'s Ap., 62 Pa. 218; Sallada v. Lykens Twp. Etc., 2 Pearson 48; P. & L. Dig., vol. 6, col. 8834, et seq.; i C. R. A., col. 2058. 'Lungren v. Pennell, 10 W. N. C. 297; Coatesville Etc. R. Co. v. West Chester Etc. R. Co., 206 Pa. 40; Demler v. Porter, 52 Pitts. L. J. 189; Taylor v. Cochran, 16 Montg. 166. * Price V. Hurley, 201 Pa. 606; Young v. Forest Oil Co., 194 Pa. 243; Spurks V. Jones, 4 Lack. Jur. 85; Mengel v. Lehigh Etc. Co., 24 C. C. 152; Anderson v. Lehigh Etc. Co., 10 D. R. 14; see 9 D. R. 278, contra- Young's Ap., 3 Penny. 463; P. & L. Dig., vol. 6, col. 8836, et seq. 547 S48 EQUITY PRACTICE IN PENNSYLVANIA. it reasonably can be, and shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments, in haec verba, or any other impertinent matter, or any scandalous matter not relevant to the suit. If it do, it may be heard by any law judge of the court, on exceptions, for impertinence or scandal, and if so found by him, the matter shall be expunged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court or a law judge thereof shall otherwise order. If the judge shall find that the bill is not scandalous or impertinent, the plaintiff shall be entitled to such allowance for trouble and delay as the court may decree equitable to be taxed as part of the costs of the case." If scandalous and impertinent matter be averred in a bill it may be formally excepted to and a motion made to strike it out." To be impertinent it must be immaterial to the issue.' 3. Bill to be divided into numbered paragraphs. Rule 17 of the Supreme Court Equity Rules provides : "The bill shall be divided into paragraphs consecutively numbered, and shall contain a succinct statement of the facts upon which the plaintiff asks relief, and, at his option, the facts which are intended to avoid an anticipated defense, and such averments as may be necessary under the rules of equity pleading, to entitle the plaintiff to relief, and the prayer for relief and for special orders, writs or process, which shall also be so divided and numbered. The combina- tion clause, the interrogatories, and the allegation of want of remedy at law and similar formal averments, shall be omitted." 4. Essential allegations. The allegations of facts upon which the plaintiff bases his prayet for relief must be direct and positive and not inferential.' The bill must set forth plaintiff's whole case and every material fact must be distinctly averred with reasonable fullness and certainty, or the defendant need not answer.' It is unnecessary to state the obvious deductions from the facts." It should not state conclusions of law" and if it does so, without the facts to support it, demurrer will be sustained." The facts must be so fully stated that it appears what the wrong is that is sought to be remedied, that the act complained of was without license or warrant and, if another remedy is avail- able, that it is inadequate." In case the suit is to redress a nuisance to real estate it should show that the same is situated within the "Green v. Elbert, 137 U. S. 615. " Marshall's Est., in re, 40 Leg. Int. 279. 'Thompson's Ap., 126 Pa. 367; Ferguson v. Yard, 164 Pa. 586; McHale v. Easton Etc. Co., 169 Pa. 416; P. & L. Dig., vol. 6, col. 8828; Miller v. Piatt, 33 Supr. C. 547. 'Finletter v. Appleton, 195 Pa. 349; McFarland v. Heverly, 46 Supr. C. 434- ° Henry v. Black, 210 Pa. 245. " Clopper V. Greensburg, 9 D. R. 598. " Gilkeson v. Thompson, 210 Pa. 355. "Cooke V. Central Etc. Co., 21 Supr. C. 43. "Anderson v. Lehigh Etc. Co., 23 C. C. 343. THE BILL IN EQUITY. 549 county, although this is amendable:'' A bill to restrain the pollution of a stream by coal mining refuse should specify the times and places." A bill to restrain foreclosure of a mortgage and alleging a tender of the amount admitted to be due should contain a renewal of the tender and an offer to pay the amount into court." It must allege an injury or set forth the facts which constitute it," not the evidence but the bare facts in concise form." If upon its face the claim would be barred, the bill must aver the reason why it is not barred." Where a bill is filed to restrain public officers from doing official acts it is necessary to show that they are proceeding contrary to law and without authority." A bill against a railroad company for an injunction restraining it from maintaining its tracks on a street must aver that it does so without authority of law.'" A good bill is one which presents: (a) all the parties plaintiff and defendant and their residence; (6) alleges the facts in cogent and logical order upon which the orator bases his prayer for relief; (c) avers, when neces- sary, that there is no adequate remedy at law; (rf) prays for definite relief and such other general relief as the court may deem just and equitable, upon hearing. 5. Allegations of fraud. In alleging fraud the specific facts constituting it must be set forth. General allegations of fraud, duress or conspiracy are insufficient." Where it is sought to set aside a sale by an executor on the ground of fraud it must be as distinctly averred that the purchaser was a party to it.^'' For cases showing a sufficient allegation of fraud, see note." When it is sought to reform a deed because of fraud, accident or mistake the facts which show that one of these conditions exists must be clearly and fully stated." 6. Multifarious bill as to facts. A bill is multifarious in subject matter when it joins distinct, independent and separate causes of complaint requiring different defences and different decrees.'" A bill which embraces two distinct " Mengel v. Lehigh Etc. Co., 24 C. C. 152. "Dinner v. Van Dyke, 25 Supr. C. 433. "GilfiUan V. Grier, 145 Pa. 317. "Winebrenner v. Colder, 43 Pa. 244. "Gandolfo v. Hood, I Pearson 269. "Delaware County's Ap., 119 Pa. 159. '"Kemble v. Phila. Etc. R. Co., 140 Pa. 14. See P. & L. Dig., vol. 6, col. 8830, et seq., for various particular allegations necessary under the circumstances. ""Gutekunst v. Rathbone Pet. Oil Co., 6 Phila. 199; Baird v. Hamm, 7 Phila. 436; Fisher v. Walter, 3 C. P. R. 161; Sherman v. Del. Etc. Co., 36 Supr. C. 487; Biery v. Penna. Etc. Co., i Lehigh Co. 400; Leberman v. Leberman, 18 Phila. 254; Graeff v. Felix, 200 Pa. 137; Bovaird v. Sey- fang, 200 Pa. 261. ^Cascaden v. Cascaden, 140 Pa. 140; Mc Andrew v. McAndrew, 3 C. P. R. 174. Phila. v. McManes, 15 Phila. 104; Witmer's Ap., 15 Atl. 428. "Heiss V. McCauley, 19 Lane. L. R. 113. " Caughev v. Harrar, 21 Lane. L. R. 353 ; Amsler v. Oil Well Sup. Co., 49 Pitts. L. J. 416; Bovaird v. Seyfang, 200 Pa. 261; Laughead v. Beale, 24 C. C. 46s; Hutchinson v. Dennis, 217 Pa. 290; Jordan v. Mosser, 8 Dauphin 268. 550 EQUITY PRACTICE IN PENNSYLVANIA. complaints™ or two distinct demands is multifarious and, on de- murrer, will be dismissed." If the subject matter be not necessarily diverse, but only such as would warrant different suits, and the same may be consolidated and made homogeneous and the subject of one decree, it will not be held to be multifarious.'* The court in its dis- cretion may disregard part and decree the rest.™ Where a borough and the churches join in compelling a gas company to perform its contract on securing the use of the streets the bill is not multifarious." 7. Multifarious as to relief asked. A bill is not multifarious which seeks alternative relief, dependent upon which way the court finds the facts." Whilst a bill may not allege inconsistent states of facts it may ask the court for an alter- native remedy conditioned upon different conclusions of law drawn from the facts as stated.^^ Different remedies may be asked for the same wrong, and a bill is not multifarious because mandatory and prohibitory injunctions are prayed for."* 8. Recital of documents. When the plaintiff rests his title on a deed he must either annex a copy to his bill as an exhibit or refer to the book and page where it is recorded, if recorded in the county where the bill is filed." If the writings are in possession of the respondent they need not be set out in haec verba, but substantially and the fact stated that they are in possession of the defendant." Where the document is under the control of the plaintiff and is material he should insert or attach a copy. 9. Requisites of the bill of complaint. A bill in Equity is a statement of the complainant's case, the same as a plaintiff's declaration of his cause of action in a common law court. It must contain all the allegations material to the issue;" that the subject is within the jurisdiction of the court, as well as the parties against whom relief is sought, or their property; that the parties are interested in the suit, and generally, all who are interested, unless so numerous or remote that justice and equity may be done without all of them. A Court of Equity being one wherein a remedy is afforded, where the law has provided no remedy, or where the '° Whetham v. Penna. Etc. R. Co., 8 Phila. 92 ; Quin v. Power, 18 W. N. C. 28s. " Huston V. Sellers, 12 Phila. 520. ''Freeman v. Stine, 34 Leg. Int. 96; Phila. v. City Gas Works Etc., \2 W. N. C. 477 ; P. & L. Dig., vol. 6, col. 8838. "Citizens' Etc. Co. v. Shenango Etc. Co., 138 Pa. 22. °° Bellevue Boro v. Mfgr's Gas. Co., 20 D. R. 547. " Abrahams v. Baugh, 3 Leg. & Ins. R. 59. " Wilhelm's Ap., 79 Pa. 120; Hardin v. Boyd, 113 U. S. 756; Hayes' Ap., 123 Pa. no. '^Anderson v. Lehigh Etc. Co., 23 C. C. 343. " Haneman v. Pile, 161 Pa. 599 ; Brown v. Jermyn, 6 Lack. Jur. i. ■"Graham v. Farmers' Natl. Bank Etc., 3 Lane. L. R. 68. "Whaley v. Norton, Vernon 483. THE BILL IN EQUITY. 551 remedy at law is inadequate, or where by its tardy motion, irrepar- able loss would be suffered, and (in Pennsylvania), where the remedy at law would be inconvenient," it is necessary to show in the bill that no other court or tribunal has exclusive cognizance of the subject matter or the parties. Hence the rule in England as well as in the United States Courts, and many state courts, that a bill must aver the absence of an adequate remedy at law. By rule 17, of the Supreme Court of Pennsylvania, this formal averment is dispensed with. But it must be borne in mind that if the bill by its substantial averments does not bring the subject matter as well as the parties within the jurisdiction of the court, all will be but coram non judice.j vain and void. The distinction between Law and Equity jurisdiction has been pointed out in Vol. i, Johnson's Pr., as stated above. It may be noted, however, that by act of Congress of April, 191 1, the juris- diction of the United States Circuit Court, is wholly transferred to the United States District Court. In the framing, of a bill certainty to a common intent is all thai is ordinarily required, but the rules of Equity practice have the force of law and must be followed in Pennsylvania." The statement of facts must show that there is clear equity jurisdiction in the court and it is customary to allege no adequate remedy at law in the United States Courts though this has been said not to be essential in Penn- sylvania, where jurisdiction is apparent." 10. Signing and affidavit. The bill, to be in good form, should be signed by the plaintiff or his solicitor. It was held under the Equity rules of 1865, that the bill need not be signed by the solicitor, since his signature to the notice to appear and answer was sufficient." No affidavit is required to the bill, although it is common practice to append one. Where a party is sick or absent a substituted affidavit by another may be permitted.*'"' 11. Requisites of bill for an account. A bill for an account without an allegation that there is a balance due the plaintiff will be dismissed." When brought by a partner against his co-partner the partnership having been alleged, it is not necessary to aver a continuance nor to offer to pay any balance that may be found against him;" nor to pray for a dissolution or a re- ceivership.* If the bill be for an account of the profits of the use "See vol. I, Johnson's Pr., pp. 4, 5, 6; Borie v. Satterthwaite, 180 Pa. 543. "'Del. & H. Canal Co. v. Penna. Coal Co., 21 Pa. 131. "Borie v. Satterthwaite, 180 Pa. 542. By Section 17, Rule IV of the Supreme Court "the combination clause, the interrogatories, and the allegation of want of remedy at law and similar formal averments, shall be omitted." "Everhart v. Everhart, 3 Luz. Leg. Reg. 55. ^^ Venango County v. Penn Bridge Co., 14 D. R. 221. "aGriel V. Buckius, 114 Pa. 187. "Volmer v. McCauley, 7 Phila. 382; Metz v. Farnham, 8 Phila. 267. "Hudson V. Barrett, i Parsons 44. "Von Tagen v. Roberts, 2 Pearson 137. SS2 EQUITY PRACTICE IN PENNSYLVANIA. of a patented article it should set forth the facts with great detail." A bill for an account of waste committed must be filed in the county where the land lies." A bill filed under section 19 of the act of October 13, 1840, P. L. 7, must be accompanied by a certificate of counsel that in his best judgment plaintiff has no adequate remedy at law.' This is held to be requisite to give Equity jurisdiction in partnership accounts;" except in Philadelphia, where authority is claimed under Section. 13, of the act of June 16, 1836, P. L. 784, to file an account without it.^ The certificate may be filed with leave, nunc pro tunc* A bill for accounting for royalties will be dismissed where instead of a lease the contract has been held to be a sale." A bill will be sustained for account where the effect is to consolidate four separate actions of assumpsit;" or where the accounts are very complicated.' But if the remedy at law would have been full and adequate the bills will be dismissed.' A delay of eight years in compelling a trustee to account will not impute laches where others had made an effort and failed to produce the result.' A bill for account by a principal against his agent is cognizable in Equity/" So also where there are mutual accounts and discovery may be necessary." Where it appears that a third party not joined was a partner in the negotia- tions, the decree will be reversed and an amendment directed."* 12. Allegations in bill of discovery. A bill of discovery will only lie in aid of some proceeding at law or in Equity either initiated or in immediate contemplation and this must appear affirmatively,"" and that it is required in such suit." It has been held that before the plaintiff can have discovery he must establish his right to the subject matter of his suit." Technically this kind of bill is filed for the discovery of facts resting in the knowledge of the defendant or of deeds or writings, or ether things in his custody or power, and seeking no relief in con- sequence of the discovery, though it may pray the stay of proceedings * Battin v. Martin, 10 Lane. L. R. 209. " Thompson v. Noble, 2 Pitts. 201. ^Engle v. Conrad, 9 York 148; Beatty v. Brady, 51 Pitts. L. J. 132. 'Everhart v. Everhart, 3 Luz. L. R. 59- But see Fisher v. Maurer, 16 D. R. 752. ' Bachman v. Einhorn, 5 W. N. C. 250. ' Dick's Ap., 106 Pa. 589 ; see Ward v. Mooney, 10 W. N. C. 256 ; Danko V. Nydeck, 4 Schuylkill Co. 195. It is best to obey the statute. "Lazarus v. Lehigh Etc. Co., 221 Pa. 415. • Simpson v. Summerville, 30 Supr. C. 17. ' Kurtz V. Bubeck, 33 C. C. 294. "Milleman v. Kavanagh, 213 Pa. 240; Owens v. Goldie, 213 Pa. 579; Citizens' Etc. Bank v. Osgood, 35 C. C. 284; Dempster v. Scott, S3 Pitts. L. J. 27s. " Horine v. Mengel, 30 Supr. C. 67. "Fischer v. Riehl, 219 Pa. 505. "Stitzer V. Fonder, 214 Pa. 117; 3 C. R. A., col. 819. "a Heck V. Collins, 231 Pa. 357. "Collom V. Francis, i Parsons 527. " Peebles v. Boggs, i Phila. 151. "Campbell v. Knowles, 13 Phila. 163; Portuondo v. Faunce, 9 W. N. C. 539; Burkholder v. Hertzler, 8 Lane. L. R. 113. THE BILL IN EQUITY. 553 at law till the discovery shall be made. It is commonly used in aid of the jurisdiction of some other court; indeed some allegation of a proceeding intended or pending seems indispensable. It is used to aid a jurisdiction which cannot compel evidence on oath. Where a plaintiff by his bill prays relief as well as discovery, when the suit is maintainable for discovery only, it will be open to demurrer to the whole, and it cannot be maintained for discovery alone. But the defendant may, if he pleases, demur to the relief prayed and answer as to the discovery." This bill was formerly much used to discover facts in the pos- session of an adversary, but now the adversary may be put on the stand; if he will tell the truth, no bill is requisite. So it has been held that the bill will not lie against one who can be called as a witness in the cause." It may be used to compel the discovery of a deed." The materiality of the proposed evidence must be shown, as well as why it cannot be produced in due course. If the suit is pending, the bill should be made a part of the same suit as ancillary thereto," and in the same court." If a party files a bill for discovery of deeds, etc., and relief, and afterwards brings an action at law he must proceed in Equity first.^° 13. Production of books and papers. This subject has been explained in Vol. i, Johnson's Pr., P. 628-9; but something further may be said in this connection; for in Equity books and papers can only be obtained from the adversary by a subpcena duces tecum or a bill alleging their materiality and that they are in the possession of or under the control of the adversary. ' Such a bill is served same as original bills.'"' A defendant is not obliged to make a discovery, if it would subject him to a criminal proceeding or a penalty.® A defendant must answer unless he can show that plaintiff is not entitled to the discovery or that defendant ought not be compelled to make it." If he has no knowledge he must state his information and belief in answer.'' He may state all the circumstances fully.'" When the answer is in, defendant may "Welford's Eq. PI., p. 118. ^'Twells v. Costen, i Parsons 373. " Dock v. Dock, 180 Pa. 14. " Peebles v. Boggs, i Phila. 151 ; Dull v. Amies, 2 Miles 134. "Gilder v. Merwin, 6 Wharton 522; McFillen v. Bank, 8 Phila. 308; P. & L. Dig., vol. 6, col. 8845. "Aston V. Ld. Exeter, 6 Vesey Jr. 288; Hylton v. Morgan, 6 Vesey Jr. 294. ^ Snebley v. Linnell, 13 Phila. 167 ; Campbell v. Knowles, 13 Phila. 163 ; Cottrell v. Warren, 18 Pa. 487; Reed v. Stevenson, 6 W. N. C. 173; O'Connor v. Tack, 2 Brewster 407. ■"Peebles v. Boggs, i Phila. 151. ""Wister v. McManus, 54 Pa. 318; Page v. Williamsport Suspender Co., 191 Pa. sii, on Act of 1897, P. L. 237; Natl. Bank of West Grove v. Earle, ig6 Pa, 217. " Evans v. Lane. City R. Co., 64 Fed. R. 626. "Painter v. Harding, 3 Phila. 144. " Waldron v. Bayard, i Phila. 454. 554 EQUITY PRACTICE IN PENNSYLVANIA. move for costs.'" The denial of the discovery is not ground for dismissing the bill."" The court may, in a proper case appoint a receiver for the books, etc."' Discovery in aid of executions has been treated of in Vol. 2, Johnson's Practice. 14. Bill to perpetuate testimony. A bill to perpetuate testimony should state the subject matter of the controversy between the parties, the facts which it is sought to prove and the actual necessity to preserve and perpetuate the evidence, but need not state the names of the witnesses nor the particular evidence they will give.'" But before a bill of this kind can be sustained an affidavit must be produced that the witnesses are aged and infirm, or in peril of dying; but if these facts are set out in the bill and it is sworn to, the purpose is fully answered." If the party is in a position to assert his right at law or in Equity, he cannot have this bill f unless in the case of aged, infirm and going witnesses.*" 15. Principles upon wMcIi the bill lies in Chancery. Welford on Equity Pleading lays down the fundamental principles as follows, citing Mitford, Cooper and Beames, as well as the early Chancery cases : "When a person interested in any property is in danger of losing the evidence of his right before it can be judicially investigated, he may file a bill against the persons who will be benefited by the loss to examine the witnesses and perpetuate their testimony.* In order to maintain such a bill, the plaintifif must be interested; and an exceptancy however strong, is not a sufficient interest." It must be a positive interest. Thus, neither the next of kin nor heir at law of a lunatic, though that lunatic be intestate, * * has such an interest as will enable him to maintain a bill, for the law never deems a recovery impossible during life. But any actual interest, however small in value, whether it be absolute or contingent, and however remote in enjoyment, is sufficient.' It has even been said that if persons having mere expectancies shall have entered into any contract with respect to their expectancies, they might maintain a bill to perpetuate the evidence. But the court will not protect every interest by perpetuating evidence; as, for instance, if it be such as may be immediately barred by the person against whom the bill is brought; for it would be a fruitless exercise of power.* It has been said not to lie for trivial things, as rights of common, or ways, or water courses, or, at least not until after a recovery '' People's Natl. Bank v. Kern, 193 Pa. 59. '"Wistar v. McManes, 54 Pa. 318. "'Haught V. Irwin, 166 Pa. 548. " Pettebone v. Lehigh Val. C. Co., 4 Kulp 349- " Norristown Etc. Co. v. Norristown, 14 Montg. gi. "'■' Pettebone v. Everhart, 4 Kulp 353. "" Blaine v. Chambers, i T. & H. Pr. 99 (Fish Ed.) ; P. & L Dig., vol. 6, col. 88SS. ' Mitford on Eq. PI. 51-2, 148. ' Mitford on Eq. PI. 51. 'Allan V. Allan, 15 Vesey Jr. 136. * Dursley v. Fitzhardinge, 6 Vesey Jr. 260-1.' THE BILL IN EQUITY. 555 at law." ° A reversioner, however remote, as well as the purchaser of the reversion has a sufficient interest to entitle him to this pro- tection." Whether an interest in a wager is sufficient has been questioned.' The defendant also, must be or claim to be interested.' Some ground of necessity for perpetuating the testimony must be shown; as where the party is in danger of losing his witnesses by sickness, age or death, or departure from the realm;" unless the plaintiff created the necessity for such departure." If the plaintiff has a right to bring a present suit, he must show either commencement or his present inability to do so.*^ If the ground is that the witness is going abroad, he must show by annexed affidavit, the circumstances which endanger the evidence and render its loss probable." Gen- erally the bill must show either that the facts to which testimony of the witnesses, proposed to be examined, relates, cannot be im- mediately investigated in a court of law ; or, if they can be so in- vestigated, that the sole right of action belongs exclusively to the other party; or that the other party has imposed some impediment (as an injunction), to an immediate trial of the right in the suit at law." Where there is a present right of action, but the party does not know against whom it should be brought, he may apply for this relief in a proper case." If an important fact is in the knowledge of one witness, or of two witnesses, the bill lies." The fact that a deed is lost or in the hands of the defendant does not confer the right to a bill, since there is a right at law." A person who has been threatened in his possession may maintain it, although not disturbed so as to give him a right to action." A bill will lie before action when the defendant has prevented the bringing of it, as by injunction," or when he has prevented issue being joined after suit brought.^" If an action be pending the bill is to take the testimony de bene esse,"^ but if he can establish his right at law he must first do so. If the witness is the only one, he need not be "Welford Eq. PI., p. 139, citing Sackville v. Ayleworth, i Vernon 105, which was the case of a will by one who afterwards became insane. • Dursley v. Fitzhardinge, 6 Vesey Jr. 264 ; 15 Vesey Jr. 136. 'Lord Chancellor in Allan v. Allan, 15 Vesey Jr. 136. 'Morse v, Buckworth, 2 Vernon 443, See note Welford on Eq. PI., p. 141. 'Cann v. Cann, i Peere Williams 568; Sherley v. Ferrers, 3 Peere Williams 77. "Teale v. Teale, I Sim. & Stuart 385. "E. India Co. v. Naish, Bunbury 320. "Dew V. Clarke, i Simmons & Stuart 114. See this case as to multi- farious causes. " Shirley v. Earl Ferrers, 3 Peere Williams 77. "Welford Eq. PI., citing Story's Eq. PI. 202; Angell v. Angell, i Sim. & Stu. 83. " Moodaly v. Moreton, 2 Dickens 652. " Cholmondely v. Oxford, 4 Brown's C. C. 156. " North V. Gray, i Dickens 14. " Moodaly v. Moreton, i Brown's C. C. 469. " Cox V. CoUey, i Dickens 55. " Cann v. Cann, i Peere Williams 568. ^ Story's Eq. PL 204; Parry v. Rogers, i Vernon 441. 556 EQUITY PRACTICE IN PENNSYLVANIA, aged or infirm, in order to take his testimony on a bill de bene esse?' The rule in Chancery was that a witness shall not be deemed aged for the purpose of this bill until he is seventy years old; but for infirmity endangering life, any age is sufficient^' In framing such a bill care must be taken to allege all the material facts, upon which the right to maintain it depends and there must be an affidavit of circumstances annexed," which must be positive as to the material facts, and not on mere belief of them."" If the witness be abroad a commission will issue, but the examination will be taken by authority of that country and subject to the law of comity.*" 16. Form of bill. The matter upon which evidence is sought to be perpetuated must be stated particularly, so that both parties may frame their interroga- tories directly to the issue." For example, if it pertain to a right of way, it must set out the way by and across as precisely as a declaration at law.^ If it relates to a witness of a will, the whole will must be set out.^° All the requisites set forth in the preceding paragraph must appear.™ The prayer must ask leave to examine witnesses touching the matter stated to the end that their testimony may be preserved and perpetuated and that a subpcena be awarded for that purpose."^ It must not pray for relief or that the defendant abide the order and decree of the court.** 17. Defenses to bill. The defenses are by demurrer or answer under our Equity rules. As to taking testimony when the bill is allowed, the practice is the same as in actions at law.'' 18. Bill of review. The principles and practice on a bill of review have been fully set forth in Vol. 3, Johnson's Practice, P. 399. In analogy to the act of October 13, 1840 (P. L. 1841, P. i), the Common Pleas will not review the settlement of an account after five years.** It will review the account of a lunatic's committee although the lunatic has died in the meantime.'" So a trustee's account may also be ° Pearson v. Ward, 2 Dickens 648. "■Cooper's Eq. PI. 57. "" Cooper's Eq. PI. 57- '' Rowe v. , 13 Vesey 261. "Cock V. Donovan, 3 Vesey & Beames 76; Bashett v. Toosey, 6 Mad- dock 261 ; Mendizabel v. Michado, 2 Sim. & Stu. 483 ; Mellon Divorce Case. "Bartlet v. Hawker, Maddock Ch. 157; Story's Eq. PI. 204. " Cell v. Hayward, i Vernon 312. " Story's Eq. PI. 205. '" Dursley v. Fitzhardinge, 6 Vesey Jr. 260-1. " Dalton V. Thomson, i Dickens 97. ^ Rose V. Gannel, 3 Atkyns 439. " See vol. I, Johnson 532. "Basehore's Est., 4 Leg. Op. 467. "Basehore's Est., supra. THE BILL IN EQUITY. 557 reviewed;'" or an assignee's account." The decision of the appellate court must not be reviewed in the court below,"* although the petition states that the error is apparent on the face of the record." A bill of review for an error not apparent in the face of the record, should not be filed without leave of court, except in a very puissant case." 19. Bill of interpleader. In Equity, when two or more persons claim the same thing by different or separate interests from one who is uncertain with which claims he should comply, the latter may have his bill of interpleader.' It does not matter that the claim of one is legal and the other equitable, or that the claims have not been enforced by suit.' The plaintiff must disclaim interest in the property.' Such bill does lie but need not be invoked in case of bailment where the parties must interplead at law.* The plaintiff is required to annex an affidavit that there is no collusion between him and any of the parties ; and, if there be any money due, he must tender it in his bill or bring it into court." The bill prays that the defendants may interplead, that the court may adjudge to whom the thing belongs and that the plaintiff may be indemnified.' If the defendants have commenced any proceedings, except at law by ejectment, an injunction must be prayed for.' An interpleader never suggests a case.' If the bill is insufficient on any of the points requisite, advantage of it may be taken by demurrer." By statute relating to Philadelphia and Berks and Schuylkill counties'" the defendant in an action at law may disclaim interest in the thing in action and suggest the real party in interest. This takes the place of a bill of interpleader, and under . the equitable principles above stated Courts of Common Pleas in this state follow the practice under said local act, which, however, does not oust equitable jurisdiction. A bill of peace will lie when there has been an executed partition by parol." 20. Bill must be printed and filed. Rule 3 of the Supreme Court Equity Rules requires: No suit shall be deemed pending until the bill be actually filed in the prothonotary's office. Every bill shall be printed, except in the cases specially provided for in these rules; and the prothonotary ^ Suplee's Est., 17 W. N. C. 29. "Earp'sEst., 6 Phila. 138. " Felty v. Calhoon, 147 Pa. 27. °" Dennison v. Goehring, 6 Pa. 402. " Fidelity Etc. Co.'s Ap., 3 Walker 185. ' Angell V. Hodden, 15 Vesey Jr. 244. ' Morgan v. Marsack, 2 Merivale 107. " Mitchell V. Hayne, 2 Simons & Stuart 63. *Langston v. Boylston, 2 Vesey Jr. loi, followed in Manby v. Robinson, 1869 L. R., 4 Ch. 349. " Stevenson v. Anderson, 2 Vesey & Beames 410. 'Mitford Eq. PI. 49. ' Metcalf v. Harvey, i Vesey Sr. 248. ■ Dungey v. Angove, 2 Vesey Jr. 304. "Story Eq. PI. 195; Metcalf v. Harvey, i Vesey Sr. 248. "Vol. I, Johnson's Pr., p. 588, par. 45. "Kennedy v. Kennedy, 43 Pa. 413. 5S8 EQUITY PRACTICE IN PENNSYLVANIA. shall endorse thereon the time of filing the same. (See Rule 14, infra.) 21. Bequirement that defendant appear and answer. Rule 4 as amended January 15, 1894, reads; Unless otherwise provided by law, the defendant or defendants shall be required, in the first instance, to appear and answer the exigency of the bill, by the service upon each defendant therein named, of a printed copy thereof, on which shall be endorsed a notice in the following form: To . (Here the name of defendant upon whom service is made must be inserted.) You are hereby notified and required, within fifteen days after service hereof on you to cause an appearance to be entered for you in the court (here insert the proper court), to the within bill of complaint of the within named (here insert the name of complainant), and to observe wh-at the said court shall direct. You are also notified that if you fail to comply with the above directions by not entering an appearance in the prothonotary's office, within fifteen days, you will be liable to have the bill taken pro con- fesso, and a decree made against you in your absence. Witness my hand at (here insert the place where the court is held, the date of notice and name and place of business of plaintiffs' solicitor). It may be noted that where there are many offices in a large business block in a city, the solicitor should not only give the street and number of the block, but also the number of the room, or suite of offices, as respects service of notices. See rule of court in Alle- gheny County, Vol. i, Johnson's Practice. 22. Bequirement that defendant answer. Rule 5 of the Supreme Court Equity Rules provides : "The plaintiff shall be at liberty to include in the rule to appear a further requirement to answer within thirty days, and in such case the notice shall contain the words 'and to file your answer within thirty days' after the words 'cause an appearance to be entered for you in the court,' and again the same words in the notice that failure to comply will render defendant liable to judgment pro confesso." The use of the word "judgment" here is anomalous and equivalent to "order." "Judgment" is pronounced at Law : In Equity never. Equity orders or decrees. 23. Printing of pleadings, except in forma pauperis. Rule 14 of the Supreme Court Equity Rules provides: "All bills and subsequent pleadings, including amendments, where such amendments exceed one hundred consecutive words, shall be printed on white sized paper of a convenient size. Amendments shall be printed on one side only of the paper. Each party appearing by separate counsel shall be enti,tled to ten copies of all such pleadings. The amount paid for printing shall be allowed as costs of the cause. This rule shall not apply where counsel shall certify that his client, by reason of poverty is unable to pay for the same, in which case, instead of ten printed copies, each party shall be entitled to one fairly written copy of all pleadings, and in such case any other party THE BILL IN EQUITY. SS9 may print such papers, and be allowed for the expense at the termina- tion of the cause, or when the court shall see fit to order the pay- ment by the other party. The prothonotary shall not permit any such unprinted pleadings to be filed, saving with such a certifi- cate, and saving also bills for injunction where counsel shall cer- tify that there has not been time to print the same. And such injunction bills shall be withdrawn and deemed finally dismissed as of course, unless within twenty days after filing the same, printed copies are filed and served." A bill which does not comply with this rule will be dismissed." A typewritten bill is not a compliance with the rule." Where counsel certifies that he has not time to print, a preliminary injunction may be granted and the bill ordered filed. Plaintiff has twenty days in which to print and serve the printed bills." Where a petition is interlocutory, the court may give time to print it.'° This rule requires the printing of the pleadings and does not refer to the "discussion" in the decision which is not subject to exceptions." Where a plaintiff files a bill, not printed, without the certificate of poverty or want of time, as required by the Equity rules, and then takes it out of the office and after a week files a bill in proper form, the first filing will be treated as a nullity, and the suit as com- menced only with the filing of the printed bill.^'^ 24. Equity Court always open. Like the United States Courts, the Equity side of the Court of Common Pleas is always open. Rule I of the Supreme Court as amended, reads: "The Equity side of the courts shall be deemed always open for the purpose of filing bills, answers and other pleadings, for issuing and returning mesne and final process and commissions, and for making and directing all interlocutory motions, orders, rules and other proceedings, preparatory to the hearing of causes upon their merits." This rule follows closely the Federal statute. See Vol. i, Johnson's Practice. 25. Duty of prothonotary. Rule 2 of Supreme Court Equity Rules reads : "The prothonotary's office shall be open, and the prothonotary shall be in attendance therein daily, during office hours, for the purpose of receiving, entering, entertaining and disposing of all mo- tions, rules, orders and other proceedings, which are grantable of course, and applied for or had by the parties or their solicitors, in all causes pending in Equity, in pursuance of the rules hereby pre- scribed." " Cooke v. Central Etc. Co., 2i Supr. C. 43. "Sunday v. Hagenbuch, 18 C. C. 540. "Landmesser v. Liem, 5 Kulp 417; Coal Etc. Co. v. Welsch, i6 C. C. 46.";. "Tyrone v. Tyrone Etc. Co., 2 Blair Co. 73; Dever v. Knapp, 7 Schuylkill Co. 47. "Winters v. Cohn, 4 Berks Co. 206. "^Benner v. Cassatt, 236 Pa. 248. S6o EQUITY PRACTICE IN PENNSYLVANIA. 26. Docketing cause — manner of appearance — ^judgment pro confesso. Rule 13 of the Supreme Court Equity Rules requires : "Upon filing the bill the prothonotary shall enter the suit upon his docket as pending in the court, and shall state the time of entry; and upon the filing of an affidavit of the due service of notice to appear, upon the defendant or defendants, shall enter the same upon the docket. The appearance of the defendant either personally or by solicitor, shall be by a paper filed and endorsed by the prothonotary, with the time of filing the same, and shall be noted on the margin of the Equity docket. If the defendant shall not cause an appearance to be entered for him and an answer filed within the time limited for that purpose, the plaintiff may, at his election, enter an order as of course in the cause, that the bill be taken pro confesso, or proceed by attachment as is hereinafter provided by rule 29." CHAPTER XXIX. PROCESS AND SERVICE. I Process. 9- F°''P °* affidavit of non-res 2. Manner of service of bill. „ idence. 3 Service on husband and wife. lo. Form of order of service. 4. Service on a corporation. "• Service by publication. 5 Service of process in Philadel- 12. No process of contempt under phia. this service. 6. Service on non-resident mort- 13- |orm of order for publication. gagees and judgment cred- I4- Service by publication. ^t°rs. IS- Service by publication under 7. Service of process on parties Act of 1862. out of the jurisdiction. 16. Service in other cases. 8 Service on non-resident de- I7- International jurisdiction. fendant 18. Practice in English Court of Chancery adopted. 1. Process. In Pennsylvania process consists of the service of the bill filed as required by Rule 2 of the Supreme Court Equity Rules as amended January 15, 1894. In some of the courts the practice is to file the bill by leave of court and have an order endorsed that it be served as required by the Equity rules. In the United States Courts the bill prays process, according to Chancery practice and the court awards a subpoena as process to bring the defendant into court. A subpoena in Equity need not be served by the sherifif; it may be served by the plaintiff _ or his agent.' So of a printed bill. Unless a notice to appear is included in or appended to the bill, it is irregular.' The notice to appear should name the plaintiff whose complaint defendant is required to answer.' If the rule is not observed the subsequent proceedings are void,'' unless the defendants come in voluntarily and defend on other grounds." It is the printed copy which is served and governs.' Where the notice to appear is correct and the notice to answef is not, it is a question whether the latter may not be treated as surplusage.' It is the service of the bill that gives it standing as lis pendens, and not the entry on the index under the act of June 15, 1B71, P. L. 287 > 'Megarge v. Bute, i T. & H. Pr. 95. ' Shea v. Burke, 3 Luz. L. R. 242 ; Cooke v. Central Etc. Co., 21 Supr. C. 43- 'Pickard v. Henry, 30 C. C. 173. *Cassidy v. Knapp, 167 Pa. 205. "Brinton v. Hogue, 172 Pa. 366; Mulholland v. Flannery, 11 Kulp 181. •Buffalo Etc. R. Co. v. P. & E. R. Co., 174 Pa. 263. ' Taylor v. McCaflferty, 27 Supr. C. 122. But see Hackman v. Hertzler, 12 D. R. 74; Bowman v. Cassell, 32 C. C. 316. 'a O'Brien v. McKenna, 28 Montg. Co. 31. Vol. 4 Practice — 36 S6i S62 EQUITY PRACTICE IN PENNSYLVANIA. 2. Manner of service of bill. Rule 8 of the Supreme Court Equity Rules prescribes: "Service upon a defendant shall be by giving him a printed copy of the bill, with a notice endorsed thereon in the form prescribed in these rules, or by leaving such copy and notice at his dwelling house, with an adult member of his family or the family in which he resides. The court, or a law judge thereof, may direct how service shall be made in special cases." This requires personal service." Without proper service a decree will be set aside. 3. Service on husband and wife. Rule 9 of the Supreme Court Equity Rules prescribes: "In cases where husband and wife are defendants, service of a copy of the bill and notice to appear shall be made on each of them. Service on non-resident defendants shall be made in the mode pre- scribed by the acts of assembly relating thereto." 4. Service on a corporation. Rule 10 of the Supreme Court Equity Rules prescribes: "Service of the bill and notice to appear and answer, on a cor- poration, shall be effected in the mode prescribed by law for the service of a writ of summons upon such corporation. Where the Commonwealth is a necessary party, service shall be made in the manner prescribed by the act of 6th April, 1844." (Sefe Vol. i, Johnson's Practice, "Summons.") The act of April 6, 1844, P. L. 213, provides: "That when any bill in Equity shall be filed in any of the courts of this Commonwealth, to perpetuate the evidence of title to lands, tenements and hereditaments, in which bill the Commonwealth is a necessary party, the process may and shall be served on the attorney general, or his deputy, for the county where such lands, tenements or hereditaments may lie, whose duty it shall be to attend to the interests of the Commonwealth, in the premises." The duty cast upon the "deputy" is now upon the county "district attorney." 5. Service of process in Philadelphia. Under the act of 1836 process issued by the courts of Philadelphia could not be served out of the county, for matters specially granted to them. 6. Service on non-resident mortgagees and judgment creditors. Section 2 of the act of March 27, 1854, P. L. 214, provided: "In all cases where mortgagees and plaintiffs in judgments shall not reside within the county where mortgages are recorded and judgments entered, and bills in Equity shall be filed by the mortgagors or defendants in judgments against the mortgagees or plaintiffs in judgments, or against their assignees or legal representatives, for the entry of satisfaction on the said mortgages and judgments, or to open the said judgments for the purpose of defense, subpoenas or other 'Robb v. Pepper, 11 W. N. C. 497. ° Schreiner v. Stickler, I W. N. C. S22 ; Pindle v. Penna. Etc. Co., I L. V. L. R. 201. PROCESS AND SERVICE, 563 process may be served, by the proper officers of said counties or their deputies, on said mortgagees or plaintiffs in said judgments, their assignees or legal representatives, beyond the bounds of said counties, as if they resided therein, or upon any agent or attorney of record of said mortgagees or plaintiffs in said judgments, within the counties where the said mortgages may be recorded or the judgments may be entered." By act of April 5, 1862, P. L. 268, this mode of service was extended to "all cases where bills in equity shall be filed by alienees of mortgagors, or their heirs or assigns, or by parties claiming an interest in lands, by virtue of sales under judgments." 7. Service of process on parties out of the jurisdiction. Section i of the act of April 6, 1859, P. L. 387, provides: "It shall be lawful for any court of this Commonwealth having equity jurisdiction, upon special motion of the plaintiff or plaintiffs, in any suit in equity which has been or shall be instituted therein, concerning goods, chattels, lands, tenements or hereditaments, or for the perpetuating of testimony concerning any lands, tenements and so forth, situate or being within the jurisdiction of such court, or concerning any charge, lien, judgment, mortgage or incumbrance thereon, or where the court have acquired jurisdiction of the sub- ject matter in controversy, by the service of its process on one or more of the principal defendants, to order and direct that any sub' poena, subpoenas or other process to be had in such suit, be served upon any defendant or defendants therein, then residing or being out of the jurisdiction of such court, wherever he, she or they may reside or be found, and upon affidavit of such service had, to proceed as fully and effectually as if the same had been made within the jurisdiction of such court: Provided, That it shall appear to such court, by affidavit, affidavits or other documents applicable for the purpose, before making such order, in what place or county such defendant or defendants reside, or are, or probably may be found, and if such place be without the United States, whether there are any officers of the United States residing thereat, or near thereto, and by what means such service may be authenticated: And provided. That such order limit a time, depending on the place where such process is to be served, after the service thereof, within which com- pliance with the requirements thereof must be made by such defendant or defendants; such process to be returnable at such time after the service thereof, as such court shall, by special order, direct : And further provided. That when such process shall be served, such defendant or defendants shall also be served with a copy of the order authorizing the service thereof, and a copy of the bill or petition, if such process be a subpoena, thereon, but if not, a statement of the substance and object of the proceeding whereon the same is founded: And provided also. That the affidavit of such service of process and copies, or statements aforesaid, if such service be had within the United States, may be made and taken before any officer of the United States, or of any of the states or territories thereof, au- thorized to administer on oath; and if such service be had without the United States, the same shall be authenticated as such court shall by special order direct." S64 EQUITY PRACTICE IN PENNSYLVANIA. 8. Service on non-resident defendant. Rule II of the Supreme Court Equity Rules prescribes: "Whenever the court shall make an order under the provisions of the act of 6th April, 1859, for a service upon a non-resident defendant, without the Commonwealth, such service shall be by delivery to him of a copy of the bill, such as is provided for in these rules, together with a copy of the order authorizing such service; and in such case the form of subpoena shall be similar, in substance, to the notice to appear prescribed by these rules, but so varied as to require the defendant to cause an appearance to be entered for him, on or before the time fixed in such special order." The statute must be followed strictly, and if no order of service is made, it does not give the court jurisdiction.'" But it is not fatal to the bill if non-residence is not stated therein, since the special motion required to obtain an order of service must allege it and is a n-ecessary part of the proceedings." In case of a preliminary in- junction, if some of the defendants, being non-residents are not regularly served, the defect in service has been allowed to be cor- rected even after appeal." A corporation chartered by this state is not a non-resident, although its principal office and the officers are located beyond the state, and service must be had by publication under the act of April 11, 1862, P. L. 449, which applies in equity as well as law." No valid service can be made upon a foreign corporation not having an office or agency in Pennsylvania and not doing business here." A bill praying for a decree for the payment of money only is not within the act of 1859." The object is to reach property in the county and not the person, so as to carry it into effect beyond the jurisdiction of the court." It must be confined to property in the jurisdiction of the court," and as to such the court has ample power to decree, even a conveyance." The act does not apply where a surviving partner asks for an injunction to restrain the executrix of his deceased co-partner from interfering with firm real estate situate beyond the county and alleges no controversy concerning it;" nor where the court has.no jurisdiction of the prin- cipal defendants and can gain jurisdiction only by ordering the money paid into court.'" Such defendant must be one necessary to the controversy who will be affected by the decree ;" if he is only passive, service upon him will not be warranted under the act of 1859 upon a non-resident."^ Unless a bill charges conspiracy or agreement, so "Tierney's Ap., 3 Law Times (N. S.) 233. "Bolton v. Swartz, 4 Montg. 9. " Vail v. Osburn, 174 Pa. 580. "Newton v. Pittston Coal Co., 7 Kulp 11. " People's Etc. Co. v. American Etc. Co., ig Phila. 316 ; Wallace v. United Elec. Co., 211 Pa. 473; Warrington v. Perry, 13 D. R. 806. " Hunt v. Stonecipher, 14 D. R. 416. " Mengel v. Lehigh Etc. Co., 24 C. C. 152 ; Billmyer Etc. Co. v. Lang- don, 29 C. C. 628; Eby's Ap., 70 Pa. 311. " Coleman's Ap., 75 Pa. 441 ; Eshbach v. Slonaker, i. D. R. 32 "Martin's Ap., 13 W. N. C. 167. "Baker v. Baker, 20 C. C. 330. '"Kildare v. Armstrong, 18 W. N. C. 114. " Huntzinger v. Phila. Coal Co., 11 Phila. 609. " Coleman's Ap., 75 Pa. 441 ; Smith v. Kammerer, 152 Pa. 98. PROCESS AND SERVICE. 565 as to create a joint liability, one of them is not a principal defendant under this act."" A defendant who enters appearance d. b. e. and moves to set aside the service, and under protest, answers, is not thereby estopped from challenging the jurisdiction at any stage of the cause." The objection to service is not made by demurrer but by motion to set it aside."^ Where a principal resident defendant is personally served and the others being non-residents are served under the act of 1859, the service will not be set aside."*" This act does not offend against either the state or federal constitutions and service is properly made by leaving with the defendant a copy of the bill and the order of service. The bill need not be read to him."" A motion to set aside service of process having been denied, the defend- ant is then obliged to regard his notice on the bill and either demur or answer within the time required or a decree pro confesso will go against him regularly. If he enters a general appearance after such decree and a hearing on the merits, ex parte as to him, he cannot attack the jurisdiction on appeal or move to strike off the decree pro confesso. He has put himself out of court for all purposes."^ 9. Form of affidavit of non-residence. [Title of case.] county, ss. being duly sworn says that , one of the de- fendants (or the defendant) in the above entitled cause, is not a resident of said county, but resides at (stating at what place and what state or county). Sworn to, etc. 10 Form of order for service. [Title of case.] Now, to wit: day of , A. D. 19 — , it appearing to the court by affidavit filed, in pursuance of the act of April 6, 1859, that , defendant (or one of the defendants) in the above entitled cause, is a non-resident of the county of , upon motion of , Esq., solicitor for the plaintiff, it is ordered that service of the bill in this case be made upon the said , defendant, in the manner directed by the said act, and that said defendant cause an appearance to be entered for him in the pro- thonotary's ofBce and file his answer on or before the day of , A. D. 19 — ; and that a certified copy of this order be also served upon him with a copy of the plaintiff's bill, agreeably to said act of Assembly. Per cur., Judge. "'Bolton v. Swartz, 4 Montg. 9; Wm. Penn. Etc. Assn. v. Mayer, 20 Phila. 413. " Coleman's Ap., 75 Pa. 441 ; P. & L. Dig., vol. 6, col. 8869. "^ Penn Hardware Co. v. Penn Hardware Co., I Berks Co. 21. "!> Smith V. Carter, 219 Pa. 315. "<=Holman v. Witmer, 25 Lane. L. R. 388. "^ Smith V. Carter, 219 Pa. 315. S66 EQUITY PRACTICE IN PENNSYLVANIA. 11. Service by publication when defendant can not be found. Section 2 of the act of 1859, supra, provides : "Whenever it shall appear to the satisfaction of such court, by affidavit, affidavits or other documents applicable for the purpose, that any defendant or defendants in any such suit as is hereinbefore mentioned, cannot, upon diligent inquiry be found, so as to be per- sonally served with any process to be had therein, it shall be lawful for such court, upon special motion, to make an order upon such defendant or defendants similar to the requirements of such process, specifying the time when compliance therewith must be made, and upon the expiration of such specified time, to proceed as fully and effectually, as if such process had been duly served within the juris- diction of such court: Provided, That a statement of the substance and object of the bill, petition or other proceeding, whereon such order is founded, and a copy of such order, be published in such one or more newspapers, and at such times, as such court shall, by special order, direct." 12. No process of contempt under this service. Section 3 of the act of 1859, supra, provides: "No order or process of contempt shall be made or issued under this act, and nothing herein shall make it compulsory on the plain- tiff or plaintiffs in any such suit as hereinbefore mentioned, to serve with process, or bring before such court, or proceed against any party or parties, person or persons, further or otherwise than such plaintiff or plaintiffs are now by law or the practice of such court required to do." 13. Form of order for publication. [Title of case.] Now, , A. D. , it appearing to the court, by affidavit filed, as required by the act of April 6, 1859, that , defendant, cannot, upon diligent inquiry be found, upon motion of , Esq., solicitor for the plaintiff, it is ordered that the said , defendant, cause an appearance to be entered for him in the office of the prothonotary of the said county of , and file his answer to said bill on or before the day of , A. D. 19 — , in said court; And further, That publication of this order, together with the substance and object of the bill be made by the prothonotary in the and in the for weeks, consecutively, commencing on , etc. By the court. 14. Service by publication. Rule 12 of the Supreme Court Equity Rules prescribes: "Whenever the court shall direct service by publication, under the provisions of the act of 6th April, 1859, a copy of such order, to- gether with a statement of the substance and object of the bill, petition, or other proceedings, shall be published in such one or more newspapers, and at such times as the court shall by special order direct, having regard to the probable residence of the defendant, and affidavit filed stating all the knowledge or information of the PROCESS AND SERVICE. s67 complainant or deponent, in reference to such defendant's place of residence." 15. Service by publication under act of 1862. The act of April ii, 1862, P. L. 449, prescribes: "That in all cases where any company has been incorporated by this Commonwealth, and the principal office for the transaction of business thereof shall be located out of this state and where none of the officers upon whom process can be served, under the existing laws of the Commonwealth, reside in the state, it shall be lawful to sue said company, in any county in this state where the said company, at any time, transacted the business thereof, or where the works or real estate of such company were located; and such legal process may be served on such company, by publication of a copy of the process in such newspaper as the court may direct, for six weeks previous to the return day; and for every purpose of legal proceeding, such company shall be taken, both in law and equity, to be located in this state, and shall be liable to writs of quo warranto, mandamus, attachment and execution, and service of such process, by publication, as aforesaid, shall be, to all intents and purposes, as effective as if served upon the president of such company, or other officer of the same, and he or they resident of the proper county of this state; and any property of any description, of such company, within the state, shall be liable to attachment and execution ; and any such property, which would be liable to attachment or execution, if the said office were located in this state, shall be taken to be in this state for such purpose, and shall be liable to levy and sale, in the same manner as if the officers of said company resided in the county in this state, in which the same is liable to be sued by the provisions of this act." 16. Service in other cases. In the federal courts a subpoena is issued commanding the defend- ants to appear under penalty of five thousand dollars. There is also a notice endorsed that in default of appearance the bill will be taken pro confesso. Service upon a lunatic may be dispensed with when it is shown that it would be dangerous to the lunatic." But now service is made on his committee, as in other cases, or upon a committee ad litem appointed by the court for the purpose. Service may be accepted by the defendant, but if another accepts service for him, it must appear that he was duly authorized to accept." For exemption from service see Vol. i, Johnson's Pr., P. 400, Par. 15; see also U. S. v. Edme, 9 S. & R. 147, and Holmes v. Morgan, i Phila. 217; Bolton V. Martin, i Dallas 296; Hayes v. Shields, 2 Yeates 222. 17. International jurisdiction. Countries have no extra-territorial jurisdiction except as created or permitted by treaty or comity of law. No suit will lie against a sovereignty for anything done by it as a sovereignty." A suit "Snowden v. Dunlavy, li Pa. 522. "Bryn Mawr Natl. Bank v. James, 152 Pa. 364. " Moodalay v. Morton, i B. C. C. 470. S68 EQUITY PRACTICE IN PENNSYLVANIA. respecting confiscation by a foreign country cannot be maintained in Equity.*' Hence by treaties and international arbitrations remedies have been provided which may have extra-territorial force." It was early held in the celebrated case between Penn and Lord Baltimore,"' that if articles are executed in England between two subjects con- cerning the transfer and boundaries of lands abroad, a bill may be maintained in England — but not where the matter arose abroad. The Courts of England, however, having jurisdiction of the person, will not permit a plea to the jurisdiction, as to disputes in the colonies, it seems." 18. Practice in Engrlish Court of Chancery, adopted. Under rule 94 of the Supreme Court Equity rules, it is laid down that the practice of the High Court of Chancery in England shall be followed so far as the same may be reasonably applied, whenever the former rules or those prescribed by other courts do not apply. It becomes of some interest and profit, therefore, to trace the rules of English Equity jurisprudence, in this volume. By the British Judicature act of 1873 (Sees. 3 and 4), "The High Court of Chancery of England" and other High Courts were consolidated under the title of "The Supreme Court of Judicature." But there remains the Chancery Division with a Lord Chancellor and six justices. The rule above must have reference to the practice in Chancery before the consolidation. "^ Barclay v. Russell, 3 Vesey Jr. 429; Lloyd v. Ld. Trimlestown, 4 Sim. 296. "'Story's Eq'. PI. 303-4; Columbian Govt. v. Rothschild, i Simons 94. " Penn v. Baltimore, i Vesey 444. •" Cooper's Eq. PI. 123. CHAPTER XXX. EQUITY PLEADING. 1. Pleading in Equity. 2. What Equity pleading consists of. 3. Exceptions for scandal and im- pertinence. 4. Form of exceptions. $. Substance or necessary state- ments. 6. Form of pleadings. 7. Averments. 8. Demurrers and decrees pro confesso. g. Decree pro confesso — form of affidavit and decree. 10. Motions, etc., not grantable of course. 11. Application for extension of time. 12. Expiration of time in Philadel- phia. 13. Decree when defense not taken by answer or demurrer. 14. Demurrer to bill. 15. Demurrer — affidavit — forms. 16. Nature and effect of demurrer. 17. Demurrer to bill of discovery. 18. Variance of relief — answer or demurrer. 19. Setting down cause for argu- ment. 20. Demurrer, when not to be over- ruled. 21. Effect of sustaining demurrer. 22. Amendment of bill on de- murrer. 23. Amendments in Equity. 24. Effect of overruling demurrer. 25. Answer after overruling de- murrer. 26. Time to answer may be en- larged. 27. When defendant need not an- swer. 28. Objection as to want of parties — argument. 29. Consent to dismissal of the bill. 569 ^■ 31- 32. 33- 34- 35. 36. 37. 38. 39. 40. 41. 42. 43- 44. 45- 46. 47- 48. 49- SO. 51. 52. SZ- 54. 55- 56. 57. 58. sp- ec. Opening decree pro confesso with leave to answer. Answers and cross-bills — bona fide purchaser. What an answer may contain. Exceptions for scandal and im- pertinence. Exceptions to answer. Sufficiency and effect of answer. Responsive answer. Answer not responsive. Rule as to proof. Rules of evidence in Chancery. Admissions by the pleadings. Answers which are not equiv- alent to evidence. Documents in possession of de- fendant. Defendant's right of inspection. Admissions and waivers. Interrogatories and answers. When party may decline to an- swer interrogatories. Cross-bills for discovery not allowed. Affidavits, by whom adminis- tered. Exceptions to answers. Hearing upon exceptions — printing. Answer after allowance of ex- ception. Interrogatories to defendant in Chancery. Defendant's answers. Materiality defined. Exception, inperspicuity or eva- sion. Hearing of cause on bill and answer. Answer on information and be- lief. Answer to bill of discovery. Form of interrogatories, on bill of discovery. Cross-bill by defendant. 570 EQUITY PRACTICE IN PENNSYLVANIA. 6i. Replications — ^practice concern- 67. Amendments to the answer. ing. 68. Filing and service of copy of 62. No special replication permitted. amendments. 63. Amendment of bill after an- 69. Amendments of course before swer, before replication. replication. 64. Amendment as to parties. 70. Amendment in lieu of bill of re- 65. Amendment as to relief. vivor, etc. 66. Time of allowance. 1. Pleading in Equity narrowed. By this phrase "pleas" specific are not meant, because the revised Equity Rules of the Supreme Court have eliminated "pleas" wherever the word occurred, and now the pleadings consist of bill, answer, demurrer and replication. If any plea remains it is abatement which must be taken at once on appearance and before issue joined.* A plea to the jurisdiction since the act of June 7, 1907, P. L. 440,* whether at Law or Equity, must be raised by demurrer or answer.' If Equity be found to have no jurisdiction, it was held by Scott, P. J., that the cause could then be certified to the Law side of the Common Pleas/ It was also said that the question of jurisdiction could be raised on a motion to dismiss,^ or by the answer, at the latest.' Though a plea was entered, it was held not to dispense with the necessity of an answer, and this may set up the plea, as of a suit pending, or former recovery, or res judicata!! 2. Of what Equity pleading consists. It was said by a cogent English writer:' "Pleading is the state- ment in a legal form, of the facts which go to make up the charge and defense of parties in litigation. * * * Precision and brevity, certainty and simplicity, are to be aimed at in framing pleadings; and the Courts of Equity constantly refer pleadings to their officers, that irrelevant, or "impertinent" passages may be struck out, frequently visiting the party so improperly pleading with the costs." 3. Exceptions for "scandal or impertinence." At the very threshhold the plaintiff's bill may be excepted to for "scandal or impertinence," and this must first be disposed of, since neither has any place in Equity pleadings, and if found, in the bill, will be expunged. Rule 45 of the Supreme Court Equity Rules is as follows : "No order shall be made by any judge for hearing any bill, answer, or pleading, or other matter, or proceeding depending before the court, for scandal or impertinence, unless exceptions are taken in " Vaughn v. Vaughn, 7 Lack. Jur. 231 ; 217 Pa. 496. For appearance see vol. I, Johnson's Pr. 485. ^ See vol. I, Johnson's Pr., p. 146. ' Gabriel v. Sedor, 13 Luz. L. R. 396. * Heller v. Moyer, 17 D. R. 905. See also Miles Land Co. v. Coal Co., 231 Pa. iss ; Lehigh V. R. Co. v. Coal Co., 15 Luz. L. R. 367. "Smock v. Nazareth, 11 Northam. 310. 'Barnes v. Rea (No. 2), 219 Pa. 287. ' Brooke v. Phillips, 6 Phila. 392 ; Hessenbruck v. Markle, 194 Pa. 581. 'Equity Pleadings by Richard Griffith Welford, Esq., of the Inner- Temple, Barrister at Law. EQUITY PLEADING. S7i writing, and signed by counsel, describing the particular passages which are considered to be scandalous or impertinent; nor unless the exceptions shall be filed within ten days after service of the same upon the party excepting or his counsel, and such exceptions may be set down for hearing by either party on forty-eight hours' notice, or such other notice as the court may direct to the opposite party." This rule covers any piece of pleading in the cause. Upon such exceptions the merits will not be considered.'*' . 4. Form of exceptions for scandal and impertinence. T . J r- , "i In the Court of Common Pleas Lmda Taylor I ^ ^^^^^^^ T ^'c ^^ 1 Sitting in Equity. James Scott. I ^t„ t^,-.^ ^ V. No. — -, Term — — , 19—. Exceptions for scandal and impertinence taken by the above named defendant to the bill of the above named plaintiff (or as the case may be). I. For that the part of paragraph 2 of said bill commencing at line ten, which alleges in these words, to wit: (Here repeat all the passage complained of and excepted to) is scandalous and imperti- nent (or impertinent as the case may be). Thus point out in each paragraph. In all which particulars the defendant (or plaintiff) excepts to the said bill (or pleading) as scandalous and impertinent and humbly insists that the said scan- dalous and impertinent matters be expunged. Solicitor for defendant. 5. Substance or necessary statements. Welford says: "Every fact necessary to constitute the charge and defense must be stated by the respective parties; but the court will notice all matters of law and legal presumptions, which need not, indeed must not, be stated." There are many things of public import and general cognizance, whereof courts take judicial notice.' 6. Form of pleading. Since pleadings must be certain the form of statement which is preferable is that which makes the facts intelligible to the parties and the court, without being forced to recur to matters which do not appear therein, and the certainty required is such that nothing can be fairly presumed to the contrary." If matter is interjected which is not necessary it is called surplusage. If it affects the issue, it cannot be excised — but if it does not, it may be rejected." A material allegation, consistent with the sense of the passage where it occurs, and not repugnant to any antecedent matter, cannot be rejected merely because in the same pleading there afterwards occurs an inconsistent allegation which cannot be ruled out." 'a'Morrell v. Brooks, 19 D. R. 429. "See Bierly on Presumptions oit Law and of Fact (Penna.). " Montagu's Digest of Equity Pleading, p. 10, Coke on Litt 303a. '' Dorn v. Gashford, Lord Raymond 266. " Rex v. Stevens, 5 East 249. 572 EQUITY PRACTICE IN PENNSYLVANIA. 7. Averments. An averment is matter added to a pleading to make the statement clearer, and none need be made of what is plainly implied by the context. So an averment of what is apparently useless or illegal, is vain. Facts must be pleaded according to their legal operation. Pleadings must also be certain as to the party making the statement. A party is not obliged to state more of his title than is sufficient to show his claim, or more of a statute than that which he relies upon to make out his right ; but, if the statute has a proviso affecting it, he must set out the proviso as well. General words are sufficient when the pleader is not acquainted with the certainty or when knowledge lies with the adversary. The subject matter must also be stated with Certainty, as distinguished from generality; i. e., the certainty must be particular and definite. Inducement need not be stated as definitely as the gist of the matter, but where particular facts are peculiarly within the knowledge of the party pleading, he must state them specifically, nathless their multiplicity. General pleading is sufficient where covenants are in the affirmative; but when in the negative and valid, and some disjunctive, they must be specially pleaded; so, also, when the covenants are to do a matter of law, or are of record." The rules against duplicity and departure as laid down in Vol. I, Johnson's Pr., apply equally to Law or Equity pleading. The same is true as to other features of pleading. 8. SemTirrers and decrees pro confesso. Rule 29 of the Supreme Court Equity Rules prescribes: "The plaintiff shall be entitled in filing his bill, to a rule on defend- ant to be entered of course in the prothonotary's office, to file his demurrer, or answer to the bill within thirty days after service of notice of such rule; in default of compliance therewith the plain- tiff may at his election enter an order as of course in the cause, that the bill be taken pro confesso. And in such case, and also where the bill is taken pro confesso for want of an appearance, the cause shall be proceeded in ex parte, and the case may be put upon the next Equity argument list, and the matter of the bill may be decreed by the court when there reached in its order, if the same can be done without an answer, upon the allegations in the bill, which without further proof shall be taken as admitted; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant to comjpel an answer, and the defendant shall not, when arrested upon such process, be discharged therefrom unless upon filing his answer or otherwise complying with such order as the court or a law judge thereof may direct as to fully answering the bill within a period to be fixed by the court or judge, and under- taking to speed the cause ; or it shall be in the option of the plaintiff, when such rule to answer or demur shall have been served as afore- said and not complied with, or on default of appearance by the defendant within the time limited therefor, instead of taking the bill pro confesso, to have process of contempt to compel an answer." The notice to appear requires an appearance within fifteen days or judgment pro confesso. See Rule 4, supra. "Welford Eq. PI., p. 6, citing Montagu, pp. 12, 13, 14. EQUITY PLEADING. S73 9, Decree pro coufesso — ^forms. An order that the bill be taken pro confesso is not a decree. It simply puts the defendant out of court as a contestant and the cause will proceed to decree without him." The rule above (29), states the practice. If no answer is filed within thirty days after notice is served of the entering of the rule to answer, an order is entered, of course, that the bill be taken pro confesso.^' If one of Several defendants puts in an effectual answer to the entire bill, however, it inures to the benefit of all the defendants and no such order can be entered. A formal decree will be entered if the cause appears to be justly made out. Once entered it will not be opened or set aside except upon a strong appeal made to the discretion of the Chancellor," or upon showing that the bill is fatally defective in jurisdictional essentials. If in such cases an amended bill is allowed the defendant will be given leave to answer." It will be vacated where the defendant had not only entered an appearance but demurred to the bill."* Equity will decree as of the time of decree and not the filing of the bill."*" Form of affidavit of service for decree pro confesso. , being sworn says that on the day of , A. D. , he served on , the defendant, personally (or by handing the same to an adult member of the said defendant at his dwelling house in this county), a printed bill, a true copy of the bill filed in this case, said copy containing endorsed upon it a printed notice requiring an appearance within fifteen days, etc., exactly like the bill filed and the copy hereto attached. Sworn to, etc. To , Esq. : Prothonotary, etc. Sir: Enter order in above cause that the bill be taken pro confesso sec. reg. Plaintiff's solicitor. The old rules required ten printed copies to be served. Form of decree pro confesso. [Title of case.] Now, , 19 — , it appearing to the court that service in the above-entitled cause was duly made upon ■: , the defendant therein named and that no appearance has been entered by him in the prothonotary's office within fifteen days (if for want of an answer, then within thirty days) after such service, as required by the rule of court in such case made and provided, it is ordered and decreed "Rose V. Woodruff, 4 Johnson's Ch. (N. Y.) 547; Thomson v. Wooster, 114 U. S. 104; Tussey v. Clark, 45 Supr. C. 433. "Sterling v. Ashton, 12 Phila. 227. "Judgment by default" is not Equity practice (Tussey v. Clark, 45 Supr. C. 433). "Deane v. Mason, 20 Howard (U. S.) 198; Conneaut Etc. Co. v. Rhoades, 34 C. C. 360 ; Kurtz v. Parrel, 44 Supr. C. 355 ; Crouse v. Fisher, IS Luz. L. R. 123. " Nelson v. Eaton, 66 Fed. R. 376. "a Blick v. Ladd, 21 York 106. "b Prizer-Painter Co.'s Case, 2 Berks Co. 345. 574 EQUITY PRACTICE IN PENNSYLVANIA. that the bill be taken pro confesso, and the cause be set down for hearing, subject to the further order of the court 10. Motions, etc., not grantable of course. Rule y^ of the Supreme Court Equity Rules prescribes: "All motions for rules or orders, and other proceedings which are not grantable of course, or without notice, shall be made on applica- tion to the court or a law judge at chambers, and entered in the docket, and shall be heard at such time thereafter as shall be assigned therefor by the court or judge at the time of the making of the application; and if the adverse party or his solicitor, after notice thereof, shall not then appear, or shall not show good cause against the same, the motion may be heard by any law judge of the court, ex parte, and granted, as if not objected to or refused, in his dis- cretion." Rule i8, Allegheny County, provides: "All rules to show cause, unless otherwise ordered, shall be return- able on Saturday of the succeeding week, at lo o'clock A. M. If the party to show cause have no attorney of record, at least five days' written notice shall be served upon him, and proof thereof filed before hearing. If he have an attorney of record service of the same shall be made on such attorney." 11. Application for extension of time. Rule 78 of the Supreme Court Equity Rules prescribes: "No order allowing further time shall be made without written notice of the application for such order to the counsel on record of the opposite party ; and any order which does not recite such notice, or that the counsel attended at the hearing, may be disregarded." 12. Expiration of time in Philadelphia. Rule 79 of the Supreme Court Equity Rules, prescribes: "In the city of Philadelphia, all rules or orders, as to pleadings, which, according to the time prescribed in the foregoing rules, would otherwise expire on any day of the months of July and August, shall be deemed and taken to expire on the same day of the month of September following." 13. Decree when defense not taken by answer or demurrer. Rule 26 of the Supreme Court Equity Rules prescribes: "If a defendant shall, at the hearing of a case, object that a suit is defective for want of parties not having taken the objection, by answer or demurrer, and therein specified by name or description the parties to whom the objection applies, the court, if it shall think fit, shall be at liberty to make a decree, saving the rights of the absent parties." "All defenses, in Equity cases shall be made by answer or de- murrer. All issues of fact must be made by answer." (Amendment of January 15, 1894.) 14. Demurrer to bill. The defendant may demur alone to the bill or he may answer in part and demur in part. If he does the latter the demurrer must EQUITY PLEADING. S7S first be disposed of." To demur is to abide." As far as it goes it admits the facts alleged in the bill. Defendant cannot answer and demur also to the whole bill, or the same part of the bill. If he does the answer is held to overrule the demurrer.'"' But a demurrer does not overrule a previously filed plea, in Pennsylvania."' Before the new rules, where there was a plea to the whole bill and a demurrer to part, the demurrer had to fall.'" The plaintiff was held not to be in a position to take advantage of the fact that the same ground was partially covered by an answer to part and a demurrer to part of the bill.'" Under rule 31 of the Supreme Court Equity Rules : "The defendant may, at any time before the bill is taken for confessed, or afterwards with the leave of the court, demur to the whole bill or to part of it, and he may demur to part and answer as to the residue; but all issues of fact must be made by answer." A bill for an account will not be dismissed on demurrer because some of the items may be barred.™^ Under this rule a defendant may not answer and demur to the whole bill or to the same part of it. An order overruling a demurrer is interlocutory and an appeal does not lie from it."'*' 15. Demurrer — affidavit not interposed for delay. Rule 32 of the Supreme Court Equity Rules prescribes: "No demurrer shall be allowed to be filed to any bill, unless sup- ported by affidavit that it is not interposed for delay. Demurrers shall be substantially in the form following: 'The defendant demurs to the whole bill,' or 'to so much of the bill, or discovery or relief,' stating the particulars and assigning the reason or grounds in detail." This affidavit is required unless waived by the party affected." Form of rule to demur or answer. Now, to wit, day of , A. D. 19 — , at the instance of plain- tiff's counsel, a rule is entered on the defendant to file his demurrer or answer to the bill filed in this case within days, sec. reg. Form of demurrer. [Title of case.] Now, to wit, day of , A. D. ig — , comes the defendant and demurs to the whole of the plaintiff's bill in this case, and for cause of demurrer showeth: [Here set up the causes.] [Or defendant may demur to any part thereof, specifying it.] Solicitor for the defendant. "Bennett v, Bennett (N. J.), 49 Atl. 501. "Demorari, to abide. "Thomas v. Boswell, 14 Phila. 197; Barbey's Ap., 119 Pa. 413; Reading V. Wanner, i Wilcox 282; N. Y. Etc. Co. v. Spencer, 3 D. R. 694; Wolf v. Ejmn, 5 Kulp S ; Underwood v. Warner, 3 Phila. 414. '"Love V. Robinson, 213 Pa. 480. "" Brooke v. Phillips, 6 Phila. 392. ^ Moyer v. Livingood, 2 Woodward 317. "aLehighton.Etc. Assn. v. Snyder, 39 C. C. 370. '^ Stegmaier v. Keystone Coal Co., 232 Pa. 140. "Waller v. Kingston Coal Co., 13 Luz. L. R. 421. 576 EQUITY PRACTICE IN PENNSYLVANIA. Form of affidavit. , the above-named defendant, having been duly sworn says that the matters set forth in the preceding demurrer are true and that the same is not interposed for the purpose of delay. Sworn to, etc., . 16. Nature and effect of demurrer. The filing of a demurrer based on the facts is equivalent to a gen- eral appearance and admits the jurisdiction." If the defendant wishes to challenge the jurisdiction he must not ring in the facts of the bill; for a demurrer admits the facts fairly pleaded, but does not admit argumentative conclusions or doubtful inferences from undisputed facts." A demurrer is a two-edged sword, and should not "speak;" that is, it should not introduce facts not in the bill." All demurrers should be in writing. Ofie tenus demurrer is loose practice though allowed in some jurisdictions. Demurrer may be entered to the jurisdiction, the parties or the bill, as to form or sub- stance." If the demurrer is sustained, the complainant may be given leave to amend and the defendant to answer, or the bill may be dismissed. If it is overruled, defendant may be given ti'me to answer. A speaking demurrer will be dismissed, on exception.^ A demurrer cannot be sustained on the allegation of facts not appear- ing on the face of the bill." An allegation that one named as a partner is not a member of the firm is bad as a speaking demurrer." It must point out alleged defects in the Bill, not generally, but spe- cifically. A demurrer should not be argumentative;'' nor introduce asseverations of fact."" It lies when the objection to the bill is ap- parent on the face of it, or as to defects in its frame, or in the case made by it.'° Facts stated in the demurrer which are not in theibill will not be considered.^ The statute of limitations may be invoked by demurrer when the face of the bill shows that it has run against the claim set up.°' If the bill introduces unnecessary recitals, ad- vantage may be taken by exceptions and demurrer should not be "°BIick V. Ladd, 21 York 106. "'Getty, et al., v. Penna. Etc., 194 Pa. 571, approved in Kaufman v. Kaufman, 222 Pa. 58; Kurtz v. Phila. Etc. R. Co., 187 Pa. 59; Hake v. Stermer, 15 York 123; Valley Forge Etc. Com. v. Phoenixville Etc. R. Co., 18 Montg. 140. " Stewart v. Masterson, 131 U. S. 151. "This is elaborately discussed in Story's Equity Pleading, sees. 473, et seq. "Yoho V. Allegheny County, 218 Pa. 410. " Fitzsimmons v. Lindsay, 205 Pa» 79; Venango County v. Penn Bridge Co., 14 D. R. 221. "Mengel v. Lehigh Etc. Co., 24 C. C. 152. "Hancock v. Watson, 27 C. C. 399; Narberth Sewer Co. v. Narberth, 21 Montg. 84; Everhart v. Everhart, 4 Luz. L. R. 259. "Kaufman v. Kaufman, 222 Pa. 58; Butz v. Romig, 17 D. R. i. " Pew V. Minor, 216 Pa. 343. " Hammer v. McEldowney, 46 Pa. 334 ; Barry v. McAvoy, 10 Phila. 99; Battin v. Martin, 10 Lane. L. R. 209; Waller v. Kingston Coal Co., 13 Luz. L. R. 421. "Williamson v. Smith, 4 D. R. 307. "Hayes' Ap., 113 Pa. 380; Brewster v. Brewster, 3 Phila. 355; Spering V. Smith, 6 Phila. 524. EQUITY PLEADING. 577 invoked." If a proper party has been omitted and this appears on the face of the bill, demurrer will lie.°° If a demurrer is too broad and general, it was held that the court might permit the defendant to amend, on proper terms,'" but this practice has not been encouraged. Whilst a demurrer admits all the facts well pleaded it does not admit evasion and uncertain averments," or conclusions of law drawn from averments in the bill.*^ But if the legal title of plaintiff is admitted, it is not necessary to establish such title in an action at law.'' Where the plaintiff relies upon the statute of another state and does not set it out in his bill, but only its legal effect, a demurrer will not admit such statements." 17. Demurrer to bill of discovery. "To a bill for relief and discovery in aid of the relief sought, a demurrer is not sustainable exclusively to so much of the bill as seeks discovery, except where the discovery would subject the defendant to a penalty, or is immaterial or impertinent, or involves a breach of confidence held inviolable by law, or pertains exclusively to defendant's title; where the reasons for a demurrer to a bill for relief and discovery will protect the defendant against making the discovery, they are equally a defense against the relief sought; the defendant cannot demur to the discovery and answer as to the re- lief sought." " To a bill for discovery in an action at law persons cannot by demurrer protect themselves on the ground that they are witnesses only and not parties. They should plead or disclaim.'" 18. Variance of relief — answer or demurrer. Rule 51 of the Supreme Court Equity Rules prescribes: "In every case where, after answer or demurrer filed, an amend- ment of the bill ig made in such particulars as to vary the case or the grounds of relief, the defendants shall be at liberty to demur or answer to the amended bill or to the amendments, as if no previous answers had been filed, and the answer to the original bill shall not, unless the defendant fails to put in another answer when required, be used except as an admission of the facts therein stated, subject to explanation by the answer subsequently filed. Answers to amend- ments may be required at such times as the court or a law judge upon notice shall direct, and shall be in other respects subject to the rules regulating answers to the original bill." 19. Settings down cause for argument. Rule 33 of the Supreme Court Equity Rules prescribes : "The plaintiiif may set down the cause for argument on the de- murrer, and if he shall not do so within ten days after service of ""Shepp v. Norristown Etc. R. Co., 10 Montg. 41. "Krecker v. Shirey, 3 Northam. 266. ■"Bank of U. S. v. Biddle, 2 Parsons 31; see P. & L. Dig., vol. 6, col. 8876-7. "Manners v. Phila. Lib. Co., 93 Pa. 165. "Bussler v. Weekey, 4 Supr. C. 69. "Sitting's Ap., 105 Pa. 517; Wood v. Hecksher, 10 Montg. Co. 178. "Stockton V. Lehigh Coal Co., 9 W. N. C. no. *P. & L. Dig., vol. 6, col. 8879; Wistar v. McManes, 54 Pa. 318. "Piatt V. Barcroft, 4 Phila. 67. Vol. 4 Practice — 37 578 EQUITY PRACTICE IN PENNSYLVANIA. the same the defendant may set it down for argument on five days* notice." 20. Demurrer, when not to be over-ruled. Rule 34 of the Supreme Court Equity Rules prescribes: "No demurrer shall be held bad and over-ruled, upon argument, only because such demurrer shall not cover so much of the bill as it might by law have extended to, or because the answer of the de- fendant may extend to some part of the same matter as may be cov- ered by such demurrer." It has been said that rules of court facilitate the cause to hearing and determination." Whilst courts take notice of their own rules, on appeal, the rule of court below must be incoroorated to have it noticed." The court cannot suspend the rules of the Supreme Court, but it may interpret its own rules as it deems just and equitable." It was formerly held that a rule operating retrospectively as a limitation is void;™ but it may be made to operate upon pending litigation by express terms." 21. Effect of sustaining demurrer. When the demurrer is sustained it is only an adjudication that the plaintiff has not made out such a case by his bill as entitles him to relief and does not bar him from bringing another and a proper bill on paying the costs of the first ;^ but he may on his second bill be confronted with the first, if he sets up facts inconsistent with it.' On the quesiton of Law or Equity jurisdiction the act of 1907 now governs. (See supra.) 22. Amendment of bill, on demurrer. Rule 35 of the Supreme Court Equity Rules prescribes: "If, upon the hearing, any demurrer or plea shall be allowed, the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable." Under this rule when a demurrer is sustained and amendment al- lowed, there being no costs, none will be given.' Since the act of 1907, leave to amend must be applied for in accordance with above rule in the court below.'^ A supplemental bill will not be allowed after final decree."'' " Snyder v. Bauchman, 8 S. & R. 336. "Yarnell v. Felton, 104 Fed. R. 161. "Magill's Ap., 59 Pa. 430; Bair v. Hubartt, 139 Pa. 96; Morrison v. Nevin, 130 Pa. 344. "Reist V. Heilbrenner, 11 S. & R. 131. " Chain v. Hart, 140 Pa. 374. ' Detrick v. Sharrar, 95 Pa. 521. ' HoUenback's Ap., 121 Pa. 322. ° Sturges V. Scranton R. Co., 9 Lack. Jur. 53. '»■ Darlington v. Clemson, 41 Supr. C. 309; see Naomi Coal Co. v. Moore, 19 D. R. 338. 'b Pellio V. Coal Co., 10 Lack. Jur. 173 ; Burke v. Boro, 18 D. R. 497. EQUITY PLEADING. 579 23. Amendments in Equity. Section 2 of the act of May 4, 1864, P. L. 775, provides: "In all proceedings in Equity, according to Equity forms, the sev- eral * * * Courts of Common Pleas in this Commonwealth, may permit, at their discretion, and when in their opinion the same will affect the merits of the matter in controversy, and expedite justice, amendments to be made, in bills, answers, pleas, or other matters, in the same manner, as now obtains in common law cases and practice ; proper notice to be given to the adverse party, whose rights shall be protected by continuance, if desired." If the bill shows substantial cause for relief, amendment in form will be allowed, even after hearing and appeal.* Before an answer is filed, the bill may be amended, as of course." But, the plaintiff having sworn to his bill, will not be permitted to strike out a material fact in it, destructive of his title, as to which there is no dispute." Rule 48 of the Supreme Court Equity Rules prescribes : "The plaintiff shall be at liberty, as a matter of course, to amend his bill in any matters whatsoever, before answer, or demurrer to the bill, but he shall, without delay, give the defendant notice of such amendment, and all rules taken by the plaintiff in the case shall be suspended until such notice is given." 24. Effect of over-ruling demurrer. Where the court over-rules a demurrer, it will direct the defendant to answer within a certain time, unless it find that the demurrer was interposed for vexation and delay, or that it was unfounded and frivolous, when it may order that the bill be taken pro confessoU Where therp is an allegation of fraud in the bill the defendants should be given an opportunity to answer and deny it.' 25. Answer after over-ruling demurrer. Rule 36 of the Supreme Court Equity Rules prescribes : "If, upon the hearing, any demurrer is over-ruled, unless the court shall be satisfied that it was intended for vexation and delay, the de- fendant shall be required to answer the bill, or so much thereof as is covered by the demurrer, at such period as, consistently with justice and the rights of the defendant, the same can, in the judgment of the court be reasonably done; in default whereof the bill shall be taken against him, pro confesso, and the matter thereof proceeded in and decreed accordingly; and such decree shall also be made when the court deems the plea or demurrer to have been for vexation or delay, and to have been frivolous or unfounded." * * Darlington's Ap., 86 Pa. 512 ; Miller v. McDonald, 8 W. N. C. 502. "Hayes v. Dicken, 28 Pitts. L. J. 180. ■Fricke v. Magee, 10 W. N. C. 50; O'Malley v. O'Malley, 11 W. N. C. 39- ' Corbet v. Oil City Etc. Co., 5 Supr. C. 19 ; Sewickley School Dist. v. Ohio Etc. Co., IS4 Fa. 539; Bald Eagle V. R. Co. v. Nittany V. R. Co., 171 Pa. 284. ' Graeflf v Felix, 200 Pa. 137. 'Forms of pleadings will be given infra, in cases which have gone through the ordeal of the Appellate Courts. s8o EQUITY PRACTICE IN PENNSYLVANIA. 26. Time to answer may be enlarged. Rule 6 of the Supreme Court Equity Rules prescribes: "If the defendant cannot prepare his answer within thirty days the court may on motion, with notice to the other party, enlarge the time." 27. When party defendant need not answer. Rule i8 of the Supreme Court Equity Rules prescribes: "Where no account, payment or conveyance, or other direct relief is sought against a party to a suit, not being an infant, the party upon service of the notice upon him, need not appear and answer the bill, unless the plaintiff especially requires him so to do, by the prayer of his bill; but he may appear and answer at his option; and if he does not appear and answer, he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer, he shall be entitled to the costs of all the proceedings against him, unless the court shall otherwise direct." 28. Objection raised by answer as to want of parties — argu- ment. Rule 27 of the Supreme Court Equity Rules prescribes : "Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection only; and the purpose for which the same is so set down shall be notified by an entry to be made in the Equity docket, in the form or to the effect following, that is to say: 'Set down upon the defendant's objection- for want of parties.' And where the plaintiff shall not set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order for liberty to amend his bill by adding parties. But the court, if it think fit, shall be at liberty to dismiss the bill." The "fourteen days" in this rule follows the time in Chancery (see infra). 29. Consent to dismissal of bill. Rule 28 of the Supreme Court Equity Rules prescribes: "The parties to a suit may at any time before decree, by agree- ment in writing, without special motion, consent that the bill be dis- missed, with or without costs, as may be stipulated; and upon pay- ment of the costs due to the officers of the court, such agreement shall be entered upon the docket, and the suit shall be thereupon fully ended and discontinued." As a rule plaintiff may dismiss his bill any time before decree."^ 30. Opening decree pro confesso, with leave to answer. After a decree pro confesso, upon a proper showing, the defendant may have the decree opened and be given leave to plead the statute of limitations nunc pro tunc, especially where the party is admin- "a-Saylor's Ap., 39 Pa. 495. EQUITY PLEADING. 581 istrator of a deceased partner, and he discovers by the books that the claim is barred." Rule 30 of the Supreme Court Equity Rules is as follows: "When the bill is taken pro confesso and the court shall have pro- ceeded to a decree as aforesaid, such decree, so rendered, shall be deemed absolute, unless the court or a law judge thereof, shall, within fourteen days after the service of notice of such decree on the defendant, set aside the same and give the defendant time for filing an answer upon cause shown. And no such motion shall be granted, unless the defendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct for the purpose of speeding the cause." 31. Answers and cross-bills — ^boua fide purchaser. Rule 37 of the Supreme Court Equity Rules prescribes: "The defendant shall make answer to all the material allegations of the bill. The answer of a defendant must be in the first person, and divided into paragraphs, numbered consecutively, each para- graph containing, as nearly as may be, a separate and distinct al- legation. The rule, that if the defendant submits to answer, he shall answer fully to all the matters of the bill, shall no longer apply in cases where he might, by plea or demurrer, protect himself from such answer and discovery. And the defendant shall be entitled in all cases, by answer, to insist upon all matters of defence in law (not being matters of abatement, or to the character of the parties, or of matters of form), to the merits of the bill, of which he may be entitled to avail himself by demurrer or plea in bar; and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and discover, upon filing a demurrer or plea in bar and an answer in support of such plea, touching the matters set forth in the bill to avoid or repel the bar or defense. Thus, for example, a bona fide purchaser, for a valuable consideration, without notice, may set up the defense by way of answer, instead of plea, and shall be entitled to the same protection, and shall not be compellable to make any further answer or dis- covery of his title than he would be in any answer in support of such plea." 32. What an answer may contain. In his answer the defendant may insist upon all defenses of which he could have availed himself by plea, either upon the law or the merits. So he may challenge the equitable jurisdiction, as required by the act of June 7, 1907, P. L. 440 (Vol. i, Johnson, P. 146) ;" or may defeat discovery by denial of plaintiff's title." If the jurisdic- tion is challenged a preliminary question is thus raised which must be settled first." "Grouse v. Fisher, et al., 20 D. R. 447. "Maguire's Ap., 102 Pa. 120; Brewer v. Levan, 7 D. R. 702. " Perry v. Kinley, i Phila. 505. ^ Graver v. Otto, 23! C. C. 227 ; Brower v. Levan, supra. 582 EQUITY PRACTICE IN PENNSYLVANIA. 33. Exceptions for scandal and impertinence. All scandalous matter is impertinent, but there may be impertinent matter without being scandalous. In either case, such matter is liable to immediate formal exception, as soon as discovered. If charges are made bearing upon the moral character of the adversary, they are scandalous and the court will order the prothonotary to expunge them." An answer is not impertinent because it sets up facts which are not sufficient.'' Unless wholly irrelevant and impertinent an ex- ception will not be sustained." 34. Exceptions to answer. If an answer is deemed insufficient the proper practice is to file ex- ceptions, pointing out in what respects it is insufficient," and if found so, the defendant may be given leave to file an amended answer."" Such exceptions must be taken without delay. Exceptions not filed within twenty days were dismissed on motion." They will also be dismissed for lack of precision and particularity.^" Rule 43 Sup. Ct. Eq. as to exceptions to interrogatories applies to exceptions to answers, as well.^°* An unprinted answer is a nullity, without a certificate of poverty and judgment pro confesso may be taken.*''' 35. Sufficiency and effect of answer. Defendant is required to answer, but he may answer to the whole or a part of the bill.''' AjS to specific parts of the bill he may answer that he neither affirms nor denies and if the plaintiff deems it ma- terial he is required to make proof. But if an averment of the bill is not denied, it stands as admitted, otherwise.^ This is not the rule in Chancery, however.''' If the answer sets up affirmative matter of defense it must contain all that is necessary to render it complete." If the bill is for an account, the denial of indebtedness will not pre- vent a decree for an account."' The answer should set up all the facts that are material.'" If it sets up a right under a lease it should state what particular lease, its date and place of record and all the essen- tial facts concerning such right." The same rule applies to trustees as well as corporations aggregate."" It is the duty of the defendant "Roulston V. Ralston, 13 Phila. 175. " Huston v. Sellers, 12 Phila. 520. " Marshall's Est., 40 Leg. Int. 279 ; Pettebone v. Everhart, 4 Kulp 353. " Hurley v. D. & H. C. Co., 5 D. R. 257 ; Pittsburg Etc. Co. v. West Penna. Etc. Co., 13 D. R. 464; Banks v. Manchester, 128 U. S. 244. "Hoyt V. Kingston Coal Co., 8 Kulp 354; Chestnut Hill Etc. Co. v Penna. R. Co., 7 Montg. Co. 33. " Schooley v. Shoemaker, 4 Kulp 345. ™ Myers v. Kingston Coal Co., '3 Kulp 137. ■"a Bethlehem Etc. Co. v. Boro, 12 Northam. 83. "b Pitts. Etc. Co. V. Myers, 36 C. C. 61. " City of Phila. v. Keyser, 10 Phila. 50. ^ Coleman v. Ross, 46 Pa. 180 ; Pinnell v. Boyd, 33 N. J. Eq. 190. "'Young V. Cranch, 6 Cranch (U. S.) 342; De Wolf v. Long, 7 111. 679. "" Margarge v. Ziegler, 9 Supr. C. 438. "Koons v. Bute, 2 Phila. 170. "Farnum v. Farrell, 2 Phila. 368. " Hurley v. D. & H. C. Co., 5 D. R. 257. " Steinman v. Lancaster City, 2 Lane. Bar 24. EQUITY PLEADING. 583 to answer every material allegation in the bill whether interrogated or not and as fully as if he were thereto particularly interrogated.^" Upon interrogation a denial of knowledge and information is not equivalent to a denial of belief.'" There must be at least a denial of plaintiff's Equity." If defendant states the main facts of a transac- tion positively, it will embrace a circumstance thereof.'" If the facts alleged in the bill are specific the answer must be equally spe- cific.'' But he need not answer any immaterial allegations." If he denies the material averments, he should give the facts upon which the denial is based.'° 36. Responsive answer. An answer is responsive which directly traverses the substance of each and every material allegation in the bill on personal knowl- edge and not mere information, and rests there, introducing no new matter." An answer which admits the contract as set up in the bill, and states its terms, but denies the existence of stipulations in it claimed by the plaintiff as the basis of his prayer for relief is re- sponsive. So where the Equity of plaintiff depends on his want of notice the answer that he had notice is responsive."' To be re- sponsive the answer must set up facts of which defendant could have personal knowledge." If the answer admits the facts but denies ir- reparable injury the court cannot find the facts to be otherwise." An answer which is responsive is not made the less so because in set- ting up the facts some new matter may be indirectly brought in." An answer which admits certain facts but shows other correlated facts which negative the relief asked is responsive." 37. Answer not responsive. An answer is not responsive when it sets up new matter in con- fession and avoidance of the bill, or when evasive, not denying the material allegations, but simply avoiding their legal effect; or where the contract set up is only denied in manner and form, without "Eaton's Ap., 66 Pa. 483; Burke's Ap., 99 Pa. 380. " Bond V. Duer, 31 Phila. 207. " Brown v. Atkinson, 9 Kulp 164. ""Spering's Ap., 60 Pa. 199. "" Kitchen v. Wilkenson, 10 Kulp 465 ; Jones v. Enterprise Powder Co., 6 Lack. Jur. 303. "* Mohler v. Ephrata Water Co., 16 C. C. 493. "" Pittsburg Etc. Co. v. West Penn Etc. Co., 13 D. R. 464. "" Goggins V. Risley, 13 Supr. C. 316 ; Eaton's Ap., 66 Pa. 483 ; Cresson's Ap., 91 Pa. 168; Eberly v. Goff, 21 Pa. 251; Burke's Ap., 99 Pa. 350; Stewart v. Parnell, 29 W. N. C. 537; Hodges v. Laurel Run Lodge, 2 Kulp 372. "'Pusey V. Wright, 31 Pa. 387. "Bell y. Farmer's Etc. Bank, 131 Pa. 318. "Higgins V. Higgins, 216 Pa. 397. ■" Bridgewater v. Beaver Etc. R. Co., 214 Pa. 343. "Bailie v. Bailie, 166 Pa. 472; Seybert v. Robinson, 32 W. N. C. 200; Fidelity Etc. Co. v. Weitzel, 152 Pa. 498. *^ Rowley's Ap., 115 Pa. 150; Gleghorne v. Gleghorne, 118 Pa. 383; Hand v. Wiedner, 151 Pa. 362, distinguishing Cressona Assn. v. Sowers, 134 Pa. 354- 584 EQUITY PRACTICE IN PENNSYLVANIA. more;" or if facts are set up not within the knowledge of the de- fendant." An answer which admits the agreement but sets up an erroneous interpretation of it is not responsive." To be respon- sive the answer must be specific." A categorical denial of the facts in the bill is responsive." 38. Rule as to proof. The importance which is attached to determining whether an an- swer is responsive or not has to do with the Equity rule of evi- dence, which is that when the answer is responsive, being delivered under oath or affirmation, unless the plaintiff proves his allegations by two witnesses or by one witness and corroborating circumstances the equivalent of the other witness, his bill must be dismissed." If it is not responsive the burden of proof and the rules of evidence are the same in Equity as at law, and it does not require two wit- nesses.'" The rule above stated has been laid down in numerous cases, so that it would seem that "even a wayfarer though a fool" would understand it.°° In a recent case it was said that the intro- duction of new matter is not, of itself, harmful to a responsive an- swer."^ Where the answer is a denial not of the material facts, but the legal effect of them, the rule as to two witnesses does not apply.'" 39. Eules of evidence in Chancery. The maxim "aequitas sequitur legem" applies to the rules of evi- dence in a Court of Equity.^ So where a material fact is put in issue directly, by denial in the answer, the maxim of the civil law is fol- lowed: "responso unius non omnis audiatur," and the evidence of " Kenney's Ap., i2 Atl. 589 ; Coleman v. Ross, 46 Pa. 180 ; Vollmer's Ap., 61 Pa. 118; Everhart's Ap., 106 Pa. 349; Erie & PittsCurg K. Co.'s Ap., 3 Penny. 164; P. & L. Dig., vol. 6, col. 8891; see Thompson v. Fitz- gerald, 233 Pa. 259. "Riegel v. Am. Ins. Co., 153 Pa. 134. " Stitzer v. Founder, 214 Pa. 117. "Roush v. Nipple, 31 Pa. 559. " Rushbrooke Coal Co. v. Jenkins, 214 Pa. 517. "McCoy v. Kane, 19 Supr. C. 187; Schell v. Deperver, 198 Pa. 591; Gantt v. Cox, 199 Pa. 208; Hukill v. Yoder, 189 Pa. 233; Huston v. Harrison, 168 Pa. 136; Saake v. Dorner, 167 Pa. 301; Crombie v. Order of Solon, 157 Pa. 588; Dick v. Ireland, 130 Pa. 299; Campbell v. Patter- son, 95 Pa. 447; Freedman v. Von Storch, 6 Lack. Jur. 358; Minteer v. Brickell, 54 Pitts. L. J. 48; Fellbush v. Fellbush, 216 Pa. 141; Cole v. Sulzner, 54 Pitts. L. J. 435; Everson Boro, 31 Supr. C. 170; Rushbrook Coal Co. v. Jenkins, 214 Pa. 517; Sherman v. Herr, 220 Pa. 420; Shaw v. Lane. Etc. Co., 25 Lane. L. R. 369; Bixler v. Heilman, 44 Supr. C. 603; Reading v. Traction Co., 3 Berks Co. 245 ; Stoner v. R. Co., 229 Pa. 521 ; Adrian v. Fink, 226 Pa. 448 ; Berger v. Berger, 44 Supr. C. 305 ; Real Est. Etc. Co. V. Cook, 223 Pa. 158. "Bussier v. Weekey, 11 Supr. C. 463; Piatt v. Seif, 51 Pitts. L. J. 11; 207 Pa. 614; Thompson v. Fitzgerald, 233 Pa. 242. "Thomas v. Borden, 222 Pa. 184; Finkliner v. Matthews, 23 Montg. 208; Boyle v. Boyle, 34 C. C. 581; McGary v. McDermott, 207 Pa. 620; I C. R. A., P. & L. Dig., sup. col. 2075-6, for numerous recent cases. " Stoner v. R. Co., 229 Pa. 521. "Matthaei v. Pownall, 235 Pa. 460. "Manning v. Lechmere, i Atkyns 453; Man v. Ward, 2 Atkyns 229; Glynn v. Bank of England, 2 Vesey Sr. 41. EQUITY PLEADING. 585 two witnesses is necessary to justify a decree.^ To turn the scale the complainant must be corroborated, either by another witness or by circumstances.* 40. Admissions by the pleadings. The bill of complaint, not being verified as the answer is, does not have the force of evidence, still admissions made in it may bind the complainant. A demurrer, however, admits that all the statements in the bill are true and a plea admits all that it does not negative or con- tradict, for the purposes of trying the demurrer or plea, and no further. A plea being found false, complainant is entitled to a de- cree; and, if discovery be necessary, to examine the defendant on interrogatories." An answer, being sworn to, and supposed to meet every point of the complaint, seriatim, affects the matter at issue, according to the rules of evidence and estoppel, and as a rule the defendant cannot be heard to contradict his answer." An admission made in the answer has the effect of letting in secondary evidence." If the defendant seeks the same advantage in regard to admissions he may file a cross-bill and thus compel an answer.' Ch. J. Wilmot is frequently quoted upon the benefit of a viva voce examination, "where the looks, the manner and deportment of the witness are extremely material to confirm or discredit his testimony. It is found by the experience of ages that nothing does so effectually explore the truth as a cross-examination, which strikes so suddenly that fiction can never endure it."' But in Equity everything is set down with deliberation in the record. It is a general rule as stated by Lord Erskine: "When relief is prayed and the plaintiff replies to the answer, putting the whole in issue, he cannot, reading the answer as to the contract and con- sideration, stop at the end of a sentence, but must proceed to the completion of the immediate subject to which the defendant is answer- ing; as, at law, a witness cannot be stopped where the party, wishing to elicit from him particular facts, finds it convenient to stop him but must be allowed to finish the particular subject, and to proceed to state anything with reference to it." A grammatical conjunction is not necessary now to this rule, since any part of the answer "con- nected in meaning" may be read as explanatory, but not to introduce new facts, as ruled by Lord Eldon." A plaintiff may read evidence to disprove an allegation contained in a passage which he has read from the answer of the defendant." When the answer of a party " Hobbs V. Norton, i Vernon 137 ; Bath & Montagu's Case, 3 Ch. Ca. 123. ^Walton V. Hobbs, 2 Atkyns 19; Pilling v. Armitage, 12 Vesey Jr. 80; Lupton V. White, 15 Vesey 443. *Wood V. Strickland, 2 Vesey & Beames 158. "E. I. Co. V. Keightly, 4 Haddock 16. "Crosse v. Bedingfield, 12 Simons 35. 'Gresley's Eq. Ev., p. 12. 'Life and Opinions, p. 109. 'Lady Ormond v. Hutchinson, 13 Vesey Jr. 53, affd. 16 Vesey Jr. 94. "Bartlett v. Gilliard, 3 Russell 156; Rude v. Whitchurch, 3 Simons 562; Davis v. Spurling, i Russell & Mylne 64. " Price V. Lytton, 3 Russell 206. 586 EQUITY PRACTICE IN PENNSYLVANIA. in another cause is resorted to, as evidence, the whole of it is admis- sible both at law and in Equity." An observation may be ventured upon the practice in Chancery to allow a fictitious setting to the bill, in order to found matters of discovery from the adversary, since the bill itself is not under oath. The Commissioners approved of this but suggested an affidavit that the bill is not filed for delay but only for the purpose of obtaining equitable relief or discovery in aid of a proceeding at law. The doctrine of "anticipative consequences" was evidently in their minds — for in bills of various kinds, particularly for injunctions, the astute solicitor who draws the bill may perceive effects which the mind of his client may not be capable of cognizing. This is, perhaps, a suggestion for latitude allowed in framing a bill and the elasticity of the practice as to amendments. The same liberality, however, does not apply to an answer; for amendment varying admissions is sparingly allowed, unless plain mistake or misapprehension be shown." The practice now, is for the defendant to pray leave to file a supplemental answer, averring that when he filed his answer, he was not informed of the facts, or he would have answered otherwise." An admission of fact is too solemn to be stricken out, while an admission of law may be modified or withdrawn.'" When a bill for discovery is allowed to be converted by amend- ment and the addition of a prayer into a bill for relief, the defendant may then put in an entirely new answer. Lord Eldon said : "It must be read as an answer to a bill of discovery ; as evidence : not as a part of the defense or admissions upon which the bill proceeds." " 41. Answers which are not equivalent to evidence. There are answers which are not to be used as admissions equiva- lent to evidence, such as an infant's." Lord Erskine once refused to have the answer of an executor read as against the residuary legatee." The ground of refusal is that the latter not being a party had no opportunity to cross-examine." This applies to the answer of one defendant which cannot be read against the other."" This rule extends to a disclaimer,"^ but it seems not to an interpleader, where some of the passages of the bill may become admissions because not demurred to.""" Agents, if referred to and imputed with knowledge, may bind " Boardman v. Jackson, 2 Ball & B. 386. "Kingscote v. Bainsly, Dickens 485. "Wells V. Wood, 10 Vesey 401; Strange v. Collins, 2 Vesey & Beames 163. " Pearce v. Grove, 3 Atkyns 522. "Butterworth v. Bailey, 15 Vesey 363; Lousada v. Templar, 2 Russell S6i. "Eccleston v. Speke, 2 Ventris 72; Wrottlesley v. Bendish, 3 Peere Williams 237; Hawkins v. Luscombe, 3 Swanston 392. "Morse v. Royal, 12 Vesey Jr. 355. " Chervet v. Jones, 6 Maddock 268. '"Jones V. Turbertville, 2 Vesey Jr. 11. ^ Hill V. Adams, 2 Atkyns 39. ■"Angell V. Hadden, 16 Vesey J. 203. EQUITY PLEADING. 587 their principals by their answers/' and this applies to partners." Solicitors may come within this rule. 42. Documents in possession of defendant. If the answer, or attached schedule, admits a document which is material to the plaintiff's case, to be in defendant's possession or his power, such document is considered a part of the answer;"" and the court will, on motion, order it to be left with the clerk (pro- thonotary), for the inspection of the plaintiff, his solicitor- or agent,"" within a reasonable time."' But the order may be varied, where the books, etc., are in continual use at defendant's place of business, so as to have the inspection or copies made there, in presence of de- fendant or his solicitor."' If the parties cannot agree, then, in rela- tion to the same, the books, etc., will be ordered in custody as above."" The deeds of a client have been ordered produced on the admission of his solicitor, where he would have been bound to produce them himself in the course of the cause."" A mortgagee, however, will not be compelled to produce the deeds of his mortgagor."' The court will order documents, or copies, to be brought from a foreign country, within a reasonable time, and if not so brought, will consider them as having been in possession or under control of the defendant in the first instance, and the production refused."" A defendant solicitor cannot resist the production of a deed which is sought to be im- peached, by claiming a lien upon it." If the answer speaks of a document that is not material to the plaintiff's case, but supports only the defendants, the defendant will not be ordered to produce it."'' But where it refers to a document as being in defendant's possession, it is considered as part of the answer and the defendant has waived his right to withhold it."° The only question then is whether it can be of any benefit to the plaintiff."" The plaintiff must show a common interest therein."' But if not admitted to be in defendant's possession or control the rule is different."" If defendant sets forth part of a document and for greater certainty makes reference there- unto, he thereby makes the whole a part of his answer and it may ""Gresley Eq. Ev., p. 29. "Wood v. Braddick, i Taunton 104; Hilliard v. Phaley, 8 Modern 180. "* Lopez v. Deacon, 6 Beavan 254; Taylor v. Rundell, i Cr. & P. 104; Morrice v. Swabey, 2 Beavan 500. "" Barnett v. Noble, i J. & W. 227. "' Farquharson v. Bajfour, Turner & Russell 198. "'Crease v. Penprose, 2 Young & Collyd Ex. R. 527; Grane v. Cooper, 4 Myln & Craig 263. "" Prentice v. Phillips, 2 Hare 152. ""Fenwick v. Reed, i Merivale 114; Walburn v. Ingilby, i M. & K. 70. "Lambett v. Rogers, 2 Merivale 489. "Farquarson v. Balfour, i T. & R. 190. "" Balch V. Symes, I T. & R. 87. "* Buden v. Dare, 2 Vesey Sr. 445 ; Lady Shaftesbury v. Arrowsmith, 4 Vesey Jr. 66. ""Hardman v. Ellamer, 2 M. & K. ^32. "° Bligh V. Berson, 7 Price 205 ; Firkins v. Lowe, 13 Price 193. "' Burton v. Neville, 2 Cox 242. "' Darwin v. Clark, 8 Vesey Jr. 158. 588 EQUITY PRACTICE IN PENNSYLVANIA. be ordered produced if the Chancellor so deems just/' So of refer- ence to deeds.* Lord Eldon said that every book, letter, memoran- dum, etc., referred to by the answer is a part of it." So great skill and dexterity in the solicitor avails little as against the rules of court.'" In alleging that divers deeds, etc., are in the possession or power of the defendant, the common form used, viz: "Whereby, if pro- duced, the truth of the matters aforesaid or of some of them would appear," is sufficient to require the production of the documents, the court not inquiring too narrowly into their materiality." Title deeds need not be produced, if there is nothing to be inferred from any passage in the answer that they evidence the title of the plaintiff.** How far a solicitor may be compelled to produce docu- ments in his possession is a question dependent upon the circum- stances. The privilege of confidential communications of client to counsel is maintained; but while the opinion of the solicitor is private, the case which the client sends has not always been held immune by the House of Lords.'" But the doctrine so maintained was ably challenged by Lord Brougham; for, he said: "The very case which he lays before his counsel, to advise upon the evidence, may and often does contain the whole of his evidence, and may be and frequently is the brief with which that, or some other counsel conducts his cause." '" Lord Tenterden held that the privilege only extends to the cause before the court." The legislature has, however, thrown the broad shield of protection over confidential communications between attorney or solicitor and his client. 43. Defendant's right of inspection. If the defendant wishes to avail himself of the right to call for and inspect documents referred to in the bill, he must file a cross- bill,' in order that the plaintiff, when he produces it may explain the nature of it, on oath. But the proper practice in such case has finally been adopted to give the defendant time to answer until a fortnight after the plaintiff has produced the document.' No order will be made respecting documents referred to in deposi- tions as exhibits.' The fact that a deed comes from the hands of the defendant does not dispense with proof of its execution.* The court will order it, on motion, of course, to be delivered to the solicitor. ■"Atkyns v. Wright, 14 Vesey 211; Herbert v. Dean and Chapter of Westminster, i Peere Williams 773, per Ld. Macclesfield. "Bettison v. Farringdon, 3 Peere 'Williams 363. " Marsh v. Sibbald, 2 Vesey & Beames 375 ; Evans v. Richardson, i Swanston 7; Welford v. Stainthorpe, 2 Heaven 587. " Calvert Annotator of Gresley Eq. Ev., N. P. 37* "Erskine v. Bize, 2 Cox 229. **Tomlinson v. Booth, 4 Simons 461. " Radcliffe v. Fursman, 2 P. B. C. 514. "Bolton V. Liverpool, i M. & K. 94. " Bolton V. Liverpool, 3 Simons 487 ; Hughes v. Biddulph, 4 Russell 192. ' Spragg V. Corner, 2 Cox 109 ; Milligan v. Mitchell, 6 Simons 186. 'Wales, Princess of v. Ld. Liverpool, i Swanston 114. "■Wiley v. Pistor, 7 Vesey Jr. 411. * Gordon v. Secretan, 8 East S48. EQUITY PLEADING. 589 or produced before the examiner or commissioners, that it may be proved, and then to be re-delivered." If there be circumstances of danger or mala fides, the document may be ordered in the custody of the master. 44. Admissions and waivers. For the sake of convenience and expedition it is frequently mutually advantageous for the solicitors on both sides to agree to waive the necessity for proof of certain facts. It must be in writing and may be in form as follows: "We, the undersigned, respectively solicitors for the plaintiff and defendant in this cause, do hereby agree to admit upon the hearing thereof, and otherwise as may be necessary, that the several letters mentioned and referred to in the schedule hereunder written were respectively signed by the persons whose signatures they and each of them bear respectively; and that the said letters were respectively sent to and received by, the persons to whom each of them was addressed respectively; and that the same shall be read at the hearing of, or otherwise in this cause, as either party may be advised, in the same manner as if the same had been respectively regularly proved; and that we will produce and permit to be read at the hearing of and otherwise in this cause, such of the original letters respectively as are admitted in the copies thereof now signed by us respectively, co be in our respective possessions. July 24, 191 1. A. B., Solic. pro PlfF. C. D. Solic. pro Deft. This form may be varied so as to cover an agreement that if a witness absent from the jurisdiction were produced he would testify to a certain state of facts. The parties need not sign, the solicitor's signatures being binding, but the agreement will not cover more than is expressed. For example, where the execution of a deed is admitted, it does not estop the party from taking advantage of essential defects in the deed or in the manner of its being pleaded.' The solicitor's authority to so agree will be presumed," but nothing will be implied beyond what is written;' nor will the court receive a waiver of what the law plainly requires, as where an instrument must be stamped;* or where the admission would incriminate the party." Lord Kenyon said: "No consent on earth would warrant the examination of a witness on interrogatories in a criminal case." ' So, counsel for an infant can admit nothing.' And so where one of the defendants is an infant, the privilege extends to all.' ° Jones V. Thomas, 2 Younge (Ex. Eq.) 12. 'Goldie V. Shuttleworth, i Camp. 70 (Eng.) ; Younge v. Wright, I Camp. 141. ' Gainsford v. Grammar, 2 Camp. 13. ' ° Mounsey v. Burnham, i Hare 15. *Owen v. Thomas, 3 M. & K. 3S3-7. °Lee V. Read, 5 Beavan 381. ' Wilkinson v. Beale, 4 Maddock 408 ; Townsend v. Ives, i Wilson 2161. ' Holden v. Hearn, i Beavan 445 ; Wilkinson v. Beal, supra. 'Morrison v. Arnold, 19 Vesey 670; Perry v. Silvester, Jac. 83; Carle- ton V. Brightwell, 2 Peere Williams 463. 590 EQUITY PRACTICE IN PENNSYLVANIA. 45. Interrogatories and answers. Rule 38 of the Supreme Court Equity Rules provides : "Specific interrogatories to defendants shall not be included in the bill, but may be filed separately if necessary. In like manner, any defendant shall be entitled to file interrogatories to any of the plain- tiffs after he shall have put in his own answer to the bill. In either case, they may be filed at any time before the taking of testimony is begun, and shall be deemed, with the answers, part of the pleadings. By special leave, on notice, they may be filed after testimony has been taken, and answers required at such time as the court or a law judge thereof may order. They shall be divided as conveniently as may be, and numbered. Where there is more than one defendant or plaintiff, the particular interrogatories which each is required to answer shall be specified by a note at the foot of the paper. A copy shall be served on each party required to answer them, or his counsel, and an order of course, to answer within ten days after such service, and on neglect to answer any interrogatory and serve a copy of such answer within that time, the plaintiff or defendant, as the case may be, shall be entitled to move for an attachment to compel an answer." Unless this rule is complied with defendants need not answer in- terrogatories.' The plaintiff is entitled to full and categorical an- swers to his interrogatories and the certificate of the solicitor that they are so is not sufficient, unless they are so." The purpose of interrogatories is to disclose material information which respondent possesses or which it is peculiarly within his power to obtain — not to require him to gather up information for the plaintiff." 46. When party may decline to answer interrogatories. Rule 39 of the Supreme Court Equity Rules prescribes: "A plaintiff or defendant shall be at liberty to decline answering any interrogatory, or part of an interrogatory, when he might have protected himself by demurrer from answering the subject matter of the interrogatory; and he shall be at liberty so to decline, notwith- standing he shall answer other interrogatories, from which he might have protected himself by demurrer, and the .plaintiff or defendant may, on forty-eight hours' notice, set down the matter for a hearing before any law judge of the court, as on an exception to the answer for insufficiency. But where the interrogatories are not fully an- swered and no reason is assigned for the omission, the particular ob- jection must be pointed out by exception, to be filed and served at least ten days before the hearing of such exception. The plaintiff or defendant shall be at liberty, before answers to the interrogatories are filed, or pending exceptions, to file or require a replication, and proceed to take testimony without waiver of his right to such an- swers, or of his exceptions to the answers. 47. Cross-bills for discovery not allowed. Rule 40 of the Supreme Court Equity Rules prescribes: "Cross-bills for discovery only shall not be allowed, but the de- fendant shall be at liberty instead thereof, to file interrogatories •Jones V. Enterprise Powder Mf'g Co., 6 Lack. Jur. 303. " Ferree v. Ralph, 56 Pitts. L. J. 182. "Jones v. Enterprise Etc. Co., 8 Lack. Jur. 373; Duff v. Heppenstall Co., 59 Pitts. L. J. 24. EQUITY PLEADING. S9i to the plaintiff as above provided. In other cross-bills no other reference shall be made to the matters contained in the original bill than shall be necessary, but the same may be treated as if incorporated therein. The rules regulating the form of bills shall apply to cross- bills. If no new parties are introduced, service of a copy of the cross-bill on the counsel of the plaintiff in the original bill shall be sufficient. Where other persons are made parties the service shall be in the manner provided in original bills, a copy of such original bill being served together with the cross-bill, and such new parties shall be entitled to have copies of the answer to the original bill as required for the plaintiff." A bill of discovery may still be necessary and is not superseded by the act of February 27, 1798, 3 Sm. L. 303, in relation to the production of books, papers, etc."^ 48. Affidavits, by whom administered. Rule 41 of the Supreme Court Equity Rules prescribes: "Answers and affidavits may be sworn to before any person author- ized to administer oaths under the laws or usages of this Com- monwealth, or of any other state, territory, or country, where the oath is taken.""" The affiant's signature, if omitted may be supplied by amendment."° 49. Exceptions to answers. Rule 42 of the Supreme Court Equity Rules prescribes: "After an answer to the bill, to interrogatories, or to any other pleading has been filed, the opposite party shall be allowed twenty days from the service of a copy of such answer on his counsel, to file in the prothonotary's office exceptions thereto, and no longer, unless additional time shall be allowed for the purpose, upon cause shown to the court or a law judge thereof; and if no exceptions shall be filed thereto within that period the answer shall be deemed and taken to be sufficient." 50. Hearing upon exceptions — ^printingf. Rule 43 of the Supreme Court Equity Rules prescribes : "Where an exception shall be filed to the answer for insufficiency, within the period prescribed by these rules, if the party filing the answer shall not submit to the same, and file an amended answer within ten days from service of a copy of such exception on counsel, the exceptant shall forthwith order the prothonotary to set the matter down for a hearing on the next day thereafter appointed for such causes, before a law judge of the court, and shall give notice of such order to the opposite party or his solicitor. And if he shall not so set the same down for a hearing, the exception shall be deemed abandoned, and the answer shall be deemed sufficient: Provided, however. That the court or any law judge thereof may, for good cause shown, enlarge the time for filing an exception or for filing an amended answer in their or in his discretion, upon such terms as "* Head J. in Lesser v. Henry, 50 Supr. C. 440. ^b Duffie v. Black, i Pa. 388. "<= Schumann v. Schumann, 6 Phila. 318. 592 EQUITY PRACTICE IN PENNSYLVANIA. they or he may deem reasonable. Exceptions shall be printed, and the expense of printing such as are sustained shall be allowed as costs to be immediately recovered." 51. Answer after allowance of exception. Rule 44 of the Supreme Court Equity Rules prescribes : "If, at the hearing, any exception shall be allowed, the party answer- ing, shall be bound to put in a full and complete answer within ten days, unless the time be enlarged by order of the court, otherwise the exceptant shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed, or, at his election, he may have a writ of attachment to compel the defend- ant to make a better answer to the matter of the exception; and the party answering, when he is in custody upon such writ, shall not be discharged therefrom but by an order of the court or of a law judge thereof, upon his putting in such answer and complying with such other terms as the court or judge may direct." 52. Interrogatories to defendant in Chancery. When the bill filed puts interrogatories to the defendant and requires them to be answered, after answer filed, it is incumbent upon the plaintiff to determine ^whether or not they have been answered satis- factorily and how far the answers are liable to exception ; which may be taken for not having answered at all, or for having answered evasively or without sufScient perspicuity. An answer in Equity includes not only a reply to a question but a response in full to the charge. One who answers at all must answer fully. So far as it replies to an examination it must be direct and specific, except when privileged. So far as the answer concerns the defendant's case it need not disclose the evidence upon which it rests. But, where interrogated thereto, what pertains to the plaintiiif's case, if the defendant has knowledge he is required to disclose it, subject to the above qualification. As a general rule, it has been said, the defendant must answer regardless of the materiality or immateriality; for that which may presently seem immaterial, may upon discovery become very material." If he deem any part impertinent he may except thereto on that ground, but an exception for impertinence fails where any part excepted to proves to be pertinent." 53. Defendant's answers. The rule as to defendant's answer is thus stated by Lord Redes- dale:" "To so much of the bill as it is necessary or material for the defendant to answer, he must speak directly and without evasion, and must not only merely answer the several charges literally, but he must confess or traverse the substance of each charge." 54. Materiality defined. The test of materiality as laid down by Richards is, "whether, if the defendant should answer in the affirmative, his admission would "Jones V. Wiggins, 2 Y. & J. 385. "Wagstaff v, Bryan, i Russ. & M. 30. "Mitford on PI., 309-16. EQUITY PLEADING. 593 be of use to the plaintiff: if it would, it must be answered; if not, it is not material." " The practice in Chancery, as stated by Gresley is:" "for a defendant to pass over those interrogatories in which he has no interest, and his answers to which would be of no other use than mere information; and for the plaintiff, if he wants evidence on those points, to make him a witness." 55. Exception for inperspicuity or evasion. Admissions are plenary either by the rules of pleading or by force of the terms in which they are expressed. They are of the former kind, when defendant puts in a demurrer," or when the plaintiff files no replication but brings on the cause to hearing on bill and answer.'* Admissions are plenary, by force of terms, not only when the answer runs in the form: "this defendant admits it to be true," but also when he simply asserts, and generally speaking, when he says: "he has been informed and believes it to be true," without adding a qualification such as : 'that he does not know it of his own knowledge to be so, and therefore does not admit the same." It must, how- ever, obviously, depend in every case, upon the nature of the fact spoken of and the defendant's means of knowledge." How far an interrogatory must be answered in detail is sometimes difficult to settle, when the matter is complicated. It has been said that "unless it is clear the respondent is avoiding a disclosure of the truth by a negative pregnant, he is not required to go beyond a direct answer." " Lord Clarendon attempted to settle the difficulty by an order that "if the defendant deny the fact, he must traverse or deny it (as the cause requires), directly, and not by way of a negative pregnant; as, if he be charged with the receipt of a sum of money, he must deny or traverse that he hath not received that sum, nor any part thereof, or else set forth what part he has received. And if a fact be laid to be done with divers circumstances, the defendant must not deny or traverse it literally, as it is laid in the bill, but must answer the point of substance positively and certainly." This does not mean that the defendant must answer positively either yes or no, but only to such certainty as he is able to make discovery from his knowledge." "Apt interrogatories are the life of the cause. A draughtsman hath need of much logic." °^ Excep- tions to answers may be well taken when they fail to disclose deeds in haec verba, when so required.'" And so, when a partner is asked to disclose matters in the usual course of the partnership business, he cannot be heard to answer that his copartner has refused him access to the books, papers, etc." But to require one to "set forth "Hirst v. Pierce, 4 Price 344; Bally v. Kenrick, 13 Price 291. "Gresley Eq. Ev., p. 21. " Mitford on Pleading, 107. " Gresley on Eqi Ev., p. 22. "Gresley Eq. Ev., p. 23. i" Chancery Com. App., Mr. Bell's Statement. " Nelson v. Pomford, 4 Beavan 41. " Gresley Eq. Ev. N. C. p. 24. ■"Cookson V. Ellison, 2 Brown's C. C. 252. " Taylor v. Rundell, I Younge & Collyer 128. Vol. 4 Practice — 38 594 EQUITY PRACTICE IN PENNSYLVANIA. in his verbis et Aguris, has been held to be too exacting, when defendant offered in his answer to show them to an appointed person." When exception is taken to an answer, it must be stated in the very words of the interrogatory itself, so the Chancellor may discover whether it is responsive directly or indirectly.^ 56. Hearing of cause on bill and answer. When the cause is heard on bill and answer all averments which are material and relevant in the answer will be taken as true, whether responsive or otherwise.^ But if the answer does not deny the material averments in the bill and only seeks to avoid them, the averments contained in it must be proved.'' In a bill for an account the defendant's admissions in the answer may be taken in support of the bill as evidence.' Stipulations and admissions by the parties, in writing to facilitate the cause are encouraged and should be entered of record. The court will not tolerate long delay in moving to set aside a stipula- tion.'^ Where a bill prays for cancellation of a deed but not for an account, the court cannot decree an account upon admissions in the answer."'' The court may properly adjudge tke cause on bill and answer where no exceptions are filed.'" 57. Answer on information and belief. When defendant answers on his information and belief it does not amount to evidence but is considered merely as pleading.* If he wishes to have his answer to have the weight of evidence and does not mention those facts within his knowledge, his general affidavit is insufficient for that purpose." The same is true where he alleges as true what could not be within his knowledge.' 58. Answer to bill of discovery. Upon a bill of discovery in aid of an actioi;! at law, defendant must answer the interrogatories filed fully as to matters in issue, although he need not as to new matters raised by his answer which are immaterial.' It will be insufficient if he does not disclose all that is material.' He must answer the interrogatories specificially,' except as to such as are impertinent or irrelevant," and as to these he should '" Ld. Ch. King in Hornby v. Pemberton, Mosely 57. "'Hodgson v. Butterfield, 2 S. & S. 236. 'Horton's Ap., 13 Pa. 67; Russell's Ap., 34 Pa. 258; Robertson v. Schwenk, 18 C. C. 577. "Greensboro Nat. Gas Co. v. Fayette Co. Gas Co., 200 Pa. 388. 'Bradly v. Jennings, 201 Pa. 473. 'a Continental Ins. Co. v. Delpeuch, 82 Pa. 225. ^b Summers v. Shryock, 46 Supr. C. 231. '<: Stoner v. R. Co., 229 Pa. 521. * Socher's Ap., 104 Pa. 609 ; Luburg's Ap., i Mona 329 ; Baugher's Ap., 8 Atl. 838; McCullough V. Barr, 145 Pa. 459. " Reigel v. Am. Life Ins. Co., 153 Pa. 134. " Reigel v. Am. Life Ins. Co., 153 Pa. i34- 'Benkert v. Benkert, 12 Phila. 295. ' Rose V. Lloyd, i Clark 333. •Paper Co. v. Hincken, 21 W. N. C. 227. " Waldron v. Bayard, i Phila. 484. EQUITY PLEADING. S9S state that he is advised that they are so and that he need not answer. He cannot deny the principal fact in the action and thus avoid answering as to matters relevant thereto." The court will compel him either to fix a date to a material point or to state his inability to do so." When he answers a demand for books, papers, etc., by saying that he is not aware of having them at present in his pos- session or control, his answer, on exception, will be held equivocal." It has been held that a defendant must answer, although the dis- closure would prove an indictable offense, if the statute provides that it shall not be used as evidence in a prosecution." If defendant demands his constitutional privilege, he must state in his refusal to answer that it is because it would incriminate him." A simple denial of knowledge is insufficient, since he must answer "to the best of his information, knowledge and belief;" though he will not be held to the strict formula when interrogated as to the truth of the plaintiff's statement of facts." Where defendants are principal and agent, both must answer." 59. Form of interrogatories. [Title of case.] Interrogatories exhibited in the above entitled case to and , defendants therein, pursuant to the order of court, touching the subject matter complained of in plaintiff's bill. 1. Whether or not said defendants were lately engaged in business in in said county and if so, of what kind, and under what name and title? 2. Whether or not said defendants, under the firm name of failed (or, as the case may be), what was the total sum of their indebtedness on the day of , A. D. . Who were their creditors — give names and amounts of each, and whether or not any claims have been paid to them. If so, to whom and what amount? State the particulars fully and in detail. 3.- What property, real and personal, or of whatsoever kind, was the said firm possessed of on the day of , A. D. 19 — , and what assets had said firm and where? 4. What property, real or personal, was either of said defendants possessed of as an individual on said day of , A. D. 19 — . State where located. 5. What was done with the property and assets of said firm, or of either of the said members thereof then or for four months prior to said insolvency, or at any time since; and, if transferred, state to whom, for what price or prices, on what terms and condi- tions and answer fully and in detail. "Bains v. Goldey, 35 Pa. 51. " Barnett v. Darragh, i T. & H. Pr., Sec. 123M. "Werner v. Berners, i Phila. 482. "Rose V. Saving Fund, 6 Phila. 10. But such statutes are of doubtful validity. (Page v. Williamsport Suspender Co., 191 Pa. 511.) "O'Conner v. Tack, 2 Brewster 407. " Painter v. Harding, 3 Phila. 144. " Stetson v. Peters, 16 Leg. Int. 147. "Roberts v. Oberteuffer, 2 Phila. 366. S96 EQUITY PRACTICE IN PENNSYLVANIA. 6. Whether or not any of the said property or assets of said firm, or of the individuals thereof was on the day of , A. D. 19 — , or during four months immediately preceding, or since, been conveyed, assigned, transferred or delivered by any member of said firm to any person related to him or either of them, by blood or marriage or to any person or persons in trust for said defendants or either of them ? If so state to whom, when, on what consideration, understanding or agreement, and by whom said property is now held. You will annex to your answers hereto full and complete state- ments concerning each of the several matters herein inquired of. Solicitor for plaintiff. 60. Cross-bill by defendant. If the defendant wishes to give a reason why the plaintiff's cause of action is nullified or that he is entitled to affirmative relief he should set it up by filing a cross-bill." Affirmative relief cannot be given on a cross-bill when its subject matter has no relation to that of the original bill and does not grow out of it.™ The filing of an answer and cross-bill in one is bad, and on demurrer, the part which is an answer may be disregarded and the defendant be given fifteen days to file an answer and the plaintiff fifteen days to answer the cross-bill."" Where a cross-bill is answered, the allegations in the bill will be considered in connection with the answer on a question of the sufficiency of the answer."^ An answer to a cross- bill cannot be required until the court has adjudged the answer to the original bill sufficient.'" If the averments in the original bill supply the deficiency an exception to the answer to the cross-bill on the ground of being evasive will not be allowed." If defendant seeks affirmative relief, it is not a conclusive objection that he might have used the matters by way of answer.'"' If the complainant also brings an action at law and the whole controversy may be settled in Equity, the defendant may by cross-bill ask to restrain proceedings at law."" Where a grantor alleges fraud in obtaining a deed and asks for reconveyance, a cross-bill praying for delivery of possession will be dismissed.'" The bill and cross-bill are usually heard at the same time, but the court may dispose of the latter first." By agree- ment of the parties the evidence taken on the bill may be considered on the cross-bill as well."* A bill for an account is an exception "Freeland v. South Penna. Oil Co., 189 Pa. 54; P. & L. Dig., vol. 6, col. 891 1. " Given v. Sands, 216 Pa. 463 ; Sears v. Trust Co., 228 Pa. 126. Other parties, however, may be introduced by it. (Kerin v. Trust Co., 226 Pa. 5S7.) "Union Realty Co. v. Detchon (No. i), 54 Pitts. L. J. 87. '"Mcllvain v. Southw. Market Co., 10 Phila. 371. '■" Purvis v. Leech, 16 W. N. C. 541. " Mcllvain v. S. Market Co., supra. '^ Paxton V. Stackhouse, 4 Kulp 493. "Brady v. Young, 4 Phila. 127. " Phipps v. Kent, i Chester Co. 158. " Randolph's Ap., 66 Pa. 178. ''"McCue V. Holleran, 9 Kulp 433; see also Paxton v. Stackhouse, 4 Kulp 403. EQUITY PLEADING. 597 to the rule above stated as to affirmative relief." The filing of a cross-bill only admits plaintiff's standing where the latter would fall by dismissal of the former." One who is entitled to the fund in suit is entitled to intervene by cross-bill and have his right protected.'" After a finding of facts, it is too late to file a cross- bill.'° A decree upon a bill for an injunction and a cross-bill for relief, granting both, virtually on condition, has been sustained.'^ 61. Seplications — practice concerning. Rule 46 of the Supreme Court Equity Rules prescribes: "Whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto within ten days thereafter, unless he shall set the cause down on bill and answer; and in all cases where the general replication is filed, the cause shall be deemed to all intents and purposes at issue, without any rejoinder or other pleading on either side. If the plaintiff shall omit or refuse to file such repli- cation within the prescribed period, the defendant shall be entitled to a rule upon him to reply within ten days after notice of such rule; on failure to file such replication with notice to the defendant's counsel, the plaintiff shall be deemed to have abandoned his right to traverse the matters alleged in the answer. The replication shall be in substance thus: 'The plaintiff joins issue on the matters alleged in the answer.' " If the replication puts in issue the averments of new matter in the answer it throws upon the defendant the burden of proof as tO' such matter.^ Until the general replication, as above, is filed, the cause is not at issue, so that a question of fact may be certified to the Law Side for a jury trial.' An answer being filed, it is pre- mature to enter a rule to file a replication, within twenty days, the time allowed to file exceptions.' Having failed to obey the rule to file his replication, the plaintiff cannot hang the case up on excep- tions subsequently and the defendant may set the cause down for hearing. But if the exceptions are filed in time, it is otherwise.* After referring the cause a replication may by leave of court, be filed nunc pro tunc^ If the answer admits the facts of the bill a decree will be sustained without the formality of a replication, whose office is only to join issue upon the facts.° 62. No special replication permitted. Rule 47 of the Supreme Court Equity Rules prescribes : "No special replication to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff •"Kelley v. Shay, 206 Pa. 208; McCune v. Lytle, 197 Pa. 404. "Reading Etc. R. Co. v. Reading Etc. R. Co., 11 D. R. 30. (See form in forms of pleadings, infra.) "Dempster v. Baxmyer, 231 Pa. 283. ^ Bole v. Belden Co., 58 Pitts. L. J. 236. "" Am. Etc. Co. v. Kensington Water Co., 234 Pa. 208. ^Naglee's Est., 52 Pa. 154. See Rule 47, infra. "Hazleton Natl. Bank v. Hunter, 10 Kulp 57. 'Purvis V. Leech, 16 W. N. C. 541. * Schooley v. Shoemaker, 4 Kulp 345 ; Bishop v. Cowden, 6 Montg. 201. 'Fleming's Ap., 67 Pa. 18. 'Johnson's Ap., 9 Pa. 416. 598 EQUITY PRACTICE IN PENNSYLVANIA. to amend his bill, he may have leave to amend the s^me upon motion to the court or a law judge thereof in vacation." 63. Amendment of bill after answer, before or after replication. Rule 49 of the Supreme Court Equity Rules prescribes: "After an answer or demurrer is put in, and before replication, the plaintiff may, upon motion or petition, without notice, obtain an order from any law judge of the court to amend his bill within twenty days thereafter. But after the replication filed the plaintiff shall not be permitted to withdraw it and to amend his bill, except upon an order of a law judge of the court, upon motion or petition, after due notice to the other party, and upon proof by affidavit that the same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into the bill, and upon the plaintiff's submitting to such other terms as may be imposed by the judge for speeding the cause." Amendments of the bill will be allowed under Section 2 of the act of May 4, 1864, P L. 775, in Equity as well as at Law,' if thereby a new cause of action is not introduced, or if such amend- ments are not inconsistent with the case made by the bill.' The ruling of the court upon a motion to amend is reviewable but will not be reversed except for "plain and hurtful error." * Where a bill sets up a trust and asks for reconveyance, because the trust has been fulfilled, an amendment alleging fraud will be disallowed." An amendment has been allowed increasing the claim in the same right;" but not to strike out material averments amounting to sup- pression."" An amendment may be allowed changing the grotmd upon which the equity rests if it does not change the cause of suit;" or where knowledge of the facts germane to the cause was obtained after filing;" but not to bring in distinctive independent subject matter, or a party having no interest in the matter of the original bill.'° An action at law cannot be changed to a suit in Equity," unless it can be done under the act of 1907, supra. An amendment will not be allowed relieving the plaintiff from the rules of Equity practice." An amendment verified by the solicitor of a borough may be allowed." After replication an amendment can be allowed only on proper notice and in the discretion of the court." The refusal of an amendment is not cause for reversal, where such ' Mattes V. Ruth, 7 Luz. L. R. 228. 'Chambers v. Waterman, 2 Leg. Gaz. 129. " Dick's Ap., 106 Pa. 589. It will not be allowed five months after final decree dismissing the bill. (Pittsburg v. Railway, 230 Pa. 189.) "Toomey v. Hughes, 19 Phila. 506. "Wilhelm's Ap., 79 Pa. 120. " Prick V. Magee, 10 W. N. C. So. "Aultman's Ap., 98 Pa. 505. " Clark V. Pittsburg Etc. Co., 184 Pa. 188. "' Bergner Etc. Co. v. Coml. Ex., 12 W. N. C. 460. " Mercer v. Blickenderfer, 14 Lane. L. R. 63. "Forward School District's Ap., 56 Pa. 318. "Kane Etc. Case, 177 Pa. 638. "Ricketts v. Felts, 13 Luz. L. R. 209. EQUITY PLEADING. 599 amendment, if allowed, would have availed nothing to the plaintiff.^" Matters of misdescription by mistake are clearly amendable.'" After a demurrer to a bill for multifariousness has been sustained an amendment may be allowed within fifteen days."" Where the cer- tificate of no adequate remedy at law is deemed essential, an amend- ment to supply it, may be permitted."" 64. Amendment as to parties. An amendment will be allowed to bring in other parties whose interests are affected by the cause,"* which may be done by sub- stitution, and it is unnecessary to file a supplemental bill. An attorney who is a necessary party may be added as a defendant;"* or a corporation;"' but service must be made upon it."' 65. Amendment as to relief. If the evidence discloses that plaintiff is entitled to relief on another ground he must amend his bill as to such ground." And so the prayer may be amended to comport with the relief to which the plaintiff is entitled."" Mistakes in the pleadings may be corrected by amendment;"* or in the printing of them."" In a bill for specific performance, the offer to nerform may be added by amendment."" (See Rule 51, supra.) 66. Time of allowance. Amendment may be allowed up to the time of final hearing.' It was said that it is never too late to amend pleadings so long as no injury is done to the opposite party," but it must be done with the leave of court after answer filed," excejpt as to "small matters" mentioned in Equity Rule 52, infra. After sustaining a demurrer amendment is in the discretion of the court.* Amendment of the prayer to remove a cloud on title, may be allowed even after the ""Yocum V. Coml. Natl. Bank Etc., 195 Pa. 411. "'Whiteside v. Winans, 29 Supr. C. 244; Seip v. Werner, 10 Northam. 37- "" Demler v. Porter, 52 Pitts. L. J. 189. ""Taylor v. Cochran, 16 Montg. 166. "* Crawford County v. Merchant's Natl. Bank, 164 Pa. 109. ""Ranck v. Rutt, 8 Lane. Bar 134; De Haven's Ap., 44 Leg. Int. 38; Cowan's Ap., 2 Mona. 609. "" Manufacturer's Etc. Co. v. Douglass, 130 Pa. 283. "' Kennedy v. McCloskey, 170 Pa. 354. " Spangler Etc. Ap., 64 Pa. 387. "'Gamer's Ap., I Walker 438; Woods v. McMillan, 32 Pitts. L. J. 363; McCutcheon v. Smith. 173 Pa. loi. ""Thomas v. Ellmaker, i Parsons 98; Fitzpatrick v. Engard, 4 D. R. 383 ; 17s Pa. 393. "* Rose V. Rose, i Phila. 365. ""Baum V. Wicklein, 2 Woodward 242. ""Chess' Ap., 4 Pa. 52. "Neely v. Jenkintown T. Co., 23 Montg. 113. "Miller v. McDonald, 8 W. N. C. 502. 'Hays V. Dicken, 28 Pitts. L. J. 180. "It cannot be done by setting up a sheet of legal cap in the prothenotar/s office and firing an inkstand at it," said an old-time pleader. ■"Wray v. Hazlett, i Brewster 295. 6oo EQUITY PRACTICE IN PENNSYLVANIA. evidence is closed, if it does not introduce a new cause and the defendant is given the choice of a continuance, or the privilege of giving further testimony." The bill may be amended to conform to what was tried." A rule to show cause why the plaintiff should not have leave to amend, which remains undisposed of until the defendant has closed his case, will be discharged.' After answer filed the plaintiff may have leave to amend on payment of costs, and if his amendment virtually requires a new answer from the defendant the costs of drawing it.' So when an amendment is made after the evidence has been taken, to make the bill conform to such evidence, the plaintiff should pay the costs occasioned by it.' Amendments, to be allowed must conform to the Equity Rules," and must be made in time ;" and, after the evidence is taken, amendment will be refused, if it would prejudice the defendant." Amendments, which conform to the rules, are liberally allowed in the furtherance of justice;" even by allowance of the appellate courts, on reversal;" but not after great and inexcusable laches,'" and without the affidavit that it is not for the purpose of vexation and delay, especially where a new cause is imported.'" But for proper reasons and on a proper affidavit, amendment may be allowed after the cause has been referred and the referee has reported." But it will not be readily allowed nor without explanation of the delay satisfactory to the court." As to formal defects pointed out in the appellate court which might have been amended below, they will be considered as amended; or the objection as having been waived,"" or will allow the bill to be amended,"' assuming that the cause is just and meritorious. After a demurrer to a second bill has been sustained the court may refuse a second amendment."" An amendment does not preclude the court from going back to and examining the original."" "Dillon V. Hegarty, 222 Pa. 166. ' Manegold v. Foundry Co., 17 D. R. 973. 'Muehlhof v. Boltz, 215 Pa. 124. * Porter v. English, i Phila. 85. "Miller v. Billington, 184 Pa. 583. '"Jackson v. Thomson, 203 Pa. 622. " Cumberland V. R. Co. v. Gettysburg Etc. R. Co., 197 Pa. 32. " Peck v. Cochran, 9 Del. Co. 91. '"Miller v. Fulton, 15 York 162; Keogh v. Pittston Etc. R. Co., 8 Lack. L. N. 229. '* GraeflF v. Felix, 200 Pa. 137. '" Richmond Twp. Etc. v. Thompson, 2 Woodward 345. '" Schenck v. Olyphant Boro, i8i Pa. 191 ; Hoofstitler v. Hostetter, 172 Pa- S7S. "Iredell v. Klemm, 17 W. N. C. 426; Matlock v. Mutual Etc. Co., 3 D. R. 138; Dougherty's Ap., i W. N. C. 593; Blood v. Ludlow Etc. Co., 150 Pa. i; Phila. v. Schuylkill Etc. R. Co., 15 W. N. C. 364. "Jones v. Wadsworth, 4 W. N. C. 514; Merriman v. Munson, 134 Pa. 114; McCuUough's Ap., I Mona. 700. " Shamokin V. R. Co. v. Malone, 85 Pa. 25 ; Danzeisen's Ap., 73 Pa. 65. ""Fricke v. Quinn, 188 Pa. 474. ""Darlington's Ap., 86 Pa. 512. ^ Leberman v. Leberman, 18 Phila. 2S4. "" Sallade v. Lykens Twp. Etc., 2 Pearson 51 ; Chambers v. Waterman, 2 Leg. Gaz. 129. EQUITY PLEADING. 6oi 67. Amendments to the answer. An amendment to the answer is discretionary with the court and will be seldom disallowed," is made in good faith and not for the purpose of delay;*" even where there has been some lapse of time, when applied for by executors.^' It may be allowed after replication filed, although a new defense is set up.*' So an amendment was allowed, nunc pro tunc, after a cause was reversed and remitted, to conform with the status of the case and leave given to each party to take further testimony.*' Amendment has been allowed after hearing and before the final argument.*" But, on argument, de- fendant has been refused leave to amend, so as to set up the statute of limitations;" also where the supplemental answer is inconsistent with the answer and the evidence on hearing." 68. Filing and service of copy of amendments. Rule 50 of the Supreme Court Equity Rules prescribes: "If the plaintiff, so obtaining any order to amend his bill after answer, or demurrer, or after replication, shall not file his amend- ments or amended bill, as the case may require, in the prothonotary's office, and serve a copy on the counsel of all other parties to the cause, who appear by counsel within the time appointed for making such amendments, he shall be considered to have abandoned the same, and the cause shall proceed as if no application for any amend- ment had been made." 69. Amendments of course before replication. Rule 52 of the Supreme Court Equity Rules prescribes: "After an answer is put in, it may be amended as of course, in any matter of form, or by filling up a blank, or correcting a date, or reference to a document, or other small matter, and be re-sworn, at any time before the replication is put in, or the cause is set down for a hearing upon bill and answer. But after replication or such setting down for a hearing, it shall not be amended in any material matters, as by adding new facts or defenses, or qualifying or altering the original statements, except by special leave of the court or a law judge thereof, upon motion and cause shown after due notice to the adverse party, supported, if required, by affidavit. And in every case where leave is so granted, the court or the judge granting the same may, in his discretion require that the same be separately engrossed and added as a distinct amendment to the original answer, so as to be distingfuishable therefrom." 70. Amendment in lieu of bill of revivor or supplemental bill. Rule 53, Supreme Court Equity Rules prescribes: "Whenever the circumstances are such as to require a bill of revivor, supplemental bill, or bill in the nature of either or both, or ** Leach v. Ansbacher, 55 Pa. 85; McDaniels v. Cutler, 3 Brewster 57; Johnson v. Sale, 4 Leg. Gaz. 2; McBride v. Fatten, 9 Phila. 271. ** Wilson V. Anderson, 13 Montg. 44. *" Rowe V. Thomas, 8 Kulp 449- *" Wilson V. Anderson, supra; see, however, Williams v. Snyder, 4 Luz. L. R. 273. *" Con. Oil Etc. Co. V. Jarecki Mfg. Co., 157 Pa. 342. ** Wright V. Warrior Run Mining Co., 8 Kulp 356. "■ Rickett's Ap., 21 W. N. C. 229 ; Everhart's Ap., 106 Pa. 349. ""Lexow V. Penna. Etc. Co., 5 D. R. 499. 6o2 EQUITY PRACTICE IN PENNSYLVANIA. where additional or different parties are required to be joined, the same shall be made by way of amendment or addition to the original bill, and copies of such amendments or additions being served on the parties to the original bill, or their counsel on the record, shall entitle the plaintiff to proceed as on an original bill, after service. Where a new party is joined a copy of the original bill and the amendment shall be served as is provided for in the case of original bills. But, where the personal representative of a deceased party is properly required to be joined, it may be done by stating on the record the fact of the death, and the grant of letters to such repre- sentative, and by service of notice of such statement oh such rep- resentative; and the cause, without more delay, shall proceed as if such representative had been originally a party, allowing him ten days to appear." CHAPTER XXXI. THE HEARING AND DECISION. I. 2. 3- 4. Setting down cause for hearing. Hearing in Equity. Rules of evidence. Testimony on order de bene esse and by commission. 5. Practice on return of commis- sion. 6. Final interrogatory — form. 7. AflSdavits, etc., in "the first per- son." 8. Production of witnesses in open court. 9. "Examiner" abolished — testi- mony by rules, etc. ID. Practice in the High Court of Chancery. 11. Evidence by witness, in Chan- cery. 12. Interrogatories. 13. Commissions de bene esse. 14. Bill to perpetuate testimony. 15. Form of prayer. Proof of exhibits. Costs against plaintiffs. Records of courts. Proof viva voce. Impeaching the credit of a wit- ness. 16. 17- 18. 19. 20. 21. Form of exceptions. 22. Suppression of depositions. 23. Objection to evidence on the ground of impertinence. 24. Secondary evidence. 25. Competency of witnesses. 26. Affidavits. 27. Judicial notice — suo motu. 28. Allegations and proofs. 29. Trial in Equity — costs — contin- uance. 30. Stenographers to take testimony. 31. Findings of law and of fact — re- quests. 32. Requests for findings. 33. Conclusiveness of findings of fact. 34. Filing of exceptions. 35. When objections are held waived. 36. Exceptions to be placed on ar- gument list. 37. On appeal, matters excepted to only to be heard. 38. Decree of dismissal. 39. Re-hearing of case. 1. Setting down cause for hearing. Issue having been joined a cause is set down for a hearing on the Equity list, in its order. But if a plaintiff refuses to file a replica- tion, on being ruled to do so, the defendant may have the cause set down for a hearing on the pleadings.' A notice that a cause has been set down for hearing on bill and answer is equivalent to a rule to reply to the answer.* When plaintiff files a replication and moves for a hearing, the defendant is too late to move to dismiss.' A "case stated" is not known in Equity practice, but upon the submission of bill and answer, the court may hear and dispose of the matter on the undisputed facts.* The parties may by consent, ' Schooley v. Shoemaker, 4 Kulp 345 ; Bishop v. Cowden, 6 Montg. Co. 201. 'Jones v. Park, i W. N. C. 17. 'Becker v. Lebanon Etc. R. Co., 4 Supr. C. 372. 'Collins V. Stone, 11 D. R. 432. 603 6o4 EQUITY PRACTICE IN PENNSYLVANIA. so bring their cause before the court on bill and answer and obtain a decree.^ A bill taken pro confesso must nevertheless be brought on to be heard for a decree.' 2. Hearing in Equity. Rule 60 of the Supreme Court Equity Rules prescribes : "The hearing of cases in Equity shall be conducted before the Judge sitting as Chancellor or before a Referee, and the office of Master in Chancery is hereby discontinued, except in proceedings where decrees or interlocutory orders are to be executed, or their execution supervised by an officer of the court; as in partition, the sale of real estate, the execution of deeds and the like. When a case in Equity is at issue upon demurrer it shall be placed on the argument list then next to be heard. When it is at issue upon answer it shall be placed on the Equity trial list. Cases upon the trial list shall be heard in court in the same manner that actions of law wherein trial by jury has been waived, are now heard by courts of' law. The evidence shall be given or read in open court, and ex- ceptions to the admission or rejection of evidence, and of witnesses, may be taken in the same manner, and with the same effect, as is now practiced in the trial of actions at law. The judge shall sit continuously during the trial of causes in Equity in the same manner as during the trial of actions at law." ' 3. Bules of evidence. In Equity as well as at Law the allegations and proofs must be set forth and support the same cause of action or defense.' The burden of proof is upon him who alleges, as a rule.' If a con- fidential or fiduciary relation is shown the burden shifts. The rule has been fully stated, supra, in the preceding chapter, that when the answer is responsive to the bill, it must be overcome by the testi- mony of two witnesses on the material points, or one witness and corroborating circumstances equivalent to the second witness." The answer of a corporation, on oath of a proper officer, comes within the rule." 4. Testimony on order de bene esse and by commission. Rule 54 of the Supreme Court Equity Rules prescribes: "An order to take the testimony of ancient, infirm and going wit- nesses de bene esse, before any justice of the peace or other person authorized by law to take depositions in other cases, may be entered by either party in the prothonotary's office of course, at any time 'Beale v. Bucher, 13 Supr. C. 474; Reynolds v. Bank, 112 U. S. 409. "Barbour's Ch. Pr. 372; Tussey v. Clark, 45 Supr. C. 433. ' As to trials by the court without a jury, see vol. i, Johnson's Pr., p. 64. ' Luther v. Luther, 216 Pa. i ; Zook v. R. Co., 206 Pa. 603 ; Thompson's Ap., 126 Pa. 367; Woods v. McMillan, 32 Pitts. L. J. 363; Summers v. Shryock, 46 Supr. C. 231. " Pusey v. Wright, 31 Pa. 387. " Hartley's Ap., 103 Pa. 23 ; Kane v. Schuylkill Etc. Co., 'igp Pa. 198 ; Mason v. Smith, 200 Pa. 270. "Gantt V. Cox & Sons Co., 199 Pa. 208; Riegel v. Amer. Etc. Co., 153 Pa. 134. THE HEARING AND DECISION. 605 after the service of process, stipulating a reasonable notice to the adverse party. So of an order for a commission to any place within the State of Pennsylvania, more than forty miles distant from the county seat of the respective county, or to any other state or territory, or to foreign parts. But in case of a commission, the interrogatories must be filed in the prothonotary's office at the time, and written notice of this last order and of the names of the commissioners must be served on the adverse party at least fifteen days before the com- mission issues, in order that he may file cross-interrogatories, or nominate commissioners on his part, if he shall deem it desirable : Provided, That testimony so taken shall only be admitted on the hearing of the cause when the circumstances are such as would excuse the production of such witnesses and make admissible de- positions taken de bene esse on trial by jury in the same courts." 5. Practice on return of commission. Rule 55 of the Supreme Court Equity Rules prescribes: "Upon the return of any commission executed, the same may, at the application of either party, be opened by any one of the judges of the court, in term time or vacation, or by the prothonotary ; and the prothonotary shall give notice to the parties of the return of any commission, and of the filing of depositions taken before any justice of the peace, or other person, and the parties shall, within ten days after service of such notice upon them respectively, enter exceptions in writing, if they have any, to the form of the interroga- tories or the manner of the execution of the commission, and the taking of the depositions, or be thereafter precluded from the benefit of such exceptions, which exceptions when so taken may be put down for hearing by either party giving forty-eight hours' notice to his adversary thereof, or such other notice as the court may direct." " 6. Final interrogatory — ^form of. Rule 56 of the Supreme Court Equity Rules prescribes: "The last of the interrogatories to take testimony shall be stated in substance, thus: "Do you know, or can you set forth any other matter or thing, which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examination, or the matters in question in this cause? If yea, set forth the same fully and at large in your answer." This follows the orders in "the High Court of Chancery" of England. In short, these rules are based on such orders and practice. 7. Affidavits, etc., to be in "the first person." Rule 57 of the Supreme Court Equity Rules provides: "All affidavits and depositions shall be taken and expressed in the first person of the deponent ; and shall be divided into paragraphs, and each paragraph, as nearly as may be, confined to a distinct portion of the subject." ' For practice on Commissions, etc., see vol. i, Johnson's Practice. 6o6 EQUITY PRACTICE IN PENNSYLVANIA. 8. Production of witnesses in open court. Rule 58 of the Supreme Court Equity Rules prescribes: "On all interlocutory applications, as for an injunction, or the appointment of a receiver, either party shall be at liberty to produce his witnesses for examination in open court at the hearing of the application, as to all such matters as could be proved by their affidavits, subject to cross-examination as in other cases, or, upon reasonable notice, to require the other party to produce his witnesses for examination in open court, unless sufficient cause be shown to the contrary." Two bills may be tried together by agreement of the parties, and a single adjudication is not erroneous, the same questions being involved, if the facts are found separately and separate decrees are entered." 9. "Examiner" abolished — ^testimony by rule, etc. Rule 59 of the Supreme Court Equity Rules prescribes: "The office of 'Examiner to take testimony' is hereby discontinued, except in proceedings conducted under the directions of a statute by which duties are imposed upon an Examiner, as in bills to perpetuate testimony and similar cases. All testimony in cases in Equity shall be taken in the same manner as is now practiced in courts of law; upon rule, commission, letters rogatory, or in open court. Rules may be entered for the purpose of taking testimony on the Equity side of the several Courts of Common Pleas, in the same manner, and with the same effect, as upon the Common Law side of the same courts." 10. Practice in tbe High Court of Chancery in England. Rule 94 of the Supreme Court Equity Rules prescribes : "In all cases when these rules or those prescribed by other courts do not apply, the practice of the courts shall be regulated by the present practice of the High Court of Chancery in England, so far as the same may reasonably be applied consistently with the local circumstances and local convenience of the district where the court is held, not as positive rules, but as furnishing just analogies to the practice." What are here called "rules" are the "orders in Chancery," which are to be found in the English Chancery practice books, after which our own rules are modeled. 11. Evidence by witnesses, in Chancery. Issue being joined by replication or otherwise if a decree cannot be supported upon bill and answer, it is necessary to take the testi- mony of living witnesses, and this is done under the rules of court, and as respects the character of the testimony and the manner of eliciting it, the rules of law, govern. Reference is here made to a recent work by Dr. Wm. Trickett, Dean of Dickinson Law School, where the subject is discussed with great learning and perspicacity. Interest no longer disqualifies a person as a witness; it does not affect the competency though it may the credibility of the witness. 'Yerger v. Hunn, 231 Pa. 245. THE HEARING AND DECISION. 607 Many of the old refinements have disappeared and the books which treat of evidence by living witnesses are more entertaining than profitable. Reference, however, is made to Wharton's work on Evidence, which, having been written by an eminent Pennsylvania barrister and author, is a book to which every practitioner should have recourse. 12. Interrogatories. The method of eliciting testimony by interrogatories has been characterized by Lord Erskine as "a frail and imperfect mode of examining into facts." * Interrogatories to the defendant under our rules, are no longer made a part of the bill proper, but attached as a separate paper and limited in application. But few suggestions are necessary. The prime rule to be observed with interrogatories is that they must not be leading, or they will be suppressed.' It is essential, however, that the witness have his attention first drawn to the subject — this is, however, not leading to his answer. Phillips said:' "Leading questions are such as instruct the witness how to answer on material points." This definition has been criticized on the word "instruct" but it is used in the sense of "apprise," as indicating anticipatively what answer is sought. In other words, a question must not be suggestive of the answer desired. So, in trials at law, a question in the alternative "whether or not" the fact be so or so, has been held not to be leading. A question put directly, "have you not seen or heard thus:" has been held distinctly leading to the answer. But if it were put: "State whether or not you saw or heard, and if so, what you did see or hear," leaves the witness in equilibrio, as to his answer. Interrogatories which are impertinent or scandalous are also liable to be suppressed. Since all Equity pleadings must be printed it is well to suppress all prolixity, circumlocution, didactics, figures of rhetoric, inveighment or inuendo; for if any of these be excepted to, for impertinence, the poor pleading may have been printed in vain, for a cold, critical, analytical judge may suppress it, at the cost of the party. Prolixity of pleading was formerly due to covetousness of the draughtsman who was paid according to quantity rather than quality. Now, however, a solicitor charges according to the contract or the value of his services in the cause; and if he can state in a dozen words what was formerly stated in as many sentences, he is entitled to pay for his economy of expression. One more com- ment is important. The final interrogatory, the gleaner, as it were, under our Equity rules, must not be in the form of the old practice, viz.: That if he knows aught else that would be of advantage to the party interrogating, he shall state it. This general clean up must read "to the advantage of either party." This order is copied from one adopted by Lord Brougham,* and in England, where it 'White v. Wilson, 13 Vesey Jr. 87. The orders which govern Chancery practice are here concisely stated, with the citation of English Chancery Cases, as a matter of instruction. "Nash V. E. I. Co., 2 Fowl. 154; Aylward v. Kearney, 2 Ball. & B. 463, 'Ev., vol. I, 255. *Dec. 21, 1833. 6o8 EQUITY PRACTICE IN PENNSYLVANIA. thus originated, the pleader may avoid its general and perhaps par- ticular effect, by not putting it at all.' In the cross-interrogatories examination must be confined to the matter questioned in the chief interrogatories, the same as at law.' In the examination of witnesses upon interrogatories, the Examiner puts each interrogatory distinctly and writes down the answer in the first person, under our Equity rules. After the examination is completed the examiner reads over the same to the witness and makes such correction as the witness desires to have made, and then the latter signs the same. The testimony thus taken cannot thereafter be altered except by leave of court, or an order referring it back to the examiner, which is sometimes desirable. Of commissions to take depositions see Vol. i, Johnson's Practice, P. 632, et seq. A roving "master" with powers to sit and subpoena witnesses in every land and clime is unknown in English law. But commissions abroad or "beyond the seas" in countries where comity is observed have long been recognized. The retrospective divorce act of 191 1 (see this Vol. under "Divorce"), passed to dispense with jury trials in disputes of fact between the parties has been char- acterized as an arrant and presumptuous violation of the Constitution. The arraignment is severe, but the new constitution was principally ordained in order to cut off special legislation to fit a particular cause or effectuate a particular remedy, which a law in general terms no less does, when it is passed to cover a case pending. There is a case in which a commission was sent to even an enemy's country;' but usually it is to be executed at the nearest neutral post." In a bill for perpetuating testimony, a defendant who had cross-examined, without producing witnesses, afterwards took out a commission abroad.' A commission sent from Chancery to Sweden, was by the king of that country ordered to be taken before his own courts, but since it was taken openly. Lord Hardwicke held that it was improperly executed and declared he would not send another to that land." The supervision of the matter by the courts of the country is fundamental. As long since as the I2tk year of James I. in a suit in Ghent (1614-5), Lord Ellesmere, Chancellor, ordered a commission and the depositions to be returned to Chancery and exemplifications thereof to be used elsewhere." Depositions abroad must be translated into English and thus returned to Chancery." If they be taken in the foreign tongue the court will appoint a notary to translate them." 13. Commissions de bene esse. In Equity as at Law, when witnesses are aged, infirm or going, the examiner may be commissioned to take their evidence de bene ° Cover V. Lucas, 8 Simons 200. 'Dean Etc. v. Sir S. Stewart, 2 Atkyns 44; Sandford v. Seymour, 2 Moll. 392. 'Cahill V. Shepherd, 12 Vesey Jr. 335. ' V. Romney, Ambler 62. 'Sheward v. Sheward, 2 Vesey & Beames 116. " Gason v. Wordsworth, 2 Vesey Sr. 336. "Sanders' Orders, 87-8. "Ld. Belmore v. Anderson, 4 B. C. C. go. " Newland v. Horseman, 2 Ch. Ca. 74. THE HEARING AND DECISION, 609 esse, to be used only in case their attendance cannot be had on the hearing." This subject has been fully treated in Vol. i, Johnson, which see. 14. Bill to perpetuate testimony. Of quite ancient origin in Chancery is the bill to perpetuate testi- mony of witnesses against such time as it may be needed on the hearing of the cause. In the quaint old English it was termed "restrayntes mad by the Lords Chancellors of Englande for the tyme beinge for the examinacion of witnesses in a perpetual memorye upon causes them moving by vertue of a writ of dedimus potestatem issuing out of the Courte of Chancerye." By order in 3d. and 4th. Philip and Mary (1556), a bill was required to be framed in the cause by the party.' Mitford on Pleading in Chancery thus states the requisites of such a bill: "It must state the matter touching which the plaintiff is desirous of giving evidence and must show that he has some interest in the subject and pray leave to examine witnesses touching the matter so stated, to the end that their testimony may be preserved and per- petuated." " Also that the facts cannot be immediately investigated in a court of law ; "or that before the facts can be investigated in a court of law, the evidence of a material witness is likely to be lost, by his death "or departure from the realm." In siich case a commission be bene esse may also be necessary." "To avoid objec- tions to such a bill, framed on the last mentioned ground only, it seems proper to annex to it an affidavit of the circumstances by which the evidence is in danger of being lost." " 15. Form of prayer. The usual form of prayer in Chancery is : That the plaintiff may be allowed to examine his witnesses, with respect to (setting out the several matters and things, etc.), so that the testimony of the said witness may be preserved and per- petuated and that the plaintiff may be at liberty, on all future oc- casions, to read and make use of the same as he shall be advised. Commissions granted in perpetuam rei memoriam were by an old order of Nicholas Bacon in the reign of Elizabeth (3d. year, 1560), limited to aged and impotent witnesses. But the scope was enlarged by statute. The fourteen days, or "fortnight" notice of time and place to take the testimony is contained in the order above mentioned and appears in our Equity Rules, supra. It was also ordered: "i. The partie that praieth publication of the witnesses examined as aforesaid shall first by himself or some other take othe that the same witnesses are necessarilie to be given in evidense on his behalf." "2. Othe also to be taken that the same witnesses be either dead " Cann v. Cann, i Peere Williams 567. See rule supra. " Sanders' Orders 14-5. " Angell v. Angell, i Simons & Stewart 83. " Frere v. Green, 19 Vesey 319. "Angell V. Angell, i Simon & Stuart 83; Mitford on PI. in Ch., 51-2-3. Vol. 4 Practice — ^39 6io EQUITY PRACTICE IN PENNSYLVANIA. or so aged or impotent as they cannot travaill to testify viva voce without danger of lief." " This othe being taken, a Master of the Chauncery first to open the commission and consider whether this order before written hath been observed in all poynts. And thereupon publicacion to be graunted: Provided, That no such deposicions shall be given in evidense, but against the persons that were warned by precept as aforesaid, or against their heirs or assignes." 16. Proof of exhibits. Exhibits, or documents, or articles, not admitted by the parties may be proved in the regular way before the examiner or referee, as follows: "Look upon (the deed or writing) produced and shown to you at the time of this your examination and marked Exhibit A (or B, etc.), and state whether or not it is the same (or any and which of them at or about, any and what time or times), signed, sealed (if so), and delivered by any person and by whom, in your presence at, etc." 17. Costs against plaintiff. When the plaintiff fails in his evidence or his allegations are proved untrue, he will suffer in costs and damages. At one time during the great rebellion, if the plaintiff were a pauper he was ordered to pay good costs or be whipped." 18. Records of courts. In every court its own record requires no proof, but if the record is to be used in another cause in another court, it is necessary that the record be exemplified under the seal of the prothonotary or clerk, or an examined and admitted copy be produced. The manner and form of exemplification of records may be found in Volume 3, John- son's Practice, P. 98. Formerly the whole record of the cause was required to be certified, but now so much as is pertinent may be exemplified, for the purpose. So Lord Kenyon was of opinion "that a sentence of divorce a mensa igt thoro in the Spiritual Court was sufficient without the libel and all the proceedings." " The proof of a deed or other attested document can only be made on oath of the subscribing witness, if living; unless thirty years have elapsed when the document proves itself on the presumption that all the parties are dead. Lord Ellen- borough said : "This is a general rule, as fixed, formal and universal as any that can be stated in a court of justice. * * * It is a clear, established rule of law that a party who would prove the execution of any instrument that is attested, must lay the groundwork by calling the subscribing witness to prove it, if he can be produced and is capable of being examined." "After thirty years, however, the party is not set to find out even whether the witnesses are living: The deed then proves itself. Where the name of a witness to a document was not written by himself but by another person, and in pencil merely; held, at law, ^ Pluckrose v. Piatt, cited in Sanders' Orders, 219. " Stedman v. Gooch, i Esp. Rep. 6. " Rex V. Harringworth, 4 M. & S. 3S0. THE HEARING AND DECISION. 6li that it was not prima facie evidence that he was an attesting witness so as to render it necessary to call him, and therefore, that the signatures of the parties might be proved by other evidence.'"^ But if an attesting witness be blind, it is no reason to dispense with him, since he may remember the circumstances." If the witness recognizes his signature, although he has forgotten the transaction, it is suiificient proof." If the attesting witness denies the deed other evidence may be resorted to. Lord Mansfield quoted Sir Joseph Jekyll as the first to rule so.** In Equity the testimony of one attesting witness is enough, though there are several, except in the case of a will. If the deed be signed and sealed and the witness recognizes his signature, delivery will be inferred, if he. does not distinctly remember." As to delivery, a word or gesture is sufficient.^ When the instrument is not under seal, it becomes necessary to prove that the party actually signed, or that some one signed for him in his presence at his request; or that he acknowledged or adopted it." If the one who signed took the instrument and said to those he called in that that was his hand, ■ it was held a sufficient proof by Lord Hardwicke." 19. Proof viva voce. In Chancery exhibits may be proved viva voce, under the limita- tions of the rules. This court asserts the right, but rarely exercises it, to examine a witness who has come to prove an exhibit, or puts questions suggested by the solicitor,'" but forbids cross-examination." In order to secure attendance of a witness a subpoena granted on motion, by the court, is necessary, and personal service and tender of fees, etc."^ 20. Impeaching; the credit of a witness. Evidence to impeach the credit of a witness is admissible in every tribunal. This practice has come down to us from the civil law, where after the testimony in chief, the parties were permitted to invalidate that if they could, and, in the next place fortify it, the maxim being: In testem testes, et in hos, sed non datur ultra. The Court of Chancery, in its primaeval institution adopted nearly the same line of practice which the civilians had previously established.'" Equity proceeding in a different manner than the Law, allows a ^Gresley Eq. Ev., note b, p. 174, citing Cassons v. Skinner, 11 Mee. & W. 161. "Crank v. Frith, 9 Carr. & P. 197. °*Doe d. Counsell v. Caperton, 9 C. & P. 114. i" Abbot v. Plumbe, i Douglass 216; Talbot v. Hodson, 7 Taunton 251. "Burling v. Patterson, 9 C. & P. 570; Burrowes v. Locke, 10 Vcsey Jr. 470. Thoroughgood's Case, 9 Coke's R. 137a. See Exton v. Scott, 6 Simons 31. "Wallis v. Delancey, 7 T. R. 266; Jones v. Mars, 2 Camp. 305; Levy V. Wilson, S Esp. R. 180. "Grayson v. Atkinson, 2 Vesey Sr. 457. "Turner v. Burleigh, 17 Vesey Jr. 355. " Ellis V. Deane, 3 Moll. 63. "Gresley Eq. Ev., p. 191. "Hindes' Ch. Pr. 373. 6i2 EQUITY PRACTICE IN PENNSYLVANIA. greater latitude to arrive at the truth." Instead of cross-examination to lay the foundation for impeachment, articles or exceptions are filed with the examiner or referee, and upon certificate thereof, a special motion, which need not always be supported by affidavit." If evidence to impeach be taken in chief, it will be suppressed.*" After having submitted articles to impeach, it is too late to move to suppress the deposition of the witness." 21. Form of exceptions. Hinde's Chancery Practice" contains a form of articles which is as follows: Articles exhibited by G. S., complainant, in a certain cause now pending, and at issue, in the High Court of Chancery, wherein the said G. S. is complainant and W. S. defendant, to discredit the testimony of A. M. and E. M'D., witnesses examined before W. K., Esq., one of the examiners of the said court, on the part and behalf of the said defendant. I. The said G. S. doth charge and allege that the said A. M. hath since her examination in the said cause, owned and acknowledged that she is to receive or be paid, and also that she doth expect a considerable reward, gratuity, recompense or allowance, from the said defendant, in case the said defendant recovers in the said cause, or the said cause be determined in his favor. And that the said A. M. is to gain or lose by the event of the said cause. II. The said G. S. doth charge and allege that the said A. M. and the said E. McD. are persons of bad morals and of evil fame and character and that they are generally reputed and esteemed to be so, and unworthy of belief, and that they have no regard to the nature or consequences of an oath, and that they are both persons whose testimony is not to be credited or believed. In chancery, as at law, it is incompetent to ask a witness why he would not believe a person whose veracity is challenged, under oath, but only the general question, whether or not he would believe him so, is allowed.^ The latter is competent.'' If particular facts are stated the articles will be suppressed as scandalous.' An examination as to discredit or credit may take place at any time prior to the hearing;* before publication," or even several months after;' but a commission abroad, for this purpose was never allowed, on account ^ Gill V. Watson, 3 Atkyns 522. '"Russell V. Atkinson, Dickens 532; Watmore v. Dickenson, 2 Vesey & Beames 267. "Mill V. Mill, 12 Vesey Jr. 406. "Malone v. Morris, 2 Moll. 324, " Hindes' Ch. Pr., 374-S. ' Purcell v. McNamara, 8 Vesey Jr. 327. 'Lord Eldon in Carlos v. Brook, 10 Vesey 49; Wood v. Hammerton, 9 Vesey Jr. 14S; White v. Fussell, 19 Vesey Jr. 127. 'Anon. 3 V. & B. 93; Bray v. Bulkby, Dickens 288; Mill v. Mill, 12 Vesey 406. * White V. Fussell, I Vesey v. Beames, 151. " Boning v. Sprott, (Exch.) Bunb. 46. "Wood V. Hammerton, 9 Vesey Jr. 14s; White v. Fussell, 19 Ves^ Jr. 127. THE HEARING AND DECISION. 613 of the delay, said Lord Hardwicke.' A party is not allowed to discredit his own witness at law. All he can do is to be surprised." 22. Suppression of depositions. When depositions have been published the solicitor should examine the same carefully to ascertain whether any parts are objectionable, and if so he may except thereto for scandal or impertinence, or any irregularity in the taking or return of them. Scandalous matter will be stricken out, but impertinent matter may not be, in the discretion of the court.' Irregularities in examinations are treated with great strictness in Chancery, Lord Eldon saying: "In whatever way the knowledge of the fact reaches the court," it must act. A re-examination will seldom be refused, in such case, and meantime the cause will be ordered to stand over." But, if the objection be not made on discovery, but put off to the hearing the rule is not so strictly enforced. 23. Objection to evidence on the gi^onnd of impertinence. ■'Impertinence, generally considered, is that which is immaterial, and generally considered, what is material is not impertinent," said Alexander, C. B." This is a confusion of ideas, however. For testi- mony may be pertinent or relative to the issue and yet immaterial in deciding it. "Hearsay" may pertain to the matters in issue and yet be immaterial and inadmissible as evidence. In other words, it has no weight to decide. So conversations and admissions unless brought home to the party and set up in the pleadings can have no materiality. The objection to testimony is therefore that "it is impertinent, immaterial and irrevelant," each word having its own peculiar force, in application, however defined ; and if, when measured by any of the terms it proves to be inadmissible, it must be ruled out. This could not be so, if the terms were synonymous and meant exactly the same. Mere prolixity is not impertinence. Evidence has been held to be impertinent when it does not relate to the matters in the pleadings ; when it relates to matters not in issue, although contained in the pleadings, and when it relates to matters, which, although in issue, are immaterial." But this subject is so well defined now in our practice that it requires no further notice. 24. Secondary evidence. It is likewise so generally understood that the best evidence of which the cause admits must be produced, that it requires no space to cite authorities. Until the grounds be laid in any proceeding at Law or in Equity, to show that the primary evidence cannot be produced, secondary evidence is inadmissible. If an attempt be made to introduce secemdary evidence, without such explanation, it gen- 'Callaghan v. Rochfort, 3 Atkjms 643. "Holdsworth v. Dartmouth, M. of 2 Mee. & R. 153. •Mill v. Mill, 12 Vesey 406. "Shaw V. Lindsay, 15 Vesey 380; Hood v. Pimm, 4 Simons lia "Bally V. Williams, i McCl. & G. 337- "Gresley Eq. Ev. 229. 6i4 EQUITY PRACTICE IN PENNSYLVANIA. crally reflects upon the party thus offering; for it naturally raises the suspicion of bad faith. 25. Competency of witnesses. The subject of competency of witnesses is now by act of the legislature reduced to a minimum and is discussed in Vol. 3, John- son's Practice. By special act under the form of a general law, even the Atheist, who believes in nothing but himself and his near- bys, can now no longer be questioned upon his incompetency to take the oath of witness, because he believes in no Theocratic sanction which punishes the perjurer, as the truth-teller is rewarded. This pernicious law, adverted to in previous volumes, was not passed to meet a popular demand but, like some of the laws of "recent years, to meet the demands and satisfy the wants of a particular case or person. It is but an evidence of the low state of morals and lack of sense of public duty which pervades the law-making mechanism of Pennsylvania. 26. Affidavits. An affidavit being taken ex parte does not rise to the dignity of a deposition as evidence, because lacking in opportunity to cross- examine," although perjury may be assigned upon it, when it is couched in positive terms. The proper use of an affidavit is to support a motion or petition," and sometimes to assist on the investi- gation of a well-defined subject before a Master and for the security or satisfaction of the court, that the matter is presented in good faith. Under our practice and rules of court, an affidavit may and does become evidence for certain purposes, as already explained in Vol. I, Johnson's Pr. Every affidavit should be entitled as in the cause or the matter to which it relates, and in the court wherein it is presented, which fixes its character as having been sworn in a judicial investigation and as to that which is material. 27. Judicial notice — suo motu. There are many things which courts take cognizance of, on their own motion, and evidence thereof is not required. Such are the alternation of the seasons, the calendar or day of the month, public statutes, proclamations, its own records, judicial precedents, presump- tions of law." 28. Allegations and proofs. The old and familiar rule that the proofs in a carse must corres- pond with and measure up to the allegations applies in Equity as well as at law.'* But an immaterial variance will not be permitted "James v. Biou, 2 Simons & Stuart 600. " Gresley Eq. Ev., p. 54°. ^ Clendenning v. O'Malley, I Con. & L. 363. " Whitechurch v. Gelding, 2 Peere Williams 541. "These subjects are discussed in the various text books on evidence. See Best on Presumptive Evidence; also, Bierly on Presumptions of Law and of Fact, Penna. "Wood V. McMillan, 32 Pitts. L. J. 363; Sloan v. Reese, 7 Del Co. 318; Sloan v. James, 13 Supr. C. 399 ; Zook v. Penna. R. Co., 206 Pa. bo3. THE HEARING AND DECISION. 6is to defeat the Equity of the cause." The rule is, however, that a plaintiff cannot state one case in his bill and prove an entirely different case at the hearing."^ For example, if the bill alleges fraud as a ground of cancellation of a deed, a decree cannot be entered on the ground of mutual mistake."'' He cannot materially shift his ground of relief."'^ 29. Trial in Equity — costs — oontinuance. Rule 6i of the Supreme Court Equity Rules prescribes: "A trial in Equity shall be conducted, as near as may be, as a trial at law is now conducted. When entered upon, it shall not be interrupted or postponed except for cause shown to and approved by the court or referee ; and the costs of all such postponements shall be paid by the party at whose instance the same may be ordered, and shall not abide the result, or be taxed in the general bill of the suc- cessful party. Continuances for cause may be made when the list is called, with or without terms, as is now practiced in the courts of common law." When, as in all "church militant" controversies, the heat of the conflict places the facts in doubt, as to where the majority of the laymen interested were or might be, and the Chancellor finds that "the wisdom of Solomon would be meagre to ascertain" it, he cannot, although by agreement of the parties, turn Chancery into an election booth and thus endeavor to ascertain it. Justice Stewart"'^ said this was "a clear abdication of judicial function and authority. * * * It is the proper function of the Chancellor to resolve such doabtful questions in the light of the evidence, etc." 30. Stenog;rapliers to take the testimony. The amended rules of 1894 prescribed: "The evidence on the trial of cases in equity may be taken by stenographers in the same manner and under the same rules as to noting exceptions and filing the notes of the trial as are in force on the law side of the several courts." 31. Findings of law and of fact — requests for. Rule 62 of the Supreme Court Equity Rules prescribes : "The counsel for the respective parties may present to the judge, sitting as Chancellor, requests for findings both of fact and law. After hearing the evidence, and the suggestions or argument of counsel, the Judge may adopt or affirm these requests or any of them, qualify or deny them, or state his findings of fact or of law in his own language. The requests so presented, with the answers thereto, and the findings of the Judge, both of law and fact, shall be filed by the Prothonotary and become thereby part of the record of the court in the said case." "Kennedy v. McCloskey, 170 Pa. 354; Gaines v. Brockerhoff, 136 Pa. 13s ; Rickett's Ap., 21 W. N. C. 229 ; Llewellyn v. Cauffiel, 215 Pa. 23. "a. Bishop V. Buckley, 33 Supr. C. 123. "b Miller v. Piatt, 33 Supr. C. 547- ^'^ O'Conner v. Rexford, 34 C, C. 179. ^'^ Mazaika v. Krauczunas, 229 Pa. 47. See a later phase of the case, not reported at this time. 6i6 EQUITY PRACTICE IN PENNSYLVANIA. If the finding of the only fact in issue is embodied in the decree, this has been held sufficient;^ but in later cases the better practice was laid down, viz. : That the findings of facts should be separate and distinct from the findings of law."" A finding "that the evidence does not show that the plaintiff is entitled to the relief prayed for," is not a sufficient finding of fact.'° The appellate court, will not, however, reverse the findings of fact, except for manifest error.^ In finding the facts the judge must consider only the evidence contained in the case and not import into it evidence in another case," unless the parties agree to have it done so.''° If, upon appeal, the finding of facts and the record of the court below are so meagre that the court cannot discover whether or not there was a complete and adequate remedy at law, it will be reversed and remitted.^ In considering the facts, the court will lean towards that version which is consonant with business usages." 32. Bequests for findings. As in a case at law, the court is bound to answer each request for a finding of fact or a conclusion at law, for upon this an appeal hinges. If he answers a request in his general findings, he must point it out and indicate' in answer to the request that he has done so.™ He should answer each separately in numbered paragraphs corresponding with the requests ;" and he should adopt, affirm, qualify or deny each distinctly." If he does not obey this order of the Su- preme Court, it will be sent back to him with a direction that he obey the Equity rules." This applies to material facts and not to immaterial, when no harm is done, though even then he should obey the rule.'" 33. Conclusiveness of findings of fact. The findings of fact by a judge as Chancellor, whilst not con- clusive, will not be upset except for manifest error," although the " Fitzsimmons v. Robb, 173 Pa. 645. '"Pfeifer v. Rahiser, 2 Supr. C. 355; Miller v. Cockins, 231 Pa. 449; Brobst V. Albrecht, 3 Berks Co. 103. " Schmidt V. Baizeley, 184 Pa. 527. '"Stockett V. Ryan, 176 Pa. 71; Mackintyre v. Jones, 9 Supr. C. 543; Comth. V. Stevens, 178 Pa. 543 ; Hancock v. Melloy, 187 Pa. 371 ; Strohl V. Ephrata Boro, 178 Pa. 50 ; Myersdale Etc. R. Co. v. Penna. Etc. R. Co., 219 Pa. 558. "* Gribbel v. Brown, 202 Pa. 10. "° Andrews v. Lehigh Etc. Co., 202 Pa. 639. " Gray v. Citizens' Gas Co., 206 Pa. 303. "White V. German Etc. Co., 12 D. R. 293. ''Hoyt V. Kingston Coal Co., 203 Pa. 509; Reid v. Reid, 237 Pa. 171; See forms of practice in this case, supra. "Pittsburg Etc. Co. v. Penna. S. Co., 208 Pa. 37; Gaynor v. Qvrinn, 212 Pa. 362; Hastings Water Co. v. Hastings Boro, 216 Pa. 178. °° Lehigh V. Coal Co. v. Everhart, 206 Pa. 118; Dickey v. Norris, 216 Pa. 184. " Hoyt V. Kingston Coal Co., 203 Pa. 509 ; Reid v. Reid, C. 237 Pa. 171 ; Mt. Carmel v. Phila. Coal Etc. Co., 33 and 34, Jan'y T., 1912. '" Sloan V. James, 13 Supr. C. 399 ; Zerbey v. Allan, 215 Pa. 383. '^John Church Co. v. Guernsey, 190 Pa. 284; Fitzsimmons v. Robb, 193 Pa. 518; Greenawalt v. Dixon, 194 Pa. 363; Goggins v. Risley, 13 Supr. C. 316; Dilworth v. Kennedy, 201 Pa. 388; Wolf v. Christman, 202 Pa. (Continued p. 617.) THE HEARING AND DECISION. 617 evidence may be conflicting" especially where the credibility of the witnesses is involved as a factor.'" But the rule of comity has been somewhat strained where the preponderance of proof should have been a decisive cause for reversal. The finding upon an incidental question is not conclusive against an action for damages."*' 34. Filing of exceptions. Rule 64, Supreme Court Equity Rules, prescribes: "Exceptions may then be filed by either party within ten days, which exceptions shall cover all objections to rulings on evidence, to findings of fact or law or to the decree in the case." Exceptions to the discussion in the opinion are not in order."** 35. When objections are held waived. Rule 65 of the Supreme Court Equity Rules prescribes: "If no exceptions be filed, all objections shall be deemed to be waived and a final decree entered by the prothonotary as of course." If no exceptions are taken upon the record and error is not specifically assigned, on appeal the court will assume that the findings of fact are correct." 35. Exceptions to be placed on argument list. Rule 66 of the Supreme Court Rules prescribes : "If exceptions shall be filed, they shall be heard upon the argu- ment list as upon a rule for new trial, and the judge or the court in banc shall have power to sustain or dismiss any of such exceptions and confirm, modify or change the decree accordingly." A final decree "by the court" will not be reversed because it does not appear that the court did not sit in banc to pass on exceptions." 475; Penna. Co. v. Ohio Etc. Co., 204 Pa. 356; O'Brien v. Collins, 205 Pa. 651; Kelley v. Shay, 206 Pa. 215; Watkins v. Hughes, 206 Pa. 526; Byers v. Byers^ 208 Pa. 23 ; Gundaker v. Ehrgott, 209 Pa. 284 ; First Natl. Etc. v. McKinley Coal Co., 210 Pa. 76; Obney v. Obney, 26 Supr. C. 116, Eisaman v. Eisaman, 201 Pa. 11 ; Luther v. Standard Etc. Assn., 216 Pa. 10; Newman v. Shreve, 235 Pa. 450; Gibson v. Johnson, 235 Pa. 115; North Shore Etc. R. Co. v. Penna. Co., 23s Pa. 395 ; Edison Etc. Co. v. Tamaqua Etc. Co., 218 Pa. 237; Lecher v. Beyer, 218 Pa. 574; Maust v. Penna. Etc. Co., 219 Pa. 568; Strause v. Berger, 220 Pa. 367; Osterman V. Patterson, 219 Pa. 162; Forsyth v. Col. Tr. Co., 220 Pa. 60; Penna. R. Co. V. Phila. County, 220 Pa. 100. (Mestrezat, Potter and Stewart dissenting, this being the frameup on the two cent fare law, the latter holding it should be sent back for a full and fair hearing on the facts.) Rahn Twp. Etc. Dist. v. Lehigh Etc. Co., 221 Pa. 141 ; Canavan v. Paye, 34 Supr. C. 91; Davis v. S. W. Lines Etc., 34 Supr. C. 438; Conrad v. Conrad, 36 Supr. C. 154; Gay v. Chambers, 37 Supr. C. 41; Tibbins v. Burrell, 46 Supr. C. 466. If the court below does not find the facts, the cause will be remanded for that purpose. (Miller v. Cockins, 231 Pa. 449.) "Liggett V. Kaufman, 17 Supr. C. 631. "Gyger's Ap., 2 Lane. Bar, No. 49. "Googe V. Gaskill, 18 Supr. C. 39. "Bannon v. Lincoln Natl. Bank, 14 Supr. C. 566; Hunter v. Bilheimer, 22 Supr. C. 622; Barlott v. Forney, 187 Pa. 301. " Steinmeyer v. Seibert, 190 Pa. 471 ; Hale Etc. Co. v. Norcross, 199 Pa. 283. "^Moser v. Phila. Etc. R. Co., 233 Pa. 259. "i" Winters v. Colin, 4 Berks Co. 206. 6i8 EQUITY PRACTICE IN PENNSYLVANIA. The practice is under Rules 63 and 66, when the judge hands down his findings for the pronthonotary, to enter a decree nisi and give notice to the parties or their solicitors and if no exceptions are filed in ten days thereafter, to enter the final decree as of course." The court may give leave to file exceptions nunc pro tunc, after the ten days." Exceptions must distinctly specify the objections; for, it is their function to point out particularly, portions, phrases or statements in findings of fact or conclusions of law, claimed to be reversible."* 36. On appeal, matters excepted to ,onIy to be heard. Rule 67 of the Supreme Court Equity Rules prescribes : "Upon appeal to the Supreme or Superior Court such matters only as have been so excepted to and finally passed upon by the court, shall be assignable for error." 37. Decree of dismissal. Rule 68 of the Supreme Court Equity Rules prescribes: "If the judge or referee upon the close of complainant's evidence shall be of opinion that the case made in the bill has not been sus- tained he shall have power to enter a decree of dismissal without hearing evidence on behalf of the defendant. Such decree shall have the effect of a non suit, at law. But a refusal of the court, after motion and argument, to change the decree shall be considered a final decree for all purposes. The court in banc in every such case shall file an opinion specifically setting forth its reasons for refusing to change the decree of dismissal." When dismissed for mere formalities it should be "without pre- judice." A final and unqualified dismissal may be pleaded in bar." The practice of moving for a dismissal for want of due prosecution is not obsolete. Such a motion may be sustained in a case of great laches, although the case has been referred.*^ A presumption of aban- donment arises after twenty years and upwards.*"* Under the above rule the trial judge need not answer requests for specific findings but he should file an opinion indicating wherein the proofs are in- sufiicient."'' 38. Rehearing of case. The Chancellor after closing the case may open it in hig dis- cretion and hear further testimony. If he refuses a rehearing, he will not be reviewed." An application for a rehearing is not like a bill of review and is not reviewable.** The application must be by petition and under certificate of counsel that it is not made for the purpose of delay. It must set forth the particular matters and grounds as the basis of cause for a rehearing and should be verified by the party, or some one for him who is informed." "Zerbey v. Allan, 215 Pa. 383. "° Hastings Water Co. v. Hastings Bore, 216 Pa. 178. •"Buckius v. Metfett (No. 2), 23 Lane. L. R. 228. "a Reading v. Traction Co. 245; Fister v. Kutztown, 3 Berks Co. 202. *" I Barbour's Ch. Pr. 323. *" Paterson v. Williams, 9 Lack. Jur. 1. "a Richart v. Wisner, 15 Luz. L. R. 308. ''b Knox v. Church, 21 D. R. 63. *• Shea's Ap., 121 Pa. 302. ** Roddy's Ap., 99 Pa. 9. CHAPTER XXXII. BEFEBKES, IHASTEBS, EXAlkllNEBS AND ISSUES. 1. Reference of cause to referee. ii. Form of certificate of question. 2. Fees of referees. 12. Trial and argument lists. 3. Duties of referee. 13. Trial of Equity cases in Phila. 4. Accountants. 14. Equity trial list. 5. Examiners. 15. Interlocutory orders generally. 6. Masters. 16. All motions, etc., to be entered 7. Purposes of an issue for a jury. on Equity docket. 8. Trial by jury. 17. Motions, etc., of course. 9. Awarding of issue. 18. Rule in Phila. as to referee's 10. Feigned issues. reports. 1. Beference of cause to "Beferee." Rule 69 of the Supreme Court Equity Rules prescribes: "When a case in Equity is at issue upon answer, it may be taken from the list by the parties and its trial referred to a person agreed upon by them who shall be called a 'Referee.' He shall proceed at once upon his appointment to fix a day for trial which shall not be more than three months after his said appointment; at which time, unless the cause be continued, he shall proceed to hear the parties, and sit from day to day, continuously for that purpose. He shall hear the testimony, seal bills of exceptions to the admission and rejection of evidence, make findings of fact and of law, act upon the points or requests that may be presented by counsel, and prepare the form for a final decree. When his findings and decrees are ready, he shall give notice to counsel for the respective parties of a time and place, when and where, the same may be examined by them. If no exceptions be filed within ten days after the day fixed for such examination the referee shall deliver to the Prothonotary his findings, the requests of counsel, and the form of decree prepared, who shall file the same, and thereupon the court shall enter the decree prepared by the referee. If exceptions be filed, the referee shall hear them within ten days thereafter, and within ten days after such hearing, decide upon the same and file said exceptions, his action thereon, together with his original findings, the requests of counsel, and the form of a decree with the Prothonotary of the court. At any time within ten days after this is done exceptions may be taken fo the action of the referee and filed with the prothonotary. The case shall thereupon be placed upon the Equity argument list next to be heard in said court, and the exceptions heard by the court or judge, acting as Chancellor in the case, and disposed of; whereupon the proper decree shall be made and entered subject to the right of appeal to the Supreme or Superior Court, as provided by law." 619 620 EQUITY PRACTICE IN PENNSYLVANIA. This rule virtually follows the practice laid down for referees learned in the law, under the act of 1874 and supplements, for which see Vol. 2, Johnson's Practice, P. 68, et. seq. 2. Fees of referees. Rule 70 of the Supreme Court Equity Rules prescribes: "The fees of referees shall be adjusted upon a statement of the number of days actually occupied with the trial and the preparation of the findings and decree. Parts of days on which the parties met and adjourned shall not be included. For days actually spent in the trial and disposition of the case a per diem shall be allowed, to be fixed by the court in which the cause is pending, upon consideration of the character of the labor actually performed, but in no case to exceed twenty dollars per day. The referee shall state separately the number of days occupied in the trial and those occupied in pre- paring the findings and decree. For parts of days on which meetings and adjournments have taken place, the referee shall be allowed five dollars each, to be paid by the party at whose instance the adjournment may be made, and not otherwise." 3. Duties of referee. The duties imposed upon the referee are outlined in the rules of court, supra, and, as suggested, make him for the cause referred, a vice- judge, as it were, and the same rules apply to his report of findings of facts as formerly applied to a master. Scott, P. J., noted ' that his functions are different from those of the "Master," who still remains under Rule 60, in decrees to be executed, altogether dissimilar from those which a Master in Chancery has to perform. Neither are they similar to those of assessor under Rule 71, infra. A referee, when appointed to state an account has the functions of a Master in Chancery, and as such can send for and examine books, papers, etc., relating to such account, and must exhaust all means of information before he resorts to the general punitive rule where- by a negligent or incompetent party is charged with obligations.' The findings of a referee from conflicting testimony, approved by the court below will not be reversed except for manifest error. The only question is whether there was evidence sufficient, if believed, to warrant them." This is especially the case where the court calls to its assistance an experienced accountant.* Errors assigned to a referee's conclusions of law will not be considered where they are in conformity with the facts found and such alleged errors relate mainly to the facts." After the case has been formally closed before the referee, he may open it again and permit additional testimony to be taken, in his discretion, nor will he be reversed, except for plain abuse of his powers.' 'Howell V. Natl. Portland Cement Co. (No. 2), 9 Northam. 319. " Sulzberger, P. J., in Weil v. Scott, 29 C. C. I97- 'McManus v. Watson, 214 Pa. 652; Speer v. Huidekoper, 221 Pa. 448; McGraw v. Hilton, 221 Pa. 568; Old Col. Tr. Co. v. Allentown Etc. Co., 192 Pa. 596; Wolf v. Augustine, 197 Pa. 367; Fenn v. McCarrell, 208 Pa. 61 S ; Jackson v. Smyth, 24 Supr. C. S45- ■"Mays v. Melot, 29 Supr. C. 365. "Conemaugh Gas Co. v. Jackson Etc. Co., 186 Pa. 443. "Cool V. Hooven Mer. Co., 14 D. R. 773- REFEREES, MASTERS, EXAMINERS AND ISSUES. 621 The act of April i, 1901, P. L. 95, in regard to appointment of Masters, etc., does not refer to referees in the title, and is by some thought to be unconstitutional, and by one judge, because it takes away the power of the judges. 4. Accountants. Rule 71 of the Supreme Court Equity Rules prescribes: "In cases involving complicated accounts, or questions requiring the aid of experts, if the parties do not refer, the court may call In the aid of an accountant or other expert, as an assessor. The charges to be allowed for such services shall not exceed thfe rate p^er diem, commonly paid by business men far similar services and shall be taxed as costs in the case or paid as the court may direct." Where the bill is for an account and complications arise which require an expert accountant, the above rule authorizes the court to call in such a person, who is neither a "referee," a "master," or anything but an accountant/ though named "assessor." 5. Examiners. Since the adoption of the amended rules of 1894,' examiners cannot be appointed in Equity, except on "bills to perpetuate testi- mony, and similar cases." What "similar cases" are here meant, no "case" has yet defined. But the duties of "examiners" are given in Vol. 3, Johnson's Pr., P. 89, et. seq' 6. Masters. Although the Supreme Court by its rules prescribed a "Master in Chancery," out of the practice, a "Master" may still be appointed where decrees or interlocutory orders are to be executed." A master is an ofBcer appointed by the court to assist in the proceedings, to take and report testimony, to state accounts, compute interest, value annuities, ascertain and report liens and such other services which would be onerous for the court to perform. This is discretionary with the court." A master will not be changed except for such illness as incapacitates him."* A master cannot inquire beyond the scope of the bill."*" In case of delay, when testimony is taken by agree- ment, the time will be extended nunc pro tuncr^ The examination proceds the same as in court and the evidence is reduced to writing and signed by the witnesses. While the master may rule out clearly incompetent and irrevelant testimony, it is better to take it down, with the exceptions of counsel, and leave the question in shape for review. The report is a review of what he has done and a statement of the facts as he finds them from the evidence with his conclusions and the decree he advises. He has no power to decree, but he may suggest one proper in his judgment. Being advisory only, his report 'Comth. v. Archbald, 195 Pa. 317. •iS9 Pa. XXIV. • See also P. & L. Dig., vol. 6, col. 8938, et seq. "Scott, P. J., in Giering's Est, 10 Northam. 137. "Comth. v. Archbald, 195 Pa. 317. "a Gibbon's Ap., 104 Pa. 587. "b Morio's Ap., 4 Penny. 398. "o Hoofstiller v. Hostetter, 172 Pa. 575. 622 EQUITY PRACTICE IN PENNSYLVANIA. is subject to exception as provided by rule of court. He may be required to return the evidence to court, or furnish certified copies to the parties. The master's findings generally are entitled to the same weight as the verdict of a jury, but this rule does not apply to his deductions from undisputed facts or from uncontradicted evidence."^ If no exceptions are filed the master's report will be confirmed unless the court on inspection discovers obvious defects, when it may be referred back for correction. Upon exceptions, it may be disallowed, confirmed or referred back. If recomitted to him for a specific purpose, he is confined to that and cannot reopen the whole case."« The findings of fact of a master based on competent evidence and admissions of the defendant will not be reversed." The same rule of conclusiveness applies to his findings of fact as to those of a referee learned in the law. They will not be reversed ex-cept for manifest error."^ A Court of Equity, under its own rules, may still appoint an auditor to distribute the funds of an insolvent corporation to its creditors."'' ' 7. Purposes of an issue for a jury. The only purpose a judge sitting as Chancellor has in framing an issue of fact and sending it to the Law side for a jury is to ease his conscience. He is not bound by the verdict. But generally he defers to it." The granting of an issue is in his discretion," even under Rule 72 of the Equity Rules." 8. Trial by jury. Rule ^2 of the Supreme Court Equity Rules prescribes: "After a case in Equity is at issue upon questions of fact, either party may move for a rule upon the other party to show cause, on five days' notice, why the issues of fact or some of them, shall not be tried before a jury. If, an the return of the rule, such trial be awarded, the court shall frame the issues in the form of separate questions. The verdict rendered shall not be general, but shall con- sist of an answer to each question so submitted. These answers, made to inform the conscience of the Chancellor, shall not be binding upon him in any case." "^ McConomy v. Reed, 152 Pa. 42. "«Everhart v. Everhart, 2 Kulp 358. ^ Donner v. Donner, 217 Pa. 37. "SiMercur v. State Line R. Co., 171 Pa. 12; Gibbons v. Gibbons, 17s Pa. 475; Rivington Ferry Co. v. McKeesport Etc. Co., i Supr. C. 587; White v. Wright, 179 Pa. 75 ; Cone v. St. John, 180 Pa. 25 ; Ahl v. Ahl, 186 Pa. 99. "b Groff V. Trust Co., 38 Supr. C. 567. " Canavan v. Paye, 34 Supr. C. 91 ; Kelly v. Herb, 3 D. R. 284 ; Baker V. Williamson, 2 Pa. 116; Saylor's Ap., 39 Pa. 495; NicoUs v. Mc- Donald, loi Pa. 514; Null V. Fries, no Pa. 521. " Snyder's Est., 3 Wharton 49s ; Scheetz's Ap., 35 Pa. 88 ; Frank's Ap., 59 Pa. 190. '"Raush V. Nipple, 15 D. R. 262. REFEREES, MASTERS, EXAMINERS AND ISSUES. 623 9. Awarding of issue. When an issue of fact is sent to the Law side to be settled as preliminary to the equitable questions involved the verdict is binding and not in ease of the Chancellor's conscience." Rule 72, supra, provides the mode of obtaining an issue by the parties and must be followed. But there is nothing in it to preclude the Chancellor from framing an issue on his own motion, in ease of his conscience, whenever the occasion arises." 10. Feigned issues. Where some question of fact arises incidentally upon which the Chancellor desires the verdict of a jury, an issue is framed for the ascertainment of it. This is called a feigned issue to distinguish it from a regular issue raised by pleadings in an action at law. It differs, too, from the staying of an equity suit to enable the parties to settle a question of fact in an action at law." The granting of such issue is in the fair discretion of the court," and is seldom resorted to." When granted by the Chancellor in the Orphans' Court, the verdict is advisory only and he may or may not adopt it. It will not be granted to try a question of law.^^ The time to apply for a feigned issue is at the hearing, though it may be moved for prior. It should be moved at the earliest time practicable." The court frames the issue, but as a matter of practice the counsel may agree upon the matters they wish the jury to pass upon and draw them into a formal statement, asking the court to award the issue thereon. The court may at any time revoke the order for an issue.'^ The issue is certified from the Equity to the Common Law side of the court, where equity and law are administered in the same nominal court. But when the issue is raised on a will in the Orphans' Court, it is tried in the Common Pleas. The practice on the trial is in accordance with the rules of the court of trial," and since the matter is referred to a jury to get their opinion it is not proper for the trial judge to intimate his view of the facts to the jury." Every stipulated question submitted must be found separately by the jury in their verdict."" In Pennsylvania, the judge of the Law court being also the judge of the Equity court and the records of each court being in the same office, it is not a matter of objection after verdict, that the evidence was not returned to the Equity side of "Green Etc. R. Co. v. Moore, 64 Pa. 79; Long's Ap., 92 Pa. 171. " See P. & L. Dig., vol. 6, col. 8947, et seq., for cases under the old rules. "Am. Etc. Co. V. Trustees Etc., 37 N. J. Eq. 270. " Patterson v. Gaines, 6 Howard 550. ""Hess V. Calendor, 120 Pa. 138. "Thompson's Ap., 36 Pa. 418; Landis v. Lyon, 71 Pa. 473. "Meyer's Est., i Pearson 407; Mealey, in re, 11 Pa. 161. "Church V. Ruland, 64 Pa. 432. " Ringwalt v, Ahl, 36 Pa. 336. "Brown v. Parkinson, 56 Pa. 338; see Todd v. Campbell, 32 Pa. 250; Faust V. Haas, 73 Pa. 295; Lord's Ap., 105 Pa. 451; Baldwin v. Taylor, 166 Pa. 507. * Cobb's Ex. V. Burns, 61 Pa. 281. 624 EQUITY PRACTICE IN PENNSYLVANIA. the court." The court of Law in such case is only ancillary to the court of Equity.'' The purpose of the verdict is to satisfy the conscience of the Chancellor and he may or may not approve and adopt it; in such case, he is truly the "thirteenth juror," advocates descant upon." The Chancellor may order as many new trials as he pleases, until his conscience is fully satisfied."" The act of February I2, 1869, P. L. 3, allowed appeals from ver- dicts in feigned issues. 11. rorm of certificate of question of title to land to the Law side. Upon bill and answer where the question is squarely raised as to the land in question, it will be certified to the Law side for trial by Jury." Following is a form: Miles Land Co. \ In C. C. P. Lackawanna Co. V. > In Equity. Penna. Coal Co. J No. 2, May T., 1909. Now, March 7, 1910, it is ordered that the cause of the Miles Land Co. V. The Penna. Coal Co., now before us, in Equity, be and the same is hereby certified to the Law side of the court, at the costs of the plaintiff, and that the question of fact raised by the bill and an- swer, to wit: whether the title to the lands described in the bill is in the plaintiff or in the defendant, be determined as upon an action of ejectment by the present plaintiff against the present defendant; the issue to be made de novo by declaration, plea, answer and abstracts of title as provided by law in actions of ejectment.''' Edwards, P. J. 12. Trial and argument lists. Rule 73 of the Supreme Court Equity Rules, prescribes : "The preparation of trial and argument lists shall be regulated by an order of the several courts so as to make the practice in regard thereto conform as nearly as may be practicable to the practice in the said court in actions at law." 13. Trial of Equity cases in Fhila. Section i of Rule 18, Phila., provides: "In cases tried before a Judge as Chancellor, he will cause his adjudication or findings to be filed in the prothonotary's oflSce, and the prothonotary shall forthwith give notice to the parties who may file exceptions thereto within ten days after filing of the adjudication, otherwise the adjudication will become absolute and a final decree may be entered thereon. When exceptions are filed, they will be heard on the next argument list of the court." "Saylor's Ap., 39 Pa. 495- ^Johnson v. Harmon, 94 U. S. 371. "Watt v. Starke, loi U. S. 247. "Stace v. Mabbot, 2 Vesey Sr. 552 (Eng.). "Kingston Coal Co. v. Dunn Coal Co., 18 D. R. 1083. "20 D. R. 54. For other forms see vol. 3, Johnson, 893. REFEREES, MASTERS, EXAMINERS AND ISSUES. 623 14. Equity trial list. Section 2, rule 18, Phila., adopted March 13, 1901, is as follows: "An Equity trial list shall be prepared by the clerk of the court and shall be preliminarily called prior to the calling of the current motion list on the third Monday of September, the fourth Monday of November, the third Monday of February and the first Monday of June. Applications for continuances for reasons then existing must be made at that time or will be deemed to have been waived. Cases not answered to by either party will be stricken from the list. The list will be called for trial on the fourth Monday of September, the second Monday of December, the fourth Monday of February and the second Monday of June, except in case of legal holidays, when the trials will proceed on such later day in the week as the court shall direct." 15. Interlociitory orders generally. Rule 74 of the Supreme Court Equity Rules prescribes : "Any law judge in vacation or in term, may at chambers make interlocutory orders, rules and other proceedings preparatory to the hearing of causes upon their merits, in the same manner and with the same effect as the court in term, reasonable notice of the same first given to the adverse party or his solicitor, to appear and show cause to the contrary, at such time thereafter as shall be assigned by the judge for the hearing thereof." 16. All motions, etc., to be entered on Equity docket. Rule 75 of the Supreme Court Equity Rules provides : "All motions, rules, orders and other proceedings made and di- rected at chambers or at the prothonotary's ofiice, whether special or of course, shall be entered by the prothonotary in his Equity docket, on the day on which they are made and directed, and notice thereof given to the solicitors shall be deemed notice to the parties for whom they appear and whom they represent, in all cases in which personal notice on the parties is not otherwise specially re- quired. The docket shall be kept by the prothonotary at his ofiice, and shall be open at all office hours to the free inspection of the parties in any suit in Equity, and their solicitors. All notices shall be in writing." 17. Motions, etc., of course. Rule 76 of the Supreme Court Equity Rules prescribes: "All motions and applications in the prothonotary's office for the issuing of mesne and final process, (except process of sequestration and of attachment to enforce and execute decrees;) for filing bills, answers, demurrers and other pleadings ; for making amendments to bills and answers; for taking bills pro conf,esso; for filing excep- tions, and for other proceedings which do not require allowance or order of the court, or of a judge thereof, shall be deemed motions and applications grantable of course by the prothonotary of the court; but the same may be suspended, altered, or rescinded by any law judge of the court upon cause shown." Vol. 4 Practice^40 626 EQUITY PRACTICE IN PENNSYLVANIA. 18. STotice of filing reports of referees. Rule 33, Phila., provides as follows: "Whenever any report of referees is filed, notice thereof shall be served on the opposite party or his attorney, who shall have ten days after such notice to file exceptions, which shall be accompanied with an affidavit or affidavits as to facts which do not appear on the face of the proceedings, and no execution shall issue until the expira- tion of the said ten days." This rule applies under the reference act of June i6, 1836," but not under the act of May 14, 1874." " Reynolds v. Creveling, 177 Pa. 267. "•Kille V. Reading Iron Works, 134 Pa. 225. CHAPTER XXXIII. DECBEES, COSTS AND APPEALS. 1. Decrees defined, 2. Entry and form of decree. 3. Drawing decree — notice and copy. 4. Minute of decree for payment of money. 5. Decree dismissing bill. 6. Decree pro confesso. 7. Decree pro forma not allowed. 8. Interlocutory order and decree. 9. Relation of decree to pleadings and proofs. 10. Alternative or substituted re- lief — damages. 11. Amendment or reformation of decrees. 12. Effect of decree. 13. Petition for re-hearing. 14. Sale of property pendente lite, 15. Bills of review. 16. Process to compel obedience to order or decree. 17. Final process — attachment, how obtained. 18. Enforcement of orders. ig. Enforcement by attachment. 20. Form of affidavit for attachment. 21. Form of order. 22. Further proceedings. 23. Writ of assistance. 24. Costs. 25. When costs follow suit. 26. When costs have been put on the winner. 27. When costs have been divided. 28. Costs of partnership accounts. 29. Costs of account when not partners. 30. Corporation costs. 31. Costs of interpleader. 32. Time when costs will be deter- mined. 33. Costs before final decree. 34. Fees of accountant and exam- iner. 35. Fees of referee and master. 36. Costs on interlocutory proceed- ings. 37. Security for costs. 38. Collection of costs. 39. Appeal from decree as to costs. 40. Equity fee bills. 41. Appeals — ^practice on. 42. Courts may make further rules. 43. Records, when taken out of prothonotary's office. 1. Decrees defined. Decrees are either interlocutory or final.* An interlocutory de- cree arises during the progress of the cause as to matters which re- quire a decision, before the cause is ended. In such decrees the court reserves further directions as to the cause. These would be more properly termed decretal orders.^ Interlocutory decrees or orders cannot be pleaded,' but from some, an appeal will lie.* At the civil law an appeal will lie only from a definitive sentence called gravamen irreparahile, but at the canon law, followed in English Admiralty, an appeal lies from every sentence." '3 Blackstone's Com. 452. "Harwood v. Schmedes, 12 Vesey Jr. 315. See vol. 3, Johnson's Prac- tice, 506. " Senhouse v. Earl, 2 Vesey 450. *3 Blackstone's Com. 55; Wall v. Atty. Genl., 11 Price 668. 'Blount's Case, i Atlq^ns 295. 627 628 EQUITY PRACTICE IN PENNSYLVANIA. A decree in Equity has the same office, force and effect as a judg- ment at law. It is the order or sentence of the court determining the matter at issue. It is a term not to be confused with interlocu- tory orders nor with proceedings at law. It may be entered as in- terlocutory upon some matter of law or fact, preparatory to a final decree." The finality of a decree is to be tested by the question whether or not there remains something still to be done in the cause, which must come before the tribunal for adjudication and decree of record.' A decree which determines the whole controversy and leaves nothing but its execution is a final decree, for the pur- poses of appeal.' The parties being sui juris may consent to a final decree which cannot be attacked except when procured by fraud or duress. An infant is bound by a decree on his bill as much as if he were of age, and the same rule has been held as to infant de- fendants, except as regulated by statute. Every decree must be based on the allegations in the bill and conform to the pleadings.* To sustain a decree there must be a finding of facts.'" The decree should be sigfned by the court. It is usually prepared by the solicitor and submitted to the Chancellor for his inspection and signature. The English practice of oral fulmination is not in vogue here. De- crees are subject to amendment or modification as justice and Equity may require. The decree of relief must conform not only to the pleadings but the proofs and should follow the prayer, when it covers both. A decree that one is a trustee of real estate for the benefit of the plain- tiff is not consistent with a prayer for specific performance, when there is no other prayer;" and when there is also a prayer for gen- eral relief the decree must accord with the allegations and the spe- cific requests of the prayer." "Courts of Equity are not disposed summarily to dismiss bills where equitable relief can be given upon a proper statement of the facts. If the plaintiff should mistake the relief to which he is entitled in a special prayer, the court may yet afford him assistance under the prayer for general relief." " But such relief must be supported by averments of the bill." General re- lief is allowed when for any good reason the specific relief asked for cannot be granted." But the court cannot, of its own motion, with- out a cross-bill or pleadings, by a "cautionary order" restrain one of the plaintiffs from conveying certain land.'" Relief cannot be de- creed for what is not alleged in the bill."^ The decree must con- ° Richmond v. Atwood, 52 Fed. R. 10. ' McGourkey v. Toledo Etc. R. Co., 146 U. S. S36. 'Lewisburg Bank v. Sheffey, 140 U. S. 44S. "Ahl's Ap., 129 Pa. 49. "2 Harrison's Ch. Pr. 108. " Luther v. Luther, 216 Pa. i ; Frey v. Stipp, 224 Pa. 390. "Mercantile Lib. Co. v. University of Pa., 220 Pa. 328; Rice v. Ruckle, 22s Pa. 231 ; McFarland v. Heverly, 46 Supr. C. 434. "Good v. Queen's Run Etc. Co., 32 C. C. 419, per Green, P. J. "Dentzel v. Rocky Glen Etc. Co., 7 Lack. Jur. 213. " Pellio V. Bull's Head Coal Co., 9 Lack. Jur. 271. "Makof V. Sherman, 36 Supr. C. 624. "a Rittenhouse v. Newhard, 232 Pa. 433 ; Summers v. Shryock, 46 Supr. C. 231. DECREES, COSTS AND APPEALS. 629 form to the case made out by the pleadings and proofs. Amendment so as to add prayers not covered by the bill, avails naught."'' Where the bill prays not for general relief, or the specific relief, a decree on an emergency bill, making the relief broader and includ- ing all similar emergencies will be reversed."" 2. Entiy and form of decree. Rule 83 of the Supreme Court Equity Rules prescribes: "No part of the prior proceedings shall be recited or stated at length in any decree or order; but decrees and orders shall begin in substance as follows: 'This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, ad- judged and decreed as follows, viz.:' (Here insert the decree or order.)" A final decree cannot be entered m breve. It must be complete as to the relief decreed."* The court's conclusions of law should not be treated as the decree." It matters not which side prepared the form of the decree, if both sides acquiesced in it." When the court divides equally, no decree may be entered in the cause." If a decree has been entered without notice it will be set aside."" When excep- tions have been filed, these must be disposed of and then a formal and final decree should be entered.^ When the judge files with his findings and opinion answering requests a decree framed by himself, it is not a final decree from which an appeal lies, but only a decree nisi, which becomes final only after ten days, unless exceptions are filed in the meantime." But a decree dismissing the exceptions, has been held final for the purposes of an appeal ; and also where the court entered a decree against objections before the exceptions were disposed of.^ A judge may, in his discretion permit exceptions to be filed after the ten days from the confirmation nisi." Where a party dies after argument, it is proper for the court to enter its de- cree as of the date of the argument, nunc pro tunc."^ 3. Drawing decree — ^notice and copy. Rule 84 of the Supreme Court Equity Rules prescribes the prac- tice as follows: "The decree shall be drawn by the solicitor of the party in whose favor it is, who shall, unless otherwise herein provided, serve a copy thereof on the solicitor of the adverse party, with notice of the time, which shall not be less than three days thereafter, when the same will be submitted to the court; but the court may di- ""•> McFarland v. Heverly, 46 Supr. C. 434. " County. James Huston J No. - — — , Term, 19 — . In Equity. County, ss. being sworn according to law says that on the day of , A. D. 19 — , this court in the cause above entitled made an order [or decree] duly entered that the defendant, James Huston, [here insert the order or decree] that said order [or decree] was served upon said James Huston personally on the day of , A. D. 19—, at , as per sworn return of service hereto attached [or as. appears by the return of the officer in the records of the cause], that notwithstanding said order [or decree] said James Huston has hitherto refused and still refuses to obey said order [or decree] and further saith not. Sworn to, etc., Linda Taylor. Upon this a rule to show cause why an attachment should not issue may be granted or an attachment forthwith, the former being prefer- able. 21. Form of order. After hearing the rule an order may be entered in the following form: "First Natl. Bank Etc. v. McKinley Coal Co., 213 Pa. 413. "Kenyon v. Davis, 17 D. R. 340. "S. Jarvis Adams Co v. Knapp, 213 Pa. 567; MuUinix v. MuUinix, 16 D. R. Q77; Farrow v. Farrow, 16 D. R. 978. " New Br. Etc. R. Co. v. Pittsburg Etc. R. Co., 105 Pa. 13. " Garis' Ap., 185 Pa. 497 ; Silliman v. Whitmer, et al., 173 Pa. 401. 638 EQUITY PRACTICE IN PENNSYLVANIA. "And now, day of — ^, A. D. 19 — , upon hearing said rule, it is made absolute and upon full consideration [and hearing said ^ by himself or his solicitor], it appearing that said has not obeyed the order [or decree] of the court heretofore made and entered of record on the day of A. D. 19 — , a certified copy of which it is shown was personally served upon him the said , it is now ordered and adjudged that the said is in contempt of this court and that an attachment do issue against him and that he be forthwith brought into court to answer for said contempt and be further dealt with according to law. Per cur. The officer in serving the attachment has the same powers as a constable in executing a capias or a warrant of arrest. He may not break an outer door of a man's "castle," but if he find an outer door or a window open, once in the "castle," he may break an inner door at the common law.°^ 22. Further proceedings. The form of attachment is found in Vol. 2, Johnson's Practice, p. 409, also the further proceedings, where forms are given. If the defendant will he may purge himself of his contempt. See Vol. i, Johnson, Contempt of Court, p. 49. 23. Writ of assistance. Where a decree against a railroad company using the roadway of another company under lease has been entered, subject to certain conditions and after the time has passed and on proof of non-com- pliance with the conditions, a writ of assistance will be issued to enforce the forfeiture." For form of writ and practice upon see supra, tit. "Receivers." Rule 87, Supreme Court Equity Rules, prescribes: "When any decree or order is for the delivery of possession, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be at liberty to apply forthwith to the court or to a law judge, for an order for a writ of assistance, upon the allowance of which the prothonotary shall immediately issue the same." 24. Costs. In Equity as at Law, costs generally follow suit, but not always. The court has power over the costs,' and it may refuse relief and still impose the costs on the defendant f or, even, where relief is granted, the plaintiff may be taxed with the costs ;' or the costs may be divided equally between the parties.* But where the defendants were forced °°McKinney's Justice, vol. 2, p. 380, citing i Bache's Manual 144. See also opinion of Justice Yeates in Resp. v. Eyre, i S. & R. 352. °* Pittsburg Etc. R. Co. v. Altooria Etc. R. Co., 203 Pa. 108. ^ DuBois V. Kirk, 158 U. S. 58. See vol. 2, Johnson, p. 75, for costs in the Federal Courts and vol. 2, p. 79, for costs in the State Courts. ^Silverstein v. Cohen, 9 Kulp 282; Potts v. Hoster, 21 Lane. L. R. 159. ' Kuhn V. Skelley, 25 Supr. C. 185. *Quarryville Water Co. v. Fritz, 14 Lane. L. R. 186; Blair's Est., 178 Pa. 582;, Allen v. Pittsburg Etc. Co., 52 Pitts. L. J. 17; Chambers v. McKee, 185 Pa. 105; Kucker v. Sunlight Oil Co., 230 Pa. 528. , DECREES, COSTS AND APPEALS. 639 into litigation the costs will not be put on them, when they succeed on the appeal." Even a successful appellant may be held for the costs where his former conduct made the appeal necessary.' One who is derelict and occasions the necessity for accounting should be mulcted into the costs.' When the defendant is not altogether at fault he should not pay all the costs.' A mere stakeholder should not have any of the costs imposed upon him." 25. When costs have followed suit. It has been said that the loser shall pay the costs unless a suf- ficient reason be shown for a different disposition." Where the defendant shows perversity and loses the costs will be visited upon him." The agent who negotiated a fraudulent sale may be held with his principal for the costs." The old idea of retribution still lurks in this punitive mode of distributing costs in Equity." 26. When the costs have been put on the winner. Although a party may have won the decree, yet, he may also have been in some such default, that he ought to suffer, and the costs are then put upon him although he wins." 27. When the costs have been divided. Cases showing how Solomonic wisdom has been applied or mis- applied in the division of the costs can establish no rule. The cir- cumstances of each case must suggest the line of wisdom to be fol- lowed. The cases will be found grouped according to their peculiar Equity in Vol. 6, P. & L. Dig. of Dec, Cols. 3980, et seq. It would be too tedious to point out all the distinguishing characteristics of these numerous cases. 28. Costs of partnership accounts. The costs of a partnership accounting where neither partner was particularly at fault, will be taxed to the firm in proportion to the interests of the partners;" but where one is in default and disputes "Williams v. Concord Cong. Church, 193 Pa. 120. 'Markle v. Wilbur, 200 Pa. 473. 'Croasdale v. Von Boyneburgh, 206 Pa. 15. 'Robbins v. Westmoreland Coal Co., 198 Pa. 301. "Parker v. Kintzle, 12 D, R. i. "Biddle's Ap., 19 W. N. C. 219; Piper v. St. Paul Trust Co., 140 Pa. 233; Swentzel v. Penn Bank, 147 Pa. 140; Burke v. Teller, 11 C. C. so: P. & L. Dig., vol. 6, col. 8978. "Maguire's Ap., 102 Pa. 120; Shedwick v. Prospect M. E. Church, 160 Pa. 57. "Williams v, Kerr, 152 Pa. 560. " Coleman v. Ross, 46 Pa. 180 ; Harper v. Greenmount Cemetery Co., IS W. N, C. 172; Packer v. Noble, 103 Pa. 188. "Grim v. Walbert, 155 Pa. 147; Edinboro Normal School v. Cooper, 150 Pa. 78; O'Hara v. Stack, go Pa. 477; Taylor v. Knights of Pythias, 4 Del. Co. 153; Frank v. Riegel, 2 Pearson 53; Heilman v. Lebanon Etc R. Co., 180 Pa. 627. '"Gyger's Ap., 62 Pa. 73; Gordon v. Moore, 134 Pa. 486; Wilson v Black, 164 Pa. 555. 640 EQUITY PRACTICE IN PENNSYLVANIA. the partnership, he may have all the costs to pay." There have been cases where the costs were divided or distributed according to the circumstances." 29. Costs of account when not partners. The rule is to divide the costs of an accounting between persons who are not partners.'* But if the defendant was obstinate and fought long and desperately he had the costs to pay." 30. Corporation costs. Where the controversy was about corporate rights the costs have been put on the corporation/" or even the Church militant;" but where the defendants left the Church and fell beyond the pale, the costs were individuated.'" 31. Costs of interpleader. The costs of an interpleader have been charged to the fund in suit."° It has been held improper to tax the defendant with the costs when his rights were interfered with by an interloper who had no right to the property." 32. Time when costs wiU be determined. Costs may be taxed after appeal and the appellate court will not review such taxation except for clear abuse of discretion."' The Equitable imposition of costs may be determined on final hearing.** 33. Costs before final decree. Costs may be taxed before final decree ; and where a sufiicient answer has been put in to a bill of discovery and no exceptions were filed, or exceptions dismissed;"' or the costs of reference after an answer has been found insufficient by the referee."* 34. Accountants' and examiners' fees. An accountant's or auditor's fee allowed by the court or its master will not be revised." ^Steiger v. Bradley, 34 W. N. C. 123; Stocker v. Hutter, 134 Pa. 19; Foulke V. Hitzeroth, 14 W. N. C. 241. "Miller v. Walsh, 2 Northam. 69; Zell's Ap., 126 Pa. 329; Foster v. Verner, 152 Pa. 46; Jennings, Beale & Co.'s Case, 157 Pa. 630. "Consolidated Etc. Co. v. Jarecki Etc. Co., 157 Pa. 342; Myers v. Bryson, 158 Pa. 246; Neel's Ap., 3 Penny. 66. "Jones V. Farquhar, 186 Pa. 400. "° Bliem v. Schultz, 170 Pa. 563 ; Baker's Ap., 108 Pa. 510. "^ Manning v. Shoop, 170 Pa. 236. ""Kline v. Fegar, 5 Northam. no. ""Hope's Aps., 33 Pitts. L. J. 270. "'Yard's Ap., 12 Atl. 359. "= Miskey's Ap., 18 W. N. C. 100. "" Iredell v. Klemm, 17 W. N. C. 426. "' McCarter v. Watt, 3 Leg. & Ins. R. 59. ""Myers v. Kingston Coal Co., 3 Kulp 137; P. & L. Dig., vol. 6, col. 8991, for other cases. ""Gordon v. Moore, 134 Pa. 486; Welscher's Est., 3 Walker 241. See P. & L. Dig., vol. 6, col. 8992, for cases relating to the examiner now almost obsolete. DECREES, COSTS AND APPEALS. 641 35. Masters' and referees' fees. The rule of the Supreme Court fixes referees' fees. The court can make such orders as are necessary under the rule as to masters' or referees' fees.*" Where a master is still required under the rules, his fee will be fixed at a sum proportionate to his labors and re- sponsibilities and not a commission." Nor will it be changed on appeal, except for clear error.°^ The master, having applied for an order on the plantifl to pay his fee, cannot sue while that is pending.^' If the plaintiff had a master appointed he is liable in the first in- stance, when the defendant cannot pay." 36. Costs on interlocutory proceedings. Rule 80 of the Supreme Court Equity Rules prescribes: "If, on any interlocutory proceedings, a party shall be ordered to pay the costs thereof, such costs shall be taxed by the prothonotary, and payment thereof may be enforced by attachment and sequestra- tion, or the party to whom the said costs are directed to be paid, may, at his option, have a common law writ of execution for the recovery thereof; and the party against whom such order is made shall not be allowed to take any further step in the cause until pay- ment of such costs." The defendant's counsel may have his fees for drawing the answer, as costs, where the bill is dismissed at plaintiffs costs, under the rule of court in Cumberland County."^ In dismissing the bill which failed as a whole, but where plaintiff may have been entitled to dis- covery, the costs may be put on the defendant"*' In a proper case the costs may be divided,"'^ or if the bill is sustained the defendant required to pay them all.""^ 37. Security for costs. Under a rule of court, a non-resident complainant may be ruled to give security for the costs,'° even after a master's report,"" but not after a delay of many years;" nor after the cause was put on the trial list and continued." When one applies to be made a party to a cause, the court may require him to give security for the master's fees." "Penna. Co. Etc. v. Phila. Natl. Bank, 195 Pa. 34; Van Loon v. Lindsay, 12 Luz. L. R. 93. "Wister v. Foulke, 6 Phila. 26; Spering v. Smith, 9 Phila. 277. '^Totten's Ap., 40 Pa. 385; Linn v. Chambersburg, 160 Pa. 511; Huston v. Clark, 173 Pa. 361. "^ Woodward v. Brace, 139 Pa. 316. "Lowenstein v. Biernbaum, 8 W. N. C. 301. "a Keller v. Riverton Con. Water Co., 15 D. R. 600. "bMuehlhof v. Boltz, 215 Pa. 124; Minteer v. Brickell, 54 Pitts. L. J. 48. "o Thomas Est., 36 Supr. C. 186. "^ Hughes v. Berger, 4 Schuylkill Co. 139. ="Tyndall's Est., 6 W. N. C. 562; Voigt v. Pfaffle, 16 W. N. C. 47; Clothier Etc. Co.'s Case, 11 C. C. 201; McKee v. Smith, 47 Pitts. L. J. III. "Benton v. Bryant, 2 W. N. C. 424; "Costs," vol. 2, Johnson, p. 90. "Southmaid v. Henderson, 3 W. N. C. 78. " Smart v. Chamberlin, 26 W. N. C. 272. °°Kase V. Greenough, 88 Pa. 403. Vol. 4 Practice — 41 642 EQUITY PRACTICE IN PENNSYLVANIA. 38. Collection of costs. An execution may issue for costs," but not until they have been regularly taxed." An attachment execution may issue also," but not an attachment in the case of contract." The defendant may claim the exemption." An attachment for costs in Equity will lie where the matter comes within the exceptions in the act of July 12, 1842, P. L. 339;" otherwise not." 39. Appeal from decree as to costs. On appeal, a decree as to costs will not be reversed except for plain error." Once entered a decree for costs cannot be changed except on appeal by consent.'" If parties appealing wish to raise the question of costs in the appellate court they must so specially assign for error." After the appellate court has made an order for costs it is not competent for the lower court to change it." 40. Equity fee bills. Under the authority of the act of April 6, 1854, P. L. 301, the courts of Allegheny County fixed their fee bills. For the Equity fee bill in Allegheny County see Digby's Rules of Court, pp. 59, 60, 61. Section i of the act of May 4, 1864, P. L. 775, provides : "It shall be the duty of the judges of the various * * * * Courts of Com- mon Pleas in this Commonwealth to make and establish for their respective courts, a tariff of fees and costs in Equity proceedings and cases." 41. Appeals. Rule 92 regulating appeals in Equity was abrogated by order of the Supreme Court, September 4, 191 1, when the rules were amended as herein appears. The act of May 19, 1897, P. L. 67, Vol. i, John- son, P. 107, now regulates all appeals. See also Vol. 2, Johnson, P. 132, for appeals generally. In cases of specific performance see act of May 28, 1907, P. L. 283. On appeal assignments of error must also be filed in the Appellate Court.'^ The decree and not the opinion is assignable for error. No appeal lies until a final decree is entered. The findings objected to must be specified and the record must show that exceptions were taken,^' and " Nolde V. Madlem, 5 Central R. 728. "Baker v. Slobig, S C. C. 382. " SchoU v. Schoener, i Woodward 134. ■"Rice V. Rice, 11 D. R. 702; Lewis v. Parrott, 41 W. N. C. 150. " Bradley v. West Chester Etc. Co., 160 Pa. 72. * Wilson V. Wilson, 142 Pa. 247; Duff v. McDonough, 2 Supr. C. 373; Church's Ap., 103 Pa. 263; Beidler v. Howell, 8 Phila. 273; Cochran v. Gowen, 9 Phila. 299. ■" Pierce's Ap., 103 Pa. 27 ; Cochran v. Gowen, 9 Phila. 299 ; Welhover's Ap., 4 Penny. 176; Fetters v. Barker, 11 C. C. 366. "Hepburn's Ap., 65 Pa. 468; Penna. Co. Etc. v. Phila. Nat. Bk., 19s Pa. 34- "Welliver's Ap., 4 Penny. 176. "Patrick's Ap., 105 Pa. 356; Persch v. Quiggle, 57 Pa. 247. "Jane's Ap., 87 Pa. 428. "Jones v. Wier, 217 Pa. 321. "Condron v. R. Co., 233 Pa. 197. DECREES, COSTS AND APPEALS. 643 how disposed of." A decree overruling a demurrer to a bill and directing the defendant to answer is interlocutory only and not appealable." 42. Courts may make further rules. Rule 93 of the Supreme Court Equity Rules prescribes : "The courts may make any other and further rules and regula- tions for the practice, proceedings, and process, mesne, and final, in their respective districts, not inconsistent with the rules hereby pre- scribed, in their discretion, and from time to time alter and amend the same." (See local rules of court.) 43. When records may be removed from the office of the pro- thonotary. It is provided by amended rule 32 (June 3, 1907), Philadelphia, that: "No records shall be removed from the office of the prothonotary except when needed for use by the courts or by auditors, masters, or other similar officers appointed by the courts; and no subpoena duces tecum for a public record or paper shall be issued without the special order of a judge." "Chisholm v. Thompson, 233 Pa. 181. "Stuchul v. Stuchul, 233 Pa. 299. CHAPTER XXXIV. JUKISDICTION OF INJUNCTIONAL REMEDY. 1. Remedy by injunction. 2. Irreparable injury — ^preliminary injunction. 3. "Balance of injury.'' 4. Plaintifif's interest and status. 5. Effect of laches and estoppel. 6. Object of preliminary injunc- tion. 7. Element of imminent danger. 8. Injunction not issuable on doubtful rights. g. Mandatory injunctions. 10. Restraint of legal proceedings. 11. Restraint of foreclosure of a mortgage. 12. Injunctions against executions. 13. Injunctions in other cases at law. 14. Injunctions against trespass. 15. Permanent or continuous tres- pass. 16. Injunction against a nuisance. 17. Ground of Equity jurisdiction. 18. Restraint of dangerous or offen- sive business. 19. Obstructions on highways. 20. Obstruction of streams and canals. 21. Restraint of waste. 22. Injunction as to easements. 23. Division and party walls. 24. Right of way. 25. Water rights. 26. Rights of riparian owners. 27. Restraint of collection of taxes. 28. Remedy for irreguler taxation. 29. Injunctions against public of- ficers. 30. Injunctions against municipal- ities. 31. Enjoining municipal contracts. 32. Injunction to preserve the rights of individuals. 33. Restraint of increase of muni- cipal debt. 34. Injunctions against corpora- tions and associations. 35. Injunctions to inquire into "in- jurious acts of Qorpora- tions." 36. Railroads and street railway agreements. 37. Injunctions against railroad dis- criminations. 38. Railroads not to engage in min- ing or manufacturing. 39. Grade crossings of railroads. 40. Unlawful working of mines. 41. Adulteration of linseed oil. 42. Injunctions as to contracts. 43. Injunction to restrain illegal use of trade marks, etc. 44. Copyright and publication. 45. Injunctions against strikes and boycotts. 46. Injunction against crimes and offences. 47. Enforcement of municipal or- dinances. 1. Remedy by injunction. It may be stated at the outset that it is not the intention to pre- sent here a review of all the varieties of cases in which an injunction may issue. Those who wish to have a complete and analytical detail of cases can find them all logically grouped in Vol. 9, P. & L. Dig., Cols. 14041 to 14333; Vol. 2, C. R. A., Cols. 2645 to 2690 and 3 C. R. A., Cols. 1092 to 1132. This work is more particularly con- cerned with the practice upon bills for injunctions. The remedy by injunction is one of those high and extraordinary remedies, equit- 644 JURISDICTION OF INJUNCTIONAL REMEDY 64S able in character, which is invoked when there can be no complete and adequate remedy at law, from the nature of the case, and where, if not invoked, irreparable injury would probably result. The general principle is laid down that where there is a full, complete and adequate remedy at law an injunction will not lie.^ A clear right must have been invaded for which there is no adequate remedy at law, to justify an appeal to Equity jurisdiction for an in junctional remedy." The judge as Chancellor is said to act as of grace, but where a wrong is done or threatened, and the law affords no adequate relief, it is no longer a matter of grace but of right.' It is for the court to determine whether the remedy at law is, in view of the circumstances and the conduct of the parties, sufficient to do ample justice, or whether Equity would not afford a more complete and beneficial remedy.'' So, although there may be a remedy at law, if inadequate to meet the exigencies of the case, an injunction will lie." But if the matter be trifling or doubtful a court will not put forth the strong arm of injunction." It is not a sufficient moving reason in itself that the defendant is insolvent;' but where the Equity right is clear it may have some weight." If there is also a legal remedy the plaintiff by his bill must show why it is inadequate to the exigency of his case. A bill for an injunction to restrain a trespass should show that the defendant is irresponsible and not able to answer in damages, or that the injury will be of such a character that the remedy at law for damages would be inadequate." If damages will compensate either the damages derived or the loss suffered from a nuisance Equity will not interfere." An injunction will lie to restrain an act prejudicial to plaintiff's rights, when there is a legal remedy, if the damages cannot be measured or calculated at law." * Clark's Ap., 62 Pa. 447 ; Tillraes v. Marsh, 67 Pa. 507 ; Kennedy's Ap., 81* Pa. 163; Meig's Ap., 62 Pa. 28; Concord Twp.'s Ap., 36 Leg. Int. 384; Pittsburg's Ap., 118 Pa. 458; Delaware Co.'s Ap., 119 Pa. 159; Beatty's Ap., 122 Pa. 428; Saltsburg Gas Co. v. Saltsburg Boro, 138 Pa. 250; Leininger v. Summit Br. R. Co., 180 Pa. 287; Saunders v. Racquet Club, 170 Pa. 265. ' Stout V. Williams, 203 Pa. 161. ' Sullivan v. Jones Etc. Co., 208 Pa. S40. Decree for contempt re- versed, 222 Pa. 72. * Penn Iron Co. v. Lancaster, 25 Supr. C. 478 ; Jones v. Wasilewski, 10 Kulp 471. "Howell v. Natl. Etc. Co., 9 Northam. 108; 319; York Mfg. Co. v. Oberdick, 25 C. C. 321. "Stewart Wire Co. v. Lehigh Etc. Co., 203 Pa. 474; Swain v. Herman, 52 Pitts. L. J. 161 ; Leahy v. Tompkins, 48 Pitts. L. J. 218. ' Heiiman v. Union Canal Co., 37 Pa. 100. 'Brace v. Evans, 35 Pitts. L. J. 399. 'Jordan v. Woodhouse, S Luz. L. R. 141. "Woodward J. in Davenport v. Harvey, 4 Kulp 499; Shaw v. Natl. Transit Co., 4 C. C. 363. "Grey v. Ohio Etc. R. Co., I Grant 412; Richard's Ap., S7 Pa. 105; Harkinson's Ap., 78 Pa. 196. " Pugh V. Jayne, 17 Leg. Int. 149 ; Westmoreland Etc. Co. v. Dewitt, 130 Pa. 23s; Sterling's Ap., in Pa. 35. 646 EQUITY PRACTICE IN PENNSYLVANIA. If the statute prescribes a positive remedy at law an injunction will not be granted, even on the ground of irreparable injury." Equity will only interfere to remove an obstacle to the remedy appointed by law." Equity being a part of the law of Pennsylvania, courts will restrain acts which are contrary to Equity as well as those contrary to Law." The writ of jurisdiction is generally anticipative to prevent a meditated injury or threatened wrong. It belongs to exclusive and auxiliary as well as concurrent jurisdiction. AH injunctions are intended to restrain, but a final injunction may command acts to be done as well as prohibited and is termed mandatory."^ Injunctions have been classified as provisional, general and per- petual. A preliminary injunction is tentative to be in force until a hearing ; — also called by some "interlocutory." "'' "An injunction is not of right. It will not be issued when, upon a broad consideration of the situation of all the parties in interest, good conscience does not require it."'°<= Where the owner of land obstructs the operation of a street railway, to whose construc- tion he has tacitly consented, his act will be enjoined and he be remitted to an action at law for damages. The act of March 31, i860 (Sec. 142), P. L. 382, making the wilful obstruction of a railroad a felony applies to a street railway."'* 2,. Irreparable injury — ^preliminary injunction. Past and completed injuries are not the object of an injunction, which is an anticipative remedy." A preliminary injunction is never granted for the purpose of enforcing a mere right, but only to prevent irreparable injury," which, as a general rule is such mischief as cannot be compensated in damages." Thompson, C. J., said:" "Irreparable injury is the foundation for intervention by injunction; not irreparable because so small that it may not be estimated, but because likely to be so great as to be incapable of compensation in damages." Mere inconvenience, from which irreparable injury is not " Comth. V. Wellsboro Etc. Co., 35 Pa. 152 ; Brown's Ap., 66 Pa. 155 ; Rink's Ap., 3 Walker 337 ; P. & L. Dig., vol. 9, col. 14052. " Bailey v. Fitzpatrick, 8 Phila. 93. ""Stockdale v. Ullery, 37 Pa. 486; Black v. Black, 5 C. C. 356, Wistar V. McManes, 54 Pa. 318; Unangst's Ap., 55 Pa. 128; Ashton's Ap., 73 Pa. IS3. "a Audenried v. P. & R. R. Co., 68 Pa. 370 ; Whiteman v. Fayette Fuel Gas Co., 139 Pa. 492. ""b Audenried v. P. & R. R. Co., 68 Pa. 370. "cHeilman v. Lebanon Etc. R. Co., 175 Pa. 188; Penna. R. Co. v. Glenwood Etc. Co., 184 Pa. 227. "a Penna. & M. Etc. Co. v. Kenneth Coal Co., 20 D. R. 496 (see form of bill) ; Becker v. Lebanon Etc. R. Co., 188 Pa. 484. " McDonough v. Bullock, 2 Pearson 191 ; Mammoth Etc. Co.'s Ap., 54 Pa. 183; P. & L. Dig., vol. 9, col. 14060; Traction Co. v. Shenandoah, 23 C. C. 222. " Mocanaqua Coal Co. v. Northern Cent. R. Co., 9 Phila. 250 ; Lacka- wanna Etc. Co. V. Scranton Etc. Co., 3 Law Times (N. S.) I. " Richard's Ap., 57 Pa. 105. "Rhodes v. Dunbar, S7 Pa. 274. JURISDICTION OF INJUNCTIONAL REMEDY 647 likeiy to result is not a sufficient ground." Walker, J., said:" "The granting of an injunction is always a high exercise of power to be cautiously exerted; but when large and expensive works are sought to be stopped, it should clearly appear that it is a case for equitable intervention, that there is no adequate remedy at law and that irreparable injury will ensue." Therefore, when a preliminary in- junction is asked for, the bill of complaint should set forth all these grounds.*" An injunction will lie where the injury cannot be measured by any known standard and would be mere conjecture.^ If an injury be continuous and to remedy it at law a multiplicity of suits would be required, it has been held irreparable in its nature, and justifying an injunction.** But the decree of the court adjudging the defendant in contempt for violating the injunction in this case was reversed.'' The law remains the same, however, though robbed of its sting." The plaintiff need not in all cases show his past dam- ages in order to obtain relief. The court may award them as in- cidental to other relief sought and not in specific performance as part of or as a substitute for that relief."' But the plaintiff must make out a plain case of injury and damage, free from doubt or con- tingency,"* and that it cannot be compensated in an action at law." A general averment of irreparable injury has been held to be in- sufficient, when there was no allegation of some specific injury or interference with the plaintiff's rights." Where a corporation does acts not authorized by law, for which there is no measure of dam- ages, irreparable injury results and such acts may be enjoined;" especially where such acts constitute a nuisance,*" as to which the remedy by injunction is as old as the common law itself. Where the right is clear, it need not be first established at law, if the injury is irreparable.*" Any wrong which is repeated or of a continuing character, which causes damages that can be estimated only by "°Raub V. Tamany, s Luz. L. R. 114. "* Leibig v. Ginther, i Foster 203. ""New Boston Etc. Co. v. Pottsville Water Co., 54 Pa. 164; Kelly v. Phila., 12 Phila. 423 ; Hespenheide's Ap., 4 Penny. 71 ; Berlew v. Elec. Etc. Co., I C. C. 651; Berks Etc. Road v. Lebanon Steam Co., S C. C. 354; GilfiUan v. Grier, 145 Pa. 317; Bower v. Watsontown Boro, 11 C. C. no. ""Phila. Ball Club v. Lajoie, 202 Pa. 210; Schmaltz v. York Mfg Co., 204 Pa. I ; Point Bridge Co. v. Ry., 230 Pa. 289. "^ Sullivan v. Jones Etc. Co., 2C^ Pa. 540. "^ Sullivan v. Jones & Laughlin 'Steel Co., 222 Pa. 72. ^ Seip v. Werner, 10 Northam. 37. "" Rice, P. T., in Wright v. Weber, 17 Supr. C. 451. "" Berkey v. Berwind Etc. Co., 220 Pa. 65 ; Jones v. Locust Mt. Etc. Co., 34 C. C. 537; Western Union Tel. Co. v. P. & R. R. Co., 9 Phila. 494; Jones' Ap., 29 Pitts. L. J. 96; Harley v. Meshoppen Water Co., 174 Pa. 416. "* Schofield V. Penna. Etc. Co., 8 Montg. 125 ; Myers v. Phila. Etc. Co., 12 Montg. 46. *• White V. Ryan, 15 C. C. 170 ; Shaw v. Natl. Transit Co., 4 C. C. 363 ; Johnson v. Kier, 3 Pitts. 204; Crellin v. Schafer, 4 Kulp 211 ; Gummere v. Lehigh V. R. Co., 12 C. C. 106. " Groff's Ap., 128 Pa. 621. ""Penna. Lead Co.'s Ap., 96 Pa. 116. "" Rarick v. Smith, 17 C. C. 627 ; Comth. v. Rush, 14 Pa. 186 ; Penna. R. Co.'s Ap., IIS Pa. 514. V 648 EQUITY PRACTICE IN PENNSYLVANIA. conjecture and not measured by any accurate standard, comes within the definition of "irreparable injury." "' A breach of covenant re- stricting the use of land will be restrained by injunction although the plaintiff would suffer only nominal damages by the breach. In such case the right may be enforced without proof of damages."" 3. "Balance of injury." The phrase "balance of injury," has reference to the discretion of the judge in weighing whether the injunction, if granted would not cause more injury, than his refusal to grant it, and then to relegate the plaintiff to other remedies."" In all cases where the balance appears to be against the writ it will be refused." Where the allegation of the defendant that the injunction would cause more injury than benefit is not supported on the hearing of the case, a mandatory injunction will be sustained."* An injunction so sweeping that it locks up all the defendant's money on the ground that seme of it is trust money cannot be sustained on any principle."" Where the act is tortious it is a question of right and not of damages and the court will not weigh the injury in the scales of merchandise." A preliminary injunction may be continued out of consideration for the public good, where a state normal school is concerned." 4. Plaintiff's interest and status. An injunction is not a writ of right. The plaintiff must show his interest and that the act or thing he wishes enjoined would be prejudicial to his interest before he can ask a Court of Equity to move.*" Nor can Equity lend itself to the private purposes of a plaintiff, to give him an undue advantage in a transaction.*" A plaintiff must stand on the strength of his own title and interest rather than on the weakness of others';" and must come into court "•Comth. V. Pittsburg Etc. R. Co., 24 Pa. 159; Warren Etc. R. Co. v. Clarion Etc. Co., 54 Pa. 28; Stewart's Ap., 56 Pa. 413; Sterling's Ap., iii Pa. 35. "° St. Andrew's Lutheran Church's Ap., 67 Pa. 512. "° P. & L. Dig., vol. 9, col. 14061 ; Loyal Sock Twp. v. Montoursville Pass. R. Co., 7 D. R. 291 ; Cameron Furnace Co. v. Penna. Canal Co., 2 Pearson 208; Berkey v. Berwind Etc. Co., 220 Pa. 65; McCaffrey's Ap., 105- Pa, 253; Acheson v. Stevenson, 130 Pa. 633; Chartiers Etc. Co. v. Mellon, 152 Pa. 286; Mackintyre v. Jones, 9 Supr. C. 543; Stout v. Williams, 203 Pa. 161 ; Keeling v. Pittsburg Etc. R. Co., 205 Pa. 31. "' See cases N. 36 ; also Wahl v. M. E. C. Assn., 197 Pa. 197 ; Comth. v. Potter Etc. Dist., 11 D. R. S3; 2 C. R. A., col. 2648. ""Piro v. Shipley, 211 Pa. 36. "•Ervin's Ap., 82 Pa. 188. "Comth. V. Pittsburg Etc. R. Co., 24 Pa. 159; Penna. Lead Co.'s Ap., 96 Pa. 116; Reimer's Ap., 100 Pa. 182; Walters v. McElroy, 151 Pa. 549; Wilkes-Barre v. Troxell, 5 Luz. L. R. 133. "Edinboro Etc. School v. Cooper, 150 Pa. 78. ^'Marvine v. Drexel, 68 Pa. 362; Borie v. Satterthwaite, 12 Mont. 55; 180 Pa. 542. " Messner v. Lykens Etc. R. Co., 13 Supr. C. 429. ''Myersdale Etc. R. Co. v. Penna. Etc. R. Co., 2ig Pa. 558; Andel v. Duquesne Etc. R. Co., 219 Pa. 635 ; Scranton Gas & Water Co. v. Hall, 9 Lack. Jur. 80; 8 Lack. Jur. 348; Geisler v. Brown, 54 Pitts. L. J. 447. JURISDICTION OF INJUNCTIONAL REMEDY 649 with clean hands, seeking to do equity and not iniquity." A stranger cannot ask for an injunction." To enjoin the business of a firm, plaintiff must show that he is a partner." One who acquired title to land after a railroad company located a right of way, for a lateral road, not authorized by law, has an interest and standing to obtain an injunction;'" and so has a purchaser at Orphans' Court sale after confirmation and before delivery of the deed. A street railway company which has leased its tracks for 999 years is not a proper party to restrain the invasion of the right of way.™ A private individual cannot enjoin a corporation to perform a public duty; only the attorney general can do that." The right of a plain- tiff in an injunction suit is jurisdictional and may be raised by the court itself at any time, although not raised by the pleadings or by counsel.^" A preliminary injunction may be continued pending an action at law to determine a question of title.' Possession under a lease to drill for oil, etc., is a sufiicient title to enjoin interference with his right.' 5. Effect of laches and estoppel. The plaintiff may lose his remedy by injunction by his own laches in standing by and permitting the acts to progress,' and it does not require very long delay, under some circumstances to work estoppel;' especially where the damages of the plaintiff may be readily com- puted." What acts constitute laches to prevent the plaintiff from having an injunction depend largely upon the circumstances of each case." Laches is not imputable from lapse of time alone; there is an implied waiver arising from knowledge of existing conditions and an acquiescence in them, when in good conscience he ought to object ■" Miles Medical Co. v. May Drug Co., 53 Pitts. L. J. 249. " Morse v. O'Reilly, 4 Clark 484. " Simms v. Brouse, 10 Phila. 13. " Robbins v. Western W. R. Co., 48 Pitts. L. J. 181. "Tomlinson v. Trenton Etc. R. Co., 31 C. C. 81. "Thirteenth Etc. Co. v. Broad Etc. R. Co., 13 D. R. 808; 219 Pa. 10; Southside Etc. Co. v. Second Ave. Etc. Co., 191 Pa. 492. "Buck Etc. Co. V. Lehigh Etc. Co., 50 Pa. 91. " Mirkil v. Morgan, 134 Pa. 144. ' Kasian v. Stefansky, 6 Kulp 445. 'Westmoreland Etc. Co. v. Dewitt, 130 Pa. 235. °P. & L. Dig., vol. 9, col. 14071, et seq.; Potter v. Rend, 201 Pa. 318; Mammoth Etc. Co.'s Ap., 54 Pa. 183; Ashhurst's Ap., 60 Pa. 290; Mayer's Ap., 73 Pa. 164; Cox's Ap., II W. N. C. 571; Power's Ap., 125 Pa. 175; Dunmore Boro's Ap., i Mona. 567; Chambers v. B. & O. R. Co., 139 Pa. 347; Orne v. Fridenberg, 143 Pa. 487; Heilman v. Lebanon Etc. R. Co., 175 Pa. 188; 180 Pa. 627; Riverton Ferry Co. v. McKeesport Etc. Co., 179 Pa. 466 ; Penna. R. Co. v. Glenwood Etc. Co., 184 Pa. 227 ; Becker V. Myerstown Etc. Co., 188 Pa. 484; Lehigh Etc. Co. v. Lentz, 228 Pa. 346. 'Stewart Wire Co. v. Lehigh Etc. Co., 203 Pa. 474; Keeling v. Pitts- burg Etc. R. Co., 205 Pa. 31; Coolbaugh v. Kinsey, 11 Northam. 242; Maust V. Penna. Etc. Co., 219 Pa. 568. " Penna. R. Co.'s Ap., 125 Pa. 189. "See cases illustrative, P. & L. Dig., vol. 9, cols. 14078-9; Rothschild v. Rochester Etc. R. Co., i C. C. 620; 4 Central R. 107; Westhaeffer v. Lebanon Etc. Co., 163 Pa. 54; Morris v. Stevens, 178 Pa. 563. 6so EQUITY PRACTICE IN PENNSYLVANIA. and protest without sleeping on his rights;' and this applies also to the Commonwealth.' As to encroachment by fences or hedges, when the owner does not know of it until the survey discloses it, laches will not be imputed, if he acts promptly upon his rights as soon as discovered." And so also of sewer construction." The right to en- join encroachments in building may also be lost by acquiescence for a long time.'"* 6. Object of preliminary injunction. The object of a preliminary injunction is to preserve the status quo pending litigation and not to destroy it." Therefore it cannot be used to take property out of the possession of one who holds it under a claim of right and deliver it to another. This can only be done after hearing and by final decree.'^ Whilst this rule is general it is not without exception, in extraordinary circumstances which de- termine the duty of the court." Mitchell, J., said:" "The status quo, which will be preserved by a preliminary injunction, is the last actual, peaceable, non-contested status which preceded the pending controversy; and Equity will not permit a wrongdoer to shelter him- self behind a suddenly or secretly changed status, though he suc- ceeded in making the change before the Qiancellor's hand actually reached him." 7. The element of imminent danger. To justify a preliminary injunction there must appear on the face of the bill and aifidavit the fact that there is immediate and urgent danger of irreparable injury. The positive denial of the grounds of complaint by the defendant may of itself be an important element in staying issuance of the preliminary writ." "Anticipations of dan- ger which may never occur, apprehensions merely speculative, event- ual and contingent, where the grounds on which they rest are denied, 'Hansell v. Downing, 17 Supr. C. 235; Hinnershitz v. United Tr. Co., 199 Pa. 3; Forty Fort Boro v. Forty Fort Water Co., 9 Kulp 241. ' Comth. v. Wilkes-Barre Etc. Co., 12 Luz. L. R. 75. "Wickham v. Twaddell, 25 Supr. C. 188. '° O'Malley v. Olyphant Boro, 198 Pa. 525. "a Bullitt v. Hinchman, 227 Pa. 197; Hufnagle v. Shap, 11 Lack. Jur. 197; Devlin v. Poor Richard Club, 19 D. R. 326; Machin v. Ferguson, 26 Montg. 19s; Collins v. Iron Works, 227 Pa. 326. "Hicks V. Am. Nat. Gas Co., 207 Pa. 570; Rudy v. Myton (No. 2), 19 Supr. C. 319; Blau v. Hurwitz, 8 Lack. Jur. s, 92; Highspire Bor,o v. York Haven Etc. Co., 32 C. C. 95 ; Lehigh V. Coal Co. v. Reliance Coal Co., 13 Luz. L. R. 333; Nocton v. Penna. R. Co., 20 Montg. 25. " Fredericks v. Huber, 180 Pa. 572 ; Hecksher v. Sheafer, i Schuylkill L. R. 28s; Chester Tr. Co. v. Phila. Etc. Co., 174 Pa. 284; O'Brien v. Wilson, 10 Montg. Co. 169; P. & L. Dig., vol. 9, col. 14079, et seq.; Farmers' R. Co. v. Reno Etc. R. Co., 53 Pa. 224; Schlecht's Ap., 60 Pa. 172; Audenried v. P. & R. R. Co., 68 Pa. 370; Scranton Etc. Co. v. Northern Etc. Co., 145 Pa. 21 ; Penna. Etc. Co. v. P. & R. R. Co., 151 Pa. 402. '" Leininger'g Ap., 106 Pa. 398, citing Munson v. Tryon, 6 Phila. 385; Kerns v. Harbison, 3 York 154. " Fredericks v. Huber, 180 Pa. 572. " Biddle \r. Ash, 2 Ashmead 211 ; P. & L. Dig., vol. 9, col. 14085, et seq.; Williams v. Ladew, i6l Pa. 283; Hicks v. Am. Nat. Gas Co., 207 Pa. 5701 JURISDICTION OF INJUNCTIONAL REMEDY 651 rarely warrant interference by injunction." " But if substantial grounds are laid the court should not be persuaded by assurances of the defendant or his counsel that he has no intention to do what the court is asked to restrain." 8. Injunction cannot be issued on doubtful right. "The strong arm of the law" will not be put forth for a doubt- ful right. So the plaintiff's right must be clear and free from doubt." If there are doubts and the public would be inconvenienced by grant- ing an injunction it will be refused;" or where the plaintiiif has been tardy in asserting his claim of right.^° Where a preliminary injunc- tion has been granted and the weight of the evidence in the affidavits is in favor of the defendant it will not be continued, but dissolved.'^ One who has assigned his right has no standing to ask for an in- junction."* Neither will Equity command a vain thing; so, where a coal company spent a year and a half and all its capital to ex- tinguish a subterranean fire and failed, it will not be ordered by in- junction to put out the fire."'' Nor will the officers of a city be so enjoined when it does not appear that they have failed in any duty."" A Chancellor will not decree that which would but harm the defen- dant and not benefit the plaintiff."* 9. Mandatory injunctions. An injunction to compel the doing of a positive act is called "man- datory," as contrasted with a restraining or prohibitive injunction. A mandatory injunction will not, as a rule, be granted in the first instance, as preliminary to a hearing." It is seldom granted before final hearing.''^ The bill will be dismissed if not well fortified at "Ch. J. Thompson, in Rhodes v. Dunbar, 57 Pa. 274; Hey v. Spring- field Water Co., 207 Pa. 38; Wahl v. M. E. C. Assn., 197 Pa. 197. "Real Est. Tr. Co. v. Hatton, 194 Pa. 449; Penna. R. Co. v. Lilly Boro, 207 Pa. 180. "P. & L. Dig., vol. 9, cols. 14090-14100; New Boston Etc. Co. v. Pottsville Water Co., 54 Pa. 164; Penn Iron Co. v. Lancaster, 15 Supr. C. 556; 2 C. R. A., col. 2656; New Idea Pattern Co. v. Whitner, 215 Pa. 193; Regan v. Scranton, 9 Lack. Jur. 293; 3 C. R. A., col. 1096; Brown's Ap., 62 Pa. 17; Philadelphia's Ap., 78 Pa. 33; Minnig's Ap., 82 Pa. 373; Fritz v. Erie Etc. R., 155 Pa. 472; Smith v. Reading Etc. R., 156 Pa. s; Athens Etc. R. v. Sayre Boro, 156 Pa. 23; Thouron v. Schuyl- kill Etc. R. Co., 174 Pa. 366; Seltzer v. Reading, i Berks Co. 133. " Fisher v. York Water Co., i York 83. ""Butler V. Egge, 170 Pa. 239. " Huston V. Huston, i W. N. C. 26 ; New Era Life Assn's Ap., 2 Atl. 59 ; P. & L. Dig., vol. 9, col. 14102; Painter v. Western Union Tel. Co., 19 Supr. C. 168; Hummelstown Water Co. v. Harrisburg Etc. R. Co., 31 C. C. 291. "aRosenbluth v. Reis Co., 36 C. C. 332. "b McCabe v. Watt, 224 Pa. 253 ; 259- "<= Cameron v. Carbondale, 227 Pa. 473. "a Citizens' Elec. Co. v. Boom Co., 227 Pa. 448. ""Audenried v. Phila. & R. R. Co., 68 Pa. 370. ^Mocanaqua Coal Co. v. Northern Cent. R. Co., 4 Brewster 158; Cooke V. Boynton, 135 Pa. 102; Brown v. Equitable Gas Co., 155 Pa. 359. 652 EQUITY PRACTICE IN PENNSYLVANIA. all points;^ and where there appears to be an adequate remedy at law/" A mandatory injunction to abate a nuisance will be granted only where the injury is immediate and irreparable;^ but where the obstruction is in violation of a building restriction it may be issued;" also where it is necessary to restore the status quo as it existed when the contract was broken;'" also where a stranger acquired rights in a family burial lot;™ also, to compel the successors in title to a rail- road to carry out a traffic contract;" also to compel a railroad com- pany to construct a switch and siding and permit a landowner to connect therewith;'' and to compel the restoration of the rights of a tenant in a market stall of which he was deprived;'" but where he has only a license the lessee may oust him."** A mandatory injunc- tion against road supervisors to compel them to repair a road in a certain way, is a doubtful remedy and will not be granted.'''' It will not issue in aid of a lot owner who claims lateral support, for which he has a remedy at law;'''' or to enforce a municipal contract"^ The unlawful conversion of timber under a contract may be en- joined."^ But to enjoin the obstruction of light and view, the case must be clear and irreparable injury shown."' A mandatory injunc- tion will be granted on complaint of a borough, to compel a rail- road company to remove a pier from a stream which it so obstructs as to constitute a nuisance, s 10. Bestraint of legal proceedings. A peculiarity of our system of Equity jurisprudence is the power of a Court of Equity to reach over into the Law side and restrain a proceeding there, which falls within the classes of fraud, accident or mistake." A mere breach of faith not coming up to fraud is ''Gatzmer v. St. Vincent School Soc, 147 Pa. 313; Smith v. Maigerum, 46 Pitts. L. J. 120; Cope v. Hastings, 183 Pa. 300. ''' Mercantile Library Co. v. University of Penna., 220 Pa. 328 ; Wake- ling V. Cocker, 208 Pa. 651 ; Liggett v. Kaufmann, 17 Supr. C. 631 ; Perry v. Wilkes-Barre Etc. R. Co., 4 Kulp 519. "Scranton v. Scranton Steel Co., 154 Pa. 171; Mayer's Ap., 73 Pa. 164; P. & L. Dig., vol. 9, col. 14107. ^' Meigs v. Milligan, 177 Pa. 66; Roberts v. Burke, 15 Montg. 109; Wesley v. Sulzer, 224 Pa. 311; Weiser v. Freeman, 227 Pa. 78; Paine v. Lambach, 57 Pitts. L. J. 26. "Whiteman v. Fayette Fuel Gas Co., 139 Pa. 492. =* Lewis V. Walker, 165 Pa. 30. '" Cumberland Valley R. Co. v. Gettysburg Etc. R. Co., 177 Pa. 519. =" Moser v. Phila. Etc. R. Co., 35 C. C. 49- "Levenson v. Pittsburg, 54 Pitts. L. J. 293. "a McTighe v. Schwartz, 223 Pa. 277. '^*>Tussey v. Clark, 45 Supr. C. 433. "<: Freseman v. Purvis, 59 Pitts. L. J. 234. "d Conrad v. Dunraore, 12 Lack. Jur. 55. "e Ohio Pail Co. v. Cook, 222 Pa. 487. "f Taylor v. Sauer, 40 Supr. C. 229. '"e Carnegie Boro v. Pittsburg Etc. R. Co., 234 Pa. 472, following Corath. V. Stevens, 178 Pa. 543. "Denny v. Fronheiser, 207 Pa. 174; Kaufmann v. Liggett, 209 Pa. 87; see Heffner v. Barr, 49 Pitts. L. J. 444- JURISDICTION OF INJUNCTIONAL REMEDY 653 not cognizable by injunction." Where one of several tenants in com- mon fraudulently purchases land at sheriff's sale for arrears of ground rent, at the suit of his co-tenants, he may be enjoined from proceed- ing to gain exclusive possession." Where the remedy at law is ade- quate the proceedings will not be enjoined." But where there has been inexcusable delay, the proceedings at law may be restrained." After decree in Equity, if any of the parties to it proceed at law, inconsistent with such decree, they may be restrained. One who in- duces another to exchange lands will be restrained from bringing ejectment against another who in good faith took possession and improved the land." Proceedings on a sci. fa. to revive a judgment may be restrained where there is no adequate remedy at law;" so proceedings on a judgment may be restrained where there are ques- tions of fraud and apportionment of contribution." In case of mis- use of legal process a preliminary injunction restraining it until hearing, may issue." Equity will not take a hand where the grounds on which relief is asked are available in the action at law.*' When a judgment has been affirmed by the Supreme Court, Equity will not restrain the execution on an allegation of after-discovered evidence." Nor will a landlord's proceedings to obtain possession be restrained, when there is an adequate remedy at law." But vexatious proceed- ings at law may be restrained in proper cases." Equity will not re- strain the forfeiture of a lease on the ground of want of notice, for arrears of rent, the tenant having an adequate remedy at law;" nor the filing of a mechanics' lien when a contract against liens has been filed in the prothonotary's office, the remedy at law being adequate;" but it will restrain the filing of a lien by a sub-contractor in viola- tion of the contract against liens made by the contractor." A bill to compel satisfaction of a mortgage and restrain proceedings there- on will be dismissed when the question of payment is doubtful.™ A subsequent mortgagee, who claims the prior mortgage is paid must intervene on the sci. fa. He cannot proceed by bill.* A wage earner "Denny v. Fronheiser, supra. A moral duty resting in conscience alone will not be enforced by an injunction (Rees v. Watertown, 86 U. S. 107). * McGranighan v. McGranighan, 19 C. C. 75. "66311/8 Ap., 122 Pa. 428; Hogue v. Matlack, 8 C. C. 657; Olmstead's Ap., 86 Pa. 284; P. & L. Dig., vol. 9, col. 141 14. " Prevail v. Barclay, S Clark 268. "McDowell's Ap., 123 Pa. 381. "Big Mt. Imp. Co.'s Ap., 54 Pa. 361. ■" Sallade v. Albertson, i Foster 76. " Kelly V. Accommodation Etc. Assn., 2 Phila. 237. "Borie v. Satterthwaite, 180 Pa. 542. "Kraber's Ap., 2 York 55. " Kountz's Ap., 2 Walker 458. "Pittsburg Etc. Co.'s Ap., 123 Pa. 250; Adler v. Schilling, 33 C. C. 346; Danzer v. Hersker, 34 C. C. 251; Slattery v. Lehigh Etc. Co., 4 Schuylkill Co., 49. " Sprout v. Mussina, 16 D. R. 304. " Norton v. Kramer, s Lack. Jur. 86. *Wolf V. Glassport Lumber Co., 210 Pa. 370. "MontpUo Brick Works v. Hoot, 14 D. R. 8. "Dinner v. Van Dyke, 25 Supr. C. 433. 'Excelsior Sav. Fund v. Ingram, 9 Del. Co. 503; Young v. Hoflfman, I W. N. C. 198. 654 EQUITY PRACTICE IN PENNSYLVANIA. may restrain proceedings by a non-resident to collect an assigned claim, the act of May 23, 1887, P. L. 164, not being exclusive.'' An injunction may not be used to prevent the collection of just debts.'*^ So, an attachment which has secured priority will not be restrained/"* 11. Bestraint of foreclosure of a mortgage. Where the mortgagor has an adequate remedy at law, the fore- closure of a mortgage will not be restrained because the full amount was tendered and refused." But the mortgagee of property held in trust, who refuses the amount due and to execute an assignment unless the trusee's individual debt is paid, may be enjoined.* An injunction will lie, too, where its foreclosure would defeat a sub- sequent lease ;° or render the wife's property liable for her husband's debts;" or where a tenant in common purchases the land and at- tempts to set up title against his co-tenants;' or where the wife has mortgaged her land to secure her husband's debt, the land to be re- leased on the payment of a certain sum, which is paid.' But pro- ceedings will not be restrained on the ground that the mortgagor has no title,' or that it was given to secure gambling transactions;" nor where the mortgagee enters into possession agreeing to pay the profits to the mortgager, which are ascertainable." 12. Injunctions against executions. An injunction will be issued to restrain an execution where it has been illegally issued and there appears to be no adequate remedy at law;" or where it is used to harass or annoy another or cast a cloud upon the title to the land, where defendant has no interest that can be sold;" but not to stay execution of a landlord's warrant when the tenant has his remedy by replevin." Equity will not interfere where the defendant in the execution has been neglectful of his remedy at law;'° nor upon the ground that there are other prop- erties subject to the lien of the same judgment and that the execu- tion plaintiff unjustly pursued this property;" or upon a transferred justice's judgment, when defendant therein by negligence lost his 'Galbraith v. Rutter, 20 Supr. C. SS4- 'a Winch's Ap., 61 Pa. 424; Natalie Coal Co. v. Ryon, 188 Pa. 138. "b Hoopes & Townsend Co. v. Ebel, 37 Supr. C. 459. ' Keyer v. Cosmopolitan Etc. Assn., 8 D. R. 708. * Rose V. Hillary, i W. N. C. 200. * Hartman v. Quay, i Chester Co. 487. •Lyon's Ap., 61 Pa. 15. 'Fisher v. Hartman, 165 Pa. 16. •Saeger's Ap., 96 Pa. 479. •Trexler v. Duby, 16 C. C. 141. "Smith V. Kammerer, 152 Pa. 98. "Spring Etc. R. Co. v. Lehigh Etc. Co., 181 Pa. 294; P. & L. Dig., vol. 9, col. 141 18. ""Boyd's Ap., IS Atl. 736; P. & L. Dig., vol. 9, col. 14128, et seg.; Duquesne Bank's Ap., 74 Pa. 426; Kendall v. McClure Coke Co., 182 Pa. I ; Given's Ap., 121 Pa. 260 ; Reesef's Ap., S Atl. 445. " Barrel v. Adams, 26 Supr. C. 63S ; Gay v. Chambers, 37 Supr. C. 41. "Currey v. McCurdy, 29 Supr. C. 287. " Middleton v. Middleton, 15 Leg. Int. 349. '" Buckley v. Kilker, 218 Pa. 176. JURISDICTION OF INJUNCTIONAL REMEDY 655 remedy by appeal or certiorari;" or upon a judgment in another county;" or where the only question is the identity of the owner of the real estate levied upon." It is only where the process of the law is used wrongfully and injuriously that an injunction to restrain it is justifiable." Injunctions where the legal remedy is adequate, will be refused as against due process of law, in execution." A bill of peace may still be maintained as against repeated and vexatious pro- cess, such as attachments, etc., in order to suppress useless and multiplied litigation; but proceedings in the U. S. Court will not be restrained. Equity will not restrain an insurance company from appearing by its counsel to defend the owner of an automobile whom it has insured against loss by his recklessness, lunacy or criminality.'^ 13. Injunctions in other cases at law. Where the same facts have been passed upon on a rule to show cause why an execution should not be set aside. Equity will not interpose ;" or passed upon in the original suit.'" But the discharge of a rule to open judgment does not prevent a defendant from invoking Equity, if he can show- an equitable defense." But where he has had his day in court and has omitted or failed to present his case as he might and ought to have done. Equity will not come to his aid.'' One court will not intervene in the affairs of another court, as a rule."" Courts of Equity lean tenderly towards the rights of a married woman in her separate property to shield it from the creditors of her husband. So injunctions will be issued in proper cases to restrain executions levied upon such property for her husband's debts, if she is not legally liable." A simple contract creditor has no standing to enjoin the sale of his debtor's property under judgments, which he alleges to be fraudulent.™ "Hughes V. Clark, 35 Supr. C. 518. " Lehigh Etc. Co. v. Hanhauser, 222 Pa. 248. '"Mantz v. Kistler, 221 Pa. 142. ■"Alexander v. Cohen, 23 Montg. 30; Thompson v. Century Etc. Co., IS D. R. 435; Bullock v. Mott, 35 Pa. 222; Hoopes Etc. Co. v. Ebel, 37 Supr. C. 459. ''Rapp v. Hains, s W. N. C. 489; Taylor's Ap., 93 Pa. 21; Waller's Ap., 112 Pa. 579; P. & L. Dig., vol. 9, col. 14134, et seq.; Eyster's Ap., 6s Pa. 473; Nelson v. Guffey, 131 Pa. 273. '"Lyons v. Importers' Etc. Bank, 214 Pa. 428. =" Gould v. Brock, 221 Pa. 38. "* Gardinier's Ap., 89 Pa. 528; Frauenthal's Ap., 100 Pa. 290. '"Billmeyer v. People's Etc. Co., 34 Leg. Int. 454. ■"Wistar v. McManes, 54 Pa. 318; Ashton's Ap., 73 Pa. 153. "^ Lebanon Etc. Co.'s Ap., i Atl. SS9; P- & L- Dig., vol. g, col. 14140. ''Loomis V. Loomis, 27 Pa. 233; Barnes v. Barnes, 16 C. C. 534; P. & L. Dig., vol. 9, col. 14141. "P. & L. Dig., vol. 9, col. 14142, et seq.; Hunter's Ap., 40 Pa. 194; Winch's Ap., 6i Pa. 424; Shober v. Harrison, 3 Supr. C. 188; Lyon's Ap., 61 Pa. is; Thompson's Ap., 107 Pa. 559; Artman v. Giles, 155 Pa. 409; Saeger's Ap., 96 Pa. 479. "Kelly v. Herb, IS7 Pa. 41; Artman v. Giles, 155 Pa. 409; P. & L. Dig., vol. 9, col. 14147-8. 6s6 EQUITY PRACTICE IN PENNSYLVANIA. 14. Injunctions against trespass. An injunction lies against continuous or permanent acts of tres- pass, when the law does not furnish an adequate remedy and the right of the plaintiff is clear, admitted or established," and espe- cially where the trespasser in insolvent,"" and where Equity will pre- vent a multiplicity of actions."' If the trespass be temporary and can be adequately compensated in damages Equity will not usurp the province of the Law." The maxim is : "A,eguitas nunquam con- travenit leges." "^ Notwithstanding, the trend of practice in Pennsylvania, except in the U. S. Courts, is for the hand of Equity to reach over on the Law side and grab law controversies into Chancery, as it were."" If an action has been tried at law, and de- cided against the plaintiff, the hand of Equity will not assist him;" nor where his claim of right is doubtful or disputed."" But the doubt or dispute must go to the heart of the cause and be substantial, not mere conjecture. The building of a roof over an alley, if it does not obstruct the right of using the way in passing and repassing, will not be enjoined;" nor will an overhanging cornice." The owner of a lake may restrain persons from cutting ice upon it and removing it;*" so an injunction will lie to restrain a continuous trespass and diversion of water by an upper riparian owner."^ An artesian well which causes a spring to go dry on an adjoining owner's land, when the water of both is used to supply the public will be enjoined.*" On bill and cross-bill where it appears that a wall was built by mistake across the line a decree will be entered on cross-bill to move or reconstruct the wall to conform to the line.** Permissive use of an alley does not effectuate dedication so owner ''Walters v. McElroy, isi Pa. 549; Lance's Ap., 55 Pa. 16; Sheetz's Ap., 35 Pa. 88; Masson's Ap., 70 Pa. 26; Miller v. Lynch, 149 Pa. 460; Bussier v. Weekey, 11 Supr. C. 463; Griffiths v. Men. R. Co., 20 D. R. 534; Rudolph v. R. Co., 186 Pa. 541; McConahy v Western Etc. R. Co., 31 Supr. C. 215. "^Echert v. Ferst, 10 Phila. 514; Davenport v. Harvey, 4 Kulp 499. "Bussier v. Weekey, 11 Supr. C. 463. " Minnig's Ap., 82 Pa. 373 ; P. & L. Dig., vol. 9, col. 14151, et seq. "Equity never contravenes the laws. "It is related of an eminent Phila. barrister, long since translated, ? great Equity lawyer, and friend of Judge Sharswood, that he declared the sort of Equity Practice we then had was only "Hog Equity," what- ever that may have meant. "Bierer v. Hurst, 162 Pa. l; Myton v. Wilson, 11 Supr. C. 645; Mow- day V. Moore, 133 Pa. 598. ""Scranton v. D. & H. Canal Co., 6 York 119; P. & L. Dig., vol. 9, col. 14153- ""Bussier v. Weekey, 11 Supr. C. 463; Miller v. Lynch, 149 Pa. 460; Rankin's Ap., i Mona. 308; Jennings v. Beale, 158 Pa. 283; Walters v. McElroy, 151 Pa. 549; P. & L. Dig., vol. 9, col. 14157. " Carter v. Lebseltzer, 58 Pitts. L. J. 105. "Mint Realty Co. v. Wanamaker, 18 D. R. 977. *■ Fuller V. Friske, 43 Supr. C. 489. "^ Griffiths V. Monon. R. Co., 20 D. R. 534. See able discussion by Van Swearingen, J., in this case. "Ross Common Water Co. v. Blue Mt. Con. Water Co., 228 Pa. 235. But see Davison v. Shenandoah, 38 C. C. 697, for discussion of the authorities. " Wagner v. King, 41 Supr. C. 292. JURISDICTION OF INJUNCTIONAL REMEDY 657 cannot enjoin its use when he wishes to fence it.* If a foundation wall is built a few feet over on another's land it will be enjoined and must be removed." 15. Fermanent or continuous trespass. The kinds of trespass which may be restrained by injunction are such as would be continuous or permanent in character, such as building a wall upon another's land without claim of right;" or ex- tending a roof over the line so as to prevent the owner from build- ing upon it, which is a continuing trespass and justifies a manda- tory injunction." The same applies to an overhanging sky-light which drains water and casts snow and ice upon an adjoining build- ing." The erection of a partition or wall upon any part of the land of another is a permanent trespass, which will be restrained by injunction." So are cutting timber, tearing down fences and erecting fences on a man's land, or the erection of the abutments of a bridge." But if both parties claim title to the land the remedy is by ejectment, unless irreparable injury would result." Where one has maintained a fence for twenty-one years at the same place, a right is established upon which he may fulcrum an injunction against another for tearing it down." A ferry company may be enjoined from operating at a point where another ferry com- pany has an exclusive privilege."" Where a plaintiff seeks to have the title recognized to a whole tract, it is no cause for de- murrer to his bill that he does not ask to have defendant dis- possessed of part." If defendant has the legal title and plaintiff title by prescription, it is a question to be settled by a jury and not a Chancellor." Where a fence has been wrongfully erected over plaintiff's line he has his remedy by ejectment. But, it has also been held where there is an honest dispute as to a boundary line, an injunction may issue vmtil the line can be ascertained at law.™ Equity will enjoin the mining of coal in such a manner as to threaten destruction of the land." A bill which alleges that defendant has entered and occupied the property of the plaintiff with the intention of occupying it perma- nently is demurrer proof on that point.* Although the plaintiff's title is challengfed, if he shows a sufficient title to warrant a recovery in "AUeva v. Perseo, 25 Montg. 104. "Baugh V. BergdoU, 227 Pa. 420. "Bright V. Allan, 203 Pa. 394. "Young V. Britt, 4 Schuylkill Co. 17. "Fisher v. Potts, 4 Schuylkill Co. 154. " Schalck V. Helms, 4 Schuylkill Co. 37. "Eshelman v. Stewart, 25 Lane. L. R. 159. "McConahy v. Western Etc. R. Co., 31 Supr. C. 215. " Gabriel v. Sedor, 13 Luz. L. R. 396. " Miller v. Hoflfman, 56 Pitts. L. J. 72 ; Coal Co. v. Savage, 4 D. R. 557. "Greensboro F. Co. v. New Etc. Co., 34 C. C. 33. "^ Ev. Etc. Church v. M. E. Etc. Church, 34 C. C. 363. "' Thomas v. Morgan, 6 Lack. Jur. 290 ; Loughlin v. P. & R. R. Co., 12 D. R. 772. "Kann v. Zacharias, 50 Pitts. L. J. 408. "Roddy V. Dickson, 25 C. C. 91. " Brown v. Jermyn, 6 Lack. Jur. i. "Marysville Water Co. v. West Etc. Co., 13 D. R. 365. Vol. 4 Practice — 42 6s8 EQUITY PRACTICE IN PENNSYLVANIA. ejectment, he can sustain an injunction.^ A railroad company may enjoin unlicensed hackmen from coming on its premises, when it has given the exclusive privilege to others.' An injunction will not be granted where the plaintiff's title is specifically denied and it does not clearly appear that the remedies by ejectment and estrepement are inadequate;* nor can it avail the purchaser of an oil lease, when he may test his right by ejectment; nor where the question of a right of passage is whether permissive only or fixed by dedication;' nor where a building is extended over a street; the remedy being by action.' A trespass against the person cannot be enjoined.' A bill for an injunction against a trespass should allege that the de- fendant is not financially responsible, or that the injury will be of such a character that the remedy by action would be inadequate.' 16. Injimctiou against a nuisance. An injunction to restrain a nuisance will lie, when the facts are clear and the threatened injury is irreparable;'" such as maintaining powder and dynamite storage near public road and mills, factories or residences;" or a coal company's pumping impure and noxious water from its mine into a stream used by many persons for drink- ing and domestic purposes." But a public nuisance cannot be en- joined by a private individual unless he shows that he has sustained and will sustain some damage to himself or his property." Where the attorney general specially allows the use of the Commonwealth to restrain a public nuisance a motion to quash will be over-ruled;" and the Common Pleas ha"- jurisdiction when the nuisance causes damage to an individual or a corporation.'" If the nuisance com- plained of is not so per se, or the facts are doubtful an injunction will not be granted until the plaintiff establishes his right at law." The same rules apply to nuisance as trespass, in respect to this," ' Unangst v. Easton Etc. Co., 9 Northam. 105 ; Sprenkle v. Thomas, 13 York 89. " Phila. & R. R. Co. v. Godfrey, 28 C. C. 326. * Wright Etc. Co. v. Hines, 10 Kulp 274. ° Hicks v. Am. Etc. Co., 207 Pa. S70- ° Scanlin v. Conshohocken, 209 Pa. 48. ' Coward v. Llewellyn, 209 Pa. 582, ' Dillonis v. Corcoran, 10 Kulp 282. "Wright Etc. Co. v. Hines, 10 Kulp 274. '"Comth. v. Rush, 14 Pa. 186; Penna. Lead Co.'s Ap., 96 Pa. 116; Haugh's Ap., 102 Pa. 42; Hieskell v. Gross, 7 Phila. 317. "Martin Etc. Co. v. Maurer, 21 Montg. 124; Wilson v. Rand Powder Co., 30 C. C. 130. '^Roaring Creek Water Co. v. Anthracite Coal Co., 212 Pa. 115. (See "Nuisance," vol. 2, Johnson, p. 941.) " Rhymer v. Fretz, 206 Pa. 230. "Comth. v. Franey, 21 C. C. 364. '^ Phila. Etc. R. Co. v. Armstrong, 9 Del. Co. 301. "Bell V. Ohio Etc. R. Co., 25 Pa. 161; Huckenstine's Ap., 70 Pa. 102; McCaffrey's Ap., 105 Pa. 253; New Castle v. Raney, 130 Pa. 546; Mowday V. Moore, 133 Pa. 598; Mirkil v. Morgan, 134 Pa. 144; Wood v. Mc- Grath, 150 Pa. 451 ; Sparhawk v. Union Passr. R. Co., 54 Pa. 401. "Shell V. Kemmerer, 13 Phila. 502; Rhodes v. Dunbar, 57 Pa. 274; P. & L. Dig., vol. 9, col. 14161, et seq. JURISDICTION OF INJUNCTIONAL REMEDY 659 and also to whether greater injury would be done by the injunc- tion or the nuisance.'" A bill to restrain supervisors and an ad- joining landowner from diverting water from a highway on plain- tiff's property will be dismissed, when there is a conflict in the evi- dence as to whether or not their acts have increased the flow of water."" To sustain an injunction the evidence must be as strong as required to sustain a verdict.^" An injunction will not be granted to restrain a coal oil and gasoline plant."' But an ice cream plant from which the salt water flows on another's land and ruins vege- tation, will be enjoined.'^ A soap factory may be so operated as to become a nuisance in a neighborhood.'''' A circus is not a nuisance per se^ Throwing garbage and refuse where they become noxious to neighbors is a nuisance and may be enjoined.'"' Where a borough uses a stream as a sewer and it is not large enough to carry off the refuse but strands noxious and disease-engendering material on the way it is a nuisance.^ A pest house erected in a city where it becomes a dangerous menace may be enjoined."' A lot holder on a dedicated street may maintain an injunction against one who obstructs the street and builds hedges and fences upon it."' Windows and a stairway pro- jecting beyond the building line into the street may be enjoined;* so of any building projecting upon a street." The owner of land abutting on a street so obstructed has a special interest sufficient for him to maintain a bill for the abatement of the nuisance ;" and a borough may enjoin a property owner from raising his sidewalk above grade;'" or a city may restrain an obstruction of its streets." But a borough cannot enjoin the removal of obstructions built ac- cording to a plan laid out.^ Among the things recently held restrainable as nuisances these may be mentioned : Interference of electric light wires,'" barking and bay- ing of dogs where residences are numerous;"" handling oil so as to "Richard's Ap., 57 Pa. 105; Frankford Etc. Ap., 11 W. N. C. 184; Mc- Clain's Ap., 25 W. N. C. 246. "Woodroflfe v. Hagerty, 35 Supr. C. 576. ""Manegold v. Foundry Co., 17 D. R. 973; Beers v. WoodrufJ, 8 Lack. L. N. 194. "" Rechard v. Brunhouse, 12 York 105. " Wagner v. Reich, 50 Pitts. L. J. I43- ""Yeager v. Schlipp Soap Co., 51 Pitts. L. J. 24. So, also, a slaughter house. (Hackman v. Hertzler, 27 Lane. L. R. 43.) "Hamilton v. Pittsburg, 14 D. R. 671. " Sitzman v. Heikel, 10 D. R. 673. "° Tyler Etc. Co. v. Washington Boro, 48 Pitts. L. J. 363. '"Hanzell v. Allegheny, go Pitts. L. J. 313. ^Wickham v. Twaddell, 25 Supr. C. 188. '» Comth. V. Franey, 21 C. C. 364. ""Hutchinson's Ap., 4 Walker 65. "' Smith V. Union Etc. Co., 17 Supr. C. 444- "" Kittanning Boro v. Thompson, 211 Pa. 169. "" Pittston V. Joyce, 15 Luz. L. R. 183. '"ajessop V. Boro, 225 Pa. 583; 589; Flaccus Glass Co. v. Boro, 56 Pitts. L. J. 251 ; Montgomery v. Haymaker, 18 D. R. 1009. '* Wettengel v. Light Co., 223 Pa. 79. ""Chambers v. Walker, S7 Pitts. L. J. 210. 66o EQUITY PRACTICE IN PENNSYLVANIA. leak on sidewalk," dangerous blasting of rocks near residences," encroachment of buildings upon a street although by mistake,'' con- tinued use of a split-drag on a highway,^ persistent banking of the water so as to throw it on a turnpike from its natural flow." A right of way reserved by deed and admitted by the pleadings can- not be obstructed by the owner of the fee upon which it is charged, although the tenants daily commit nuisance upon the claimed way."* Whether smoke and soot from iron works is enjoinable nuisance depends on the locality; but the decree should not close the works." Under the board of health law of May 19, 1895, P. L. "]•], bone boil- ing plants are not enjoinable in thinly populated outskirts of a city.'" A bill to enjoin a nuisance after fifteen years will be dis- missed for laches, where it consists of a double railroad track in front of plaintiff's property." But the horn book rule is that a nui- sance gains no right by lapse of time. A special injunction will be granted against obstructions of a private right of way."' A private right will be redressed by in- junction.* A borough cannot, by ordinance interfere with the right of way of a coal company established prior thereto." 17. Grround of Equity jurisdiction. The late Judge Wadlinger said:"=' "The ground of Equity juris- diction in cases of nuisance is ,the ability to give a more complete and perfect remedy than is attainable at law, in order to prevent irreparable mischief, and to suppress oppressive and vexatious litiga- tion; and the remedy in cases of private nuisance, to be co-extensive with the wrong, must have a triple aspect, restraint and prevention of a contemplated nuisance, removal of a nuisance when perpetrated before the action of the court had been invoked, and compensation in damages for injuries resulting from such nuisance." The crowing of chanticleers in the morning near a hotel with late sleepers, is not such a nuisance as the hotelkeeper can have enjoined;" but a bowling alley will be closed after quarter-past ten o'clock P. M. as a sleep disturber." " West Reading v. R. Co., 3 Berks Co. 17. "Rote v. Furnace Co., zy C. C. 315; House of Refuge v. Dyer, 43 Supr. C. 320. "» Peoples' Natl. Ba"nk v. Liq. Car. Co., 226 Pa. 503. ™ Bowman v. McCaskey, 27 Lane. L. R. 193. *° Hanover Etc. v. Mathlas, 23 York Ti- "a. Rieger v. Stoudt, 39 Supr. C. 59. In this case the right of passage was not denied, but a way was opened to plaintiff about fifty feet back of the kitchen of the hotel, and the easement was claimed to be movable. "Collins v. Iron Works, 227 Pa. 326; Manegold v. Foundry Co., i Berks Co. 206. " Shetzline v. Layer, 19 D. R. 1025. " Good V. Fire Brick Co., 224 Pa. 496; ■" Mockle V. McCutcheon, 57 Pitts. L. J. 127. " Butler Boro v. Logan, 19 D. R. 952. " D. & H. C. Co. V. Boro, 224 Pa. 387. "'^Anderson v. Lehigh Etc. Co., 23 C. C. 343. " Hillegas v. Reinhart, 20 Lane. L. R. 137. "Morey v. Black, 21 Montg. Co. 102. JURISDICTION OF INJUNCTIONAL REMEDY 66i 18. Restraint of dangerous or offensive business. Where business is lawful it will not be restrained for ordinary and slight inconveniences inseparable from it.^ The court may reg- ulate the hours for noisy occupations." But where the business is noxious and dangerous it will be restrained." Where noises are so persistent and offensive as to be injurious to sick persons, a special injunction will be granted upon the affidavits which prepon- derate.* So, also, as to the dust and moths of a carpet cleaning, establishment;" a chemical fertilizer plant;" a powder magazine.' But in the case of file works it was held that the noise was a neces- sary incident of the business and bill dismissed." As between a type- writer factory and an iron manufactory the doctrine of "balance of injury" was applied and the typewriter was outweighed.' 19. Obstructions on highways. The slightest obstruction of a public highway, without license, may be enjoined on bill by the attorney general without proof of damages;" but not after the defendant has been indicted and ac- quitted of nuisance," or on dubious facts;" or for mere temporary obstructions." Bay windows which protrude, but cause no injury, will not be enjoined." The owner of a lot on a plan of lots and streets may enjoin another owner for obstructing the street on the ground that the law furnishes no adequate remedy.^" The unlawful occu- pation of a street by a railroad company will be enjoined at the suit of an owner of abutting land, but specially and gently.'" The individual owners of lots in a plan have a standing to file a bill for an injunction." But if it be on the opposite side of the street, with the consent of the authorities and no damages are shown, the bill ' Miller v. Schindle, is C. C. 341 ; P. & L. Dig., vol. 9, col. 14167, et seq. See also vol. 2, Johnson's Practice "Nuisance" for full discussion of the cases. 'Dillon v. States, 11 W. N. C. 18. 'Fisher v. Am. Etc. Co., 189 Pa. 419; Bell v. Blasting Co., 3 Berks Co. 258; Smith v. Weiler, 59 Pitts. L. J. 109; Smith v. Bellows, 20 D. R. 383- * Ladies' Etc. Club's Ap., 22 W. N. C. 75. " Rodenhausen v. Craven, 141 Pa. 546. ' Evans v. Reading Etc. Co., 160 Pa. 209. 'Wier's Ap., 74 Pa. 230. But see Daw v. Enterprise Etc. Co., 160 Pa. 479- "Straus V. Barnett, 140 Pa. in. "Daugherty Type Writer Co. v. Kittanning Iron & Steel Mf'g Co., 178 Pa. 215. See 3 C. R. A., col. 1103, for late cases in the County Courts. "Attorney General v. Lombard Etc. R. Co., i W. N. C. 489. "Comth. v. Croushore, 145 Pa. 157. " Dunmore Borough's Ap., i Mona. 567. "Bunnell's Ap., 69 Pa. 59; P. & L. Dig., vol. 9, col. 141 76. "Livingston v. Wolf, 136 Pa. Sip; Horner v. Craig, 2 W. N. C. 11; P. & L. Dig., vol. 9, col. 14176, for other special cases of encroachments ; Mint Realty Co. v. Wanamaker, 231 Pa. 237. "Garvey v. Harbison- Walker R. Co., 213 Pa. 177. " Hall v. Penna. R. Co., 215 Pa. 172. "Morrow v. Highland Etc. Co., 219 Pa. 619; Stroh v. Joyce, 1-5 Luz L. R. 417; Riley v. Penna. Co., 32 Supr. C. 579; Breen v. Pitts. Etc. £ Co., 220 Pa. 612. 662 EQUITY PRACTICE IN PENNSYLVANIA. will be dismissed." A municipality may enjoin obstructions of a public highway without the intervention of the attorney general," but a private individual cannot,™ unless he shows special damages to himself from such nuisance."' The owner of land abutting on a street has such standing to enjoin a trespass upon the street by a railway company, as already stated.^ The running of street cars on Sunday, however, is not a nuisance but a "work of necessity" of modern life and not enjoinable." Under Sec. 6 of the act of April 21, 1855, P. L. 264, an injunc- tion may issue against building up to a street or alley less than twenty feet wide, so as to recede, in Phila. Section 51 of the act of May 5, 1899, P. L. 193, provides that the final decision of the building inspector may be enforced by a man- datory injunction, on five days' or less time. 20. Obstruction of streams and canals. The construction of a wall in a stream may be enjoined without waiting for an action to determine the right to do so."" A license to erect a wharf does not carry with it a license to obstruct a stream. A nuisance cannot be licensed.''^ A railroad company cannot build a bridge over a canal so as to obstruct navigation. But it has since been held that a railroad company may build a siding into a navig- able stream notwithstanding it results in detriment to a millowner's business, under a stretch of charter privilege." A street railway company may be enjoined from using a bridge which it is unsafe for it to cross."* After an ejectment suit has been tried and a borough has failed to appeal, it cannot enjoin the owner from using the ground."*" When a legal right, as for example, the prescriptive right to use water, is asserted on one side and denied on the other, it must first be established at law, before an injunction will lie."* "Cobb V. Warren St. R. Co., 3i8 Pa. 366; 3 C. R. A., cols. 1105-7. " Moyamensing Comrs. v. Long, i Parsons 143 ; Phila. v. Crump, i Brewster 320; Easton Boro v. Pass. R. Co., 2 C. C. 639; Pittsburg v. Ep- ping-Carpenter Co., 194 Pa. 318. =• Cox's Ap., II W. N. C. 571. "" Bell V. Ohio Etc. R. Co., 25 Pa. 161 ; Black v. Phila. Etc. R. Co., S» Pa. 249; P. & L. Dig., vol. 9, col. 14182; Larimer Etc. R. Co., 137 Pa. 533; Mechling v. Kittanning Bridge Co., i Grant 416. ^ Penna. R. Co.'s Ap., 115 Pa. 514; Barker v. Hartman Steel Co., 129 Pa. SSI ; Thomas v. Inter-county St. R. Co., 167 Pa. 120. " Sparhawk v. Union Pass. R. Co., 54 Pa. 401. "Comth. v. Stevens, 178 Pa. 543. ^Frankford Boro v. Lennig, 2 Phila. 403. See Bierly on Police Power, State and Federal, for full discussion of powers. i "Penna. Canal Co. v. P. & R. R. Co., 2 Pearson 354; Comth v. Pitts. Etc. R. Co., 24 Pa. ISO. "Schofield V. Penna. Etc. Co., 8 Mont. Co. 125. Of the tendency in Penna. to favor corporate aggression upon private right, see Thompson on Corporations; also the Book of Books which remarks: "Verily the ox knoweth his master's crib and the ass his owner's stall." "«• Schuylkill Etc. R. Co. v. Port Carbon, 6 Schuylkill Co. i. "•> Washington Boro v. Fouse, 41 Supr. C. 462. "<= Nissley v. Drace, 29 Lane. L. R. 121. JURISDICTION OF INJUNCTIONAL REMEDY 663 21. Bestraint of waste. An injunction is a concurrent remedy with estrepement to restrain waste threatened or in progress;'" but it will not lie where the remedy at law is adequate." The remedy by estrepement is fully set forth in Vol. 2, Johnson's Practice, p. 658; and for waste com- mitted see "Waste," Vol. 2, Johnson's Pr., p. 983, et seq. 22. Injunction as to easements. Easements of light and air will be preserved by injunction when the right to them has been established at law," and when necessary to the enjoyment of the premises." Where one so excavates his own ground as to cause the lateral support of his neighbor to be re- moved he is about to do ian injury which may be restrained before it is accomplished."^ The owner of the subjacent minerals who has ob- tained from the owner of the surface estate the obligation of sur- face support may restrain a company from laying pipes in the ground under eminent domain, if it does not first tender a bond for dam- ages.'^ A right of way over land may be enforced by injunction." An excavation of an alley and the placing of a grating over it may be enjoined where the risk and injury are uncertain.^" Abutting owners on an alley may enjoin the closing of it by one who claimed to have bought it at tax sale." The plaintiff's right being clear, it will be protected by injunction,"' without first having proceeded to establish it at law.*" In order to restrain a nuisance to a right of way irreparable damage is not a necessary element;" nor is compara- tive injury an element.*' The following invasions of easements have been enjoined: Closing of an alley;" overflow of drain;" using street as lawn when the right to the street is clear, if not clear, bill dismissed on demurrer;" the use of an alley will not be enjoined when the right is not clear." A "Denny v. Brunson, 29 Pa. 382; Smith's Ap., 69 Pa. 474; Schmaltz v. York Mf'g Co., 204 Pa. i; Christ Church v. Bala Golf Club, 10 D. R. 666; Laughlin v. Crookston, 52 Pitts. L. J. 187; Hunsicker v. Brend- linger, 34 C. C. 276; P. & L. Dig., vol. 9, col. 14188. "Young v. Oviatt, 35 Supr. C. 603. "McDonald v. Bromley, 6 Phila. 302; Hummel v. Krautter, 17 Phila. 392. "King V. Large, 7 Phila. 282; Rennyson's Ap., 94 Pa. 147. °Wer's Ap., 8i* Pa. 203; Del. & Hud. Co. v. Coal Co., 12 Lack. Jur. 49; Sweitzer v. Coal Co., 38 C C. 180. "Penn Gas Coal Co. v. Versailles Fuel Gas Co., 25 W. N. C. 428; 131 Pa. 522. " Weaver v. Getz, 16 Supr. C. 418. ■"Mershon v. Fidelity Etc. Co., 208 Pa. 292. "Jones V. Wasilewski, 10 Kulp 471. "Wickhara v Twaddell, 25 Supr. C. 188; Naomi Coal Co. v. Moore, 36 C. C. 321. "Piro V. Shipley, 211 Pa. 36; Eagle Transfer Co. v. Weimer, 50 Pitts. L. J. 387 ; Wilson V. Gather, 13 D. R. 731 ; Stieley v. Stieley, 30 C. C. 193. "Eagle Transfer Co. v. Weimer, 50 Pitts L. J. 387. "Brown v. Howell, 8 Northam. 181. " Purvis v. Overlander, 44 Supr. C. 22. "Excelsior Co. v. Sun Co., 11 Del. Co. 294. " Sharpless v. Willauer, 39 Supr. C. 20S. " Gorman v. McDermott, 42 Supr. C. 516. 664 EQUITY PRACTICE IN PENNSYLVANIA. temporary obstruction, while building, when a passageway is left open will not be enjoined;'"' but obstructions to a railroad's right of >vay will be enjoined." The plaintiff is entitled to a remedy which restores the enjoyment of his right of way." When an easement is established, as a way, the purchaser of the land takes it subject to it, since it runs with the land, and he may be restrained from interference.'" An insubstantial dispute about the title is not enough to oust Equity jurisdiction." But where the claim is based upon adverse user and the answer is that it was only a license, an issue is raised which must first be settled at law'.°° The plaintiff who is shown to have himself acted badly concerning a disputed line fence is not in a position to invoke Equity." Obstructions in an alley will be enjoined where plaintiff's right to use it is clear.°° But the owner of a right of way which is not interfered with by a trestle will not be awarded an injunction."" If the right of the plaintiff to the easement is questionable he may not have an injunction." A railroad company may enjoin a golf club from using a highly dangerous railroad cross- ing and thus interfering with "fast time." °° An improperly con- structed retaining wall may be enjoined;™ but not when there is an adequate remedy at law." Obstructions of an ancient water course by an upper riparian owner to the injury of the lower owner will be restrained."* The holder of a lot in a cemetery may on the com- plaint of the Church to which it belongs, be compelled by mandatory injunction to remove a memorial tablet to a pet dog.' 23. Division and party walls. The rights of parties to walls which are known as division or party walls are regulated by statute and contract, which must be fol- lowed. But the erection of a wall in Philadelphia, extending over the line of an adjoining lot is not a party wall within the act of Feb. 24, 1721, 2 Sm. L. 124, and may be enjoined,^ nor does it gain any " Dorsheimer v. Slaymaker, 27 Lane. L. R. 158. " Penna. Etc. Co. v. Core, 58 Pitts. L. J. 356. "Baker v. Zeigler, z7 C. C. 167. *Dzmura v. Gyurik, 41 Supr. C. 398; Rieger v. Stoudt, 39 Supr. C. 59. *" Andreas v. Steigerwalt, 29 Supr. C. i ; Bright v. Allan, 203 Pa. 386. ™Godno v. Kane, 26 Supr. C. S96; Marshall v. Badger, 50 Pitts. L. J. 339; Hughes V. Hess, 11 D. R. 455; Robinson v. Jones, 14 Montg. 180; Hopkins v. Stoneroad, 21 Supr. C. 168. "Auman v. Cunfer, 30 Supr. C. 368. °" Wilson V. Cather, 214 Pa. 3; Mershon v. Walker, 215 Pa. 41; Rosso v. Wilson, SS Pitts. L. J. 157; Clouser v. Tressler, 16 D. R. 605; Torzillo v. Phillips, II Northam, 102. "'Llewellyn v. Cauffiel, 215 Pa. 23. "* Shank v. Eckert, 23 Lane. L. R. 381. "" Penna. R. Co. v. Bala Golf Club, 16 D. R. 357- ""Wagner v. King, 56 Pitts. L. J. 47. "' Witoski v. Mosby, 55 Pitts. L. J. 7Z ; Gempe v. Griffin, 55 Pitts. L. J. 164; Tull V. Lanning, 24 Montg. 15. "* Drugmand v. Pittsburg Coal Co., 54 Pitts. L. J. 37. " St. Peter's Etc. Church v. Bean, 15 D. R. 636. For other cases see vol 3, C. R. A., col. nil. '■Vansyckel v. Tryon, 6 Phila. 401; VoUmer's Ap., 61 Pa. 118, JURISDICTION OF INJUNCTIONAL REMEDY 665 right by adverse possession and user.' Equity will not interfere to prevent the destruction of a wall not clearly a party wall.* But an encroaching wall will be restrained." Under Sec. 9 of the act of June 7, 1895, P. L. 135, a subsequent builder on a lot may be en- joined "from cutting or breaking into or using said new party wall, or any part thereof, until he or they shall have first paid to the first builder, his heirs or assigns, his or their fair proportion of the cost of said party wall, or of the cost of, in whole or in part, tearing down the old wall, or in whole or in part, of erecting a new party wall, etc." 24. Eight of way. Where the claim to a right of way is doubtful Equity will not en- force it until the right is established at law," but it may hold the bill meantime.' If the right is clear, an injunction will issue,' nor is it necessary to show special damages.' It does not matter that de- fendant avers he did not intend to build on the right of way without plaintiff's consent." If the alley is not obstructed, though changed in appearance, by building on an adjoining lot, an injunction will not lie." 25. Water rights. By virtue of Section 13 of the act of June 16, 1836, P. L. 784, as extended by the act of Feb. 14, 1854, P. L. 39, the Common Pleas may restrain interference with an easement of water by the owner of the servient tenement;" and the latter may enjoin an increased servitude •upon his land." So the owner of a mill may protect his prescriptive right to enter upon adjacent land to clear the stream supplying his mill, of obstructions." But the owner of land will not be enjoined from digging a well, although the effect is to cut off the supply of a spring.* If the identical right to the water has been settled in an action at law. Equity cannot be invoked to undo it." Road super- visors in draining a road, although the change alters the disposition of the surface waters, which would have in natural course found 'Milne's Ap., 81 Pa. 54; Sitting's Ap., 105 Pa. 517. ' Parry's Ap., 14 Lane. Bar 21. ' Pile v. Pedrick, 167 Pa. 296. See P. & L. Dig., vol. 9, col. 14199. ' Rhea v. Forsyth, 37 Pa. 503 ; Bunnell's Ap., 69 Pa. 59 ; Washburn's Ap., 105 Pa. 480; Quinn's Ap., 11 Atl. 649; Del. Etc. R. Co. v. Newton Etc. Co., 137 Pa. 314. 'Siting's Ap., 105 Pa. 517. 'Hacke's Ap., loi Pa. 245; Fergfuson's Ap., 117 Pa. 426; Miller v. Lynch, 149 Pa. 460. ■Hacke's Ap., supra. " Clad V. Raist, 181 Pa. 148. " Yeatts V. Doyle, igo Pa. 129 ; P. & L. Dig., vol. 9, col. 14207, et seq. "^ Sitting's Ap., 105 Pa. 517. "Kiefer v. Graham, 17 C. C. 361. "Scheetz's Ap., 35 Pa. 88; P. & L. Dig., vol. 9, col. 14210; Farley's Ap., 121 Pa. 496; Knisely v. Dively, 32 C. C. 373. "Lybe's Ap., 106 Pa. 626. However, see Ross Common Water Co. v. Blue Mt. Con. Water Co., 228 Pa. 235, the last guess; also Davison v. Shenandoah, 38 C. C. 697. " Myton V. Wilson, 1 1 Supr. C. 645 ; see 6 Supr. C. 293. 666 EQUITY PRACTICE IN PENNSYLVANIA. their way on the plaintiff's land." A railroad company which has not appropriated waters under eminent domain cannot enjoin a water company from taking them."^ A water company will be com- manded to supply water in sufficient quantities, although there is a great drought and by modern scientific methods of drainage the sources of water supply are dried up."*" Equity may enjoin a borough from imposing unreasonable restrictions upon the use of its streets by a water company."'' A rule for a preliminary injunction will be discharged where it is sought to restrain a borough from maintaining an artesian well which exhausts plaintiff's spring and there is doubt as to whether the water is taken by an underground stream or by percolation."'^ An injunction will lie under the act of 1871 against a corporation when it threatens to injure plaintiff's property rights and acts with- out corporate power."^ 26. Bights of riparian owners. Interference with a water course by anyone may be enjoined on the bill of a riparian owner, on showing irreparable injury which cannot be compensated in damages,^' and that he has the right to use the water," such proceeding not being an ejectment bill." But he cannot reach across a river and enjoin a retaining wall which does not affect his rights in any manner. If the water is diverted an in- junction will lie.^ It is not necessary to settle the question at law first.*' Where a water company has taken from a creek water and subsequently uses a larger pipe, it will not be restrained, since that does not materially diminish the flow of the stream." Where a bill alleged pollution of the water instead of an increased flow, when there was no pollution, it was dismissed.^ But if pollution of the water is made out an injunction will lie,*" except where the courts still apply, Penna. Coal Co. v. Sanderson." The upper owners of a " McCormick v. Kinsey, 10 Supr. C. 607. "=- Cambria Etc. R. Co. v. Blandburg Water Co., 226 Pa. 402. "b Gillis v. Water Co., 56 Pitts. L. J. 285. "c Mountain Water Co. v. Boro, 43 Supr. C. 179. "a Davison v. Shenandoah Boro, 38 C. C. 6g]. See discussion of authorities on subterranean waters in this case. "8 Gring v. Sinking Springs Water Co., 20 D. R. 891. "Rudolph V. Dobson, 11 Montg. 197; Wilkes-Barre Water Co. v. Le- high Etc. Co., 3 Kulp 389 ; Griffiths v. Monon. R. Co., 20 D. R. 534. " Shaffer v. Brown, 3 Northam. 44. ™Balton V. Swartz, 4 Montg. 198. " Patterson's Ap., 129 Pa. 109. ■"Shenandoah Co.'s Ap., 2 W. N. C. 46; P. & L. Dig., vol. 9, col. 14216; Auburn v. Brensinger, 6 Schuylkill Co. 409. " McCallum v. Germantown Water Co., 54 Pa. 40. "Harley v. Meshoppen Water Co., 174 Pa. 416; Hdlister v. Erie Etc. R. Co., 9 Lack. Jur. 282. *' Sloan V. James, 13 Supr. C. 399. *° Comth. V. Russell, 172 Pa. 506 ; Scranton Etc. Co. v. Hall, 8 Lack. Jur. 348 ; 9 Lack. Jur. 80. "113 Pa. 126; see vol. 2, Johnson's Pr., p. 944, for review of these cases and the basis of the final decision by a majo/ity of the court; Comth. v. Hanratty, 60 Pitts. L. J. 13. JURISDICTION OF INJUNCTIONAL REMEDY 667 stream may be enjoined from shutting off the water from the lower owner.^ The lower owner is entitled to all the water not reason- ably necessary for the ordinary uses of the upper owner, and the court will mould its decree to that end.™ A water company, duly authorized, cannot be enjoined from selling and delivering water to a railroad company, on complaint of a riparian owner, although such company is the chief consumer."^ If it abuses its chartered privileges the remedy is by quo warranto.'*^ An injunction will lie to restrain a lower owner from dammirtg a streart so as to back the water and overflow the land of an upper owner, notwithstanding a former owner acquiesced."*" But if the record, on appeal, shows no exceptions, finding of facts, conclusions of law or final decree, there is nothing before the court to review."'^ 27. Hestraint of collection of taxes. When a tax is unlawfully assessed and levied an injunction will issue against its collection, whether the law under which it is levied is in conflict w'ith the federal constitution ;'" the state constitution," or under an invalid ordinance ;°' or whether it be levied without color of law;°' or where one's goods or property is illegally seized for taxes, by mistake or otherwise, or when it is exempt." As to corporate property claimed to be exempt it must be shown that it belongs to the class necessarily used for the purposes mentioned in the charter."' Where two officers attempt to collect a tax, the one having no authority may be enjoined."" Injunction will lie to restrain the collection of taxes levied in excess of the legal amount." But before an injunction will issue it must appear that its collection would cause irreparable injury, lead to a multiplicity of suits, or in case of real estate, cast a cloud upon the title."" There should be "^Hughesville Water Co. v. Person, 182 Pa. 450. "Hopper V. Hopper, 146 Pa. 365; McKeesport Gas Co. v. Carnegie Steel Co., 189 Pa. 509. "a Bland v. Tipton Water Co., 222 Pa. 285. "•' Windsor Glass Co. v. Carnegie Co., 204 Pa. 459. "°<=Colket V. Verner, 236 Pa. 285. ™d Hoflfman v. Strong, 49 Supr. C. 546. ""Markoe v. Hartranft, 15 Am. L. R. 487. "• Arthur v. Polk Etc. Dist., 164 Pa. 410. "" Banger's Ap., 109 Pa. 79; Harper's Ap., 109 Pa. 9; Del. Etc. R. Co. V. Scranton, 5 C. C. 437. ""Shirk V. Bucher, 53 Pa. 94; Kemble v. Titusville, vol. 9, P. & L., col. 14221 ; Byers v. Township, 226 Pa. 278, as to road tax ; Frothingham v. Boro, 12 Lack. Jur. 347. "* Campbell v. Campbell, 26 Leg. Int. 261 ; Pittsburg v. Roup, i W. N. C. 254; Ridgway v. Bridgeport Boro, 5 Montg. 73; O'Donnell v. Strong, I W. N. C. 339; Lehigh Etc. Co. v. Miller, 155 Pa. 542; Western Etc. R. Co. v. Venango Co., 183 Pa. 618; S Supr. C. 304; St. Mary's Gas Co. v. Elk County, 191 Pa. 458; Pittsburg's Ap., 123 Pa. 374. "° Roaring Creek Water Co. v. Girton, 142 Pa. 92. "Maloney v. McNeish, 6 Luz. L. R. 158. " Conyngham School Dist's Ap., 77 Pa. 265 ; Conner's Ap., 103 Pa. 356; Wharton v. Cass Twp. School Directors, 42 Pa. 358, modified in above cases. "^Del. Etc. R. Co. v. Broderick, 5 Luz. L. R. loi. 668 EQUITY PRACTICE IN PENNSYLVANIA. no unnecessary delay in challenging the tax/* and the case should be presented fully and clearly/" and plaintiff should show, also, that he has no adequate remedy at law." 28. Bemedy for irregular taxation. All else Iseing lawful, an injunction will not issue to restrain the collection of taxes for technical irregularities in the assessment,' or for alleged illegal disbursement.'' The ordinary remedy for irregu- larities is by appeal/ and the dissatisfied taxpayer is bound to invoke the remedy prescribed by law.* 29. Injunctions against public officers. It has already been shown under quo warranto that an injunction cannot be used to try the title to a public office." The remedy by quo warranto is exclusive." But the parties may waive the point of jurisdiction and on appeal the injunction may be considered as a judgment of ouster.' Where possession has been gained by trick or fraud and not by title an injunction may issue.' When the remedy at law is adequate an injunction must not issue.' Taxpayers may restrain officers from exnending money under an unconstitutional act of the legislature." But after an unconstitutional act has been declared constitutional by one qualified justice of the Supreme Court, all the others being disqualified, an injunction at the suit of a tax- payer and citizen will not be granted. A Court of Equity will not review the discretion of an officer when exercised in good faith."^ A proceeding in its nature equitable was provided for by the act of June 6, 1893, P. L. 330, to compel school directors to provide suit- able houses and rooms for the accommodation of pupils." Illegal ™ Barton v. Pittsburg, 3 Pitts. 242. " Shea v. Burke, 3 Luz. L. R. 242. ■" Hewitt's Ap., 88 Pa. 55 ; Shoemaker v. Murray, i Pearson 279 ; Dunne v. Deegan, 43 Pa. 334; Jones v. Gilroy, 4 Law Times (N. S.) 121. bjurv'shrdlu etaoin cmfwyp shrdlu etaoin cmfwyp vbgkqj xzfi'ffffi cmfwy 'Alderfer v. Snyder, 2 Lehigh V. L. R. 283; Huddleson v. Thornbury Twp. Sup., I Del. Co. 124. "Truesdell's Ap., 58 Pa. 148; St. Clair School Board's Ap., 74 Pa. 252; P. & L. Dig., vol. 9, col. 14230. 'Clinton School Dist.'s Ap., 56 Pa. 315; Moore v. Taylor, 147 Pa. 481; P. & L. Dig., vol. 9, col. 14232. * Hamlin v. Peck, 135 Pa. 493; Van Nort's Ap., 121 Pa. 118. ° Hagner v. Heyberger, 7 W. & S. 104 ; Gilroy's Ap., 100 Pa. 5 ; P. & L. Dig., vol. 9, col. 14237 et seq. "Clopper v. Greensburg, 9 D. R. 598; Meadville Comrs. v. Meadville, 31 C. C. 14s; Gundrey v. Fichter, 14 Luz. L. R. 203. ' Hayes v. Sturges, 215 Pa. 605. ' McCue V. Holleran, 9 Kulp 433 ; Kerr v. Trego, 47 Pa. 292. "Goldsworthy v. Boyle, 175 Pa. 246. '° Page V. Allen, 58 Pa. 338, Thompson, C. J. ; Butts v. Howley, s Kulp 338, Woodward, J. ; Brobst v. Weidner, 18 D. R. 284. " Newlin v. Harris, 209 Pa. 558. '^ Dillonis v. Corcoran, 10 Kulp 282 ; Mason v. Hay, 12 D. R. 17. "This act (as well as all others the Commission found relating to schools) was repealed by the Code of May 18, 1911, without putting an adequate remedy in its stead. JURISDICTION OF INJUNCTIONAL REMEDY 669 acts of school directors may be restrained ;" so also of commissioners of highways -^^ or county commissioners." School directors have been enjoined from permitting Catholic sectarian instruction in the public schools;" or from opening schoolhouses as public lyceums." An inspector and sealer- of weights and measures may be restrained from confiscating scales which weigh correctly." A justice of the peace having performed one marriage out of his district will not be enjoined when he says he will not do it again, the one act having been fait accompli, which cannot be enjoined or unjoined."* An injunction will lie against a mere interloper into an office, who is considered more as a trespasser than one having a claim of right.™ The functions of county commissioners will not be interfered with, except when they disregard a positive duty in the levying of taxes, or a clear abuse of discretion;'' nor where the remedy by appeal is adequate.^ Discretionary acts of officers will not generally be restrained.^' It is only when acting ultra viresf* or in clear abuse of discretion" that an injunction may issue. It was held that in matters purely ministerial, the governor might be enjoined.^ Where public officers act in violation of law in the expending of money raised by taxation it is a menace to the property right of every citizen of the state, an invasion of his constitutional rights, and he may, of basic right, and it is his duty, imposed upon him as the price of his liberty, in the exercise of "eternal vigilance," as Thomas Jeffer- son affirmed, to proceed in Equity to enjoin the public wrong. He need show no special damage. The injury in such case cannot be estimated in dollars and cents." The creation of an official aristoc- racy, with a sacred halo of immunity from exorcism or recall, means the death of liberty and the end of the Republic. It is well, " Kulp V. Reets, i Luz. L. R. 675 ; Krickbaum v. Benton School Di- rectors, 3 Kulp 30; P. & L. Dig., vol. 9, col. 14242; Strathern v. Gilmore, 184 Pa. 265; Witmer's Ap., 15 Atl. 428; Tarbell's Ap., 129 Pa. 146. "Long v. Dickinson, 10 Phila. 108. "Riddle v. Del. Co. Comrs., 2 Del. 232. " Hysong v. Gallitzin Boro School Dist., 164 Pa. 629. "Bender v. Streabich, 182 Pa. 251. A half century ago the school- house was the forum of public debate by the people; the centre of dis- semination of information; the home of literary societies, debating and spelling schools, exhibition of nascent talent. "Ambrose v. Murphy, 52 Pitts. L. J. 198. "^Mclnerney v. Couch, 59 Pitts. L. J. 323; Goldman v. Reyburn, 36 C. C. s8i. ''"Flannery v. Lynch, 14 Luz. L. R. 125. "" Bradbury v. Burschell, 220 Pa. 439. '"' Clark V. Burschell, 220 Pa. 435. " Olympic Ath. Assn. v. McClure, 10 Del. Co. 483 ; Brennan v. McCall, 16 D. R. 809; McFarlane v. LaPorte Etc. Directors, 33 C. C. 119; Sechnst v. Spangler, 19 York 157 ; 93 ; P. & L. Dig., vol. 9, col. 14246. ^Ford V. West Pittston, 6 Luz. L. R. S4- "° Snyder v. Kantner, 190 Pa. 440. ""Ch. J. Lewis, in Matt. v. Penn. R. Co., 30 Pa. 9. (But that was in 1858, when Pennsylvania was free.) "Mclntyre v. Perkins, 9 Phila. 484; Page v. Allen, 58 Pa. 338, Thomp- son, C. J.; Butts V. Howley, 5 Kulp 338. As to showing "special damage," see Blankenburg v. P. R. T. Co., 18 D. R. 587, affirmed Su- preme Ct, 670 EQUITY PRACTICE IN PENNSYLVANIA. therefore, to go back to the ancient landmarks established by the blood of the patriots. Williams, J., laid down the law as to public officers thus:"* "If an officer neglects or refuses to enter upon the discharge of a duty which the law imposes upon him, the courts will quicken or compel action by a writ of mandamus. If he 'goes beyond what the law requires, attempts that which is ultra vires, or abuses his dis- cretion in any manner, the courts will restrain him by injunction. The ground intermediate these extremes is the legitimate range of official discretion, within which the officer upon whom the law has cast a duty may determine the manner of its performance." The state highway commissioner and state treasurer may be en- joined, at the suit of a taxpayer, from paying for a bungled "good road," at a graft price."'' 30. Injunctions against municipalities. Injunctions have been refused to restrain county commissioners from erecting public buildings, although the act was alleged to be un- constitutional. But if they do not proceed according to law an in- junction may issue."* The enforcement of a sidewalk ordinance may be restrained, where the remedy by appeal is inadequate and the or- dinance invalid."" An injunction will lie to restrain the arbitrary closing of a water supply to an iron company employing a large number of people." Citizens and taxpayers of Allegheny had a con- stitutional right to enjoin Pittsburgh from absorbing their city, on the ground of the unconstitutionality of the law,"" but they were finally overpowered by numbers. The expenditure of public moneys by municipal officers being left to their discretion will not be en- joined."' An illegal act must first be attempted," and the case should be clear from doubt.°° A resident of a city cannot as such, but as an abutting property owner can maintain a bill to enjoin a telephone company from erecting poles, and the city from granting permits."* A corporation being a taxpayer has a standing to enjoin the misapplication of public funds by a city." A citizen and tax- payer has a standing to file a bill to enjoin any violation of law by ^'a Roth V. Marshall, 158 Pa. 272, citing, Comth. v. Cochran, i S. & R. 473 ; School Directors v. Anderson, 45 Pa. 388 ; Schlandecker v. Marshall, 72 Pa. 200; Dechert v. Comth., 113 Pa. 229; Runkle v. Comth., 97 Pa. 328. "'bOakford v. Sheatz, 19 D. R. 11 13. "Wheeler v. Rice, 83 Pa. 232; Kemble v. Phila. Etc. R. Co., 140 Pa. 14. " P. & L. Dig., vol. 9, col. 14254 ; Cummings v. Sheble, i Phila, 492 ; Cox V. Connellsville Boro, 22 C. C. 657. ""Angle V. Stroudsburg Boro, 29 Supr. C. 601. " Penn Iron Co. v. Lancaster, 25 Supr. C. 478. "^Sample v. Pittsburg, 212 Pa. 533. ""Graeff v. Felix, 200 Pa. 137. "Parrish v. Wilkes-Barre, 9 Kulp 201. "° Lynch v. Wilkes-Barre, 10 Kulp 418; Anderson v. Sharon Hill Boro, 9 Del. Co. 319. "" Daflinger v. Pittsburg Etc. Co., 48 Pitts. L. J. 37. "Wqlflf Chemical Co. v. Phila. 217 Pa. 215. See dissertation of Mes- trezat, J., in this case. See contra.; Am. Product Co. v. Phila., 15 D. R. 587. JURISDICTION OF INJUNCTIONAL REMEDY. 671 a public functionary." But in case of a charge that a proposed gar- bage plant would be a public nuisance, a preliminary injunction was refused."" Whether or not it is a nuisance can only be determined when it is in operation.*" If township supervisors make unreason- able regulations as to telegraph and telephone poles on the high- ways, an injunction will lie in the premises." Under the act of April 22, 1905, P. L. 260, the governor, attorney general and commissioner of health may become parties to an in- junction to restrain a municipality from constructing a sewer system without a permit from the health department of the state, as required by said act." Borough authorities may be enjoined from taking land for a street without authority of law." A poor district may be enjoined from levying plainly excessive taxes." A municipal contract providing a sinking fund for payment in 1957, has been held too remote to justify an injunction.* A telephone company may be restrained from planting its poles anywhere else than at the places designated in its application to the city clerk." A borough will not be enjoined from paving its streets in a certain way." The owner of a sewer system may be enjoined from disconnecting an owner on a dispute about the charges." Where it appears that a water com- pany is a public service company entitled to the privilege of eminent domain, an injunction will not be granted." When a borough, after injunction granted, rectifies, by passing an ordinance in due form, the injunction will be dissolved." Under Sec. i of the act of April 8, 1846, P. L. 272, no public works in Phila. under legislative authority shall be enjoined unless the question of title and damages shall first have been submitted to and decided at law. 31. Enjoining municipal contracts. When the awarding of contracts by city authorities to bidders is a deliberative and discretionary matter an injunction will not lie except for positive fraud or collusion in the letting.' But where "Denny v. Bellevue Bore, 56 Pitts. L. J. 25; Brobst v. Elbert, i Berks Co. 49; Smith v. Phila., 17 D. R. 231; Touhill v. Pittston, 15 D. R. 849; Rader v. Worcester Twp. Supervisors, 32 Supr. C. 548; 4 Jus. L. R. 241; Selzer v. Reading, i Berks Co. 133. "Regan v. Scranton, 9 Lack. Jur. 293. "Collins V. McKeesport, 53 Pitts. L. J. 331. *'Am. Etc. Co. V. Reed, 31 C. C. 657; Act April 22, 1905, P. L. 294. " Public Drainage Opinion, 33 C. C. 174. *' Curwensville Boro's Ap., 129 Pa. 74; Elliott v. Evans, 8 Montg. Co. 217. "Beyea v. Poor Directors, 15 Kulp 287. " Brode v. Phila., 18 D. R. 899. "Wilson V. Tel. Co., 2 Berks Co., 233. " Mahanoy City R. Co. v. Ashland, 224 Pa. 375. " Claghorn v. Co., 10 Del. Co. 596. "Eastman v. Water Co., 222 Pa. 355. "" Lowry v. Boro, 39 Supr. C. 276. ^Findley v. Pittsburg, 82 Pa. 351; Carroll v. Phila., 183 Pa. 55; Schuck V. Reading, 186 Pa. 248; McCallin's Ap., i Mona. 596; Potts v. Phila., 19s Pa. 619; Spangler v. Leitheiser, 182 Pa. 277. 672 EQUITY PRACTICE IN PENNSYLVANIA. the law requires competitive bidding it may be enforced by injunc- tion." The lease of the gas works of Phila. for a long period by city councils was not enjoined by the Common Pleas, on the ground that the lighting of a great city was a business and not a govern- mental function," which material view was upheld by the Supreme Court.* When a city has become party to a contract with a trac- tion company and seeks to enforce it by injunction, it must aver actual or threatened injury to the plaintiff, and, failing herein, its bill will be dismissed." The same court held that a private citizen had no standing to enforce the contract, because he failed to allege in his bill that he suffered special damages from the violation of the partnership act of April 15, 1905, P. L. 80, which provided that the defendant should serve the public "at the same rates of fare," whereas, the defendant abolished the "six for a quarter strip ticket." ' In a similar case an injunction was granted,' but the Supreme Court reversed, because of an alleged defect in the city ordinance. 32. Injtmction to preserve the rights of individuals. Whilst an injunction will not lie to restrain a municipality in the exercise of police power conferred upon it by law,' the rights of individuals were formerly held sacred against the exercise of du- bious powers, and an injunction was sustained to prevent the laying out of a street for which the powers of taxation were inadequate, until security was given.* An injunction will lie to prevent the con- struction of a sewer so as to do unnecessary injury to the land." The taking of private property for a public use without tendering security and filing d bond, may be enjoined." The building of a cul- vert which only gathers the natural flow of the surface waters, will not be enjoined;' but where a bond is not tendered as required by law, an injunction will be granted." The attempt of a wholesale as- sociation to enforce a "black list" by law, is in restraint of trade and may be enjoined on complaint of an individual." The sale of bonds held as collateral will be enjoined when the plaintiff avers that he was not a party to a "case stated" and not bound and his "Mazet V. Pittsburg, 137 Pa. 548; P. & L. Dig., vol. 9, col. 14259, et seq. (See Par. 30, supra.) ' Baily v. Phila., 20 C. C. 173. *Baily v. Phila., 184 Pa. 594. ° Phila. v. P. R. Transit Co., 18 D. R. 367. The injury was a public one, resulting in the levying of tribute upon all patrons of the P. R. T. Judge Wiltbank dissented. ' Blankenburg v. P. R. T. Co., 18 D. R. 587, affirmed by Supreme Court, 228 Pa. 338. ' Reading v. Reading Tr. Co., 37 C. C. 19S. Endlich, P. J. Reversed in Supreme Ct., 232 Pa. 303. 'McLaughlin v. Jones, 3 W. N. C. 203; Alteraose v. West Pittston, 8 Kulp 275. ° Keene v. Bristol Boro, 26 Pa. 46. '"Morton v. Chester, 2 Del. Co. 459. "Watson V. McKelvey, 27 Pitts. L. J. 225. " Scranton's Ap., 121 Pa. 97. "Strohl v. Ephrata Boro, 178 Pa. 50; P. & L. Dig., vol. 9, col. 14264. "Arbour v. Assn., 44 Supr. C. 240. JURISDICTION OF INJUNCTIONAL REMEDY. 673 interest is being sacrified.'" Papers and drawings may be ordered to be surrendered, upon payment of defendant's claim." Whilst free- dom of speech is a constitutional right of the individual, the abuse of the privilege is not. So, the mayor of Philadelphia will not be enjoined from directing the police to suppress an anarchistic ad- dress subversive of all law and government." A bill will lie on assignment of a patent, in case of fraud alleged." 33. Restraint upon increase of municipal debt. The increase of a debt of a municipality in any other mode than that provided by the act of April 20, 1874, P. L. 65, or its supple- ments and the Constitution may be enjoined." The same applies to the act of May 23, 1889, P. L. 277, Art. 15, and the act of April 18, 189s, P. L. 36, and the acts of April 13, 1897, P. L. 17 and May 11, 1897, P. L. ss."" And so, a city may be enjoined from filing liens for improvements under an invalid law;^' or for entering liens for a second paving of a street.'"' 34. Injunctions against corporations and associations. By virtue of Sec. 13 of the act of June 16, 1836, the court has power to enjoin a corporation when acting outside as well as within its ordinary business sphere.''" Where a corporation is committing acts without authority, and there is no adequate remedy at law, an injunction will lie without showing irreparable injury. The cor- poration's abuse of powers may be enjoined;" or the disposition of its property for other than corporate purposes."" But a private individual, who shows no injury to himself is not entitled to enjoin a corporation." The election of directors cannot be enjoined; it can only be contested by quo warranto.^ A water company cannot be compelled by injunction to extend its lines as required by law, there being a legal remedy." A club may be enjoined from selling liquor, on complaint of a member, although such sale would violate the law and be punishable criminally." The validity of a charter, or its forfeiture, can only be inquired into by quo warranto at the relation of the attorney general.'" Upon the question of misuse of "Davis V. R. Co., 14 Luz. L. R. 419. " Zellar v. Farrand, 38 Supr. C. 398. "Emma Goldman v. John F. Reyburn, 36 C. C. 581. "Munhall v. Wieman, 227 Pa. 34. "Matthews v. Scranton, 9 W. N. C. 507. "Witherop v. Titusville School Board, 7 C. C. 451; Luburg's Ap., i Mona. 329; Gallagher v. Olyphant, 2 Lack. L. N. 367; Booth v. Weiss, IS Phila. 159; Erie's Ap., 91 Pa. 398. "" Beckert v. Allegheny City, 85 Pa. 191. "Leake v. Phila., 171 Pa. 125. " Big Etc. Co.'s Ap., 54 Pa. 361. "Groff's Ap., 128 Pa. 621; Comth. v. Pitts. Etc. R. Co., 24 Pa. 159, ''Manderson v. Commercial Bank, 28 Pa. 379; Volmer's Ap., 115 Pa. 166. '"Langolf V. Seiberlitch, 2 Parsons 64. " Cumberland Valley R. Co.'s Ap., 62 Pa. 218. ^'Jenkins v. Baxter, 160 Pa. 199; Gallagher v. McAdams, 49 Supr. C. 81. ^Columbia Boro's Ap., 12 Lane. Bar 33. ™ Klein v. Livingston Club, 177 Pa. 224. ^'Andel v. Duquesne St. R. Co., 219 Pa 635. Vol. 4 Practice — ^43 674 EQUITY PRACTICE IN PENNSYLVANIA. chartered rights the attorney general occupies a gwajt- judicial posi- tion, between the corporation and the Commonwealth, which does not attach to the district attorney. The attorney general alone can pass upon the propriety of enjoining a boulevard company from col- lecting tolls until it has complied with a charter requirement, etc."* If a water company presumes to condemn land without following the law of eminent domain it will be enjoined until the rights are determined on the facts, on final hearing; or if, under eminent do- main, it attempts to condemn property solely to furnish water to a railroad company.*" Where a water company is enjoined, no bond having been filed, if one is approved later and filed, the preliminary injunction will be dissolved and the costs be put upon the defendant.® A pipe-line company which attempts to take land without giving security will be enjoined, with a stay, to enable it to comply with the law.'" When an officer of a corporation is rightfully removed an injunction on behalf of the corporation will restrain him from in- terfering with it." A minority stockholder may have a bill to en- join the majority from a fraudulent transfer and consolidation with another corporation."* Contributors to a college have a standing to enjoin its removal to a different place." A borough may have an injunction to restrain a railroad company from constructing a lateral line across a street at grade without consent;" or for laying a track above the established grade." When a township and abutting owners on a highway joined to restrain a street railway company from using a public highway it was held that the property owners were improperly joined.^ An injunction may generally issue to re- strain interference with corporate rights;" but Equity will not as- sist the stifling of competition." A bill to restrain the payment of excessive salaries will be dismissed, when it was done legally." Where a natural gas company by permission of a borough and on condition that it furnish free gas to all the churches and gas at one-half price to the schools, lays its mains in such borough, it and its successor in the franchise is bound, and a bill which joins the borough and the church corporations is not multifarious, nor is there a misjoinder and there is no adequate remedy at law, to enforce the duty to carry out its contract." " Comth. V. Northern Etc. Co., 24 Lane. L. R. 389. ^ Peifley v. Mountain Etc. Co., 214 Pa. 340. '* Watson V. Anthracite Etc. Co., 9 Lack. Jur. 171. ^ Bland v. Tipton Water Co., 222 Pa. 285. "* Davis V. Southwest Etc. Lines, 34 Supr. C. 438; 223 Pa. 56. "Duquesne Packing Co. v. Konle, 56 Pitts. L. J. 53. ^'Devine v. Frankford Etc. Co., 205 Pa. 114. ""Packard v. Thiel College, 209 Pa. 349; 207 Pa. 280. "Clifton Heights Bore v. Thomas Etc. Co., 212 Pa. 117. " Zook V. Penna. R. Co., 206 Pa. 603. " Millcreek Twp. v. Erie Etc. R. Co., 209 Pa. 300. « West Phila. Pass. R. Co. v. Dougherty, 3 W. N. C. 62. "Scranton El. L. & H. Co.'s Ap., 122 Pa. 154; Meadville Etc. Co.'s Ap., 4 Atl. 733. "Hodder v. Hogg, 230 Pa. 9. " Bellevue et al. v. Mf'gs Etc. Co., 20 D. R. 547- See demurrer and order overruling same in this case. JURISDICTION OF INJUNCTIONAL REMEDY. 675 35. Injunctions to inquire into "injurious acts" of corporations. Section i of the act of June 19, 1871, P. L. 1360, provides: "That in all proceedings in courts of Law or Equity of this Com- monwealth in which it is alleged that the private rights of individuals •or the rights or franchises of other corporations are injured or in- vaded by any corporation claiming to have a right or franchise to do the act from which such injury results, it shall be the duty of the court in which such proceedings are had, to examine, inquire and ascertain whether such corporation does in fact possess the right or franchise to do the act from which such alleged injury to private rights, or to the rights and franchises of other corporations, results, and if such rights or franchises has [have] not been conferred upon such corporation, such courts, if exercising equitable power, shall, by injunction, at suit of the private parties or other corporations, restrain such injurious acts; and if the proceedings be at law, for damages, it shall be lawful therein to recover damages for such injury, as in other cases." Under this act, if a corporation does not possess the franchise it claims, it shall be enjoined;"^ but one of the courts in its tender- ness for "vested rights" has seen fit to change the puissant "shall" to the permissive "may" in the law, which says "it shall be the duty of the court," and it "shall, by injunction, etc." " An owner of land abutting on a street, may prevent a railroad company from laying its tracks along the opposite side of the street where it owns the land, if it has not the privilege of eminent domain." The unauthor- ized use of an alley by a railroad company may be enjoined as a nuisance." One corporation which invades the rights of another may be enjoined;" but it must show wherein its rights are invaded."' A citizen, under this act, does not need to ask the permission of the Commonwealth first, when his rights are invaded, to challenge the privilege or franchise of the corporation offendant."^' So he may de- mand restraint of the acts of a corporation which are ultra vires, oppressive and in restraint of trade. ' It is the chartered privilege itself which this act was intended to investigate, and if the court finds that the privilege exists to do the act, the bill will be dismissed." When the validity of the charter itself is challenged it must be by quo warranto,'^ and it cannot be collaterally attacked." If the act was done under an undoubted authority in the charter, a borough, without the permission of the Commonwealth, cannot enjoin, al- though it might be alleged that the right was lost by non-user, sur- "a Sterling's Ap., in Pa. 35; Dobson v. Penna. Etc. Co., 6 Montg. 109; Edgewood R. Co.'s Ap., 79 Pa. 257; Penna. R. Co. v. Bridgeport R. Co., n Montg. 73 ; Gring v. Smking Springs Water Co., 20 D. R. 891. j ■" Becker v. Lebanon Etc. R. Co., 188 Pa. 484. " Hopkins v. Catasauqua .Mf'g Co., 180 Pa. 199. " McCandless' Ap., 70 Pa. 210. °° Coalville Pass. R. Co. v. Wilkes-Barre Etc. R. Co., s Kulp 340. "People's Pass. R'y v. Union Pass. R'y, 35 W. N. C. 311. ""Edwards v. Pbg. June. R. C, 215 Pa. S97. "'Arbour v. Pittsburg Produce Trade Assn., 56 Pitts. L. J. 153. " Hannum v. Media Etc. R. Co., 221 Pa. 454 ; Young v. York Etc. R. Co., 32 C. C. 81. ""Myersdale Etc. R. Co. v. Penna. Etc. R. Co., 219 Pa. 558. "Bristol V. Goodyear Lumber Co., 32 C. C. 649. 676 EQUITY PRACTICE IN PENNSYLVANIA. render, forfeiture or other>vise." A property owner adjacent but not abutting on a street cannot complain that the street is being vacated to be used by a railroad company." Whilst a railroad company is entitled to possession as soon as the owner accepts the bond in eminent domain, a bill for an injunction will lie for illegal use of the land. It will, however, be certified to the law side of the court, under act of June 7, 1907, P. L. 440.°' 36. Railroads and street railways' a^eements. An injunction will enforce the conditions upon which a street railway company was incorporated,'" or where a railroad company constructs its line in violation of an agreement with the owner, who thereby suffers irreparable injury;' or where the privilege is given to be exercised within a certain time and that time has pasesd by;' or where it attempts to relocate its tracks without authority clearly shown." An injunction will not be granted to restrain a railroad company from occupying longitudinally a part of a township road, on complaint of the supervisors, when the purpose is to widen or straighten its road.* But it must first give security as in other cases.' In a case where the equities are mixed by death, estoppel, etc., the injunction will not be granted, but the court will not dismiss the bill, but hold it as a sword of Damocles to compel the railroad company to build crossings as it had covenanted." A Court of Equity has ample power to protect all interests and will do so by an order when an injunction is refused.' Where there is a remedy at law, however, an injunction will be refused.' A railroad company will be sustained in a bill to restrain a land owner from interfering when he alleges a defect in its title to the right of way, its remedy at law being inadequate.* Where a city grants to two electric companies the use of its streets, neither being exclusive, and does not reserve the right of forfeiture, it cannot invoke forfeiture by injunction.'" A street railway company having obtained the privilege to lay its tracks on the streets, agreeing not to remove them without its consent, it cannot enjoin the borough from preventing such removal without consent, by stealth." A mandatory injunction will issue to compel a street railway company to keep a turnpike in repair as it "Dunmore Bore v. Scranton R. Co., 34 Supr. C. 294. "Samuel v. Phila. Etc. R. Co., 23 Montg. ISS- "Wanamaker v. Schuylkill Etc. Co., 21 D. R. 669. "Phila v. Lombard Etc. R. Co., 5 Phila. 248; P. & L. Dig., vol. 9, col. 14281. • Union St. R. Co. v. Hazelton Etc. R'y, I54 Pa- 422; Unangst's Ap., 55 Pa. 128. 'Plymouth Twp. v. Chestnut Etc. R. Co., 168 Pa. 181. • Marcy v. Lack. & Bloom. R. Co., 2 Luz. L. R. 135. 'Crescent Twp. v. Pitts. Etc. R. Co., 216 Pa. 481. "Leidigh v. Phila. Etc. R. Co., 215 Pa. 342. • McClane v. McClane, 213 Pa. 286. 'Penna. R. Co. v. Horn, 15 D. R. 613; Ohio Etc. R. Co. v. Penna. Co., 216 Pa. 316. "Wallace v. B. & O. R. Co., 216 Pa. 3". • Nittany V. R. Co. v. Empire Etc. Co., 218 Pa. 234. '"Chester v. Union R. Co. Etc., 218 Pa. 24. , " Chester Etc. R. Co. v. Darby, 217 Pa. 275. JURISDICTION OF INJUNCTIONAL REMEDY. 677 agreed to do, for the privilege' of using it." An injunction has been refused, prayed for by an abutting owner averring injury from the shifting of the tracks of a street railway company from the middle to the side of the road as required by an ordinance.'' A bill by one railroad company to enjoin another, challenging the right under its charter to lay tracks in a city is in effect a quo warranto and not sustainable on the bill of a private relator." An apparent exception to the enforcement of a street railway's obligation to the public is in the matter of fares exacted from the passenger traffic."^' The only remedy lies in the writ of quo war- ranto, at the hands of a capable and honest attorney general, or in the legislative proceeding by forfeiture, as pointed out in Eminent Domain, supra. The right to restrain a railroad crossing may be lost by supine laches and acquiescence."'' 37. Injunctions against railroad discriminations. Under Sec. 3, Art. 17 of the Constitution, which has been held self- executory by the Supreme Court of the United States, affirming the Supreme Court of Pennsylvania," a bill will lie to restrain even the specially chartered Pennsylvania Railroad Company for unjust dis- crimination in charges for hauling coal, etc. ;'* or for giving an ex- press company exclusive right of transportation on passenger trains." But this does not cover wharfage at terminals." 38. Railroads not to engage in mining or manufacturing. Sec. 2 of the act of May 31, 1907, P. L. 352, authorizes an injunc- tion to restrain a common carrier from directly or indirectly prose- cuting or engaging in mining or manufacturing articles for trans- portation over its works; except on its road or canal not exceeding fifty miles in length. ' Section i of the same act provides for enjoining discriminations, in charges or facilities. 39. Grade crossings of railroads. Section 2 of the act of June 19, 1871, P. L. 1360, provides: "When such legal proceedings relate to crossings of lines of rail- roads by other railroads, it shall be the duty of Courts of Equity of this Commonwealth to ascertain and define, by their decree, the mode of such crossing which will inflict the least practical injury upon the rights of the company owning the road which is intended to be crossed; and if in the judgment of such court it is reasonably prac- ticable to avoid a grade crossing, they shall by their process prevent a crossing at grade." " Chester Etc. Co. v. Chester Etc. R. Co., 217 Pa. 272. " Bard v. East Reading Etc. Co., I Berks Co. 45. "Thirteenth Etc. R. Co. v. Broad Etc. Co., 219 Pa. 10. "a Blankenburg v. P. R. T. Co., 228 Pa. 338. See also the case of Penna. R. Co. v. City of Phila., 220 Pa. 100. "b Condron v. R. Co., 233 Pa. 197. '° Penna. R. Co. v. Duncan, iii Pa. 256; 129 Pa. 181; 132 U. S. 75. "Central Iron Works v. Penna. R. Co., 5 D. R. 247. " Sandford v. Catawissa Etc. R. Co., 24 Pa. 378. "Audenried v. Phila. Etc. R. Co., 68 Pa. 370; P. & L. Dig., vol. 9, col. 14283. 678 EQUITY PRACTICE IN PENNSYLVANIA. This act has been held constitutional as a proper exercise of the police power of the state, for the public safety, and it applies to street railways as well as steam railroads." This act does not extend to the regulation of grade crossings over ordinary streets or high- ways, or to cases where the parties have established and are using a crossing." The act of June 7, 1901, P. L. 531, provides a method of reducing crossings at grade, to be coimnenced by petition and not by bill, and the act was held not to apply to grade crossings on roads in existence prior to its passage when no imperious neces- sity was shown.'' A railroad company chartered specially and not .subject to the restrictive provisions of Sec. 12 of the act of April 4, 1868, P. L. 62, may proceed under the act of 1901, without the borough's consent by ordinance.^ An injunction will not lie for a property owner who suiifers consequential damages from changing a grade crossing to an overhead crossing. He has his action for dam- ages." Nor will a preliminary injunction be granted where instead of making the bridge thirty-three feet wide, it is made only twenty feet wide, the same as the roadway opened.' But where a railroad company builds an overhead crossing, it may be enjoined from plac- ing an abutment in the street, being unnecessary.' An injuiiction will issue under the act of 1871 to restrain a grade crossing in case of an unfinished railroad, until the eqiiities of the contestants can be determined.' Land owned in fee by a railroad company is subject to being crossed under the power of eminent domain, and an injunc- tion refused;" also in case of an agreement concerning the cross- ing." Where plaintiff railroad company acquired the right of way from the owner, an injunction was granted to restrain another company from interfering." The act of 1871 does not apply where ' Phila. & E. R. Co. v. Catawissa R. Co., i Walker 81 ; Buck Mt. Etc. Co. v. Lehigh Etc. Co., S Luz. L. R. 51. "Pittsburg Etc. R. Co. v. Southwest Etc. R. Co., ^^ Pa. 173; Bonsall Ave., 16 Supr. C. i ; Phila. Etc. R. Co. v. Upper Darby Twp., 202 Pa. 429; Bryner v. Youghiogheny Bridge Co., 190 Pa. 617; Penna. R. Co. v. Braddock Etc. Co., 152 Pa. 116; P. & L. Dig., vol. 17, col. 29509. • Park Steel Co. v. Allegheny V. R. Co., 213 Pa. 322 ; Samuel v. Phila. Etc. R. Co., 23 Montg. 15S. *Westover Boro v. Penna. R. Co., 35 Supr. C. 359; Ligonier V. R. Co. V. Latrobe Boro, 216 Pa. 221 ; Erie R. Co. v. Dunmore Boro, 9 Lack. Jur. 238. See Easton Etc. R. Co.'s Pet., where permission was given, 15 D. R. 960. ' Ritter v. Lehigh Etc. Co., 16 D. R. 715. ° Sterner v. Northampton Heights Boro, 1 1 Northam. 261 ; but see Gest v. Phila. Etc. R. Co., 33 C. C. 97. 'Radnor Twp. v. Phila. Etc. R. Co., 214 Pa. 299; see upper Darby Twp. V. Phila. Etc. R. Co., 9 Del. Co. 567. 'Radnor Twp. v. Phila. Etc. R. Co., 214 Pa. 299; Wilkes-Barre Twp. V. Wilkes-Barre T. Co., 13 Luz. L. R. 193; 210. But see Huffman v. St. Clair T. Co., 55 Pitts. L. J. 44. "Bait. Etc. R. Co. v. Penna. R. Co., 6 York 105; Ohio Etc. R. Co. v. Freedom Etc. R. Co., 204 Pa. 127; Sonethport Etc. R. Co. v. Pitts. Etc. R. Co., 203 Pa. 176. " Western Etc. Ap., 99 Pa. I5S. " Kushequa R. Co. v. Pitts. Etc. R. Co., 200 Pa. 526. " Reynoldsville Etc. Co. v. B. R. & P. R. Co., 134 Pa. S4i- JURISDICTION OF INJUNCTIONAL REMEDY. 679 a crossing is established and in use," nor to crossing of yards, etc., but only the main line." The line of a branch road, however, is within its meaning.'' A court will equalize the rights of litigants and minimize the danger to the public, by refusing grade crossings wherever practicable." Each case must be decided upon its own merits." The practicability of an overhead crossing must be de- termined by the court as a question of fact from the circumstances." The necessity for a grade crossing cannot be created by the com- pany;" but the plaintiff need not show affirmatively that another than a grade crossing is practicable. That is the province of the court." All the elements which enter into it, but particularly the public safety, will be considered.^ In one case the learned counsel satisfied the court below that an overhead crossing was more dan- gerous than a grade crossing, but an unbelieving higher court re- versed." The act of 1871 does not apply where a street railway company crosses the track of a railroad company in a cut by means of an over- head bridge;^ but it applies to the crossing at grade of two street railways." An injunction will be refused where the railroad had a right prior to a township road and required a connecting line over such road."^ 40. Unlawful working of mines. Section i of the act of June 2, 1891, P. L. 176, provides for an injunction on application of the mine inspector of the proper district, in the name of the Commonwealth, to restrain any unlawful opera- tion of an anthracite coal mine under said act. But written notice of the intention to apply must be given to the mine owner, operator or superintendent, not less than twenty-four hours before the ap- plication is made. By Sec. i, Art. 11, act of May 15, 1893, P. L. 52, in relation to bituminous coal mines, the inspector may apply for an injunction " Norristown Etc. R. Co. v. Citizens' P. R. Co., 9 Montg. 103 ; Western Etc. R. Co. v. Buffalo Etc. Co., 186 Pa. 212; 193 Pa. 127. "Pitts. Etc. R. Co.'s Ap., 122 Pa. 511; Sharon R. Co.'s Ap., 122 Pa. 533. "Penna. Etc. R. Co. v. Phila. Etc. R. Co., 160 Pa. 232. "Pitts. Etc. V. Southwest Etc. R. Co., ^^ Pa. 173; Perry Co. Etc. R. Co. V. Newport Etc. R. Co., 150 Pa. 193; Penna. R. Co. v. Warren St. R. Co., 188 Pa. 74; Chester Tr. Co. v. Phila. Etc. Co., 188 Pa. 105; Smethport R. Co. v. Pitts. Etc. R. R., 203 Pa. 176. "Penna. R. Co.'s Ap., 116 Pa. 55. "Altoona Etc. R. Co. v. Tyrone Etc. R. Co., 160 Pa. 623; B. & O. R. Co. v. Butler Pass. R. Co., 207 Pa. 406. " Scranton Etc. Co. v. Del. & H. Canal Co., 180 Pa. 636. =°Balt. Etc. Co.'s Ap., 10 W. N. C. 530; Williams Etc. R. Co. v. Lykens Etc. Co., 192 Pa. 552. '^ P. & L. Dig., vol. 17, col. 29521, et seq.; Del. Etc. R. Co. v. Danville Etc. Co., 211 Pa. 591. ""Del. Etc. Co. v. Danville Etc. Co. See P. & L. Dig., vol. 17, col. 29S37, et seq. "North Penna. R. Co. v. Inland Tr. Co., 205 Pa. 579. " Pottstown Pass. R'y v. Trappe Etc. R'y, 21 Montg. Co. 148 ; 152. See acts of May 14, 1889, P. L. 211 and June 7, igoi, P. L. 514, as to street railways. "'a Willis V. Pittsburg R. Co., 234 Pa. 120. 68o EQUITY PRACTICE IN PENNSYLVANIA. against the operation of a mine when, upon examination, he dis- covers immediate danger to life. If there is no immediate danger an injunction will be refused.'" An injunction was refused but the defendant ordered to adopt the best means of remedying the defect and avoiding the danger.'"* Equity will restrain mining of coal from a barrier pillar, under the act of June 2, 1891, P. L. 82, in a proper case,'"'' or the undermining of lateral support.*''' But if there is an adequate legal remedy, surface support will not be upheld by in- junction.'""! Another phase of unlawful mining of coal was recently thoroughly aired in the Supreme Court, on a bill for an injunction, ® in which the Statute of Marlborough (52 Henry 3d cap. 23, sec. 2), as to waste was discussed, together with many authorities, with great learning and ability. Although it was held that the appellate court would not review the construction of a lease and finding of fact by the Chancellor unless exceptions are filed, the points in the case were virtually decided: i. The words "demise, set and to farm let" are a lease of the surface only and do not authorize mining for coal, nor to use subways to mine coal on other land.'"' Such mining is a trespass against the reversioner, which will be enjoined regardless of there being a remedy at law.^s 41. Adulteration of linseed oil. Section 5 of the act of April 23, 1901, P. L. 91, provides for a preliminary injunction, upon affidavits, as in other cases, against the adulteration of linseed oil; and upon hearing and proofs of a per- manent injunction. 42. Injunction as to contracts. Ift^ay be stated as a general proposition that violations of cov- enants will be restrained by injunctions so as to compel specific per- formance.'* Since this proposition opens up a large field in which many points have been adjudicated by the courts, the scope of this volume will not permit details. Reference is made to Vol. 9, P. & L. Dig., Col. 14286, and Vol. 2, C. R. A., Col. 2679, et seq., and Vol. 3, C. R. A., Col. 1 126, supplemental, for the various cases arising out of contractual rights. The question of contracts in restraint of trade, in which a mon- opoly is not a feature, is now a paramount one, rendered so by a dictum of Chief Justice White, in the Standard Oil case before the U. S. Supreme Court. "Reasonable restraint of trade" has long bean known and recognized, where a contract provides that one who sells his business shall not for a period engage in the same business in the same place to the detriment of the purchaser. Such contracts have been enforced by injunction in the case of trading stamps -^"^ doctors " Comth. V. Sauters, 6 Kulp 407. "a River Coal Co. v. Gas Co., 38 C. C. 151. '••> Curran v. Coal Co., 6 Schuylkill Co. 330. ="<: Home Brewing Co. v. Coal Co., 37 C. C. 686. '"d Woods V. Coal Co., 57 Pitts. L. J. 495- ''e Trustees of Kingston v. Lehigh V. Coal Co., 236 Pa. 350. '"^ Beatty v. Harris, 205 Pa. 377 ; Page v. Lytic, 229 Pa. 198 cited. ^e Walters v. McElroy, 151 Pa. 549 cited. " Rockafellow v. Hanover Coal Co., 12 C. C. 241. '"aSperry Etc. Co. v. Uhl, 15 Luz. L. R. 33. JURISDICTION OF INJUNCTIONAL REMEDY. 68i of medicine;"'' the manufacturer of silica brick ;"<= milk dealer."''^ But where a "baker" sells and becomes a "caterer" with the active encouragement of the vendee he will not be restrained."® When a tailor sells his goose and all and agrees not to re-engage in busi- ness, he may be enjoined from engaging with his wife's goose. This is "reasonable restraint of trade" which the law enjoins him to observe."' 43. Injunction to restrain illegal use of trade-mark, etc. Section 4 of the act of June 20, 1901, P. L. 582, provides for issu- ing an injunction to restrain the unlawful use of any label, trade- mark, trade-name, device, shop mark, designation or form of ad- vertisement or any such likeness or imitation thereof as shall be liable to deceive, etc., as may be registered under the said act as amended April 24, 1905, P. L. 302. Long before this statute. Equity enjoined the covinous and fraud- ulent use of another's name or trade-mark," or corporate name." The heirs have a standing to enjoin the use of their ancestor's trade- mark." But the design or imitation must be such as to deceive a person of ordinary intelligence." It must not be a mere geographical name." The complainant must come into court with clean hands.'" A cigarmakers' union cannot ask Equity to aid it in the enforce- ment of a covinous label in order to drive non-union competitors out of business." The bill must point out the similarity or imita- tion." A mere resemblance is not enough;" nor an imitation of a manufactured article, without a violation of a trade-mark." The right of a person to use his own name for trading purposes will not be enjoined, under a contract to transfer it which was never exe- cuted.*' "*> Boyd v. Reed, 57 Pitts. L. J. 287. "<= Harbison- Walker Co. v. Stanton, 56 Pitts. L. J. 339. "d Harrington v. Foster, 58 Pitts. L. J. 326. "eEbert v. Kaufman, 41 Supr. C. 491. "'Leonardo v. Bell, 11 Del. Co. 309. "Gillis V. Hall, 2 Brewster, 342; P. & L. Dig., vol. 9, col. 14314; Hires v. Hires, 182 Pa. 346. "Fort Pitt Etc. Assn. v. Model Etc. Assn., 159 Pa. 308; Erie Printing Co. V. Erie Lith. & Printing Co., 31 C. C. i. "•Pratt's Ap., 117 Pa. 401. "Hoyt V. Hoyt, 143 Pa. 623; Fraim Lock Co. v. Shimer, 43 Supr. C. 221 ; P. & L. Dig., vol. 9, col. 14320 ; Heinz v. Lutz, 146 Pa. 592 ; Brown V. Seidel, 153 Pa. 60; Hohenstein v. Perelstein, 37 Supr. C. 540. " Glendon Iron Co. v. Uhler, 75 Pa. 467 ; Laughman's Ap., 128 Pa. i ; Pocono Pines Assn. v. Miller, 229 Pa. 33. °" Palmer v. Harris, 60 Pa. 156. " McVey v. Brendel, 144 Pa, 235. See Cigar Co. v. Cohen, 28 Lane. L. R. 233. "Desmond's Ap., 103 Pa. 126. '"Lafean v. Weeks, 177 Pa. 412; but see Penn. Hardware Co. v. Penn. Hardware Co., 3 Berks Co. 6; Suburban Press v. Phila. Sub. Pub. Co., 227 Pa. 148. "Putnam Nail Co. v. Dulaney. 140 Pa. 205. " Tygert-Allen Etc. Co. v. Tygert Co., 21 C. C. 193 ; 191 Pa. 336. 682 EQUITY PRACTICE IN PENNSYLVANIA. 44. Copyright and publication. An infringement upon a copyright is the subject of an injunc- tion, the jurisdiction under the act of Congress being in the federal courts. Our state courts have, however, entertained bills to enjoin the production of copyrighted dramatic performances,'" and the im- proper publication of a decree of court,"* and the publication of pri- vate letters;*" or a misleading summary of lectures." But a bill for an account and injunction as to a sale of a cheap edition of E. P. Roe's novels was refused.'" The rule as to copyright has thus been laid down in the federal courts : The exclusive right of multiplying and vending a publication is only infringed by a substantial copy of the whole or a material part of it.*' It does not include mere method, form, size or arrange- ment. Each and every part that may be copyrighted is protected.** The life of the original copyright is twenty-eight years from the time of recording it; which may be renewed for fourteen years longer by the author or his legal representatives.*° There can be but one copyright for the same book for twenty-eight years, and notice of only a single ' entry of copyright is necessary therein. Under Sec. 6 of the copyright act of Congress of March 4, 1909 (U. S. Comp. St. Sup. 1289), the addition of new matter in a second or subsequent edition makes it a new book. The mere aggregation of weekly law reporters do not make them a new work, requiring a new copyright. The compilation and rearrangement of syllabi in digests into new and larger digests are not new works. The copying or paraphrasing of the syllabi from a copyrighted re- port of law cases by a subsequent publisher or a similar report or digest is an infringement of the copyright.*" The act of 1909 gave injunction powers to the U. S. Circuit Court, which, under the act of April, 191 1, was vested in the District Court after January i, 1912. Having the power of injunction, the court has the- power to do justice between the parties and to dispose of it finally, even if this involves the withholding of injunctive relief and the awarding of damages.*' 45. Injunctions against strikes and boycotts. The alien conditions in the labor world, introduced from the mon- archies of Europe, and repugnant to a republic, which are termed " Shook V. Wood, 10 Phila. 575 ; Gilbert v. Bacher, 9 W. N. C. 14. "Lord V. Lord, 25 W. N. C. 436. *° Dock V. Dock, 180 Pa. 14. *' Miller's Ap., 15 W. N. C. 27. *'Dodd V. Smith, 144 Pa. 340. *" Baker v. Selden, loi U. S. 99; Perris v. Hexamer, 99 U. S. 674; Cor- bett V. Purdy, 80 Fed. R. 901. **Callaghan v. Myers, 128 U. S. 617; Banks v. Manchester, 128 U. S. 244; Banks v. West Pub. Co., 27 Fed. R. 50; Edward Thompson Co. v. Am. Law Book Co., 122 Fed. R. 922. *°U. S. Rev. Stat. (1878), Sees. 4953-4, as amended 1901, U. S. Comp. Stat. 3407. (See act 1909.) " West Pubg. Co. V. Edward Thompson Co., 176 Fed. R. 833 ; see Judge Chatfield's Op., 169 Fed. R. 833. ' *'Ward, Circuit J., citing Andrus v. Berkshire Power Co., 147 Fed. R. 76 ; New York City v. Pine, 185 U. S. 93, inter alia. JURISDICTION OF INJUNCTIONAL REMEDY. 683 "strikes" and "boycotts," intended to produce by force what can- not be obtained by contract, are abhorrent in their consequences to the peace of society. Since, for political reasons, the arms of the criminal courts are devirilized, resort has been had to Equity to pre- serve property and lives from destruction. The power of preserva- tion should reside in the posse cowiitatus, when violence and mob- ocracy become the conditions and "a reign of terror" usurps law and peace. The Courts of Equity have been much criticized for what has been yclept "government by injunction," because the judges have enjoined "labor wars," for the safety of society, when society was too cowardly or inert to protect itself from turmoil, assassina- tion and wholesale dynamitings. An injunction has been granted to restrain striking idlers from interfering in any manner with indus- trious persons who were hired to take the places they vacated, al- though no actual force was used in their collective "persuasion" and demonstration in numbers;" also to prevent a "labor union" from enticing hired apprentices away from their employment;' or from combining to prevent other persons from obtaining work, by threats of a strike, or to apply the same duress to the emyloyer of labor." The boycott is unlawful and a combination to enforce it will be restrained and if the injunction is disobeyed proceedings for contempt will lie.* A threatened boycott upon a mill, to drive its owners out of business unless they "unionize" it, i. e., place it in the labor trust of the conspirators, is unlawful and will be enjoined. There is nothing in the act of June 16, 1891, P. L. 300, or any other political buncombe legislation, that can legalize a criminal con- spiracy, prohibited by the constitution.^ "Aequitas est quasi equal- itatis."' The efforts of unionists to compel an employe to break his contract with his employer will not be restrained on the bill of the employer when he fails to show injury or that he cannot obtain another in his place. The remedy for loss of services in such case is by an action for damages against him who breaks his contract.' An incorporated union may have an injunction to restrain a rival branch of the labor trust from using against it the common illegal weapon of boycott, etc., to deprive it of its members." Stewart, J., thus laid down the basic law against the outlaws:' "An employer is en- titled to employ whom he chooses upon such terms as they and he may see fit to agree upon. Workmen have the right to contract with 'Brace v. Evans, S C. C. 163; McCandless v. O'Brien, 38 Pitts. L. J. 435; Murdock v. Walker, 152 Pa. 595; Wick v. Brown, 164 Pa. 449; G'Neil V. Behanna, 182 Pa. 236; Cook v. Dolan, 6 D..R. 524; Temple Iron Co. V. Carmonoskie, 10 Kulp 37. ' Flaccus V. Smith, 47 Pitts. L. J. 129 ; Affd. 199 Pa. 128. ' Erdman v. Mitchell, 207 Pa. 79. 'Patterson v. Building Trades Etc., 11 Kulp 15, affirmed by Superior Court, 31 Supr. C. 112; see also Bucks Etc. Co. v. Gompers, Mitchell and Morrison, U. S. Supreme Court, 191 1. See Bierly on Police Power, 79L 'Purvis V. United Etc., 214 Pa. 348. 'Coke on Litt. 24. 'McKeesport Etc. Co. v. Journeyman Etc., 54 Pitts. L. J. 55. 'House Painters' Etc. v. Feeney, 29 C. C. 524. "York Mf'g Co. v. Oberdick, No. 2, 15 York 39; see also Westmoreland Coal Co. V. McCartney, 20 D. R. 58; Manor Gas Coal Co. v. Schuster, 20 D. R. s8. 684 EQUITY PRACTICE IN PENNSYLVANIA. and work for whom they please upon such terms and conditions and for such pay as they may be willing to accept. These are rights which cannot be questioned or denied. They exist in the very nature of things, and are written in the constitution of the state, and any person who undertakes by force, or menace, or threats direct or implied, though clothed in the softest language, to violate or interrupt them is guilty of a wrong, and such conduct will be and must be restrained by the courts." It is, however, the vaunted province of the labor trust to dejstroy the freedom of the individual to contract, and therefore every labor trust as well as money trust is a violation of the funda- mental law against restraint of trade. Coercion to compel persons who are willing to work, to quit their employment and become an idle mob, is unlawful and may be enjoined." Picketing works by idle hordes of strikers, to menace, threaten or induce those who work to become idlers and vagrants may be enjoined." Marching on the highways and calling workers not of their trust "scabs," etc., inciting a breach of the peace is not only enjoinable but a misde- meanor." It is in no sense a peaceable demonstration. A labor union has no standing to enjoin inmates of the county workhouse from being employed in labor on the building."* 46. Injunction against crimes and offences. "Woe unto him by whom an offence cometh." So, whilst crimes and misdemeanors are punishable in a different forum," where the consequence would be to destroy property and do an irreparable injury. Equity will enjoin the act." The right must, however, be clearly ascertained in order to invoke Equity." "Aequitas agit in personam." A restriction against the sale of intoxicating liquors in deeds of lots on a plan is a reasonable one and will be enforced at the instance of any lot owner."* 47. Enforcement of municipal ordinances. As a general rule municipal ordinances provide their own penal- ties and sanction and a Court of Equity cannot be called in to en- force them," especially where the thing complained of is not a nuis- " State Line Etc. Co. v. Brown, ii D. R. 509; Wheeling Etc. R. Co. v. Rowlands, S7 Pitts. L. J. 596; Tiers v. Steel Co., 57 Pitts. L. J. 217. " York Mfg. Co. v. Oberdick, 25 C. C. 321 ; Beale v. Little, 2 Blair Co. 309; Morris Run Coal Mining Co. v. Guy, 14 D. R. 600. " Marietta Casting Co. v. Thuma, 12 D. R. 552. "a Iron City Trades Council v. Leslie, 56 Pitts. L. J. 395. " Sparhawk v. Union Pass. R. Co., 54 Pa. 401 ; Campbell v. Scholfield, 3 Pitts. 443. "Klein v. Livingston Club, 177 Pa. 224; Dixon Crucible Co. v. Guggen- heim, 7 Phila. 408; Brace v. Evans, 35 Pitts. L. J. 399. See the cases supra, under par. 45, where conspiracy is involved; P. & L. Dig., vol. 9, col. 14333 ; Glassport Boro v. Riffner, 55 Pitts. L. J. 155. " Baltimore Life Ins. Co. v. Gleisner, 202 Pa. 386. "a Cambria Iron Co. v. Schry, 38 C. C. 410. "Lancaster v. Shaub, 7 Lane. L. R. 340; Honesdale Boro v. Weaver, 2 D. R. 344; Ellwood V. Mani, 16 C. C. 434; Cambridge Springs v. Moses, 22 C. C. 637. JURISDICTION OF INJUNCTIONAL REMEDY. 685 ance per se." But an ordinance against the storage of dangerous and inflammable oil was assisted by an injunction; also where the thing caused an increase of fire insurance rates and a special injury was set up by the plaintiff." " Phila. V. Lyster, 3 Supr. C. 475 ; Collingdale Boro v. Eden Cemetery Co., 9 Del. Co. 46 ; Ingram Boro v. Sterling, 56 Pitts. L. J. 140 ; Blanchard V. Reyburn, 10 Phila. 427; Williamsport v. McFadden, 15 W. N. C. 269; Aronheimer v. Stokley, 11 Phila. 283. "Scranton v. Jermyn Oil Co., S Lane. L. R. 277. "Horstman v. Young, 13 Phila. 19. CHAPTER XXXV. PRACTICE IN INJUNCTIONS. 1. Jurisdiction of courts. 8. Commonwealth, city or county 2. The bill for an injunction. not to give bond. 3. Injunction affidavits. 9. Granting, continuing and dis- 4. Preliminary injunctions — testi- solving injunctions. mony. 10. Effect of deniaL 5. Cautionary orders in in June- 11. Clear case required. tions — security. 12. Effect and enforcement. 6. Injunction on cross-bill. 13. Costs. 7. Bond for injunction. 14. Appeals. 15. Index docket. 1. Jurisdiction of courts. Under the constitution ordained in 1873, the original jurisdiction of the Supreme Court in the case of corporations is concurrent with that of the Common Pleas,^ and the Supreme Court will take juris- diction only under exceptional circumstances,'' where there is neces- sity for a speedy decision." It will not take jurisdiction after the lower court has refused, except on appeal;'' nor when the prayer is subsidiary to the main purpose of the bill;" nor where sufficient time has been had to test the constitutionality of a ballot law.* A mu- nicipality cannot be sued except in its own county or in the Supreme Court.' 2. The bill for an injunction. An injunction will not be granted in favor of or against any person not made a party to the bill.' So the bill should disclose all the parties in interest and entitled to relief and to what extent.* If it does not it will be dismissed.'" But if a person would not be affected ' McGeorge v. Hancock Steel and Iron Co., 11 Phila. 602. ' Clark v. Washington Boro, 145 Pa. 566. ■ Bruce v. Pittsburg, 166 Pa. 152 ; Pitts. Etc. R. Co. v. Mount Pleasant Etc. R. Co., 76 Pa. 481. •Cleveland Etc. R. Co. v. Erie City, 27 Pa. 380. ' Fargo V. Oil Etc. R. Co., 81 * Pa. 266 ; McClure v. People's Etc. Co., 32 Leg. Int. 448. " DeWalt v. Bartley, 146 Pa. 525 ; see P. & L. Dig., vol. 9, col. 1433S. ' Chester v. Phila. 15 C. C. 217. "Long v. Dickinson, 10 Phila. 108; Hartman v. Penna. Etc. Co., 24 C. C. 324. •Beaumont v. Wilkes-Barre, 6 Kulp 103. "Wiener v. Peoples, 17 Lane. L. R. 289. PRACTICE IN INJUNCTIONS. 687 by the decree, he need not be made a defendant." The joinder of a borough as a party in a bill to enjoin obstruction of a right of way has been held harmless."^ A decree will not be reversed because one was not joined as a defendant, who, at the time, was unknown."** In order to sustain a "citizens' bill" the plaintiff must be both a citizen and a taxpayer ;"° but he need not aver special damages.""^ A stockholders' bill must show a specific notice to the corporate of- ficers to bring suit and must indicate the parties directly and not inferentially."® An injunction will not be granted different from that specifically prayed for in the bill." A bill to enjoin obstructions to an alley must set forth specifically the plaintiff's right to the alley." Prop- erty owners injured by the same defendant, at the same time, in the same manner should be joined." If plaintiff does not state all the material facts necessary to inform the court, the bill will be dis- missed." After answer and replication filed, the joinder of new parties without notice or issue as to them, does not entitle them to relief." A preliminary injunction will not be refused because of an error in the bill which is amendable." But an amendment which in- troduces new parties has been held to dissolve the bill." In a bill to restrain a continuing trespass to land, the evidence relied upon need not be set forth; it may be reserved until the hearing." A notice to appear and answer takes the place of a subpoena in our practice." Unless a notice to appear is included in or appended to the bill, it is irregular and not according to the rules." 3. Injunction affidavits. The general affidavit to the truth of the bill is not sufficient to warrant a preliminary injunction. The bill must be accompanied with formal affidavits supporting the material allegations."" With- out such affidavits the injunction will be dissolved, on motion, if "Buckeye Warehouse Co. v. Graupner, 31 C. C. 94; Alter v. Bowman, 2 Foster 324. "ajessup v. Boro (No. 2), 225 Pa. 589. "i" Taylor v. Sauer, 40 Supr. C. 229. "<= Seltzer v. Reading, i Berks Co. 133 ; Brobst v. Weidner, 18 D. R. 284. "1 Croasdill v. Phila., 18 D. R. 719. "e Pellio v. Bull's Head Coal Co., 231 Pa. 157. "Horton's Ap., 13 Pa. 67; Smith v. Cummings, 2 Parsons 92; Cumber- land Valley R. Co.'s Ap., 62 Pa. 218; Penna. R. Co. v. Turtle Etc. R. Co., 179 Pa. 584; Wilson v. Bridgeport Etc. Dir., 8 D. R. 735. "Nisbet V Holt, 16 W. N. C. 286. "Kretzer v. Moorehead, 52 Pitts. L. J. 153. "Mullen V. Springfield Water Co., 8 Del. Co. 265. "Kleinman v. Phila. Co., 51 Pitts. L. J. 113. "Packer v. Sunbury & Erie R. Co., 19 Pa. 211; Comth. v. Pitts. Etc. R. Co., 24 Pa. 159. " Rogers v. Ashbridge, g D. R. 195. "McConahy v. Western Etc. R. Co., 31 Supr. C. 215. " Blair v. Boggs Twp. Etc., 31 Pa. 274. " Shea V. Burke, 3 Luz. L. R. 242 ; Cassidy v. Knapp, 167 Pa. 305 ; for forms see supra, also vol. 3, Johnson's Pr. 498 et seq. ""Stine V. Atkins, i Foster 41; Gilroy's Ap., 100 Pa. 5; Kincaid's Ap., 66 Pa. 41 1 ; Thrall v. Williamsport, 4 Supr. C. 165. 688 EQUITY PRACTICE IN PENNSYLVANIA granted ex parte." There must be at least two affidavits apart from the bill and each must sustain every material allegation of the bill and neither of the affiants must be a party to the bill." Such affi- davits should be made on personal knowledge."' An affidavit made on the belief of affiant must state the grounds of such belief/' If the affidavits are not sufficient the injunction may be refused and the cause allowed to proceed without prejudice." The affidavits are not evidence on a rule to show cause why a nuisance should not be enjoined. The court must take the testimony of witnesses.^ 4. Preliminary injunctions — testimony. Rule 8i of the Supreme Court Rules prescribes: "Preliminary injunctions may be granted, in accordance with the present practice, on bill and injunction affidavits; but upon the hear- ing, at the end of five days or such other time as may be fixed, the evidence must be taken subject to cross-examination, and ex parte affidavits will not be received. Witnesses may be examined orally before the judge, or testimony may be taken on short rule, or, when necessary, testimony may be taken before any person authorized to administer an oath, on notice to the other side to appear and cross- examine. In cases where testimony is taken on notice alone the certificate of counsel that he had not sufficient time to enter and serve a rule, shall stand in lieu of such formal entry and service. But defendant may move to dissolve at any time without waiting for the expiration of five days." 5. Cautionary orders in injunction bills — security. Rule 82 of the Supreme Court Equity Rules prescribes: "Cautionary orders in injunction bills shall not be made, nor shall any injunction be allowed except security be given according to law. But whenever an injunction shall be granted without previous notice to the opposite party, it shall be taken to be dissolved if the motion be not argued within five days after such notice given, unless other- wise specially ordered by the court or a law judge thereof." 6. Injunction on cross-bill. The court will not award an injunction in favor of the defendant unless he has filed a cross-bill;" and on the motion, affidavits volun- teered to disprove the answer will not be heard." Without a cross- bill and prayer for relief, the court will consider only the equities of the plaintiff's prayer." " Hicks V. Derrick, 17 C. C. 605. " Thompson v. South Etc. Dirs., 35 C. C. 353 ! Handler v. Wilkes-Barre, II D. R. 586; Equity rules 81-2 must be obeyed; Juniata Etc. Co. v. Elec. Co., 226 Pa. 407; Evans v. Evans, 6 Schuylkill 32; 19 D. R. 625; Fuller v. Water Co., 11 Del. Co. 349. " Good V. Kerbaugh, 22 Lane. L. R. 343. " Erie R. Co. v. Wilkes-Barre Coal Etc. Co., 9 Phila. 262. " Piatt V. Stackhouse, 2 D. R. 601 ; Barnes v. Barnes, 16 C. C. 53+ " Phila. Etc. R. Co. v. Armstrong, 9 Del. Co. 301. '^ Williams v. Concord Congl. Church, 193 Pa. 120. " Chicago Etc. Co. v. U. S. Pet. Co., 24 Leg. Int. 77. " Easton Etc. R. Co. v. Easton, 133 Pa. 505. PRACTICE IN INJUNCTIONS. 689 7. Bond for injunction. Section i of the act of May 6, 1844, P. L. 564, found in Vol. 3, Johnson's Pr., 498, provides that bond must first be given and ap- proved by the judge, and without this no court has a right to grant an injunction, the amount of the bond to be fixed by the court in its discretion." It was held by several judges that one surety is insufficient." The bond thus given will cover liability only for direct and not consequential damages." After answer filed, the defendant cannot set up failure to give bond to defeat the receiver's fees." The dismissal of the bill, without prejudice, is not such a final determina- tion as will fix the liability of the sureties." Only actual damages are recoverable on the bond." All costs, including master's fees," but not attorney's fees, may be recovered on the bond." In a recent case it was held that the bond may be filed at any time before the in- junction issues." One surety is insufficient on an injunction bond." The sureties are liable although the principal has not signed, and the bond is joint in form. It is a contract of suretyship and not guar- anty and the sureties may be sued in the first instance, and if it in- demnify two, recovery can be had for the damages of one; but not the costs of attachment for disobeying the injunction." A bond containing no reference to the suit and having parts cancelled is bad." There is no liability until final decree for issuing an injunc- tion without security.* A statement upon an injunction bond must set forth the damages clearly.* For form of bond see Vol. 3, John- son's Pr., 498. Where an injunction against a school contractor is dissolved, liability on the bond for damages becomes fixed." 8. Conunonwealth, city or county need not give bond. Section I of the act of Nov. 6, 1856, P. L. 1857, p. 797, provided that the Commonwealth, and a city or county complainant need not give bond, but that the court shall expedite the cause to final de- termination as far as practicable, by such rules and orders not in- consistent with the laws of this Commonwealth as justice and Equity may require. 9. Granting, continuing and dissolving injunctions. On a motion to dissolve a preliminary injunction, the court will not consider new matter raised by the answer in confession and "Hell v. Hell, 5 Clark 108; Erie Etc. R. Co. v. Casey, 26 Pa. 287. " Gulick v. Heermans, 6 Luz. L. R. 227. "Agnew V. Sutton, 7 Kulp 491; Shock v. Vogle, 18 Lane. L. R. 257; see the Surety Company law, vol. 3, Johnson's Pr., p. 35. ■" Sensenig v. Parry, 113 Pa, 115. "'Crouse v. Bedell, 11 Supr. C. 598. " Large v. Steer, 121 Pa. 30. "Morgan v. Negley, 53 Pa. 153; Steiner v. Wertz, 25 Lane. L. R. 367. "Henrie v. Orangeville Saving Fund, 3 Walker 169. "Sensenigv. Parry, 113 Pa. 115. "Penna. R. Co. v. Lilly Boro, 207 Pa. 180. " Shock v. Vogel, 18 Lane. L. R. 257. *■ Steiner v. Wertz, 25 Lane. L. R. 341 ; 367. "Coolbaugh V. Kinsey, 11 Northam. 242. "Ferdinando v. Scranton, 4 Lack. Jur. 14. ■" Hazzard v. Preston, 12 C. C. 372 ; Ralph v. Naddeo, 15 Lane. L. R. 147. " Nether Etc. Dist. v. Mercur, 46 Supr. C. 470. Vol. 4 Practice — 44 690 EQUITY PRACTICE IN PENNSYLVANIA. avoidance,' nor facts which arise subsequently.' Whether or not there is a nuisance cannot be determined on a motion for a pre- liminary injunction." The granting or dissolution of a preliminary injunction concludes no rights, merely holding the matter in statu quo* and the appellate court in affirming a decree dissolving an injunction files no opinion." A preliminary injunction will be dis- solved if the plaintiff does not diligently move to a hearing.' It is improper to dismiss the bill when the injunction is refused, where the defendant had not demurred nor had the cause set down for hearing, the only thing before the court being the motion for an in- junction.' The court may fix the terms of the injunction either with or without the suggestions of counsel,' and modify them pending the cause.* It may award damages with the injunction." A pre- liminary injunction will be dissolved when the plaintiff fails to sus- tain his positions with evidence." If the bill alleges irreparable injury, the rule does not apply that an answer and denial of every material allegation and a hearing on bill and answer, require its dissolution." Where municipal consent is obtained after a bill to enjoin is filed, the bill falls."^ If a defendant asks to be heard it is error to continue the injunction, without having heard the de- fendant's witnesses, under Equity Rule 8i of the Supreme Court.'''' A preliminary injunction is often dissolved where on final hearing a permanent injunction is granted; as where, on the rule to con- tinue the preliminary injunction the judge is satisfied a permanent injunction must be granted." On a bill to restrain continuing tres- passes, the defendant having filed no demurrer or answer, the court cannot on a motion to continue the preliminary injunction, dismiss the bill, although the injunction may be dissolved." Notwithstand- ing an injunction is dissolved because there is a remedy at law, the bill may be retained." Having been dissolved it will not be rein- stated without evidence to show continued acts justifying it." On a motion to modify a preliminary injunction the court will hear 'Luburg's Ap., I Mona. 329. ' New Etc. Co. V. Pottsville Water Co., 54 Pa. 164 'Easton Etc. R. Co. v. Easton, 133 Pa. 505. *Paxson's Ap., 106 Pa. 429; Scranton Etc. R. Co. v. D. & H. Canal Co., I Lack. Jur. 113; Harrison v. Union Natl. Bank, 13 Supr. C. 274; Brand- meier v. Coal Co., 14 Luz. L. R. 232. ' Bennett v. Hunt, 148 Pa. 257. "White V. Schlect, 14 Phila. 88. ' Lyndall v. Girls' Etc. Com., 19 Supr. C. 232. " Dubois Tr. Co. v. B. R. & P. R. Co., 149 Pa. 1 ; Ewing v. Filley, 43 Pa. 384- "Collins V. North Etc. Co., 2 D. R. 417. " Poterie Gas Co. v. Poterie, 179 Pa. 68. "Wiener v. Peoples, 17 Lane. L. R. 289. "Morris Etc. Co. v. Guy, 14 D. R. 600. But see Shay v. Wolverton, i Northumb. 27. "a. Chapman v, R. Co., 224 Pa. 612. "b Kittanning Brewing Co. v. Gas Co., 224 Pa. 129. "Providence Etc. Co. v. Reap, 5 Lack. Jur. 251. " Welch v. Sheaffer, 29 Supr. C. 619. "Smock v. Nazareth Boro, 11 Northam. 310. " Mahanoy City Water Co. v. Meyers, 4 Schuylkill Co. 50. PRACTICE IN INJUNCTIONS. 691 affidavits." The rule requiring answers to specific requests for the finding of facts and law, is not applicable to a motion for the con- tinuance of a preliminary injunction." Where, in lieu of an injunc- tion the parties enter into a stipulation and the summer vacation of the courts comes on, one of the parties may be relieved of his stipula- tion." When an injunction has been refused by a court of co-or- dinate jurisdiction, another court will not take it up and hear a motion.™ An injunction may be dissolved for want of due prose- cution."" Pending an appeal, an injunction will not be dissolved." Where the grounds have been removed the injunction should be dissolved.^ Though a decree be final in form, if made on a motion to dissolve, it is not a final injunction." The defendant may by his answer raise the objection that there is an adequate remedy at law.'^ 10. Effect of denial. Notwithstanding a denial of plaintiff's title in general terms, an injunction may be granted,"" or where the denial is based on the construction placed on a deed." Even if the allegations of the bill are denied an injunction may issue to preserve the status in quo." On a motion for a preliminary injunction or to dissolve the answer verified may be treated as an affidavit and be overcome by counter- affidavits."* But affidavits must not be delayed until after the argu- ment is closed." 11. Clear case required. A preliminary injunction will be refused or dissolved where a clear case is not made out by affidavits" or by oral testimony." When a verified answer is filed the court will hear only affidavits in reply." " Slattery v. Lehigh Etc. Co., 4 Schuylkill Co. 49. "Lehigh Etc. Co. v. Reliance Coal Co., 13 Luz. L. R. 333. " Colonial Trust Co. v. Hoff stot, 54 Pitts. L. J. 412. "McNair v. Cleave, 9 Phila. 212. ^ White v. Schlect, 14 Phila. 18. "Magrath v. Cooper, 10 W. N. C. 173. See vol. 9, P. & L. Dig., col. 14351, for other lower court cases. " Meadville's Aps., 5 Atl. 730. " Richard's Ap., 122 Pa. 547. ""Brower v. Schuylkill Co. Corns., 21 C. C. 311. " Galland v. Butler Coal Co., 4 Kulp 406. ''Earley's Ap., 121 Pa. 496. " Poterie Gas. Co. v. Poterie, 153 Pa. 10 ; Scranton Etc. Co. v. Northern Etc. Co., 14s Pa. 21 ; Manl/s Ap., 3 Walker 222 ; Corbet v. Oil City Sup. Co., 5 Supr. C. 19; Wick China Co. v. Brown, 164 Pa. 449. " Coxe V. Sweeney, 10 C. C. 289 ; P. & L. Dig., vol. 9, col. 14359. "Daugherty Etc. Co. v. Kittanning Etc. Co., 178 Pa. 215. " Huston V. Huston, i W. N. C. 26 ; Duncan v. Hollidaysburg Etc. Works, 136 Pa. 478; P. & L. Dig., vol. 9, col. 14360. These cases were de- cided prior to the amended rules of equity practice and are only in- structive. ''Bolton v. Swartz, 7 Montg. 77; O'Donnell v. Luskin, 12 Montg. Co. 109. "Crellin v. Schafer, 4 Kulp 211; Barnes v. Barnes, 16 C. C. 534. .693 EQUITY PRACTICE IN PENNSYLVANIA. 12. Effect and enforcement. When a preliminary injunction is granted, if the defendant dis- regards it he is in contempt of court and may be attached." In order that an injunction shall be binding upon persons affected by it, they need not be parties to the record, if they have actual notice of it. This is particularly where the injunction restrains mobs from dis- turbing the peace. An injunction must not be evaded by different devices," An injunction to restrain a lessor from evicting his lessee embraces ejectment." Where a traction company is enjoined from planting its poles the lessor is also bound.** An injunction is not a proper remedy against a railroad company proceeding under the privilege of eminent domain, although it violated a previous in- junction." An attachment should not issue for violating an in- junction without previous notice, except in an extraordinary emer- gency. A rule to show cause should first be served." The right to relief may be lost by laches." On a motion for an attachment, the court will not consider disputed facts passed on before." The Supreme Court will not mandamus the lower court to carry out what was not contained in the decree of the former." An attach- ment as for contempt should not issue where the defendant has made a bona fide effort to remedy the matter complained of." When an injunction issues against a conspiracy in restraint of trade, upon an attachment for contempt the officers may be compelled to produce their minute and record books and this is not a violation of Sec. 9, Art. I of the Constitution.* When an injunction has issued against strikers and boycotters not to interfere with industrious workmen put in places they voluntarily vacated, they have no right to try to persuade and induce the latter to quit work. If they do they are guilty of contempt.* Where defendant attempts to obey the order of the court, but does not succeed, by reason of not following the plans, further time will be given." The filing of a bill is notice to the de- fendant and if he proceeds thereafter, when the injunction is granted he may be required to restore the status at the time of filing." If "Ehrgood v. Ehrgood, 3 Law Times (N. S.), 206; Ulshafer's Ap., t Walker 457 ; see vol. i, Johnson's Practice. "° York Mfg. Co. v. Oberdick, 15 York 39; 11 D. R. 616; Titusville Iron Co. V. Quinn, 13 D. R. 416 ; Pattei-son v. Buildings Trade Council, 14 D. R. 843; 31 Supr. C. 112. " Witthaus V. Wallace, 2 W. N. C. 618; Hacke's Ap., 31 Pitts. L. J. 315; P. & L. Dig., vol. 9, col. 14365. " Pittsburg Etc. R. Co. v. Mt. Pleasant Etc. R. Co., 76 Pa. 481. " Kirk V. Phila. Etc. Co., 7 Del. Co. 71. " Gaw V. Bristol Etc. R. Co., 8 D. R. 60s ; 196 Pa. 442. "New Brighton Etc. R. Co.'s Ap., 105 Pa. 13; Comth. v. Dow, 6 Luz. L. R. 219. " Neel/s Ap., 8s Pa. 387. " Cumberland V. R. Co. v. Harrisburg Etc R. Co., 186 Pa. 91. "Whiteman's Pet., 141 Pa. S97- "Sullivan v. Jones & Laughlin Steel Co., 222 Pa. 72. "Patterson v. Building Trades Council, 14 D. R, 839, affd. 31 Supr. C. 112. "Long V. Bricklayers' Etc. Union, 17 D. R. 984. "Snee v. West Etc. Co., S3 Pitts. L. J. 209. "Clark V. Martin, 49 Pa. 289; Warren Etc. R. Co. v. Clarion Etc. Co., 54 Pa. 28; Washington Boro v. Steiner, 19 Supr. C. 498. PRACTICE IN INJUNCTIONS. 693 an injunction is wrongfully issued the defendant has his remedy on the bond given for his indemnity.'" 13. Costs. The subject of costs has been considered, supra. Where an injunc- tion is refused, if it appears that the rights of the plaintiff have been violated to any extent by the defendant, the costs may be imposed upon him;" and so also when the court refuses to continue an injunction." If both parties are in default the costs may be di- vided.'" 14. Appeals. The time and manner of appeals have been considered, supra. Upon appeal if the bill shows no right to relief, the appeal will be dismissed." When the lower court on dissolving a preliminary in- junction files no findings of fact and conclusions of law, it will be reversed on appeal." When important questions of disputed law are involved, a preliminary injunction will not be dissolved on ap- peal."' But on request of counsel on both sides the appellate court will consider the case in its entirety and enter a final decree." The appellate court will not go into the merits, on an appeal from the granting of a preliminary injunction, unless great injustice would result, and the appeal will be dismissed." The rule is not to consider the merits of a controversy until there has been a final hearing be- low." As a general rule a decree refusing a preliminary injunction will not be reversed." But a decree dissolving an injunction and dismissing the bill has been reversed where there was no proper find- ing of facts in the record to sustain such decree. In affirming a decree dissolving a preliminary injunction, the Supreme Court files no opinion." The construction of a contract by the appellate court on appeal from a preliminary injunction does not bind it on appeal from a final decree." Service of a rule to show cause why a special supersedeas should not issue pending an appeal, on the defendant's attorney is not binding on the defendant." "Hutchins v. Rogers, 22 W. N. C. 79. "Funk v. Lackawanna Etc. Co., 15 Lane. L. R. gg; Sloan v. James, 13 Supr. C. 399. " Silverstein v. Cohen, g Kulp 282. "Torzillo V. Phillips, 11 Northam. 102. " McLaughlin's Ap., 3 Walker 173 ; see P. & L. Dig., vol. 9, col. 14369. "New York Etc. Co. v. United Mine Workers' Assn., 172 Pa. 125. "Penna. R. Co. v. Phila. Etc. R. Co., 149 Pa. 218. "" Williamsport Pass. R. Co. v. Williamsport, 120 Pa. i. "Snyder v. Brown, 197 Pa. 450; New Castle v. Central Etc. Co., 202 Pa. 42s; 207 Pa. 371. "Radnor Twp. v. Phila. Etc. R. Co., 214 Pa. 299. "People's Ap., 4 Walker 318. "Bennett v. Hunt, 148 Pa. 257; Truby's Ap., 96 Pa. 52. "Paxon's Ap., 106 Pa. 429. •"Silliman v. Whitmer, 173 Pa. 401. 694 EQUITY PRACTICE IN PENNSYLVANIA. 15. Index docket to injunctions, lunacy and divorce cases. By the act of May 22, 1878, P. L. 95, the prothonotary is required to keep a separate index docket in which he shall enter alphabetically the names of all persons who shall be adjudged lunatics or habitual drunkards, those against whom injunctions were issued and those to whom decrees in divorce have been granted. CHAPTER XXXVI. FOBMS OF PLEADINGS. 1. Forms as aids. 15. Form of bill for injunction to 2. Form of bill for contribution. restrain a corporation from 3. Form of notice. using county bridge. 4. Form of endorsement of bill. i6'. Form of answer to bill for in- 5. Form of answer to bill for con- junction. tributioiL 17. Form of bill for reformation of 6. Form of endorsement of answer. deed. 7. Form of bill for account, dis- 18. Form of bill for account, dis- covery and answers to in- covery, cancellation and re- terrogatories. delivery of stock certificate. 8. Form of bill for injunction to 19. Answer to bill, supra. restrain use of firm name. 20. Form of bill to cancel an in- 9. Form of certificate of no ade- valid deed and decree re- quate remedy at law. conveyance. ID. Form of preliminary injunction. 21. Form of order for service of 11. Form of prayer for amendment. bill. 12. Form of affidavit. 22. Form of answer to bill. 13. Form of answer to bill for in- 23. Form of decree. junction. 24. Form of final decree on de- 14. Form of demurrer to bill. murrer. 25. Form of writ ne exeat. 1. Forms as aids. It cannot be presumed that a form may be given in a volume of practice containing so much useful matters, which will fit every case and every phase of that case. Forms, at best, are but sugges- tive aids. What will answer for one case may not in another almost like it and yet dissimilar in howsoever small degree. It has been thought best to give forms adapted from cases which have reached the courts of last resort; at least the skeletons. Having been care- fully worked out by leaders of the bar, they should commend them- selves to practitioners. 2. Form of bill for contribution. In the Court of Common Pleas of Columbia County, in Equity. tr II r T^-i "i In the Court of Common Pleas of H. W. Titman I Columbia County. Simon Reichard. j No. x, F^^'-^^^Term, 19x0. To the Honorable the Judges of the said Court: Your Orator brings this bill of complaint and avers: I. That on May 6, 1882, Mary A. Sterner became the owner of a certain lot of land, in the Town of Bloomsburg, said county, situate on the northwest corner of Market Street and Ridge Alley, fronting about seventy-one feet on Market Street and extending along Ridge Alley two hundred and four feet in depth. 69s 696 EQUITY PRACTICE IN PENNSYLVANIA. 2. That on September 22, 1890, Mary A. Sterner and George W. Sterner, her husband, executed and delivered to Freas Brown a mortgage upon said property for six hundred dollars, which mort- gage was recorded September 22, 1890, in the Recorder's Office at Bloomsburg in Mortgage Book No. 22, at page 37, and by three several assignments of record has become vested in, and is now owned by James E. Reichard. 3. That up until the 7th day of December, 1909, no part of the principal of said mortgage had been paid, and that there was due and owing on the same at that time the sum of $703.05. 4. That Mary A. Sterner died on the 3rd day of December, 1891, testate, and that in and by her last will and testament, probated the loth day of December, 1891, and recorded in Will Book No. 7, at page 262, she devised her real estate, above described, to her husband, George W. Sterner. 5. That on April 14, 1891, the said George W. Sterner granted and conveyed the lot of land, as above described, to I. John Daven- port, by deed of conveyance duly recorded in Deed Book No. 67, at page 529; and that subsequently, on April 24, 1906, the said I. John Davenport executed and delivered to Simon Reichard, defend- ant above named, a mortgage for thirty-five hundred dollars upon the northern part of said above described lot fronting about thirty-two feet on Market Street, aforesaid. 6. That on April 10, 1908, the said Simon Reichard caused a judg- ment to be entered in the Court of Common Pleas of Columbia County, to No. 249, May Term, 1908, upon the bond accompanying said mortgage, and upon the same day caused to be issued a writ of iieri facias on said judgment to No. 76, May Term, 1908, upon which writ the Sheriff of Columbia County levied upon, and on May 2, 1908, sold the above described thirty-one feet, being the northern portion of the first above described lot of land, to Simon Reichard, plaintiff in said writ of fi. fa., for the sum of one thousand dollars, subject, however, to the prior lien of the mortgage of James E. Reichard, then amounting to I690.3S. 7. That on November 19, 1909, I. John Davenport sold and con- veyed to your Orator the southern part of the first above mentioned lot of land, said part being about thirty-nine feet front on Market Street, next to Ridge Alley, by deed duly recorded in Deed Book No. 82 at page 663, so that at the present time Simon Reichard is the owner of thirty-two feet, and your Orator is the owner of thirty-nine feet of the original seventy-one feet covered by the mort- gage of Freas Brown, now assigned to James E. Reichard. 8. That on November 30, 1909, your Orator served upon the said Simon Reichard a written notice calling upon and requiring him to contribute toward the payment of the said mortgage of James E. Reichard on or before December 6th, 1909, his rateable portion thereof according to law ; that a copy of said notice is attached hereto as Exhibit "A"; but that Simon Reichard refused and still does refuse to make contribution as required therein. 9. That on December 7, 1909, your Orator paid to James E. Reich- ard the sum of $703.05, being the full amount of the debt and interest due upon his mortgage, for the purpose of discharging the lien, and preventing the issuing of a writ for the collection thereof. FORMS OF PLEADINGS. 697 10. That on June 13, 1908, after the Sheriff's sale of the northern part of the lot aforesaid, and after the purchase thereof by Simon Reichard, subject to the lien of the James E. Reichard mortgage, Simon Reichard filed among the records of the judgment on which levari facias had issued, a deficiency judgment amounting to $1168.52, with interest from May 2, 1908, which deficiency judgment became a lien upon the southern portion of said lot, and was paid by your Orator November 22, 1909. 11. That the northern portion of the lot above mentioned was, at the time of the Sheriff's sale to Simon Reichard, of much greater value than the southern portion, there being erected thereon a large two and one-half story brick dwelling house of modern style and improvements, whereas the southern portion of the lot had erected thereon only two frame houses of little or no value; that the relative difference in the values of the two parts of said lot still continues to exist, and that the part owned by Simon Reichard is at least three times as valuable as the part owned by your Orator. Wherefore, Your Orator alleging that the lots owned by himself and Simon Reichard were subject to a common encumbrance, and that said Reichard had bought his part subject to said encumbrance, and on account thereof, at a sum much less than its real value, and further alleging that he has been obliged to pay the entire amount of said encumbrance to prevent the collection thereof according to law, prays for equitable relief as follows: (o.) For an order and decree of this Court requiring Simon Reichard, or his assigns to contribute and pay to your Orator the rateable portion of the debt, secured by the James E. Reichard mortgage, which in equity he ought to pay as the owner of one of the portions of the land originally bound by the lien of said mortgage. (&.) For an order and decree of this Court defining and fixing, according to law and the rules of evidence provided in such cases, the amount which the said Simon Reichard ought to pay and con- tribute as aforesaid. (c.) For service by copy, costs, etc. (d.) For such other and further relief as to your Honors may seem just and equitable. John G. Harman, Fred Ikeler, Solicitors for Plaintiff. Columbia County, ss. Fred Ikeler being duly sworn, says that the facts set forth in the above Bill in Equity are just and true to the best of his knowledge and belief. Fred Ikeler. Sworn and subscribed to before me this 8th day of December, 1909. Adelaide L. Ferris, Notary Public. Commission expires March 10, 1913. 698 EQUITY PRACTICE IN PENNSYLVANIA. 3. Form of notice. EXHIBIT "A." Simon Reichard, Bloomsburg, Pa. Sir:— Whereas, I. John Davenport, on and before April 26, 1906, was the owner of a lot of land at the corner of Market Street and Ridge Alley, in the Town of Bloomsburg, 71 feet front on said Market Street, which property was and still is encumbered by a mortgage executed by Mary A. Sterner and George W. Sterner to Freas Brown, for six hundred dollars, dated September 22, 1890, and re- corded in Mortgage Book No. 22, at page 37; and which by various assignments of record has now passed to, and is owned by James E. Reichard, and remains unsatisfied; And Whereas, The said Davenport, on April 24, 1906, mortgaged the northern portion of said lot, being about 34 feet front, to you for the sum of thirty-five hundred dollars; And Whereas, Subsequently, on May 2, 1908, the said property was sold to you at Sheriff's sale, subject to the lien of the first above mentioned mortgage. And Whereas, I. John Davenport, on November 19, 1909, sold and conveyed to me the southern portion of said lot, being about 39 feet front on Market Street; And Whereas, Each of our properties is liable to the payment of the mortgage of the said James E. Reichard, which is long over-due and drawing interest at the rate of six per cent; And Whereas, It is necessary that said mortgage be paid and satisfied to prevent the accumulation of interest thereon and the issu- ing of a writ for the collection of the same ; Therefore, I call upon and require you to contribute toward the payment of the said mortgage, on or before December 6, 1909, your rateable portion thereof according to law. Very respectfully, November 29, 1909. (Signed) H. W. Titmaa. Service of the within notice accepted November 30th, 1909. (Signed) H. Mont. Smith, Att'y for Simon Reichard. 4. Form of endorsement of bill. The form of endorsement upon a bill, on the front of the cover, is as follows : No. I, February Term, 1910. In the Court of Common Pleas of Columbia County. H. W. Titman V. Simon Reichard. Bill in Equity. FORMS OF PLEADINGS. 699 To the Defendant above named: You are hereby notified and re- quired within fifteen days after service hereof on you to cause an appearance to be entered for you in the Court of Common Pleas of Cohimbia County, and to file your answer within 30 days to the within Bill of Complaint of the within named H. W. Titman, and to observe what said Court shall direct. You are also notified that if you fail to comply with the above di- rections by not entering an ap- pearance in the Prothonotary's of- fice within 15 days and filing your answer within 30 days, you will be liable to have the Bill taken "pro confesso," and a decree made against you in your absence. Witness our hands at Blooms- burg, Pennsylvania, this 8th day of December, 1909. John G. Harman, Fred Ikeler, Solicitors for Plaintilif. 5. Form of answer to bill for contribution. In the Court of Common Pleas of Columbia County, in Equity. TT -iir T^.v 1 In the Court of Common Pleas of H. W Titman I Columbia County. Simon Reichard. J ^o. i, Ff^'"|^y .^""1, 1910. ANSWER OF DEFENDANT. To the Honorable, the Judges of said Court: I, the defendant, Simon Reichard, saving and reserving to myself all and all manner of exceptions to the manifold errors in said bill contained, for answer thereto, or to such parts thereof as I am advised it is material and necessary for me to answer, say as follows : 1. I admit that the facts contained in paragraph "1" of the Plain- tiff's Bill of Complaint are true. 2. I admit that the facts set forth in paragraph "2" of Complain- ant's Bill are true, but wholly deny that I had any knowledge what- soever of the existence of the mortgage therein referred to, prior to the first day of January, 1908. 3. I admit that the facts set forth in paragraph "3" of Complain- ant's Bill, in so far as I have knowledge of the same, are true. 4. I admit that the facts set forth in paragraph "4" of Com- plainant's Bill are true, and for further answer thereto aver that the real estate therein mentioned was devised to the said George W. 700 EQUITY PRACTICE IN PENNSYLVANIA. Sterner, subject to the payment of $6,000 to the children of Mary A. Sterner, as will more fully appear upon reference to the will of the said Mary A. Sterner, and I pray leave to refer to said will, when the same shall be produced to this Honorable Court. 5. I admit that the facts contained in paragraph "5" of Com- plainant's Bill are true, except that the date of the deed from Sterner to Davenport is not April 14, 1891, but is April 14, 1899. 6. I admit that the facts set forth in paragraph "6" of Com- plainant's Bill are true, with the exception of the statement therein, that said lands were Sold to me by the Sheriff "subject, however, to the prior lien of the mortgage of James E. Reichard, then amount- ing to $690.35," which statement I deny. I admit, however, that at said Sheriff's sale, notice of said mortgage was given by B. Frank Zarr, attorney for A. P. Kester's heirs, et. at., and that at the same time notice was given by I. John Davenport, guardian of the minor children of Mary A. Sterner, of a prior lien of $2550, claimed as a charge upon the two adjoining lots of land aforesaid, under the will of the said Mary A. Sterner. For further answer I aver and say that at the time of the said Sheriff's sale I was advised and believed, and am now advised and believe, that I had, and still have, an equity to compel said Davenport to satisfy both of said liens of $690.35 and $25.50, first out of the lower of the said two adjoining lots, to wit, the lot then remaining in the ownership of the said Davenport, and now owned by the complainant, H. W. Titman. I further aver and say that, knowing and relying upon my equitable rights as aforesaid, my bid at said Sheriff's sale was in no wise reduced or influenced by reason of the said mortgage of $690; and that in so far as the rights of I. John Davenport or H. W. Titman, his grantee, are concerned, I did not purchase said lot "subject to the prior lien of the mortgage of James E. Reichard." 7. I admit that the facts set forth in paragraph "7" of Com- plainant's Bill are true, and for further answer aver and say, that at the time of the conveyance of the premises therein mentioned to H. W. Titman, the said Titman had both actual and constructive notice of the equities of your respondent, as above mentioned. 8. I admit the facts set forth in paragraph "8" of Complainant's Bill. 9. I admit that the facts set forth in paragraph "9" of Com- plainant's Bill, in so far as I have knonwledge of the same, are true. 10. I deny that the facts set forth in paragraph "10" are true as therein stated, and for further answer thereto aver and say, that after the Sheriff's sale therein referred to, there was due and owing me as a deficiency upon my judgment against I. John Davenport the sum of $3168.52, and that later, to wit, June 24th, 1908, I credited the said I. John Davenport with the sum of $2,000 on said deficiency, in consideration of which he obtained for me a release of my said property from any lien, claim or charge of the heirs of Mary A. Sterner, deceased, after which credit there then remained a balance due upon said judgment in the sum of $1168.52, which was paid to me by H. W. Titman on the 22d day of November, 1909. 11. I deny the facts set forth in paragraph "11" of Complainant's Bill. 12. And for further and general answer: — FORMS OF PLEADINGS. 701 (a.) I submit that the plaintiff has not, on his bill, shown any case in Equity, or case entitling him to proceed against me in this Honorable Court; and I pray all such benefit as if I had demurred to the said bill. (6.) I deny that the plaintiff, H. W. Titman, has any real interest in this proceeding, or will be in any wise affected in person or estate by the final decree of the court herein, and aver and say, that the real party in interest is I. John Davenport ; and that as I am informed and believe, an agreement exists between the said Davenport and Titman, made at the time of the conveyance from Davenport to Titman, whereby it is understood and agreed that in case of the recovery of any monies in this action, the same shall be paid over to the said I, John Davenport. (c.) I further aver and say, that on the 24th day of April, 1906, the said I. John Davenport was the owner (as grantee from Geo. W. Sterner) of the two adjoining lots of ground, having a frontage of seventy-one feet six inches on Market Street, as set forth in com- plainant's bill, which adjoining lots were then subject to the lien of the Freas Brown mortgage of $600, and subject also to the lien or charge of $6,000 created by the will of Mary A. Sterner and in favor of the children of the said Mary A. Sterner; and that the said I. John Davenport, as owner of the said adjoining lots, was liable in Law and Equity for the payment of both of the said liens and incumbrances thereon. That shortly prior to the said 24th day of April, 1906, and on said date said Davenport personally, as well as through his agent, Geo. W. Sterner, solicited from your respondent a loan of $3500 tendering as security therefor a mortgage in like amount upon the upper or northern of the said two adjoining lots; and the said Davenport, as well as his said agent, falsely and fraud- ulently represented to your respondent that the proposed mortgage of $3500 was a first lien upon the said northern lot of ground, and that the said Davenport then held a good and sufficient title to the same in fee simple, free from all incumbrances; whereupon your respondent giving full faith and credit to the said representations, in ignorance of their falsity, and relying upon the same as true, was induced to make, and did make the loan aforesaid on the security of the said mortgage, to wit, on the 24th day of April, 1906, firmly believing the same to- be a first lien upon the premises therein described. Your respondent therefore respectfully submits, that by reason of the false and fraudulent representations above set forth, the said Davenport and his grantee, H. W. Titman, the complainant, do not come into this court with clean nhands, but are estopped from denying the truth of the said representations, and from claiming any contribu- tion from your respondent for or on account of the said Freas Brown mortgage. I furthermore submit and humbly insist that, aside from the false and fraudulent representations above set forth, I had at the time I took from I. John Davenport the mortgage of $3500 and still have, a clear and unquestionable equity to compel him to pay the said Freas Brown mortgage out of the other lot covered by said Brown mortgage, and then remaining in his ownership ; which equity has been in no wise avoided or set aside by the conveyance from 702 EQUITY PRACTICE IN PENNSYLVANIA. Davenport to Titman, but still remains valid and absolute as against said Titman, the complainant. Wherefore, I pray that the said bill be dismissed >yith costs. Simon Reichard, Defendant. H. Mont. Smith, Solicitor for Defendant. Columbia County, ss. Simon Reichard, defendant above named, having been duly sworn, on oath says, that the facts set forth in the foregoing answer in so far as they are therein stated as of his own knowledge are true, and so far as therein stated upon information and belief, he believes them to be true. Sworn and subscribed to before me this day of January, 1910. 6. Form of endorsement of answer. No. I, February Term, 1910. In the Court of Common Pleas of Columbia County. In Equity. H. W. Titman V. Simon Reichard. Answer of Defendant. H. Mont. Smith, Solicitor for Defendant. 7. Form of bill for account, discovery and answers to inter- rogatories. Between ") In the Court of Common Pleas of Adolf Blau, Plaintiff, { the County of Lackawanna, and [ Sitting in Equity. Jacob Smith, Defendant. J No. , Term, 1907. To the Honorable, the Judges of said Court: Your orator complains and says : 1. That your orator, the plaintifif, Adolf Blau, is a resident of the City of Scranton, County of Lackawanna and State of Penn- sylvania. 2. That the defendant, Jacob Smith, is likewise a resident of the said City of Scranton. 3. That on, or about, the 26th day of July, 1905, at the said City, your orator employed the defendant to perform certain services FORMS OF PLEADINGS. 703 and transact certain business, in accordance with a certain written agreement made and entered into between the defendant and your orator, a true copy whereof is hereto appended and entitled "Plain- tiff's Exhibit A," which said written agreement, having been executed in duplicate, was then and there mutually delivered by your orator and the defendant, one to the other. 4. Previous to the making and delivery of the agreement stated in the last preceding paragraph (but during the month of July, 1905) your orator had entrusted the defendant with certain moneys of him, your orator, amounting to the sum of two thousand dollars, with which to purchase for your orator, from the Richmond Light and Railroad Company, of the town of New Brighton in that part of .the City of New York, in the State of New York, known as Staten I Island, and in part to pay for, a large quantity of a certain commodity, known as scrap iron and consisting in part of abandoned street rail- way rails at the price of seventeen dollars and twenty-five cents for every gross ton thereof, and in part of other and divers kinds of abandoned scrap iron, at the price of sixteen dollars for every gross ton thereof, which service the defendant performed on, or about, the 26th day of July, 1905, but not according to the instructions given him by your orator, and not according to his duty, under the relations in which he then stood with your orator: in that the con- tract, receipt or written evidence, of the purchase of said commodities, which, he produced to your orator from said Railroad Company (a true copy of which was appended to the agreement aforesaid, and is shown as a part of said "Exhibit A"), showed, or purported to show, a contract not between the said Railroad Company and your orator, but, on the contrary, a contract between the said Railroad Company, of the one part, and the defendant and your orator, of the other part : and thereupon, the defendant protesting no intention to claim any right or title in or to the commodities aforesaid, and declaring his willingness and readiness to disclaim all right or title to the said commodities, in accordance with such pro- testations and declarations, the aforesaid written agreement was made and entered into between the defendant and your orator as hereinbefore stated. 5. Thereafter and during the year 1905, your orator advanced and paid to the said Railroad Company such other and further sums out of his own proper moneys as amounted to the sum of ten thousand dollars, in consideration whereof the Railroad Company sold to your orator all rails and scrap iron on the premises of the said Railroad Company at its two barns at New Brighton, one thereof known as the Brook Street Barn and the other thereof known as the Concord Barn, excepting so much thereof as the said Railroad Company might wish to retain for its own use; and your orator was there- upon given leave to commence to remove the said scrap iron, the weights, of such quantities thereof as should be removed by your orator, to be determined and accounted for according to the weighing thereof by such other railroad company as should from time to time furnish railroad cars into which to load said scrap iron, for the purpose of transporting the same to such destination or destinations as should from time to time be nominated by your orator. 6. In pursuance of the written agreement aforesaid, between the 704 EQUITY PRACTICE IN PENNSYLVANIA. defendant and your orator, the defendant acted on behalf of your orator, and as his agent, in the consummation of all the transactions between the said Richmond Light and Railroad Company and your orator, stated in the premises; and on, or about, the 22d day of November, 1905, the defendant stated and represented to your orator that on payment to the said Richmond Light and Railroad Company, of the moneys aforesaid it had warranted that the scrap iron contained in the places aforesaid would equal in quantity such amounts as would be equal in value to the sum of twelve thousand dollars at the rates and prices per gross ton aforesaid ; and had further undertaken, in case of failure in that respect, in any particular, that it would refund to your orator such moneys as should be equal, at the rates aforesaid, to the value of such scrap iron, as ' should equal the difference between such quantities thereof as should, or ought at the rates aforesaid, to be of the value of twelve thousand dollars, and such quantities thereof as your orator should be permitted to have and take from the places aforesaid. 7. Thereafter, during the year 1905, and during the early part of the year 1906, as your orator is informed by the said Richmond Light and Railroad Company, the defendant took and carried away from the premises aforesaid such great and large quantities of the aforesaid rails and scrap iron, as amounted in value, at the rates aforesaid, to the said sum of twelve thousand dollars; but your orator, except as informed as aforesaid, has no means of knowing and is without means of ascertaining the precise (or even the ap- proximate) quantities of rails and scrap iron of your orator which were actually taken and carried away, or caused to be taken and carried away, from the places aforesaid by the defendant. 8. As appears by the said agreement in writing between the de- fendant and your orator, it was the duty of the defendant at all times to make and,keep, and to your orator to render and deliver on request, true, and exact accounts, not only of the kinds and quantities of all rails and scrap iron of your orator, taken, carried away or disposed of, either by the defendant, or by other persons employed or directed by him, from the premises of the said Railroad Company, but also of the sales, deliveries and dispositions of all such scrap iron, and of the prices and moneys received therefor or owing on account thereof, and of the names and whereabouts of all persons to whom any such sales, deliveries and dispositions were made. 9. That the defendant has accounted to your orator for his sale and disposition of eighty-three and eight-tenths tons of the scrap rails of your orator mentioned in the premises by informing your orator that the same had been sold and delivered to the Steel Rail Supply Company,' of the City of New York, at the price of twenty- one dollars and fifty cents per ton, on account whereof the said Steel Rail Supply Company paid to your orator, on the 6th day of December, 1905, the sum of one thousand and five hundred dollars, and on the 5th day of January, 1906, the sum of three hundred and two dollars: aggregating such moneys as are equal to the sum of one thousand eight hundred and two dollars; and the defendant has also accounted to your orator for his sale and disposition of two hundred twenty-eight and nine-tenths tons of the scrap iron of your orator, mentioned in the premises, by informing your orator FORMS OF PLEADINGS. 705 that the same had been sold and delivered to Worth Brothers, of Coatesville, in the State of Pennsnylvania, at the price of sixteen dollars and fifty cents per ton delivered at Coatesville, which, after deducting therefrom the cost of transportation in railroad cars, amounted to the net sum of fourteen dollars and ten cents per ton, on account whereof the said Worth Brothers, in the month of July, 1906, paid to your orator, such sums of money as in the aggregate amounted to the sum of three thousand two hundred and forty-two dollars and ninety cents; and excepting the scrap rails and iron mentioned in this paragraph the defendant has never made, given or rendered to your orator any account of such rails and iron of your orator, as were taken and carried away, or caused to be taken and carried away, from premises of the said Richmond Light and Railroad Company, by the defendant insert. 10. As your orator is informed and verily believes, the defendant, at divers times, between the first day of October, 1905, and the first day of April, 1906, took and carried away, or caused to be taken and carried away, from the said premises of the Richmond Light and Railroad Company great and valuable quantities of scrap rails and iron of your orator, other than the rails and iron mentioned in the nth paragraph, as aforesaid, and, from time, sold and disposed of the same to divers persons, to your orator unknown, for divers great and large sums of money, and thereafter appropriated and applied such sums of money to his own use and benefit; and all this, without ever paying or rendering to your orator any part of any such moneys, and without ever otherwise accounting to your orator for any such rails or iron, so taken or carried away as aforesaid. 11. As will appear from the premises, your orator laid out and expended in the matter of the premises, and in pursuance of the written agreement between the defendant and your orator, the sum of twelve thousand dollars, no part whereof has ever been returned to your orator, except the money paid to him, as hereinbefore stated, amounting in the aggregate to such moneys as equal the sum of five thousand and forty- four dollars and ninety cents; and as will further appear from the premises your orator has suffered a loss through the transaction mentioned in the premises amounting to the sum of six thousand nine hundred and fifty-five dollars and ten cents, against all which said loss the defendant assured your orator in and by the aforesaid written agreement. 12. That the defendant, as your orator verily believes, is indebted to your orator in large sums of money, exceeding in the aggregate the sum of ten thousand dollars. Wherefore, your orator needs relief and prays: I. That the defendant be required, by the equitable powers of your said Honorable Court, to state an account of all scrap rails and iron of your orator, by him, the defendant, taken and carried away, or by him caused to be taken and carried away, at any and all times, from the premises of the Richmond Light and Railroad Company, at New Brighton, Staten Island, New York, specifically showing, by such account, the qualities, kinds, quantities and weights, of all such scrap rails and iron so taken as aforesaid, and likewise an account of all sales, deliveries and dispositions, of all such scrap Vol. 4 Practice — 45 706 EQUITY PRACTICE IN PENNSYLVANIA. rails and iron, specifically showing, by such account, the names and residences of all persons to whom any such sales, deliveries or dis- positions, were made, and the amounts quantities, weights, values and prices, thereof, and in particular specifying the divers amounts of money, had and received by the defendant from any and every person, through, on account or by means of any such sale, delivery or disposition; and that the defendant be decreed to pay to your orator all such moneys, as upon such accounting, shall appear to have been had or received by the defendant on account of any such sale or delivery. 2. That the defendant be decreed to make discovery to your orator of all acts and things by him done or performed at any time in relation to or in connection with the matters stated and charged in this bill in Equity. 3- That the defendant be requested to answer fully all such specific interrogatories relevant to the matters stated and charged in this bill in Equity as shall hereafter be propounded and filed separately and served on the defendant, according to the established practice of your said Honorable Court. 4. That your orator be given such other and further relief in the premises as to your said Honorable Court shall seem meet and proper. Solicitor for Plaintiff. State of Pennsylvania, ) County of Lackawannna. S ^^' ' Adolf Blau, being duly sworn according to law, doth depose and say that the facts set ,forth in the foregoing bill of complaint are true and correct. Sworn and subscribed before me this day of February, 1907. ATTORNEY'S CERTIFICATE. I do hereby certify that the plaintiff in this case, has no adequate remedy at law. George D. Taylor, Solicitor for Plaintiff. [Copy of agreement marked Plaintiff's Exhibit A, following.] 8. Form of bill for injunction to restrain use of firm name. Between Adolf Blau, Plaintiff, and A. Hurwitz and J. Hurwitz, as partners, or business as- sociates, trading under the name of "Hurwitz & Co.," Defendants. To the Honorable, the Judges of the said Court: Your orator complains and says : I. That he is a resident of the City of Scranton, County of Lackawanna and State of Pennsylvania, doing business as an ocean In the Court of Common Pleas of the County of Lackawanna. Sitting in Equity. No. II, September Term, 1906. FORMS OF PLEADINGS. 707 steamship ticket agent, at No. 203 Lackawanna Avenue, in said City, and has been engaged in said City, in said business for a period of about seven years last past. 2. That he has been engaged in said business as aforesaid, with such rights and privileges as by law are allowed. 3. That in the month of October in the year 1899, your orator began to do business as aforesaid, under the trade name and business style of "Union Ticket Agency," and from that time until the present time he has continued, under that name and style, to do business as aforesaid, and to sell ocean steamship tickets, to all such persons as came to his place of business for the purpose of purchasing such tickets and to and with the travelling public generally in and about the said City of Scranton, throughout the County of Lackawanna and the counties neighboring thereto, in the northeastern part of the State of Pennsylvania. 4. That in connection with the business aforesaid your orator has caused to be printed upon his business literature, his business cards, his business circulars and other advertisements, relating to his busi- ness aforesaid, the name of "Union Ticket Agency," and at all times has persistently and diligently used that name in his said business and at great expense has advertised his said business, under that trade name and style, by means of newspaper advertising and other- wise, throughout a great extent of territory. 5. That your orator was the first person to appropriate and use this name, viz.: "Union Ticket Agency" as a trade or business name. 6. That the use and appropriation, which your orator has made of this name in his business exclusively and prior to all other persons, has made and constituted the said name, the "Union Ticket Agency," a trade mark in his particular business; and in connection with the use of said name he has taken great pains to deal honestly with, and satisfactorily to, all persons who came to his said place of business, so as to insure a continuance of their trade and patronage and to establish a business reputation for the said name, the "Union Ticket Agency," so that all persons who dealt with your orator under that name would recommend him to their friends and neighbors, when they desired to purchase the commodities in which he dealt by the said name of the "Union Ticket Agency" as aforesaid. 7. That during said time, to wit: From the month of October in the year 1899, to the present time your orator has used great diligence and attention in establishing his aforesaid agency, for the sale of ocean steamship tickets by the name of "Union Ticket Agency," as aforesaid; and at the present time he has and enjoys a great and profitable patronage and trade from and amongst the general travelling, and ocean steamship purchasing, public, in the said Cityi of Scranton and the adjacent territory throughout the northeastern part of Pennsylvania and its vicinity. 8. That the defendants above named, viz. : A. Hurwitz and J. Hurwitz, are residents of the County of Luzerne in the said State of Pennsylvania, and there, for a considerable period of time have been engaged in a business similar to that of your orator, to wit.: As in a business of agents for the sale of ocean steamship tickets, to the general travelling public, in and about the City of Wilkes- 7o8 EQUITY PRACTICE IN PENNSYLVANIA. Barre, in the said County of Luzerne and its vicinity, and as your orator is informed and verily believes in that City they did business under the name of "Hurwitz & Co." 9. That very recently the said defendants, A. Hurwitz and J. Hurwitz, have established a place of business at No. 308 Lackawanna Avenue in the said City of Scranton, where they pretend to be agents for leading steamship companines and to carry on and transact other business in connection with that business. 10. That the said defendants on the 2d day of August in the year 1906, and on the 3d day of August in the year 1906, in a certain newspaper, published in the said City of Scranton, by the name of "The Scranton Tribune," caused to be advertised and published a certain advertisement, of which the following is a true copy: "UNION TICKET AGENCY. A. and J. Hurwitz, agents, have removed from 203 to 308 Lacka- wanna Aventie. Any person having claims for refound or other claims against A. and J. Hurwitz, agents, will find them at new address. We are authorized agents for all leading steamship com- panies. Drafts, checks and money orders issued, payable throughout the world. HURWITZ & CO., 308 Lackawanna Avenue." 11. That your orator has never given or granted to either of the said defendants any license or permission to publish the foregoing advertisement; that he has never given to them any license or per- mission to use the name "Union Ticket Agency;" that the defendants have no right, title or interest, in the name "Union Ticket Agency;" that the defendants have never used, attempted to use, or pretended to have a right to use the name "Union Ticket Agency^' according to the knowledge of your orator, previous to the 2d day of Augfust in the year 1906. 12. That it is not true that the busines of your orator has been removed from No. 203 Lackawanna Avenue to No. 308 Lackawanna Avenue, nor have the defendants ever had any other business estab- lished at No. 203 Lackawanna Avenue, which they have removed to No. 308 Lackawanna Avenue, as suggested and published in and by the advertisement aforesaid. 13. That the use by the defendants of the name "Union Ticket Agency" in the manner shown by the advertisement so published as aforesaid, or any other manner results in a deception upon the ocean steamship purchasing public and in a fraud upon and a great damage to your orator and his business aforesaid. 14. That the public aforesaid has been, is being and will hereafter be, deceived and imposed upon, by the aforesaid false and unlawful use of the name "Union Ticket Agency;" and if such false and unlawful use of said name be not enjoined it will continue to deceive a great number of the friends of your orator and the customers and patrons of his business aforesaid. 15. That the business of your orator has been and is being greatly injured by the aforesaid action of the said defendants; and if they FORMS OF PLEADINGS. 709 are permitted to continue to use or advertise the name "Union Ticket Agency," in imitation of the business of your orator, he will suffer irreparable injury and damage in his business aforesaid. PRAYER, First. That the defendants may be enjoined by preliminary injunc- tion from using in their business in any manner howsoever, either by newspaper advertisement, printed signs, letter heads, business cards or otherwise, the name "Union Ticket Agency;" and that on final , hearing the said defendants may be perpetually enjoined as aforesaid. Second. For an account of profits. Third. That your orator may have such other further relief as the nature of this case requires. George D. Taylor, Solicitor for Plaintiff. State of Pennsylvania, ) County of Lackawannna. I ^ " ' Adolf Blau being duly sworn according to law, doth depose and say that the facts set forth in the foregoing bill of complaint are true and correct. Adolf Blau. Sworn and subscribed before me this 4th day of August, 1906. John F. Cummings, Prothonotary. 9. Form of certificate of no adequate remedy at law. I do hereby certify that the plaintiff, in this case, has no adequate remedy at law, and that there is not sufficient time in which to print this bill. George D. Taylor, Solicitor for Plaintiff. 10. Form of order for preliminary injunction. Now, August 4, 1906, let a preliminary injunction be issued as within prayed for, restraining and enjoining the within named de- fendants, either by themselves, their servants or agents, or other- wise, from using in their business in any manner howsoever,, either by newspaper advertisement, printed signs, letter heads, business cards or otherwise, the name "Union Ticket Agency," together with a rule to show cause why the same should not be continued, returnable on the 9th day of August, 1906, at nine o'clock in the morning. E. C. Newcomb, A. L. J. 11. Form of prayer for amendment. Between Adolf Blau, Plaintiff, and \ In the Court of Common Pleas of A. Hurwitz and J. Hurwitz, ( the County of Lackawanna, as partners, or business as- j Sitting in Equity, sociates, trading under the J No. 11, September Term, 1906. name of "Hurwitz & Co.," , Defendants. 710 EQUITY PRACTICE IN PENNSYLVANIA. And now, to wit: August ii, 1906, the plaintiff prays leave of the Court to amend his bill in Equity, filed in the above stated matter, so that the eleventh paragraph thereof will read as follows: "11. That your orator has never given or granted to either of the said defendants any license or permission to publish the foregoing advertisement; that he has never given to them any license or per- mission to use the name 'Union Ticket Agency' except in the City of Wilkes-Barre, in the County of Luzerne; that the defendants have never used, attempted to use, or pretended to have a right to use, the name 'Union Ticket Agency' in the City of Scranton, or its vicinity, according to the knowledge of your' orator, previous to the second day of August in the year 1906, and since your orator began to use the said name continuously and regfularly as hereinbefore set forth and stated." George D. Taylor, Plaintiff's Attorney. 12. Form of affidavit. State of Pennsylvania, ) County of Lackawannna. J George D. Taylor, being duly sworn according to law says that he is the attorney for the plaintiff and as such attorney prepared the bill in Equity, mentioned and filed in the above stated case; that he prepared said bill from the information and directions given to him by Adolf Blau, and that at the time of the giving of such information and direction the deponent understood the said Adolf Blau to say and mean that the defendants in the said bill had never made any use of the name "Union Ticket Agency" and the deponent, either inadvertently or otherwise, failed to understand and learn from the said Adolf Blau that the said defendants for a time had used the name "Union Ticket Agency" in connection with their business in the City of Wilkes-Barre. George D. Taylor. Sworn and subscribed before me this 13th day of August, 1906. John F. Cummings, Prothonotary. ORDER. Now, August 13, 1906, the within amendment is allowed as prayed for. By the Court. CERTIFICATE. A true copy, certified from the records, this day of October, 1906. Prothonotary. FORMS OF PLEADINGS. 7n 13. Form of defendants' answer. Between Adolf Blau, Plaintiff, and "I In the Court of Common Pleas of A. Hurwitz and J. Hurwitz, ( Lackawanna County. as partners, or business as- I Sitting in Equity, sedates, trading under the J No. ii, September Term, 1906. name of "Hurwitz & Co.," Defendants. ANSWER OF DEFENDANTS. To the Honorable the Judge of said Court : The defendants, A. Hurwitz and J. Hurwitz, doing business under the firm name of Hurwitz & Co., now and at all times hereafter, saving and reserving to themselves all and all manner of benefit or advantage of exception, or otherwise, that can or may be had or taken to the many errors, uncertainties and imperfections in said Bill of Complaint, for answer thereto, or to so much and such parts thereof as the defendants are advised are material for them to answer, say: First. The defendants deny that the plaintiff has been engaged as an Ocean Steamship Ticket Agent for a period of seven years in the City of Scranton, and require the plaintiff to prove the allegations of the first paragraph of the Bill. Second. The defendants deny that the plaintiff has been engaged in said business for himself for seven years in the City of Scranton, and require the plaintiff to prove the same. Third. The defendants deny that in the month of October, in the year 1899, the plaintiff began the said business under the trade name and business style of "Union Ticket Agency," Fourth. And defendants also deny that he ever conducted the business under the name for himself. Defendants say that the first time the plaintiff was connected with any business which was con- ducted under the name of the "Union Ticket Agency," was in Jan- uary, 1902, and that he then was working for the defendants under the following arrangement, to wit: The defendants, in 1901, rented the premises in the City of Scranton, Pa., at No. 107 Lackawanna Avenue, at which place they conducted, in conjunction with others, a loan business and agency for the sale of steamship tickets and foreign exchanges. Defendants at that time were conducting similar agencies in the City of Wilkes-Barre, and in Plymouth, Luzerne County, and early in the year, 1901, the defendants adopted a trade name for the various agencies in which they were interested, to wit : the name "Union Ticket Agency," and stationery was printed in that name, business cards, circulars, and signs displayed in the City of Scranton, and at other places where defendants were interested in Ticket Agencies. The defendants sometimes referred to their busi- ness in the City of Scranton as the "United Ticket Agency Company," and sometimes as the "Union Ticket Agency," the business being conducted in both names. About the first of January, 1903, the de- fendants leased one-half of a store occupied by Adolph Blau, the plaintiff, at No. 203 Lackawanna Avenue, City of Scranton, for the 712 EQUITY PRACTICE IN PENNSYLVANIA. rental of Fifty ($50.00) Dollars per month, and it was then and there agreed by and between the plaintiff and the defendants, that a Ticket Agency should be conducted in the premises so leased under the name of the "Union Ticket Agency" of which Adolf Blau should be the manager; that he should make weekly statements to the de- fendants, who made their home at Wilkes-Barre ; that Blau should deduct from the profits the said rent, and all expenses connected with the conduct of the Agency, and equally divide the net profits remain- ing between himself and the defendants. The defendants were agents for a large number of steamship lines, and the business of these lines was conducted in the name of the defendants. In January or Febru- ary of 1902, the defendants, in pursuance to this contract between themselves and Blau, transferred all of their tickets from the premises at No. 107 Lackawanna Avenue to the premises at No. 203 Lacka- wanna Avenue, together with all the other stationary and other ap- pliances used in connection with said Ticket Agency, and Adolf Blau from that time until about two months ago acted as manager for the defendants in the conduct of the agency at No. 203 Lackawanna Avenue, owned and controlled by the defendants above stated. Dur- ing this time all tickets were purchased by the defendants as agents for the various steamship companies, and plaintiff had no direct dealings with any of the companies represented by the defendants. He made all his returns to the defendants at Wilkes-Barre, and the defendants frequently visited the Agency at Scranton, of which Adolf Blau was manager, and supervised the business there. The name off Hurwitz & Company was painted on the windows upon the premises of No. 203 Lackawanna Avenue, and the defendants were the sole owners and proprietors of this Agency, Blau acting merely as man- ager of the same, paying the rent and other expenses out of the profits, and remitting one-half of the balance of the profits, together with the price of the tickets to be remitted to the various steamship companies, to the defendants at Wilkes-Barre. Fifth. Defendants deny that the plaintiff was the first person to appropriate and use the name "Union Ticket Agency" as a trade or business name, and say that they first used that name in the City of Scranton, Lackawanna County, in 1901, at No. 107 Lackawanna Avenue, in safd city. Sixth. Defendants deny that the plaintiff has made any use or appropriation of the name "Union Ticket Agency" exclusively and prior to any other person, and say that the defendants made use of said name exclusively and prior to any other person in the City of Scranton, Lackawanna County. Seventh. That the defendants deny that the plaintiff has estab- lished any agency in the City of Scranton under the name of the "Union Ticket Agency," and say that the plaintiff acted as their agent and manager in the conduct of an agency in the City of Scran- ton, under the trade name of the "Union Ticket Agency," and has used said name in no other way except as manager and agent for the said defendants. Eighth. Defendants admit that they have been engaged in the business of agents for the sale of Ocean Steamship Tickets in the City of Wilkes-Barre, which business was conducted in the name of the "Union Ticket Agency." FORMS OF PLEADINGS. 713 Ninth. Defendants admit that they have established a place of business at No. 308 Lackawanna Avenue, City of Scranton, and that they are there engaged in the business of selling tickets, and they claim the right to conduct said business under the name of the "Union Ticket Agency," said name belonging to and being the property of the defendants. Tenth. The defendants admit that the advertisement quoted in the tenth paragraph of the plaintiff's bill was inserted by them, and they say that they have a right to insert such advertisements, and to use the name "Union Ticket Agency" in the City of Scranton, as the same belongs to the defendants, and is their exclusive property. Eleventh. Defendants say that they have never asked the plaintiff for any leave or license to publish the said advertisement, or to use the name "Union Ticket Agency." Defendants aver that they are the exclusive owners of said name, "Union Ticket Agency," and that the plaintifif has no right to said name, or to the use thereof in any way. Twelfth. That the def^idants have withdrawn the business con- ducted under the name of the "Union Ticket Agency," at No. 203 Lackawanna Avenue to No. 308 Lackawanna Avenue in the City of Scranton. Thirteenth. Defendants deny that the use by them of the name "Union Ticket Agency," either by signs, advertisement, or any other way, is a deception upon the public, or a fraud on the plaintifif, and aver that the same has not damaged the plaintiff in any way. Fourteenth. Defendants deny that the public has been, or will be deceived or imposed upon by the use of the name "Union Ticket Agency" by the defendants, and aver that they have a right to use said name in the conduct of their business in any manner that they see fit. Fifteenth. Defendants deny that the business of the orator has been, or will be greatly injured by any action on their part, and aver, and expect to be able to prove at the trial of the case, that they have the sole and exclusive right to use and advertise the name "Union Ticket Agency." Defendants aver that the plaintiff has not suffered irreparable injury and damage in his business by reason of any such action on their part. Sixteenth. Defendants aver that the complainant has an adequate remedy at law, and therefore, is not entitled to maintain this action in Equity. Solicitors for Defendants. State of Pennsylvania, ) ^^ . County of Lackawannna. > J. Hurwitz, being duly sworn, says that the statements contained in the foregoing answer are true and correct. Sworn and subscribed before me this day of August, A. D. 1906. 714 EQUITY PRACTICE IN PENNSYLVANIA. 14. Ponn of denmTrer to bill. Between Grover C. Sears, Plaintiff, The Scranton"Vust Com- f the Court of Common Pleas of pany, Executor under the ) *5^ ,^T.i °Lr T^r^^^^R Will of Charles H. Sears, ( ^o. 30, September Term, 1908. Deceased, and Mary E. V Sittmg m Equity. Sears and David Sears, Defendants. Demurrer of Mary E. Sears and David Sears, to the Bill of Com- plaint of Grover C. Sears, in said Court, against them and another, filed on the Sth day of August, 1908. To the Honorable, the Judges of said Court: The defendants, Mary E. Sears and David Sears, by protestation, not confessing or acknowledging all, or any, of the matters or things, in the said bill contained to be true, in such manner and form as the same in said bill are set forth and alleged, demur to the whole of the said bill, and for cause of demurrer show : 1. That, upon the face, of the bill, as against these demurrants, the plaintiff is entitled to no relief. 2. That, upon the face of the bill, it is not stated that either of these demurrants, in any way, is liable to the plaintiff on account of any matter or thing. 3. That, neither by intendment of law nor by any inference of fact, deducible from any statement or charge in the bill made or contained, does it appear that either of these demurrants, in any way, is liable or accountable to the plaintiff. 4. That the plaintiff, by his bill, has not shown that he is entitled to' any relief as against these demurrants. Wherefore, and for other good causes of demurrer appearing upon the face of the bill, these demurrants demur thereto and pray the judgment of your Honorable Court whether they shall be required to make any answer to the said bill, and they further pray to be hence dismissed with their reasonable costs in this behalf sustained. George D. Taylor, Solicitor for Demurrants. State of Pennsylvania, ) . County of Lackawannna. j Mary E. Sears and David Sears, being duly sworn according to law, do each depose and say that the foregoing demurrer is not in- terposed for delay. Sworn and subscribed before me this day of September, 1908. 16. Form of bill for injunction to restrain a corporation from using a connty bridge. Bill in Equity. In the Court of Common Pleas in and for the County of North- umberland. Sitting in Equity. FORMS OF PLEADINGS. 715 In the Court of Common Pleas in and for the Coun- ty of Northumberland. No. In Equity. County of Northumberland, Pa., and Casper A. Tharp, George E. Hancock and Frank Erdman, Cbunty Commissioners, vs. Sunbury and Northumberland Electric Railway Company. To the Honorable, the Judges of said Court: The Plaintiffs, the County of Northumberland and Casper A. Tharp, George E. Hancock and Frank Erdman, County Commis- sioners, complain and say: First. That the County of Northumberland is the owner of a certain bridge, freed from tolls, open and used for public travel and spanning the north bank of the Susquehanna River from its eastern bank to Packer's Island on the public highway from Sunbury to Northumberland. Second. That the said plaintiffs, Casper A. Tharp, George E. Hancock and Frank Erdman are the County Commissioners of the said County of Northumberland. Third. That the bridge described in the first paragraph of this Bill was freed from tolls, was taken possession of by the said county, became the property of the said County of Northumberland and a County Bridge on the 9th day of January, A. D. 1905, after the proper proceedings in the Court of Quarter Sessions of the Peace of Northumberland County, as provided by law. Fourth. The defendant. The Sunbury and Northumberland Elec- tric Railway Company, is a corporation, incorporated under the laws of the Commonwealth of Pennsylvania, and is engaged and has been engaged for about eighteen years, last past, in operating a street railway from Sunbury to Northumberland, in said county, and have used and still do use the said bridge. Maintaining thereon two tracks, one on the north and the other on the south side (or road bed) of the said bridge, over which they ran and still run their cars, with electricity as a motive power. Fifth. That all the repairs that have been made to the said bridge since it became the property of the county were made by the defendant railway company, who made certain repairs thereto in the years 1906 and 1907, with a view of strengthening the same. But such repairs were inadequate to render said bridge strong enough to bear the burden of street car traffic and safe for public travel, and, for such purpose, additional repairs to the said bridge are necessary and required. Sixth. That the defendant railway company has never paid the plaintiff, the said County of Northumberland any compensation, by way of rental or otherwise, for the use and occupancy by it of the said bridge, nor has it kept it in proper repair and safe for either street car traffic or public travel, although repeatedly notified by the plaintiffs, the Commissioners of Northumberland County, of the dangerous condition of said bridge, and to make the repairs necessary to render the said bridge safe for public travel. Seventh. That the said bridge is out of repair, unsafe and danger- ous for public travel. That the lives and safety of all persons using and passing over said bridge, either in the cars of the defendant 7iC EQUITY PRACTICE IN PENNSYLVANIA. company, or other means of conveyance, or on foot, are daily and constantly in extreme danger and peril, from the use of the said bridge by the defendant company, and the passage of their cars over the same, ovk^ing to its unsafe, dilapidated condition and want of repair. Extensive repairs are required to be made without delay to render it safe for travel and street car traffic. The east span is particularly unsafe, is out of plumb, is swayed and leans towards the north, and other repairs are needed to make the said bridge safe. Eighth. That in order to protect and safeguard the travelling pub- lic in the use of the said bridge, it is necessary that the use of the same by the defendant company be discontinued, and the running of its cars on and over the tracks of said company on the said bridge cease until such repairs are made thereto as will render it safe, both for public travel and street car traffic. Ninth. That the plaintiffs, the County Commissioners, repeatedly notified the defendant company of the dangerous and unsafe condition of the said bridge and the constant menace to the lives and safety of travellers over said bridge, caused by the running of the cars of the defendant company on and over the same, and directed the said defendant company to make the necessary repairs, or discontinue the use thereof for street car traffic, which the said company has neglected and refused to do. That such notices have been repeatedly given on and since the 15th day of March, A. D. 1909. Tenth. That the said bridge is the property of the county and the said plaintiffs, as County Commissioners, in the exercise of their right as custodians of said bridge for the use of the public, have demanded of the defendant company, that it strengthen and repair the structure to meet the demands made upon it by street car traffic, to make the repairs necessary to make and keep it safe, so that the public will not be jeopardized in the use thereof, which the said defendant company has heretofore neglected and refused to do. Eleventh. That the defendant company has full knowledge of the unsafe and dangerous condition of the bridge described in paragraph first of this Bill, yet it continues to use and run its cars upon and over its said tracks, laid on the same to the jeopardy of all persons passing over the same and to the manifest peril of their lives and safety, and is so doing at this time. Twelfth. That on the third day of May, A. D. 1909, the said plaintiffs, the County Commissioners, and the president, superintend- ent and principal officers, together with the solicitor, of the defendant company, met in consultation and mutually agreed to select three expert engineers and bridge builders, to examine the said bridge and report as to its safety and the necessity of repairs, to the said plaintiffs, the County Commissioners, and the defendant company. Whereupon, in pursuance of said agreement, the said County Com- missioners appointed C. H. Shultz, the said officers of the said rail- way company, defendant, appointed N. M. Perry, and the two so appointed, as agreed, appointed Samuel E. May, as the third member of said examining board. That on the nineteenth day of June, A. D. 1909, experts, so appointed, made and delivered to both the County Commissioners, plaintiffs, and the officers of the said street railway company, defendant, the following report, to wit: FORMS OF PLEADINGS. 717 "We the undersigned beg leave to submit the following as our report on the east span of the highway bridge leaving from Sunbury to Packer's Island, our report is as follows: We examined the span in question on the 5th day of June, 1909, and find, The bottom chord on this span is out of line and up stream in the center seven and one-half inches and the bottom chord is three and one-half inches below grade line. The cross section of the end of the bridge on the east side is down on the abutment two inches below the level line and the center of the span is down one and seven-eighths inches on cross section sub- mitted. We would recommend the following repairs to be made upon this span: First. This span should be well trestled up with twelve trestles to carry the span and traflnc that goes over it. Trestle should be well braced, too, so that the bridge can be jacked in line and surface, after this has been done the block under bottom chords to be renewed. Then next put in lateral braces as shown upon the blue print in red hereto attached; these lateral braces to be same size as shown upon blue print in red and the angle blocks to be cast iron and of suitable size. The Arches. The blocking where the heels of the arch rest against the wall and skew back to be put in first class condition. After this has been done the present arches are to be gone over and see that they are in good, safe condition and an additional arch to be placed on each outside truss of bridge also be put in good shape. Then a big block is to be placed on top of arch and bottom of chord- size of gib block 6 inches by 8 inches oak, and where the arch is up as high as top chord and blocks to run across the arch. At first two panels of each truss a one and one-half inch rod running diagonal as shown in red on blue print from top to bottom with proper washers, etc. Arch rods to be placed on every panel as shown upon the blue print in red ; also arches to be bolted to each post size of bolts three- quarter inch and of proper length. And all the arches and top lateral bracing and bolts to be put in proper shape so that each part works in accordance with the other. All the wood to be of good, first-class hemlock and the iron to be also first class and all the work to be done in a good- workmanlike manner. The other three spans we consider safe for two or three years. We would recommend that the nose of these piers be repaired before we get another ice flood, as they are in a dilapidated condition. The approximate cost for the repairs of the east span will be as follows : Lumber $1,500 00 Iron 200 00 Labor 1,500 00 $3,200 00 7i8 EQUITY PRACTICE IN PENNSYLVANIA. We respectfully submit the abo Northumberland County also to Northumberland Electric Railway, We respectfully submit the above report to the Commissioners of Northumberland County also to the officers of the Sunbury and (Signed) C. H. Schultz, (Signed) N. M. Perry, (Signed) Samuel E. May, Committee. Submitted June 19, 1909." That after receiving said report of the experts, the defendant company agreed, among other things, to make the repairs, therein reported to be necessary, which agreement is embodied in the resolu- tion of the said County Commissioners, set out in the Appendix here- to and marked Exhibit "A," but subsequently abrogated and refused to comply with or keep their said agreement, or to repair the said bridge or rectify the danger arising from its use. But continued the daily and constant use thereof and the running of the cars there- on, well knowing the dangerous and unsafe condition thereof and that it was constantly placing in jeopardy and imperilling the lives and safety of all persons being thereon at the time of the passage of the street cars over the same, and the possible destruction of the superstructure thereof. Thirteenth. That the said bridge belongs to the County of North- umberland, is under the control of the County Commissioners, the plaintiffs, and cannot be occupied by the street car company, the de- fendant, without the consent, or under such reasonable conditions as to its safety, repairs and a reasonable compensation for its use. That it is the right and duty of the said County Commissioners to see that said bridge is fit for use by the street car company, what repairs are necessary to render it safe for public travel and to compel the defendant to pay the expenses thereof, as a condition precedent to its right to the use of the same or the occupancy thereof, and, also, in their discretion, to demand a reasonable yearly rental for such use and occupancy. First. Your petitioners, the plaintiffs, therefore pray that an injunction be issued by your Honorable Court, special until hearing and perpetual thereafter, restraining the defendant, the Sunbury and Northumberland Electric Railway Company, from running their cars, trucks or other conveyances propelled by electricity upon and over their tracks upon the bridge described in paragraph one of this Bill, until the repairs are made, which are set forth and declared to be necessary in the report of C. H. Schultz, W. W. Perry and Samuel E. May, set forth at length in paragraph twelfth of this Bill, and the said bridge be so repaired and rendered safe for public travel. Second. From using or occupying the said bridge for street car traffic and running its cars over the same until it, the defendant, shall have strengfthened the same and the structure thereof, so that it shall be fit to bear the burden of the defendant's street car traffic, make the necessary repairs to the said bridge and pay the expense thereof, and render said bridge safe and convenient for public travel thereon. Third. From using or occupying said bridge for street car traffic FORMS OF PLEADINGS. 719 • thereon, or any of the purposes of its franchise; until it shall enter into a contract or agreement with the plaintiffs to strengthen at its own expense the said bridge, so as to render it fit for street car traffic, and the additional burdens imposed upon it by reason of the same to repair the same, now and at all times hereafter to keep it in repair, or to pay such sum or such repairs in the future, as your Honorable Court shall deem just and equitable as between said defendant and the public, and also to pay the County of North- umberland such reasonable yearly rental for the use of said bridge as to your Honorable Court may seem just. Fourth. Such other and further relief as your Honors may deem meet. Commissioners of Northumberland County. Paintiffs. Solicitors. Northumberland County, ss. Before me, the subscriber, a notary public, in and for said County of Northumberland, personally appeared Casper A. Tharp and George E. Hancock, Commissioners of Northumberland County, the above named Plaintiffs, who, being duly sworn according to law, did depose and say, that the facts set forth in the above and foregoing Bill of Complaint are true. Sworn and subscribed before me this day of , A. D. 1909. We hereby certify that, as to the complaint and matters set forth in the above Bill, the plaintiffs have no adequate remedy at law. Solicitors for Plaintiffs. 16. Besolutions of County Commissioners. APPENDIX. EXHIBIT "A." Sunbury, Pa., July 12, 1909. Whereas, The old wooden bridge from Sunbury to Packer's Island over the North Branch of the Susquehanna River is out of repair and reported to the Commissioners of Northumberland County to be in a dangerous condition and not safe for street car traffic. The "Sunbury and Northumberland Electric Railway Company," the owner and operator of the street railway line running across said bridge, and the County Commissioners, having agreed to accept the 720 EQUITY PRACTICE IN PENNSYLVANIA. written Report of the viewers, Messrs. C. H. Shultz, N. M. Perry, ^nd S. E. May, who were chosen jointly by the railway company and the said Commissioners, as to what repairs are necessary to place said bridge in good repair and in a safe condition for street car traffic, and the said street railway company having agreed to pay the entire cost and expense of making said necessary repairs, .it being under- stood that said cost should not exceed the sum of Thirty-two Hun- dred ($3200.00) Dollars, and it being also understood and agreed that said street railway company, shall pay one-half of the cost and ex- pense of all future current repairs to both the aforesaid wooden bridge and the iron bridge extending from Packer's Island to North- umberland across the West Branch of the Susquehanna River, and over which the said company's cars also run, the cost and expense of said current repairs not to exceed the averaged sum of Two Hun- dred ($200.00) Dollars a year. And Whereas, It is hereby expressly understood and agreed by and between the Commissioners of Northumberland County and the Sunbury and Northumberland Electric Railway Company, that said company shall pay the cost of the aforementioned repairs and one- half the costs of future current repairs to said bridge, notwithstanding the contract between them dated the 30th day of December, 1905, and that the terms of said contract shall in nowise interfere with the provisions of this resolution or the conditions herein stipulated, but that said contract, in so far as the conditions, provisions, and stipulations of this resolution are concerned, is hereby abrogated and annulled. Therefore, Be It Resolved, That the chief clerk be authorized to advertise for bids for the making of the repairs in accordance with the report of the viewers, aforesaid, and that the cost of such repairs shall not be in excess of $3,200.00, and shall be paid for exclusively by the Sunbury and Northumberland Electric Railway Company in three installments, each installment to be for the sum of one-third of the cost of such repairs, such installments to become due and payable at intervals during the course of making the repairs upon demand by the County Commissioners, made to said street railway company, or its superintendent, the last installment, however, not to be due and payable until immediately after the completion of the work. Be It Further Resolved, That the said Sunbury and Northumber- land Electric Railway Company shall pay one-half of the cost and expense of all future current repairs to both the old wooden bridge from Sunbury to Packer's Island and the iron bridge extending from Packer's Island to Northumberland, the cost of said future current repairs not to exceed the average sura of Two Hundred ($200.00) Dollars a year. And It Is Finally Resolved, That the said Sunbury and North- umberland Electric Railway Company, shall, within Ten (10) days after the passage of this resolution, file with the chief clerk of the County Commissioners a written acceptance of the provisions of this Resolution, under its corporate seal, signed by its president and secretary, otherwise this Resolution shall be void and no effect. Adopted July 12, 1909. FORMS OF PLEADINGS. 721 17. Form of answer to bill for injunction, supra. IN EQUITY. County of Northumberland, Pa., ' and Casper A. Tharp, George E. Hancock and Frank Erdman, County Commisioners. > ty of Northumberland. Sitting in Equity. No. 325 Equity Docket. V. Sunbury and Northumberland Electric Railway Company. In the Court of Common Pleas in and for the Coun- To the Honorable, the Judges of said Court: The defendant now, and at all times hereafter, saving and reserv- ing unto itself all benefit and advantage of exceptions to the many errors, uncertainties and imperfections in the said bill of complaint contained, for answer thereto, or so much thereof as the defendant is advised it is material or necessary to make answer unto, answers and says : First. The facts set forth in the first, second, third, fourth and ninth paragraphs of the plaintiffs' bill of complaint are admitted to be true. Second. The facts set forth in the fifth paragraph of the plaintiffs' bill are denied and for further answer thereto the defendant answers and says : (o.) That on the 29th of May, 1905, a certain contract was entered into between the County of Northumberland and the defendant for the occupancy of the county bridge between Sunbury and Packer's Island, a copy thereof, marked exhibit "A," is hereto attached and made part of this answer. (&.) That under this contract the defendant made certain repairs to the said bridge with a view of strengthening the same for street car trafiic. That this work was in progress on the 30th day of De- cember, 1905, when it appeared to the county and the railway company that the defendant was expending more money upon the bridge than was anticipated at the execution of the contract. (c.) That on the 30th day of December, 1905, the County of Northumberland and the defendant entered into another contract, a copy whereof, marked Exhibit "B," is hereto attached and made part of this answer. Under the last contract the defendant was relieved from making any further repairs to the said bridge, except "to cause the said bridges to be inspected three times each year and tighten all bolts and set all, wedges necessary and proper." All moneys expended by the railway company upon the said bridge since the last contract have been those of a volunteer, and not pursuant to any liability, contractual or otherwise, to make them. The county has, since the last contract, expended money in the repair of the bridge. Third. The facts set forth in the sixth paragraph of the plaintiffs' bill are denied and for further answer thereto the defendant avers and says : (a.) That the defendant has compensated the county for the right to cross the said bridge with its railway in exact accordance with the written contract between them. Vol. 4 Practice — 46 722 EQUITY PRACTICE IN PENNSYLVANIA, (6.) That the defendant did put the said bridge in proper repair and safe for street car traffic and public travel; it has been used for public travel since its erection and is now being so used and has been used for street car traffic by the defendant since 1889, except during the time the defendant has been enjoined by injunction in this case in the use of the eastern span thereof. The defendant is now operating its cars over the three western spans. Fourth. The facts set forth in the seventh paragraph of the plaintiffs' bill are neither admitted nor denied and the plaintiffs are required to make proof thereof. Fifth. The facts set forth in the eighth paragraph of the plaintiffs' bill are denied, and for further answer thereto the defendant avers and says, that any repairs that may be necessary to be made upon the said bridge can be made without closing the same either to public travel or street car traffic. Sixth. As to the tenth paragraph of the plaintiffs' bill, the defend- ant avers, that true it is that the bridge is the property of the county and that the plaintiffs as County Commissioners are the custodians thereof and for further answer thereto the defendant says : The right of the plaintiffs to demand that the defendant further strengthen and repair the said bridge is unwarranted by the contract of the 30th day of December, 1905, and in violation thereof, wherefore the defendant has been justified in neglecting and refusing so to do. Seventh. The facts set forth in the eleventh paragraph of the plaintiffs' bill are neither admitted nor denied, but the defendant demands that the plaintiffs make proof thereof. Eighth. As to the paragraph of the plaintiffs' bill it is admitted, "that on the third day of May, A. D. 1909, the said plaintiffs, the County Commissioners and the president, superintendent and principal officers, together with the solicitor, of the defendant company, met in consultation and mutually agreed to select three expert engineers and bridge builders, to examine the said bridge and report as to its safety and the necessity of repairs." It is also admitted, as in the said paragraph alleged, "in pursuance of said agreement, the County Commissioners appointned C. H. Shultz, the said officers of the said railway company, defendant, appointed N. M. Perry, and the two so appointed, as agreed, appointed Samuel E. May, as the third member of said examining board." It is also admitted that on the nineteenth day of June, 1909, the said experts made a report as set forth in the twelfth paragraph of the plaintiffs' bill. The defendant denies the allegation in the said paragraph contained, "that after receiving said report of the experts, the defendant com- pany agreed, among other things, to make the repairs, therein re- ported to be necessary" as "embodied in the resolution of the said County Commissioners" set forth as Exhibit "A" in the plaintiffs' bill, "but subsequently abrogated and refused to comply with or keep their said agreement, or to rdpair the said bridge or rectify the danger arising from its use," and for further answer thereto the defendant avers and says : A dispute had arisen between the plaintiffs and the defendant as to the continued liability of the defendant to repair the said bridge under the contract of the 30th day of December, 1905; the plaintiffs FORMS OF PLEADINGS. 723 asserting such liability, the defendant denying it. That there was a meeting of the president, one director, the superintendent and the solicitor of the railway company with two of the County Commis- sioners in the presence of Hon. C. R. Savidge, President Judge, and Hon. Voris Auten, A. L. J., for Northumberland County. That the object and purpose of the said meeting was to endeavor to effect a settlement of the differences between the parties. That the repre- sentatives of the railway company made the following offer: First. That the County of Northumberland repair the said bridge in accordance with the report of the experts. Second. That the railway company would pay the county thereof, not to exceed the sum of $3200.00 in three installments, each install- ment to be for one-third said amount, and to become due and payable during the course of making of the repairs upon demand by the County Commissioners upon the railway company ; the last installment not to be due until the completion of the work. Third. That the railway company would pay one-half of the cost and expense of all future current repairs to both the old wooden bridge and the iron bridge between Packer's Island and Northumber- land, the cost of said future current repairs not to exceed the average sum of $200.00 annually. Fourth. That the railway company should not be liable for any future repairs upon the old wooden bridge, except the current repairs as stipulated. This proposal was accepted by the two commissioners, and they agreed to have a resolution drawn and adopted in accordance there- with and submitted to the railway company for ratification. Subsequently the County Commissioners adopted a resolution as set forth in its bill marked Exhibit "A." It was submitted to the railway company for ratification. Ratification was refused by the board of directors of the railway company for the reason that it was not in accordance with the proposal of the railway company, and the County Commissioners were so notified. The defendant denies the allegation in the said paragraph that it continued the daily and constant use of the bridge "and the run- ning of the cars thereon, well knowing the dangerous and unsafe condition thereof or that it was constantly placing in jeopardy and imperilling the lives and safety of all persons being thereon at the time of the passage of the street cars over the same, and the possible destruction of the superstructure thereof." Ninth. As to the thirteenth paragraph of the plaintiffs' bill, the defendant admits that the bridge "belongs to the County of North- umberland and is under the control of the County Commissioners," but denies that the consent of the County Commissioners to the occupancy thereof by the defendant, is required by law, or that the plaintiffs can now impose conditions as to repairs thereto or com- pensation for the use thereof by the defendant. The defendant admits that it is the duty of the County Commissioners to see that the said bridge "is fit for use by the street car company and what repairs are necessary to render it safe for public travel," but denies the right or authority of the plaintiffs "to compel the defendant to pay the expenses thereof, as a condition precedent to its right to the use of the same, or the occupancy thereof," or "in their discretion to demand a reasonable yearly rental for such use and occupancy." 724 EQUITY PRACTICE IN PENNSYLVANIA. And for further answer thereto the defendant avers and says: (o.) The right of the defendant to occupy and use the said bridge for street railway purposes was irrevocably fixed at the time of its being freed of tolls and made a county bridge on the 9th day of January, 1905, and the plaintiff was then and is now without any right or authority to remove the defendant therefrom. (b.) The contract of the 30th day of December, 1905, prescribes the nature and extent of the duties of the defendant with respect to the said bridge and fixes the rental to be paid for its use and the plain- tiffs are without any right or authority in law to add anything thereto or take anything therefrom. (c.) Under the law the duty of repairing the said bridge and mak- ing it safe for all purposes, including street car traffic by the defendant, is upon the plaintiff, the County of Northumberland, and the plaintiff could not by contract with the defendant escape the performance of this legal duty. (d.) That the plaintiff has a full, complete and adequate remedy at law. T.enfh. The defendant denies that the plaintiff is entitled, under the law, to any equitable relief whatever and respectfully prays the Court that the plaintiffs' bill for an injunction and other relief, and all proceedings thereon be dismissed at the cost of the plaintiffs. Eleventh. That by reason of the issuance of the writ of prelim- inary injunction in this case, the defendant has suffered great dam- age, which the Court is asked to have estimated and assessed against the plaintiff, and to have a decree made requiring it to pay the same as the Court may direct. J. Fred. Schaffer, John G. Johnson, Attorneys for Defendant. State of Pennsylvania, ) County of Northumberland, y^" On this 30th day of September, 1909, before me, the subscriber, a notary public in and for said county and state, personally appeared D. A. Howe, the president of the defendant. The Sunbury and Northumberland Electric Railway Company, named in the foregoing answer to bill in Equity, and who sigjned the same, and he being by me duly sworn, did depose and say that he had heard the said answer read and knew the contents thereof, and that the same was true to his own knowledge, except as to matters which are therein stated on information and belief, and as to those matters he believes them to be true. Sworn and subscribed before me this 30th day of September, A. D. 1909. D. H. Howe, President. I. O. DeWitt, Justice of the Peace. My commission expires on the first Monday of May, A. D. 1914. [Here follow copies of exhibits.] In the Court of Common Pleas of the County of Lackawanna. Sitting in Equity. No. , March Term, 1910. FORMS OF PLEADINGS. 725 18. Form of bill to have description in deed reformed and rectified. Between Mary Thornton, Plaintiff, and Thomas N. Thornton, Mary Thornton, and Kate Thorn- ton, daughters of Michael Thornton, deceased, and Katie V. Thornton, widow and Mary Thornton, infant daughter of Michael G. Thornton, deceased. Defendants. To the Honorable, the Judges of said Court: Your orator, Mary Thornton, the plaintiff, complains and says: First. That she is a resident of the City of Scranton, County of Lackawanna and State of Pennsylvania, and that the said defendants, Thomas N. Thornton, Mary Thornton and Katie Thornton, daugh- ters of Michael Thornton, deceased, and Katie V. Thornton, widow, and Mary Thornton, infant daughter of the said Michael G. Thorn- ton, deceased, are all likewise residents of the said City of Scranton. Second. That John Godwin, otherwise known as John J. Godwin, late of the said City of Scranton, in his lifetime to wit: On the i8th day of April, 1866, by a deed of conveyance as of that date, to him made and delivered by William T. Rhoads and his wife, Elvira S. Rhoads, and recorded in the office for recording deeds in and for the County of Luzerne, in said State, in Deed Book No. 107, at page 533, etc., became entitled to and lawfully seized and possessed in his own demesne as of fee, of and in and following de- scribed lot or parcel of land, situate, lying and being (then) in the Borough of Scranton (then), in the County of Luzerne and State of Pennsylvania, described as follows, viz. : Being lot number two (2), in square or block number nine (9), and situate upon street called and known as Washington Avenue, upon the town plot of the Borough of Scranton; said lot being forty (40) feet in front on Washington Avenue and one hundred and fifty (150) feet in depth; and rectangfular in shape, with an alley in the rear sixteen (16) feet in width for public use, with the privilege of using ten (10) feet in front of the front line of the lot for yard, vault, porch, piazza, cellar-way or bay-windows, but for no other purpose : a more par- ticular description and location of which said lot of land is as follows, that is to say, a rectangular parcel of land, situate, lying and being, on the southeastern side of Washington Avenue, ■ in the City of Scranton, County of Lackawanna and State of Pennsylvania, being forty (40) feet wide on its right lines which are parallel with said avenue and one hundred and sixty (160) feet deep, on its right lines which are at right angles to said avenue, the northeastern- most of which said right lines of the depth or length of one hundred and sixty (160) feet as aforesaid, is distant southwesterwardly fifty (50) feet from the southwesternmost fence line of River Street, and is designated on the map of lands in the town of Scranton made by. 726 EQUITY PRACTICE IN PENNSYLVANIA. the Lackawanna Iron and Coal Company as lot number two (2), in block number nine (9), under which said company and its conveyance of said lot, by a designation of the lot and block numbers respectively aforesaid, the said Elvira S. Rhoads claimed title to said lot at the time of her conveyance so dated the i8th day of April, 1866, as aforesaid. Third. That the said John J. Godwin used and occupied the afore- said lot of land for his own benefit and behoof, from the said i8th day of April, 1886, to the time of his death, which occurred at the said City of Scranton on the 28th day of December, 1893. Fourth. That the said John J. Godwin, by his last will and testa- irifent published on the 27th day of December, 1893, and proved and admitted to probate on the 3d day of January, 1894, before and by the Register, &c., of Wills, &c., of the said County of Lackawanna, and in the office of that officer recorded at length in Will Book No. 7, at page 489, among other things, made disposition of the parcel of land aforesaid as follows: "First. I give, devise and bequeath, to my cousin, Michael Thornton, of Ireland, the northerly part of my lot on the easterly side of South Washington Avenue, Scranton, Pa., being No. 403, and to his brother, Thomas Thornton, the other half of said lot, being No. 405 South Washington Avenue, for themselves, their heirs and assigns forever, being each twenty (20) feet front:" A true copy of whfch said last will and testament, entitled "Exhibit A," is to this bill aooended and thereby made a part hereof. Fifth. That at the time of the publication of the said last will and testament, the aforesaid lot number two (2), in block number nine (9), was improved with a double frame dwelling house, fronting on said Washington Avenue, having its middle or division line be- tween the two parts of the said house substantially on the middle dividing line of said lot, extending from said avenue in a south- eastern direction to the aforesaid public alley, the northeasternmost half part of which said house fronting on said avenue was desig- nated by the street number "403" and the southwesternmost, the other half of said house, was designated by the street number "405." Sixth. That your orator, at the time of the publication of the said last will and testament, and for many years anterior thereto, was the wife of Michael Thornton, the same Michael Thornton mentioned in the said last will and testament as the cousin of the testator, John J. Godwin; that the defendants, Thomas N. Thornton, Mary Thorn- ton and Katie Thornton, are respectively the son and daughters of the same Michael Thornton and your orator, that the said Katie V. Thornton is the widow of Michael G. Thornton, who was also a son of the said Michael Thornton and your srator, that the said Michael G. Thornton died intestate at the said City of Scranton, on the 6th day of December, 1903, leaving to survive him his widow, the said Katie V. Thornton, and an infant daughter, the other defendant, the said Mary Thornton. Seventh. That the said John J. Godwin died testate as herein- before insinuated, at the City of Scranton, on the 28th day of De- cember, 1893, and soon thereafter the said Michael Thornton, cousin of the said testator, and husband of your orator, entered upon and took posession of the northeasternmost one-half part of the aforesaid lot of land, so designated as lot number two (2), in block number FORMS OF PLEADINGS. 727 nine (9) as aforesaid and of the aforesaid northeasternmost half part of the aforesaid double frame dwelling- house and the other buildings erected on the rear or southeasternmost end of said lot on the alley aforesaid, and continued in the possession and ownership of said half lot and said half part of said dwelling house until the time of his death, as hereinafter more particularly stated. Eighth. The said Michael Thornton, cousin of the said John ]. Godwin, and husband of your orator, died intestate at the said City of Scranton, on the first day of April, 1897, leaving to survive him his widow, your orator, and seven children, viz. : The said Thomas N. Thornton, the above mentioned Michael G. Thornton, who dipd intestate at the said City of Scranton on the 6th day of December, 1903, leaving to survive him his widow, the said Katie V. Thornton, and his infant daughter, the said Mary Thornton, John J. Thornton, who died intestate at the said City of Scranton without ever having been married, on the 25th day of January, 1905, Mary Thornton, one of the defendants aforesaid, Katie Thornton, the other of the de- fendants aforesaid, Margaret Thornton, who died intestate at the said City of Scranton without ever having been married, on the 13th day of October, 1903, and another son, Stephen S. Thornton, who is not a party to this bill. Ninth. That after the death of the said Michael Thornton, husband of your orator, and father and grandfather, respectively of the defendants aforesaid, on the 4th day of March, 1902, the said Thomas N. Thornton, the said Michael G. Thornton, otherwise known as Michael Thornton, the said John J. Thornton, the said Mary Thornton, the said Katie Thornton and the said Margaret Thornton, otherwise known as Maggie Thornton, daughters respectively of the said Michael Thornton, the deceased husband of your orator, then all of the said City of Scranton, by their deed of bargain and sale bearing date as of the said 4th day of March, 1902, and then and there delivered to your orator, granted, bargained and sold to your orator, and her heirs and assigns, or by the deed last aforesaid, in- tended to grant, bargain and sell to your orator, and her heirs and assigns, the northerly one-half of the lot of land aforesaid, a true and exact copy of which said deed entitled "Exhibit B," is to this bill appended and thereby made a part hereof; but in the drawing, writing and preparing of said deed, a mistake was made in that the land therein described is so described as being situate in "block number two (2)" instead of in "block number nine (9) ;" and your orator states that the grantors in and makers of the deed last afore- said, at the time of the making and delivery thereof, intended to convey in fee simple to your orator, the northeasternmost one-half part of said lot number two (2), in said block number nine (9), and your orator then and there intended to purchase and have conveyed to her from and by the grantors aforesaid, the said northeasternmost one-half part of said lot number two (2), in said block number nine (9) ; and that it was not intended by either party to said deed thereby to convey or assure any land or other thing whatever except the said northeasternmost one-half part of said lot number two (2) in said block number nine (9), otherwise known as the northerly one-half part of lot number two (2) in square or block number nine (9), etc.; that the description in said last mentioned deed given of the premises 728 EQUITY PRACTICE IN PENNSYLVANIA. intended to be conveyed was erroneous and in fact does not describe any premises whatever to which either of the grantors in or makers of said deed, were at that time or ever had been in any way whatever entitled, that the words "block number two (2)" as used in the description in said last mentioned deed, were inserted by mistake of the parties to said deed, instead of the words "block number nine (9)," which should have been used instead of the words "block number two (2)," and that in order to make said deed convey any premises whatever to your orator and to make it conform to the actual intention of the parties, it is necessary that the description in said deed should be reformed by substituting the words "block number nine (9)" for the words "block number two (2)," where the later words are as aforesaid. PRAYER. Your orator therefore prays : First. That the description of the premises conveyed by the deed last aforesaid be reformed, defined and set out under a decree of your said Honorable Court by the substitution of the words "block number nine (9)" for the words "block number two (2)" and that all necessary directions be given for that purpose. Second. For such other and further relief as to which your orator shall appear to be entitled. George D. Taylor, Solicitor for the Plaintiff. State of Pennsylvania, 1 County of Lackawanna, j*^"- Mary Thornton, being duly sworn according to law, doth depose and say that the facts set forth in the foregoing bill of complaint are true and correct. Mary Thornton. Sworn and subscribed before me this 23d day of February, 1910. Chas. W. Dawson, Notary Public My commission expires March 29, 1913. ATTORNEY'S CERTIFICATE. I do hereby certify that the plaintiff in the within and foregoing bill in Equity has no adequate remedy at law. George D. Taylor, Solicitor for Plaintiff. [Here follow exhibits — ^the will and deed.] 19. Form of bill for account, discovery, cancellation and re- delivery of stock certificates. Between David Spruks, Plaintiff, and Oswald Jones and The Jones & Spruks Company and The Scranton Cold Storage and Warehouse Company, Defendants. In the Court of Common Pleas of the County of Lackawanna. Sitting in Equity. No , March Term, 1902. FORMS OF PLEADINGS. 729 To the Honorable, the Judges of said Court: Your orator complains and says: 1. That your orator, the plaintiff, David Spruks, is a resident of the City of Scranton, County of Lackawanna and State of Pennsyl- vania, doing busines as a wholesale grocer, in said city. 2. That the defendant, Oswald Jones, is likewise a resident of the City of Scranton, and likewise engaged in the business and trade vania, doing business as a wholesale grocer, in said city. 3. That the defendant, the said The Jones & Spruks Company, is a corporation formed under the provisions of an Act of the Commonwealth of Pennsylvania, approved the 29th day of April, 1874, and its supplements, by the voluntary association of six persons, in the manner mentioned in the statutes aforesaid, for the purpose of carrying on a general storage and warehouse business ; the charter of said corporation having been subscribed, acknowledged and proved by the said six persons setting forth the matters and things, by the said statutes required; notice of the intention of said six persons to apply for such charter having been inserted in two newspapers of general circulation printed in the said County of Lackawanna for three weeks, setting forth briefly the character and objects of the said corporation, so to be formed, and the intention to make appli- cation therefor, in pursuance of said notice the said six persons did, on the 7th day of February, 1893, at the City of Harrisburg, produce to Robert E. Pattison, then Governor of the said Commonwealth of Pennsylvania, the certificate showing the application aforesaid, ac- companied by proof of publication of the notice aforesaid, and the said Governor having examined the same and finding it to be in proper form and within the purposes of the statutes aforesaid, ap- proved thereof and thereon endorsed his approval and directed let- ters patent to issue in the usual form incorporating the subscribers to the said certificate and their associates and successors into a body politic and corporate, in deed and in law by the name aforesaid; which said certificate was then and there recorded in the office of the Secretary of the Commonwealth, in Charter Book No. 39, at page 126, and thereafter the said original certificate, with all its endorse- ments, was again recorded in the office for the recording of deeds, &c., in and for the County of Lackawanna, aforesaid, where the chief operations of the said corporation were to be carried on, in Charter Book No. 3, at page 256. 4. That by the provisions of the said certificate of incorporation, the capital stock of the said The Jones & Spruks Company was fixed at $75,000, divided into 1500 shares of the par value of $50 each, and of the said capital stock the number of shares subscribed by each of the aforesaid six persons, was as follows, to wit: Oswald Jones, residing in Scranton, Pa., 425 shares David Spruks, " " " " 425 Henry T. Howell, " " " " 150 " Charles Spruks, " " " " 20 Frederick W. Parker, " " " " 2 " Hector Campbell, " ' " "2 " 5. That the said corporation having become desirous of reducing its capital stock, did, bn the 31st day of January, 1895, by resolution 730 EQUITY PRACTICE IN PENNSYLVANIA. of its board of directors, call a meeting of its stockholders for that purpose, which meeting was thereafter held in the chief office of the place of business of the said corporation, in the City of Scranton, notice of the time, place and object of the said meeting having been given to all of the said stockholders, and publication of such notice having been waived by all of the stockholders aforesaid by an election of all the stockholders aforesaid, taken for and against such reduc- tion of the said capital stock conducted by three judges, all stockhold- ers of the said corporation, appointed by the board of directors to hold such election (all first having been duly sworn before an officer authorized by law to administer oaths well and truly according to law), to conduct said election to the best of their ability, it was then and there declared that the persons holding the larger amount of stock of said corporation, had consented to such reduction, and the said judges then and there made out duplicate returns of said election, stating the number of shares of stock that voted for said reduction and the number that voted against said reduction, and subscribed and delivered the same to one of the chief officers of said company, and it was decided by the election aforesaid that the capUal stock of said corporation be reduced from $75,000 to $15,000, to be divided into 300 shares of the par value of $50 each — ^$12,000 thereof to be issued to the stockholders aforesaid, according to their respective holdings, and the balance to be retained by the treasurer, and within 30 days thereafter one of the copies of the return of said election was filed in the office of the Secretary of the Commonwealth aforesaid with a copy of the resolution and waiver of notice calling the same thereunto annexed. 6. That on the said 31st day of January, 1895, it was further ordered by a resolution of the said board of directors that the goods, fixtures, merchandise and everything of value owned by the said corporation be disposed of by private or public sale, and the accounts collected and the entire proceeds be divided among the stockholders, as their interests might apoear, and it was then and there further ordered by a resolution of the said board of directors that the salaries of the members of the executive committee of said corpora- tion be discontinued from that day, and it is hereby stated that the members of said executive committee were the only officers ever law- fully employed by said corporation upon salaries. 7. That in pursuance of the action aforesaid, reducing the capital stock of the said corporation from $75,000 to $15,000, certificates for the stock of said corporation, so reduced as aforesaid, were issued to all of the stockholders of said corporation, according to their respective holdings, as follows, to wit; To David Spruks, Scranton, Pa 98 shares To Ada Spruks, " " 2 " To Oswald Jones, " " 100 " To Henry T. Howell, " " 35 " To Charles Spruks, " " 5 8. That in pursuance of the said resolution so made and passed on the 31st day of January, 1895, a part of the goods, property and FORMS OF PLEADINGS. 731 merchandise of the said corporation was valued and appraised by the board of directors aforesaid, and at the price so agreed upon they were sold and delivered on credit to the said David Spruks; and another part of the goods, property and merchandise of the said corporation was valued and appraised by the board of directors afore- said, and at the price so agreed upon they were sold and delivered on credit to the said Oswald Jones; that certain goods, office furni- ture, fixtures and other personal property of the said corporation remained undisposed of in the hands of the said board of directors for future disposition; and that certain moneys of the said corpora- tion were likewise then and there advanced and paid out to other of said stockholders on credit respectively as follows, viz. : To the said Henry T. Howell,- the sum of $1,070, and to the said Charles Spruks, the sum of $200. 9. That the other defendant, the said The Scranton Cold Storage and Warehouse Company, is likewise a corporation formed under the provisions of the aforesaid Act of the Commonwealth of Pennsyl- vania, approved the 29th dav of April, 1874, and its supplements, by the voluntary association of six persons in the manner mentioned in the statutes aforesaid for the purpose of carrying on a general storage and warehouse business; the charter of the said corporation having been subscribed, acknowledged and proved by the persons aforesaid, setting forth the matters and things by the said statutes required; notice of the intention of the said persons to apply for such charter having been inserted in two newspapers of general circulation printed in the said County of Lackawanna for three weeks, setting forth briefly the character and objects of the said corporation, so to be formed, and the intention to make application therefor, in pursuance of the said notice the said six persons did, on the 31st day of March, 1898, at the City of Harrisburg, produce to Robert E. Pattison, then Governor of the said Commonwealth of Pennsylvania, a certificate showing the application aforesaid, accom- panied by proof of publication of the notice aforesaid, and the said Governor having examined the same and finding it to be in proper form and within the purposes of the statutes aforesaid, approved there- of and thereon endorsed his approval and directed letters patent to issue in the usual form incorporating the subscribers to the said certificate and their associates and successors into a body politic and corporate in deed and in law by the name aforesaid, which said certifi- cate was then and there recorded in the office of the Secretary of the Commonwealth, in Charter Book No. 52, at page 170, and there- after the said original certificate, with all its endorsements, was again recorded in the office for the recording of deeds, etc., in and for the County of Lackawanna aforesaid, where the chief operations of the said corporation were to be carried on, in Charter Book No. 4, at page 497. 10. That by the provisions of the said certificate of incorporation, the capital stock of the said The Scranton Cold Storage and Ware- house Company was fixed at $20,000, divided into 400 shares of the par value of $50 each, and of the said capital stock the number of shares subscribed by each of the aforesaid six persons was as follows, to wit: 732 EQUITY PRACTICE IN PENNSYLVANIA. David Spruks, residing in Scranton, Pa., 60 shares Oswald ones, " u it 100 " John L. Hull, " " 20 " Charles Spruks, " ti tc 16 " W. H. Pierce, 20 Max Rice, " " 10 " 11. That on or about the sth day of March, 1898, it was agreed in substance, between the said The Jones & Spruks Company and the subscribers to the certificate of incorporation of the said The Scran- ton Cold Storage and Warehouse Company, that upon and after the incorporation and organization of the said The Scranton Cold Stor- age and Warehouse Company, (in consideration and for the sum of $10,500, to be paid by the said The Scranton Cold Storage and Ware- house Company in its common stock at the par value thereof to the various stockholders of the said The Jones & Spruks Company re- spectively according to their interests and stock holdings in the said The Jones & Spruks Company) ; the said The Jones & Spruks Com- pany should assign and convey to the said The Scranton Cold Stor- age and Warehouse Company, a certain term of years in a certain lot of land situate on the southeasterly side of Sixth Street, in the City of Scranton, and a certain tenement thereon consisting of a large frame building built and designed for a cold storage ware- house, and for that purpose used and occupied at that time; it being then and there collaterally agreed and understood by and between the said Oswald Jones and the said David Spruks that for the five shares of stock held by the said Charles Spruks, in the said The Jones & Spruks Company, he should receive of the common stock of the said The Scranton Cold Storage and Warehouse Company, on account of the transaction last aforesaid, 16 shares of the par value of $50 each; that is to say stock of the value of the sum of $800, and that the deficiency in stock, between that sum and his apparent proportionate share of the undivided assets of the said The Jones & Spruks Company, should be equally borne by and between the said Oswald Jones and the said David Spruks, out of and to be deducted from their respective proportionate shares of the undivided assets aforesaid ; to all of .which of the stockholders of the said The Jones & Spruks Company then and there agreed and bound themselves. 12. That at the time of the transaction last aforesaid, the assets and property of the said The Jones & Spruks Company was of the value of the sum of $22,163.42, and consisted of the following items: Cold storage warehouse $10,500.00 Indebtedness of David Spruks, according to book account. . 4,372.70 Indebtedness of Oswald Jones, according to book account. . 5,220.72 Indebtedness of Henry T. Howell, according to book ac- count 1,070.00 Indebtedness of Charles Spruks, according to book account. 200.00 Valuation of undisposed office furniture and fixtures, all taken and appropriated by Oswald Jones 800.00 13. That the several stockholders of the said The Jones & Spruks Company entitled to the assets aforesaid and their respective hold- ings, were as follows, to wit: FORMS OF PLEADINGS. 733 David Spruks 98 shares Ada Spruks 2 Oswald Jones 98 Henry T. Howell 35 "_ Charles Spruks 5 Jacob Schell i " Charles B. Parker I " Total 240 shares 14. That in pursuance of the transaction and agreement, herein- before mentioned as having been agreed to and stated in paragraph 1 1 of this bill, the said The Jones & Spruks Company, on or about the 22d day of July, 1898, assigned and conveyed to the said The Scran- ton Cold Storage and Warehouse Company, the term of years and that certain tenement aforesaid, and thereupon the said The Scranton Cold Storage and Warehouse Company entered into the said term and became possessed of the said tenement, and since that time until the present time have occupied and used the same and every part and parcel thereof for their own benefit, behoof and profit. 15. That, as will appear from the premises, upon and immediately after the assignment and conveyance aforesaid, the several stock- holders of the said The Jones & Spruks Company, on account of their holdings of stock in the said company, became entitled respectively to receive and to have issued to them by and from the said The Scranton Cold Storage and Warehouse Company of its common stock shares of the par value of $50 each, as follows, to wit: To David Spruks 88.16 shares To Ada Spruks 3.69 To Oswald Jones 55-22 To Henry T. Howell 43.24 To Charles Spruks 16.00 To Jacob Schell 1.85 To Charles B. Parker 1.84 16. Yet, notwithstanding the premises and all of the facts herein- before stated, the said Oswald Jones and the said Jacob Schell then and there acting as directors of the said The Jones & Spruks Com- pany, to wit: On or about the 22d day of July, 1898, confederated themselves together and fraudulently contrived to injure and cheat your Orator and to defraud him of his property in manner and form following, that is to say, by unlawfully and unjustly bar- gaining, selling and delivering to the said Oswald Jones the goods, oifice furniture, fixtures and other personal property of the said The Jones & Spruks Company then remaining undisposed of, all of tjie value of the sum of $800, for the price and sum of $140, and in pursuance of said confederacy and contrivance, the said Oswald Jones took and appropriated to himself the aforesaid goods, office furniture, fixtures and personal property, and caused the same to be charged against him in the books of accounts of the said The Jones & Spruks Company not at the true and actual value thereof, to wit: At the sum of $800, as aforesaid, but at the said sum of $140; and 734 EQUITY PRACTICE IN PENNSYLVANIA. the said Oswald Jones and the said Jacob Schell further confederat- ing themselves together to injure and cheat your Orator and to de- fraud him of his property, falsely, fraudulently and unlawfully caused to be entered to the credit of the said Oswald Jones in the books of accounts of the said The Jones & Spruks Company the sum of $900, no part of which was due or owing in any particular from the said The Jones & Spruks Company to the said Oswald Jones, and the said credit so entered on the books aforesaid was intended, by the said confederates, falsely and fraudulently to appear to reduce the indebtedness of the said Oswald Jones to the said The Jones & Spruks Company to the extent of the said sum of $900; that your Orator has requested the said The Jones & Spruks Company to col- lect and recover from the said Oswald Jones the aforesaid several sums of money, to wit: The sum of $800 and the sum of $900, but the said The Jones & Spruks Company has failed and refused and still does fail and refuse to collect or recover the said moneys or any part thereof. 17. That in pursuance of the fraudulent practices aforesaid, the said Oswald Jones confederated himself with the said The Scranton Cold Storage and Warehouse Company and contrived with the said The Scranton Cold Storage and Warehouse Company to induce and prevent the said The Scranton Cold Storage and Warehouse Company from issuing to your Orator such shares of its common stock as lie was then and there entitled to have and receive, on account of the transaction and agreement hereinbefore mentioned in the nth para- graph of this bill, so that the said The Scranton Cold Storage and Warehouse Company became unwilling, and has from that time until the present time refused, to issue to your Orator the aforesaid 88.16 shares of its common stock, or any part thereof, except "jj shares of its said common stock, which, as your Orator is informed, the said The Scranton Cold Storage and Warehouse Company has unlawfully and unjustly declared itself willing to issue to your Orator in full discharge and payment of its obligation to him on account of the assignment and conveyance of the said terra and tenement. 18. That the said Oswald Jones, claiming to have obtained from the said Henry T. Howell an assignment of his stock and interest in the said The Jones & Spruks Company, thereafter, in pursuance of the fraudulent practices aforesaid, confederating himself with the said The Scranton Cold Storage and Warehouse Company to the in- jury of your Orator and the other stockholders of the said The Jones & Spruks Company, unlawfully contrived with and induced the said The Scranton Cold Storage and Warehouse Company to issue to him, as your Orator is informed, 114 shares of its common stock all on account of the transaction mentioned in the nth paragraph of this bill, which was largely and fraudulently in excess of the stock which the said Oswald Jones was lawfully and justly entitled to have and receive, on account of said transaction. 19. That your Orator has requested the said The Scranton Cold Storage and Warehouse Company to issue and deliver to him cer- tificates for the aforesaid 88.16 shares of its common stock, but The Scranton Cold Storage and Warehouse Company has refused and still does refuse to so issue the said stock or deliver any certificate to your Orator therefor. FORMS OF PLEADINGS. 73S PRATEB. Your Orator therefore prays: First — That the Defendant, Oswald Jones, be ordered and decreed to redeliver to the said The Scranton Cold Storage and Warehouse Company for cancellation 15.54 shares of the common stock of the said The Scranton Cold Storage and Warehouse Company for the benefit of all the stockholders of the said company and in particular for the benefit of your Orator; and that the said Oswald Jones be ordered and decreed to account to the said The Scranton Cold Stor- age and Warehouse Company for all dividends and profits by him received or to him paid on account of any of the said 15.54 shares of stock since the time of its issue. Second — That the Defendant, the said Oswald Jones, be ordered and decreed to account to the said The Jones & Spruks Company for the true and lawful value of the said goods, office furniture, fixtures and other personal property by him fraudulently and unlawfully taken and appropriated to his own use, and for all of his just and true indebtedness to said company. Third — That the Defendant, the said Oswald Jones, be ordered and decreed to make discovery of, and to produce and exhibit for the in- spection and examination of your Orator, and his counsel, all the books, papers, documents and all manner of writings and other evi- dence whatsoever in his possession or control relating to, pertain- ing to or in any way touching the matters, things and transactions mentioned in this bill. Fourth — That the Defendant, the said The Jones & Spruks Com- pany, be ordered and decreed to collect and recover from the said Oswald Jones all just and true indebtedness by him owing to said company. Fifth— Tha.t the Defendant, The Jones & Spruks Company, be or- dered and decreed to make discovery of all its books, papers and documents and all manner of writings and other evidence whatso- ever in its possession, custody or control relating to, pertaining to or in any manner touching the matters, things and transactions men- tioned in this bill. Sixth — That the Defendant, the said The Scranton Cold Storage and Vv'^arehouse Company, be ordered and decreed to issue and de- liver to your Orator a certificate for 88.16 shares of its common stock and to account to your Orator for all dividends and profits that have accrued or ought to have accrued thereon since the 22d day of July, 1898. Seventh — ^That the Defendant, the said The Scranton Cold Stor- age and Warehouse Company be ordered and decreed to cancel 15.54 shares of its stock and all other stock unlawfully issued to the said Oswald Jones and to collect and recover from him all dividends and profits thereon to him paid since the issuance or delivery of such shares. Eighth — That the Defendant, the said The Scranton Cold Storage and Warehouse Company, be ordered and decreed to make discovery of all the books, papers, documents and other writings in its posses- sion or control relating to, pertaining to, or touching the matters and things mentioned in this bill. 736 EQUITY PRACTICE IN PENNSYLVANIA. Ninth — That your Orator may have such other and further relief as the nature of the case may require. George D. Taylor, Solicitor for Plaintiff. Commonwealth of Pennsylvania,) _ County of Lackawanna. ) Before me the subscriber, a Notary Public, duly commissioned ac- cording to law in and for said Commonwealth, and residing in the City of Scranton, in said County, personally appeared David Spruks, the Complainant, who being duly sworn according to law, did depose and say that the facts set forth in the foregoing bill of complaint were then true, except where stated, if so, upon information and belief, and as to such that he verily believed them to be true. David Spruks. [Notarial Seal.] Sworn and subscribed before me this nth day of February, A. D. 1902. B. Fenton Tinkham. Commission expires January 19th, 1903. CERTIFICATE. I do hereby certify that the Complainant has no adequate remedy at law. , George D. Taylor, Solicitor for Plaintiff. CERTIFICATE. Certified from the records this nth day of February, A. D. 1902. J. Copeland, [Seal.] Prothonotary. 20. Answer to bill. Between David Spruks, Plaintiff, and Oswald Jones and The Jones & Spruks Company and The Scranton Cold Storage and Warehouse Company, Defendants. In the Court of Common Pleas of the County of Lackawanna. Sitting in Equity. No. 2, March Term, 1902. The Answer of Oswald Jones, The Jones & Spruks Company, and the Scranton Cold Storage and Warehouse Company, Defendants, to the Bill of Complaint in the Above Case. To the Honorable, the Judges of said Court: We, the Defendants, Oswald Jones, The Jones and Spruks Com- pany, and the Scranton Cold Storage and Warehouse Company, sav- FORMS OF PLEABINGS. 737 ing and reserving to ourselves all and all manner of exceptions to the manifold errors in said Bill contained, for answer thereto, or to such parts thereof as we are advised it is material and necessary for us to answer, say : 1. We admit the statements set forth in the first paragraph of the Plaintiff'? Bill of Complaint. 2. We admit the statements contained in the second paragraph of the Plaintiff's Bill of Complaint. 3. We admit the statements contained in the third paragraph of the Plaintiff's Bill of Complaint. The Scranton Cold Storage and Warehouse Company, however, hereby averring that it is not con- cerned with the matters set forth in said paragraph and that the same are immaterial as to it. 4. We admit the statements contained in the fourth paragraph of the Plaintiff's Bill of Complaint. The Scranton Cold Storage and Warehouse Company, however, averring that it is not concerned with the matters set forth in said paragraph and that the same are im- material as to it. 5. We admit the statements set forth in the fifth paragraph of the Plaintiff's Bill of Complaint. The Scranton Cold Storage and Ware- house Company, however, averring that it is not concerned with the matters set forth in said paragraph and the same are immaterial as to it. 6. The Defendants, Oswald Jones and The Jones and Spruks Com- pany admit the statements set forth in the sixth paragraph of the Plaintiff's Bill of Complaint, with the exception of the last statement set forth therein, which statement is to the effect "That the members of said executive committee were the only official officers ever em- ployed by said corporation upon salaries." This statement is not true and the said Oswald Jones and The Jones and Spruks Com- pany deny the same, and in denial thereof state that the President of The Jones and Spruks Company was an officer employed by said company under a salary of $200 per year; that the Treasurer of said company was an officer employed by said company under a salary of $25 per year, and that the Secretary was an officer of said company, €mployed by said company under a salary of $35 per year, and the Defendant, Oswald Jones, was General Manager of said company and employed in the services of said company as such, for which, from time to time, compensation was agreed to be given him for his ser- vices by said company. The other Defendant, The Scranton Cold Storage and Warehouse Company neither admits or denies the statements set forth in said paragraph of Plaintiff's Bill of Complaint, for the reason that they are not informed at all with reference thereto and thereby aver that the statements contained in said paragraph are immaterial as to it. 7. We admit that the statements contained in the seventh para- graph of the Plaintiff's Bill of Complaint are substantially true with this exception: That the said Oswald Jones, one of the Defendants, purchased the 35 shares of stock set forth in said paragraph as being owned by Henry T. Howell, of which fact the Plaintiff was aware at the time. The Defendant, The Scranton Cold Storage and Warehouse Com- pany, neither admits nor denies the statements in said paragraph Vol.. 4 Practice— 47 738 EQUITY PRACTICE IN PENNSYLVANIA. contained for the reason that it has no knowledge upon the subject whatever. 8. The Defendants, Oswald Jones and The Jones and Spruks Com- pany answering the eighth paragraph of the Plaintiff's Bill of Com- plaint say that the statements contained in said paragraph are partly correct and partly incorrect. It is true that a part of the goods, property and merchandise of the Jones and Spruks Company were disposed of to the said David Spruks. The goods, property and merchandise so disposed of to the said David Spruks amounted in value to $4,482.70, and the said disposition of said goods, property and merchandise to the said David Spruks consisted in charging the said David Spruks with the same upon the books of the Jones and Spruks Company as a charge against his stock interest in the Jones and Spruks Company; it is also true that in like manner a part of the goods, property and merchandise of the Jones and Spruks Com- pany, amounting to $4,433.19 was disposed of to the said Oswald Jones in like manner, charging the same against him and his stock interest in the Jones and Spruks Company. We, however, deny that the disposition of the goods, property and merchandise aforesaid was a sale and delivery on credit. It was clearly understood between all of the parties at the time, that the goods, property and merchandise, so disposed of, was to be paid for by deducting the amount of the same from the stock interest of the said Oswald Jones and the said David Spruks. It is not true and we hereby deny that certain goods, office fur- niture, fixtures and other personal property of the said corporation remained undisposed of in the hands of the Board of Directors for future disposition. All of the goods, office furniture and fixtures were disposed of and embraced in the above recited disposition. The only property re- maining in the hands of the corporation at the time of such disposi- tion consisted of certain book accounts against customers and an account against Henry T. Hiowell, one against Charles Spruks and The Cold Storage and Warehouse leasehold of the Jones and Spruks Company. We further deny that certain moneys were at that time advanced and paid out to Henry T. Howell and Charles Spruks. Henry T. Howell was indebted to the Jones and Spruks Company in the sura of $1,070, which was charged against him on the books of the com- pany, and also a charge against his stock interest and holdings in the company. The said Charles Spruks was also indebted to the company in the sum of $200, which was charged against him and against his stock interest and holdings in said company. 9. We admit the statements contained in the ninth paragraph of the Plaintiff's Bill of Complaint. 10. We admit the statements contained in the tenth paragraph of the Plaintiff's Bill of Complaint. 11. We deny the statements contained in the eleventh paragraph of the Plaintiff's Bill of Complaint for the reason that the terms of .the sale therein set forth are incorrect and the statements therein with reference to an alleged agreement and understanding between David Spruks and Oswald Jones with reference to Charles Spruks FORMS OF PLEADINGS. 739 is incorrect, and answering said paragraph state that the agreement for sale, and sale of the Cold Storage and Warehouse plant and leasehold of The Jones and Spruks Company to The Scranton Cold Storage and Warehouse Company is as follows, to wit: The agreement was that The Scranton Cold Storage and Ware- house Company should pay to The Jones and Spruks Company for its Cold Storage and Warehouse plant and leasehold, $10,500 in the common stock of said Scranton Cold Storage and Warehouse Com- pany, at par, and that in consideration thereof the Jones and Spruks Company would sell, assign and convey to the said Scranton Cold Storage and Warehouse Company the aforesaid property. The agreement was between the two corporations and not by The Scranton Cold Storage and Warehouse Company with the individual stockholders of the Jones and Spruks Company as stated in said paragraph. The distribution of the stock of the Scranton Cold Storage and Warehouse Company to the stockholders of The Jones and Spruks Company did not enter into the bargain, and The Scranton Cold Storage and Warehouse Company did not undertake or assume any liability to the stockholders of The Jones and Spruks Company for a partition, division and distribution of said stock to them. The transaction stated in said paragraph with reference to Charles Spruks had nothing whatever to do with The Scranton Cold Storage and Warehouse Company. It is not correctly stated in said paragraph. The transaction was merely an amicable transaction between David Spruks and Oswald Jones. It was without consideration on the part of Oswald Jones. It simply consisted of an agreement without consideration on the part of Oswald Jones with David Spruks and David Spruks with Oswald Jones that each should donate six shares of stock of The Scranton Cold Storage and Warehouse Company which they would receive from The Jones and Spruks Company to the said Charles Spruks. It was not a matter that affected the other stockholders of the Jones and Spruks Company in any way what- ever. 12. The Defendants, Oswald Jones and The Jones and Spruks Company deny the statements set forth in the twelfth paragraph o£ the Plaintiff's Bill of Complaint and answering the same say that the statements in said paragraph contained are untrue and incorrect with the exception of the value placed upon the Cold Storage and Warehouse leasehold and the accounts of Henry T. Howell and Charles Spruks, and further answering said paragraph state that the value of the assets and property of The Jones and Spruks Company at the time of the sale of its Cold Storage Warehouse leasehold interest to The Scranton Cold Storage and Warehouse Company was $20,- 685.89, and consisted of the following items : Cold Storage and Warehouse plant and leasehold interest. .$10,500 00 Indebtedness of David Spruks 4,482 70 Indebtedness of Oswald Jones 4i433 19 Indebtedness of Henry T. Howell 1,070 00 Indebtedness of Charles Spruks 200 00 $20,685 89 740 EQUITY PRACTICE IN PENNSYLVANIA. 13. The defendants, Oswald Jones and The Jones and Spruks Com- pany deny the statements contained in the thirteenth paragraph of the Plaintiff's Bill of Complaint and say that the same are not true as a whole. The several stockholders of The Jones and Spruks Company en- titled to the assets of said company and their respective holdings at the time were as follows : Oswald Jones 121 shares 1 David Spruks 98 shares Ada Spruks 2 shares Charles Spruks 5 shares C. B. Parker i share Jacob Schelle 13 shares Making a total of 240 shares That subsequent thereto the said Oswald Jones purchased the rights of distribution of the said C. B. Parker and Jacob Schelle from them, in the assets of the Jones and Spruks Company, as repre- sented by their respective holdings. 14. We admit that the statements contained in the fourteenth paragraph of the Plaintiff's Bill of Complaint are true, with the ex- ception that the transaction referred to in said paragraph as being stated in paragraph eleven of said Bill is incorrect, the transaction actually being as stated in answer to said eleventh paragraph of said Bill. 15. The said Oswald Jones and The Jones and Spruks Company deny the statements contained in the fifteenth paragraph of the Plaintiff's Bill of Complaint and answering the same say that said statements are not true and are incorrect. The said David Spruks was not entitled to receive 88 16-100 shares, but was entitled to re- ceive only 79 shares. The said Ada Spruks was entitled to receive 3 shares. The said 'Oswald Jones was entitled to receive 122 shares instead of 55 22-100 shares as claimed by the Plaintiff. The said Charles Spruks was entitled to receive only 4 shares and not 16 shares as stated in said paragraph by the Plaintiff. The said Henry T. Howell and Jacob Schelle and Charles B. Parker were not entitled to receive any shares for the reason that the said Oswald Jones had purchased their rights to distribution, stock interest and holdings in the said Jones and Spruks Company and thereby became entitled to their share of the distribution in the stock received from The Scranton Cold Storage and Warehouse Company. It however was agreed by the said Oswald Jones with the said David Spruks that he would donate 6 of his shares to Charles Spruks, thereby entitling him to receive 116 shares, and the said David Spruks agreed to donate 6 of his shares to the said Charles Spruks, thereby entitling him to receive only 73 shares, so that the distribution of the shares of The Scranton Cold Storage and Ware- house Company stock should have been : FORMS OF PLEADINGS. 741 To Oswald Jones 116 shares To David Spruks 73 shares To Charles Spruks 16 shares To Ada Spruks 3 shares leaving 2 shares to be disposed of and the proceeds divided pro rata between Oswald Jones, David Spruks and Ada Spruks, according to their respective holdings. 16. The said Oswald Jones hereby denies the statements set forth in the sixteenth paragraph of the Plaintiff's Bill of Complaint, and says that the same are untrue and false in every particular. He denies specifically and absolutely that on or about the 22d day of July, 1898, he confederated himself with Jacob Schelle either as a Direc- tor or otherwise and fraudulently contrived to injure and cheat the Plaintiff and defraud him of his property. Such is not the fact and said assertion is absolutely untrue. I, the said Oswald Jones, did not unlawfully and unjustly bargain, sell and deliver to myself the goods, office furniture, fixtures and other personal property of the Jones and Spruks Company for the price or sum of $140 in pursu- ance of any confederacy or any contrivance with any one or of any kind whatever. The statement to that effect in said paragraph is untrue. I, the said Oswald Jones, did not take and appropriate to myself goods, office furniture, fixtures and personal property as charged in said statement. I did not take any goods or property whatever in any manner other than in the same manner that the said David Spruks took the property and goods which he obtained from The Jones and Spruks Company. The office furniture referred to con- sisted of one safe, 2 roll top desks, one bookkeeper's desk, a stove, a letter file and a few office chairs. One of the -roll top desks, the one that had been used in the business by David Spruks, he took him- self and in like manner I took the balance of the office furniture at the appraised value thereof, to wit the sum of $140, which sum was charged in my account against me and is embraced in the charge heretofore stated of $4,433.19. The appraisement was done by ap- praisers appointed by the Directors of the company at the Direc- tors' meeting held July 22, 1898, in presence of the said David Spruks and with his full knowledge, and he well knows that said goods are not worth $800 as he claims in his Bill, and he also well knows that $140 is a good, fair value of said goods. And I, the said Oswald Jones, further deny the statements set forth in said paragraph and say that it is untrue and false that I further confed- erated with Jacob Schelle to injure and cheat the said David Spruks and defraud him of his property by falsely, fraudulently and unlaw- fully causing to be entered to my credit on the books of account of the said Jones and Spruks Company the sum of $900. This state- ment is absolutely untrue. The Jones and Spruks Company, at the time of the disposition of its effects and the sale of its Cold Storage plant and leasehold in- terest aforesaid, was indebted to me in the sum of $900, which was due me for my salary as President at the rate of $200 per year, for money expended by me and work and labor done by me in and about the business of The Jones and Spruks Company during the 742 EQUITY PRACTICE IN PENNSYLVANIA. years 1895, 1896, 1897 and 1898, and payment of my bill was duly authorized by the Board of Directors of The Jones and Spruks Com- pany and was a legal charge against that company and was properly entered as a credit to me. There was nothing fraudulent in my transactions with The Jones and Spruks Company. The whole trans- action was open and above board. The said David Spruks had full knowledge of the transaction at the time. ~ Had he so desired he could have taken the office furniture at the value of $140, but he did not do so, and I simply took it at that value because it was gener- ally unsalable. The transactions were all in open board meeting and were not covered at all. And the said David Spruks well knows, as he knew at the time, that I was entitled to be paid the $900 The Jones & Spruks Com- pany owed me. 17. The said Oswald Jones and The Scranton Cold Storage and Warehouse Company hereby deny the statements set forth in the seventeenth paragraph of the Plaintiff's Bill of Complaint and de- clare the same to be untrue. It is not true that the said Oswald Jones confederated himself with The Scranton Cold Storage and Warehouse Company to induce and prevent The Scranton Cold Storage and Warehouse Company from issuing to David Spruks such shares of its common stock as said Spruks was entitled to have and receive thereof. The said Scranton Cold Storage and Warehouse Company had no knowledge whatever of what stock said David Spruks should re- ceive except the information imparted to it by The Jones and Spruks Company, . which was to the effect that the said David Spruks was entitled to receive yj shares of its common stock by reason of the sale of the Cold Storage and Warehouse plant and leasehold interest of The Jones and Spruks Company. It has since however been informed that the said David Spruks was entitled to receive only 73 shares of stock instead of yj shares. It is absolutely untrue that there is any contrivance whatever be- tween The Scranton Cold Storage and Warehouse Company and Oswald Jones with reference to this issue of stock or to whom it is to be issued or should have been issued. 18. Answering the eighteenth paragraph the said Oswald Jones denies that he committed any fraudulent practice or confederated himself with The Scranton Cold Storage and Warehouse Company to injure either the said David Spruks or the other stockholders of The Jones and Spruks Company, and further answering said para- graph denies that he ttnlawfuUy contrived with and induced The Scranton Cold Storage and Warehouse Company to issue to him 114 shares of its common stock. It is true that he has received 114 shares of the common stock of that company, but it is also true that he is entitled to receive 116 shares, two more shares than he has re- ceived. There is no truth whatever in the statements of contrivance and confederacy and fraud set forth in said paragraph, and the same are hereby denied in toto. 19. Answering the nineteenth paragraph of the Plaintiff's Bill of Complaint, The Scranton Cold Storage and Warehouse Company admits that the statements therein contained are substantially cor- FORMS OF PLEADINGS. ^A^ rect. It certainly has refused to issue and deliver to the said David Spruks 88 16-100 shares of its common stock for the reason that it does not believe he is entitled to receive the same. It believes now that the said David Spruks is entitled only to receive 73 shares of its stock and not even the yy shares for which a certificate of stock has been made out to the said David Spruks and was ready for de- livery to him on July 25, 1898. 20. The said Oswald Jones specifically answering the Plaintiff's Bill of Complaint hereby states that the said David Spruks is entitled to receive only 73 shares of the stock of The Scranton Cold Storage and Warehouse Company in full payment and settlement of his in- terest and rights in The Jones and Spruks Company and that the same are his share and his proportion of the distribution made of the stock received by The Jones and Spruks Company in considera- tion of the sale of its Cold Storage and Warehouse plant and lease- hold interest to The Scranton Cold Storage and Warehouse Com- pany. And he prays the Court that a decree may be entered against the said David Spruks requiring him to assign two shares of the said TJ shares for which certificate was issued in his name, to him, the said Oswald Jones, and two shares thereof to the said Ada Spruks, she being entitled to receive three shares instead of one share, which she has received. 21. We, the Defendants, and each of us, do hereby absolutely deny all and all manner of charges of fraud, contrivance and confedera- tion in said Bill of Complaint contained and hereby aver that, they and each of them, are false. Wherefore we pray said Bill be dismissed with costs. Oswald Jones. [Seal.] The Jones & Spruks Co., By Oswald Jones, President. The Scranton Cold Storage and Warehouse Co., By Max Rice, President. [Seal.] Watson, Diehl & Kemmerer, Solicitors for Defendants. Lackawanna County, ss. : I, Oswald Jones, one of the defendants above named, on my own behalf and on behalf of the other defendants, say that the statements contained in the foregoing answer are true and correct as I verily believe. Oswald Jones. Sworn and subscribed to before me this 12th day of May, A. D. 1903. Albert L. Watson. My commission expires January 19th, 1907. [Seal.] 21. Form of bill to cancel an invalid deed and decree re-con- veyance. The following is a skeleton of bill in a case reported as Clauer v. Clauer, 22 Supr. C. 395: George Clauer, Complainant, . ^^ ^^^ ^^^^^ ^^ ^^^^^^ p^^^^ ^^ Mary N. Clauer, Fyanna Groh \ Schuylkill County. _ and George Groh, respond- ., ^ittmg in Equity. ents.' ^ J No. , Term, , 19-. 744 EQUITY PRACTICE IN PENNSYLVANIA. 1. Jacob Clauer died January 29, 1894, intestate, survived by his widow, Mary N. Clauer, but no children, and a number of brothers and sisters, including complainant. 2. Decedent died seized, inter alia, in fee of a farm, etc. [De- scription.] 3. Mary Clauer, widow, administered, and July 9, 1895, petitioned the Orphans' Court for an order to sell said real estate for the pay- ment of debts, and same day the court granted the order and ap- pointed J. Lineaweaver, Esq., trustee to execute the decree. 4. The trustee advertised and on the 17th of August, 1895, sold the same, at which sale complainant was present and purchased the lands described for $55, which sale was confirmed by the Orphans' Court on September 9, 1895, and the trustee was directed to execute and deliver a deed to the complainant. 5. That said trustee did on September 30, 1895, deliver deed for said premises to the complainant, which deed is recorded in said county in Deed Book No. 250, page 468. 6. That decedent was in possession at the time of his death, by his tenants [naming them]. 7. That in 1894 the administratrix rented the premises to others named as tenants of decedent's estate and received rent therefor. 8. That one F. Felty had also rented from decedent, paid him rent and remained in possession as such tenant after his death, paying rent to administratrix until 1896, when Fyanna Wolf (now Groh) demanded and obtained possession from such tenants. 9. That complainant, at the time a resident of Wisconsin, was at his home and knew nothing of these proceedings. 10. That said tenants gave possession to Fyanna Wolf without notice to complainant, and when he first heard thereof she was in possession of said real estate and pretended to hold the same and to have title thereto adversely to your orator, and has ever since then held such possession and has refused to recognize the title or rights of your orator in the premises. 11. That Fyanna Wolf's title is derived as follows, viz.: Jacob Clauer and Mary N., his wife, Feb. 10, 1886, by deed conveyed to her in fee simple said two tracts, recorded July 8, 1894, in deed book 242, page 400, and although $1200 appears as the price paid or to be paid by Fyanna, none was paid. 12. A purchase money mortgage on said lands was executed and delivered by Fyanna to Jacob Clauer (who was her step-father) to secure payment thereof. 13. That when the deed was executed and delivered by Clauer, he also delivered to Fyanna possession of said farm, who moved on it and remained until the spring of 1888, and then being unable to pay the purchase money, removed from it and quit and abandoned the same and surrendered the possession thereof unto said Jacob Clauer, who remained in possession, by his tenants, until his death, paying taxes, making improvements and repairs, having unquestioned possession, exercising all acts of ownership, from the surrender thereof by Fyanna up to the time of his death, the said Fyanna Wolf having entirely abandoned all claim to the possession or ownership of said real estate. FORMS OF PLEADINGS. 745 14. That Fyanna Wolf, when she abandoned the premises in the spring of 1 888, brought to Jacob Clauer the deed previously exe- cuted and delivered by him to her for said premises and told him to burn and destroy the same, and at that time Clauer returned to her the purchase money bond and mortgage she had given him. 15. That, after the death of Jacob Clauer in 1894, Mary N. Clauer, Fyanna Wolf and others found among his papers the deed from Jacob Clauer and wife to Fyanna Wolf, and that Mrs. Clauer and Fyanna (the said Fyanna being a daughter of Mary N. Clauer by a former husband) conspired to cheat and defraud the heirs of Jacob Clauer and estate, by claiming said lands and asserting said deed as a valid and subsisting conveyance, whereupon Fyanna had said deed recorded July 28, 1894, in deed book 242, page 400, without the knowledge or consent of complainant. 16. That Fyanna Wolf, fraudulently claiming to be the owner of said land, denies the ownership of Jacob Clauer's estate and of complainant, moved on the premises and has ever since then held and occupied the same adversely to the estate and complainant. 17. That complainant is entitled to possession by reason of his purchase at Orphans' Court sale, but that ejectment is inadequate as a remedy, as long as said deed from Jacob Clauer to Fyanna Wolf exists and remains of record, and until the same is cancelled. He therefore prays for relief. 1. That Mary N. Clauer and Fyanna Wolf answer. 2. That the delivery by Mary N. Clauer to Fyanna Wolf of the deed described in July, 1894, was a fraud on complainant and the heirs of Jacob Clauer. 3. That the said deed be declared void and a decree be made for its delivery and cancellation. 4. That Fyanna Wolf, now Fyanna Groh, and George Groh, her husband, be decreed to execute to complainant a good and sufficient deed re-conveying the real estate to complainant. 5. That Fyanna Wolf, now Groh, and George Groh, her husband, be directed to forthwith vacate the lands and surrender possession to complainant. 6. That an account of rents, etc., be taken, etc., and paid over to complainant. 7. General relief. N. Heblich, A. W. Schalck, [Sworn to truth.] Solicitors. 21. Form of order for service. Now, September 5, 1898, the court directs the within bill of com- plaint to be filed sec. reg. and service to be made on respondents. By the Court. [Affidavit of service with return.] 22. Form of answer. Following is a summary of the answer in above entitled case : I. Paragraphs i, 3, 4 and 5 of bill admitted to be substantially true, but makes reference to the records. Denies statement in par. 4 that complainant attended sale by trustee and bid. 746 EQUITY PRACTICE IN PENNSYLVANIA. 2. Denies that Jacob Clauer died seized of said land, he and his wife, Mary N. Clauer, having conveyed same to her in fee by deed of Feb. ID, 1886, recorded in deed book 242, page 400. 3. Gives version in detail of transactions set forth in pars. 11, 13 and 14 of bill. 4. Admits part of par. 13 and denies part of par. 14. 5. Denies par. 12. 6. Gives defendant's version of par. 15 and denies conspiracy or fraudulent intent alleged. 7. Admits description ; denies that Jacob Clauer died seized. 8. Corrects par. 6 as to tenants. 9. Denies par. 7 and alleges that Fyanna Wolf rented to the tenants. ID. Denies par. 8. 11. Denies par. 9, and gives defendant's version. 12. Denies par. 10. 13. Denies par. 16. 14. Denies that complainant is entitled to possession. 15. Sets up that complainant has a full, adequate and appropriate remedy at law, and prays that bill be dismissed with costs. J. W. Moyer, [Answer sworn to.] Solicitor for Defendant. 23. Form of decree. And now, Sept. 2, 1901, after full hearing and argument and due consideration by the court, it is ordered, adjudged and decreed that the said Fyanna Groh and George Groh, her husband, deliver up to George Clauer, the complainant, for cancellation, the deed of Jacob Clauer to Fyanna Wolf (now Groh), dated February 10, 1886, and that the same be cancelled and that the Recorder of Deeds of Schuylkill County shall cancel the record of the same as it appears in deed book No. 242, page 400, etc., and it is further ordered and decreed that said Fyanna Groh and her husband, George Groh, shall execute a good and sufficient deed to complainant for the premises in controversy and that they shall deliver possession of the premises to the complainant. The costs of this suit to be paid by the respondents. By the Court. 24. Form of final decree on demurrer on the ground of remedy at law. The following form is from Wagner v. Fehr, 211 Pa. 435: And now, to wit, February 6, 1905, this cause came on to be heard at this term and was argued by counsel and upon consideration there- of it is ordered, adjudged and decreed as follows, viz.: That the demurrer of Francis F. Seidel be sustained and that the bill as to the said defendant, Francis F. Seidel, be dismissed with costs, with- out prejudice to the right of the plaintiff to proceed by an action at law. By the Court, G. A. Endlich, Judge. FORMS OF PLEADINGS. 747 25. Form of writ of ne exeat. Rufus Griswold 1 t ^i. /- ^ r Court of ^ 'M In the C Oliver Hazard, i ^o- - Term, 19-. The [U. S. or Commonwealth] to , Esq., greeting: Whereas it is represented to our court , sitting in Equity, on the part of Rufus Griswold, complainant, against Oliver Hazard, defendant, that the said defendant is greatly indebted to the said complainant and designs quickly to go into other parts beyond this state (as by oath made in that behalf appears), which tends to the great prejudice and damage of the said complainant: Therefore, in order to prevent this injustice, we hereby command you that you do, without delay, cause the said Oliver Hazard to come before you and give sufficient bail or security in the sum of dollars, that he, the said Oliver Hazard, will not go into parts beyond this state without the leave of our said court; and in case the said Oliver Hazard shall refuse to give such bail or security, then you are to commit him, the said Hazard, to our county jail, in your precinct, there to be kept in safe custody until he shall do it of his own ac- cord; and when you shall have taken such security you are forth- with to make and return a certificate thereof to our said court, dis- tinctly and plainly, under your hand, together with this writ. Witness, etc. (See Griswold v. Harris, 141 U. S. 260.) CHAPTER XXXVII. FOEMS AND EULE? OF PRACTICE IN LIVOECE IN PHILADELPHIA COUNTY. Prepared by F. F. Brightly, Esq., of the Philadelphia Bar. 1. The libel in divorce. In Philadelphia County, Section First of Rule i6, of the Rules of Court, provides that the Libel in Divorce shall be framed in general analogy to Bills in Equity, by setting out the matters relied on, dis- tinctly in separate paragraphs, consecutively numbered and contain- ing as follows : The names of the parties and the time and place of the marriage. The citizenship and domicile of the parties respectively at the time of marriage and since, including a positive averment that the libellant has been a resident of the state for one whole year previous to the filing of the Libel. Their present place of actual residence with details of street and number. Where the present residence of the respondent is unknown, there must be an explicit averment of that fact, together with a statement of the respondent's last known residence, and the time at which he or she was last known to be there. Subsequent paragraphs shall contain a succinct statement of the time, place and circumstances of the alleged cause of divorce; where more than one cause of divorce is alleged, each shall be set out in a separate paragraph. It is further provided that the final paragraph shall contain the prayer of divorce either a vinculo matrimonii or a mensa et ihoro, as the case may be. The affidavit to the Libel shall be in the form required by act of assembly, and may be made before the prothonotary, or a magistrate, or a notary public, or any officer authorized to administer oaths in such cases. 2. Form of libeL The form of Libel now in universal use in Philadelphia County was originally framed by the late Judge Michael Arnold of the Court of Common Pleas No. 4. Blanks are sold by the various stationers. It is as follows: In the Court of Common Pleas No. I, for the County of Philadelphia, of March Term, 1913, No. — . Between Mary Doe, Libellant, and John Doe, Respondent. 748 PRACTICE IN DIVORCE IN PHILADELPHIA. 749 To the Honorable the Judges of the said Court: The libellant complains and says : 1. That the libellant and respondent were lawfully joined in mar- riage on the first day of January, in the year of our Lord one thou- sand nine hundred and one at Philadelphia, in the State of Pennsyl- vania, and from and after that time, they lived together and co- habited in the relation of husband and wife. 2. That at the time said marriage was contracted the libellant was a citizen of the State of Pennsylvania and resided at Philadelphia in said state; and the respondent was a citizen of the State of Pennsyl- vania and resided at Philadelphia in said state; that immediately after their said marriage the said libellant and respondent resided together at Philadelphia in the State of Pennsylvania and have since resided at Philadelphia aforesaid. That the present residence of the libellant is at No. 602 Walnut 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 606 Vine Street in said city. 3. And the libellant avers, tHat, in violation of his marriage vow and of the laws of this Commonwealth, the said John Doe, the re- spondent, on or about the first day of July, 1910, wilfully and ma- liciously deserted this libellant, and hath since, continuously to the present time, wilfully and maliciously deserted and absented him- self from the habitation of this libellant, without any just or reason- able cause. And further, that the said respondent, by cruel and barbarous treatment, has endangered your libellant's life, and offered such in- dignities to her person, as to render her condition intolerable and life burdensome, and thereby forced her to withdraw from his house and family. Further, that the said respondent has given himself up to adulter- ous practices and committed adultery with divers persons in this Commonwealth and elsewhere, and especially with one on or about the day of , at Street, in the City of , in the State of . (Note. — Any one of the above causes of divorce may be charged separately, or joined with one or more of the others.) 4. Wherefore the libellant prays that a subpoena may issue, directed to the said John Doe, the respondent, commanding him to appear be- fore your Honorable Court, on Monday, the third day of March next, A. D. 1913, 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. Mary Doe. State of Pennsylvania. \ . County of Philadelphia, > The above named Mary Doe 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 John Doe for the mere purpose of being freed 750 EQUITY PRACTICE IN PENNSYLVANIA. and separated from each other, but in sincerity and truth for the causes mentioned in the said libel. Sworn and subscribed before me, liyfarv Doe e first day of January, A. D. 1913. i ■' the 3. Rule to appear and answer. Upon filing the Libel in the prothonotary's office, and its approval by a judge of the court, a rule is entered of course by the prothon- otary on the respondent to appear and answer within thirty days after the return day. Notice of this rule is endorsed on the back of the Libel, and is in the following form : 4. Notice of rule to appear and answer. To John Doe, the above-named respondent : Your are hereby notified and required within thirty days from Monday, the third day of March next, A. D. 1913, to cause an appear- ance to be entered for you in the Court of Common Pleas No. i of the County of Philadelphia, 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 ap- pearance 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. F. F. Brightly, Atty. for Libellant. 5. Subpoena in divorce. Upon the approval of the Libel in Divorce by a judge of the court, the prothonotary issues a subpoena in divorce, in form as follows : Form of Subpoena. County of Philadelphia, ss. : The Commonwealth of Pennsylvania, to John Doe Greeting: Whereas, Mary Doe did on the first day of January, A. D. 1913, prefer her petition or libel to our Judges of our Court of Common Pleas No. i for the County of Philadelphia praying, for the causes therein set forth, that she might be Divorced from the bonds of matri- mony entered into with you : We do therefore command you. The said John Doe 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. i, there to be held for the County of Philadelphia, on the first Monday of March next to answer the said petition or libel, and to show cause, if any you have, why the said Mary Doe, your wife, should not be divorced from the bonds of matrimony, agreeably to the act of the general, assembly in such cases 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 F. Amedee Bregy, President Judge of our said Court at Philadelphia, this first day of January in the year of our Lord one thousand nine hundred and thirteen. S. Rains, Pro. Prothonotary. PRACTICE IN DIVORCE IN PHILADELPHIA. 751 6. Service. It is the duty of the sheriff to serve the subpoena, together with a copy of the Libel and Notice to Appear and Answer personally upon the" Respondent, if he can be found within the County of Philadel- phia. If the Respondent is not within the county, but is within the State of Pennsylvania, the sheriff shall deputize the sheriff of the county where the Respondent may be found to make the service. Service cannot be made outside of the State of Pennsylvania. Special rules have been promulgated by the sheriff to his deputies so that the identity of the party served, with the Respondent in the writ, may be reasonably assured. The officer making the service shall make an affidavit stating the time, place and manner of service, and also that the person so served is the Respondent named in the writ and his means of knowing that fact. A rule has been made in the Court of Common Pleas No. 2 that where a specific charge of adultery with a person named is made in the Libel, a copy of the Libel shall also be served upon such person. In the Court of Common Pleas No. 4 service upon a Respondent in prison will not be permitted without a special allocatur. In Philadelphia County the sheriff will not serve a subpoena in divorce later than on the 15th day before the return day of the writ. 7. Sheriff's return of service. Served, John Doe, the within-named Respondent, by giving to him at 606 Vine Street, in the City of Philadelphia, on January 2, 1913, a true and attested copy of the within subpoena, together with a copy of the Libel and notice to appear and answer, and making known to him the contents of the same. So answers, Deputy Sheriff. A. Lincoln Acker, Sheriff. County of Philadelphia, ss. : being duly sworn according to law doth depose and say, that he served John Doe, the within-named Respondent, with a copy of the within subpoena, a copy of Libel and notice to appear and answer in manner and form set forth in the above return, and that the person upon whom service was made as aforesaid is the Respon- dent named in the writ, deponent deriving his information from Sworn to and subscribed before me this day of A. D. 1913. 8. Appearance of Respondent. The Respondent must appear either in person or by attorney within thirty days of the return day of the writ, or the case may proceed against him ex parte. Respondent may file an appearance in propria persona or he may appear by attorney. The attorney's appearance must be accompanied by a warrant of attorney under seal of the Respondent, properly acknowledged. 752 EQUITY PRACTICE IN PENNSYLVANIA. 9. Form of warrant of attorney. Know all men by these presents That I, John Doe, do make, constitute and appoint -, Esq., my true and lawful attorney at law, to appear for me in a certain action of Divorce now pending in the Court of Common Pleas No. I for the County of Philadelphia, of March Term 1913, No. — , wherein Mary Doe is Libellant, and I, John Doe, am Respondent, and to make defense thereto, and for that purpose to do all lawful acts requisite for effecting the premises, hereby ratifying and confirming all that my said attorney shall lawfully do in said suit touching the defense thereof by virtue of these presents. In witness whereof, I have hereunto set my hand and seal the tenth day of January, 1913. Witnesses : , John Doe. [Seal.] County of Philadelphia, ss. : On the tenth day of January, A. D. 1913, before me, the suo- scriber, a notary public of the State of Pennsylvania, came the above- named John Doe and he acknowledged the above Warrant of At- torney to be his act and deed. George W. Reed, Notary Public. 10. Alias subpoena. If the sheriff is unable to find the Respondent in the county or the state, he returns the original subpoena in divorce non est inventus, and thereupon the next step to be taken by the Libellant is to issue an alias subpoena, based upon the original Libel and made returnable the first return day, which is more than thirty days after the issuance thereof. The alias subpoena is issued upon filing an ordinary prascipe with the prothonotary. The alias subpoena may be served in the same manner as if it were an original subpoena. 11. Publication. If, however, the alias subpoena be also returned non est inventus, the Libellant thereupon files his praecipe for an order of publication, which order is issued by the prothonotary and directed to the sheriff, and commands him to publish once a week for four full weeks suc- cessively in the Legal Intelligencer and two daily newspapers of large circulation published in the County of Philadelphia, a notice to the Respondent notifying and requiring him to appear in said court on or before the return day of the order. The order of publication is in the following form- 12. Order of publication. County of Philadelphia, ss. : The Commonwealth of Pennsylvania, to the Sheriff of the County of Philadelphia, greeting : We command you to publish, once a week, for four full weeks successively, in the Legal Intelligencer, and two daily newspapers of large circulation, published in your bailiwick, the following notice: To John Doe, late of 606 Vine Street, Philadelphia, Pennsylvania. Whereas Mary Doe, your wife, has filed a Libel in the Court of PRACTICE IN DIVORCE IN PHILADELPHIA. 753 Common Pleas No. i of Philadelphia County, of March Term, 1913, No. — , praying a divorce from you; now you are hereby notified and required to appear in said Court, on or before Monday the second day of June next, to answer the complaint of the said Mary Doe, or in default of such appearance, you will be liable to have the divorce granted in your absence. (Said notice to be published over your name as Sheriff of Philadelphia.) And have you then there this order, and make your return how you have executed the same. Witness the Honorable F. Amedee Bregy, President Judge of our said Court, at Philadelphia, the thirtieth day of April, in the year of our Lord one thousand nine hundred and thirteen. S. Rains, Pro. Prothonotary. 13. Respondent's answer. Respondent has thirty days after the return day of the writ served upon him, or of the order of publication, in which to file his answer to the Libel. The Answer is in the ordinary form and should either admit or deny the charges set forth in the libel, and further aver such matters of defense as the Respondent may wish to take to the proceedings. Where the Respondent does not appear and answer within the thirty days, the Libellant may proceed ex parte. The Re- spondent at this stage of the proceedings may enter a rule on the Libellant to furnish him a Bill of Particulars, within thirty days. And so, an order may at this time be prayed for, for a trial by jury. The rule for a Bill of Particulars is a statutory rule, and is entered, as of course, in the prothonotary's office, upon the praecipe of the re- spondent. It is provided for by the act of 25 May, 1878, P. L. 156, which enacts that the respondent may, at any time after the return day, enter a rule upon the libellant to furnish a Bill of Particulars of cause of action, and, if the same be not furnished, within thirty days, the court shall enter a judgment or decree of non pros; Pro- vided, That the court may, upon cause shown, extend the time in which to file the Bill of Particulars. The filing of an answer is a waiver of a rule for a Bill of Particulars. 14. Proceedings before the master. Where a case is ready to be proceeded with, either upon answer or ex parte, the Libellant moves for the appointment of a Master by the Court. Either party may make this motion, but it is required that upon filing the motion, the sum of $50.00 shall be deposited with the prothonotary on account of the Master's fees and costs. The pay- ment of the $50.00 is endorsed upon the motion for the Master, and the motion is thereupon handed by the prothonotary to the clerk of the court, and by him to the judge having the appointment, and no suggestion or agreement as to the person to be appointed Master will be received under any circumstances. 15. Notice of master's meeting. The Master shall give ten days' written notice to the counsel of both parties, of the time and place of taking testimony. If there shall be no appearance for the respondent the notice shall be given to him or her personally if possible, or if not, then by leaving it at Vol. 4 Practice — ^48 754 EQUITY PRACTICE IN PENNSYLVANIA. his or her place of residence or sending it by registered letter to the address where the master shall have reason to believe it will be most likely to reach him or her. In all cases where there is no return of personal service, and no appearance 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 resi- dence and address of the respondent; and thereupon the master shall use every exertion by personal inquiry within the county, or by registered letters outside of tte 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 likely to reach the respon- dent, once a week for four full weeks, and by any other means avail- able, 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 the testimony 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. 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 residences of their children, if they have any ; and in cases where the subpoena has not been personally served, or, after publication, no appearance has been entered for the respondent, and all other means of giving actual notice to the respondent shall have failed, the master shall, if possible, give written notice of the pro- ceedings 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 actual notice to the respondent, and report to the court what efforts he has made to effect such notice, and the result thereof. When the residence of either or both parties is given as within this county, the master shall, by personal inquiry, satisfy himself and report 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 the 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 in- quiries by letter to the sheriff of such other county. When the master proceeds to take the testimony upon the merits, he shall examine each witness specially and in detail upon all the matters set forth in the libel and the answer, and upon such other matters as' may appear to be relevant and material. And it shall be his duty, whether requested by either of the parties or not, to sum- mon and examine such witnesses as he may have reason to believe have knowledge of any matters relevant and material to the just and proper determination of the cause. PRACTICE IN DIVORCE IN PHILADELPHIA. 755 Neither party shall be allowed to examine any witness called in his or her behalf, until after the master shall have finished his ex- amination of the witness; but after the master's examination of the witness, the party calling him may supplement his examination in chief, and upon the conclusion of such supplementary examination the opposite party may cross-examine. The master shall have the usual powers of a referee in Equity, in regard to the detention of witnesses for examination, and the gen- eral 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 thereupon proceed to take the testimony subject to the objection. 16. ]t[aster's fee. The master's fee shall be $50 and $10 additional for each meeting after the first, held in the discharge of his duty; and whenever it shall be necessary for him to incur any expense under these rules, he may demand from the libellant the sum required for such ex- penses before they are actually incurred, and thereupon the pro- ceedings shall stay until the said sum is paid. 17. Master's minutes — exceptions. The master shall keep minutes of his meetings, noting the attend- ance 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 un- justly delaying the proceedings or increasing the expense thereof, he may notify the master of his exception in that regard, and the mas- ter shall note the same in his report for such action of the court as may be adjudged just and proper. 18. Security for costs. The master may at any time, with the leave of the Court, require security for the payment 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. 19. Stenographer's fees. In Courts Nos. i, 2 and 5 all the proceedings and testimony be- fore the master must be taken by the official stenographer of the court, whose fees are paid by the county. This rule has not yet been adopted by Courts Nos. 3 and 4, in which Courts the testimony may still be taken by a stenographer designated by the master, and the stenographer's fees must be paid by the parties. 20. Master's report. The rules of court provide that the master shall report his pro- ceedings and the testimony, together with his opinion of the case, and shall append thereto the Libel and all subsequent papers filed in the case, with a copy of the docket entries, and shall file the same in the office of the prothonotary. •ii^ EQUITY PRACTICE IN PENNSYLVANIA. Special directions to masters in divorce have been issued by the Court of Common Pleas No. 5. These directions virere prepared by the Honorable Robert Ralston, Judge of that Court, and are re- quired to be strictly followed by the master. It would be well for all masters to follow these instructions and so secure uniformity in the preparation of masters' reports. These directions are as follows: 21. Directions to masters in divorce. Stenogfraphers. The testimony must be taken by an official stenographer of the Court. Witnesses. The examination of witnesses by the master and by counsel must be conducted with strict regard to the rules of evidence. Leading questions must not be asked. Arrangfement of papers. The master must enclose the papers in strong backing paper in the following order: 1. Docket Entries. 2. Master's Report. 3. Testimony. 4. Exhibits, if any. 5. The Libel and other papers in the case. The cover must be endorsed with the Court, term and number; the names of the parties; the name and address of the Master. One-half the cover must be left clear for the endorsements of the Court. Master's report. In his report the master shall first state the date of his appointment, the notices given by him for holding meetings, the times and places of the meetings and those in attendance thereat. The master shall, after the above preliminary statement, report upon the following matters, in separate paragraphs numbered and headed as hereinafter directed, namely (the numbers and headings to be used by the master are indicated herein by red ink \Italics^ ) : /. Service of process. Under this heading the master shall state whether or not there was personal service, and if not how service was made, and what efforts he had made to notify the respondent. //. Cause of divorce. Under this heading the cause or causes of divorce shall be stated not in the^ words of the libel, but in brief form ; as for instance, "desertion," "cruel and barbarous treatment," "indignities to the person," "adultery." ///. Findings of fact. 1. Marriage. The date and place of marriage and any relevant facts in relation thereto. 2. Residence. The places where the parties have resided since the marriage. PRACTICE IN DIVORCE IN PHILADELPHIA. 757 3. Citisenship. The facts showing the jurisdiction of the Court — the places where the parties resided at the time of the marriage, the length of time each has resided in Pennsylvania. The master must not report that the libellant has resided more than one whole year in Pennsylvania, but must state the actual length of the residence. 4. Age and Occupation. The ages of the parties, and their occu- pations, if any. 5. Children. Whether or not there are children ; if so, their names, ages, places of residence, and with whom they are living. 6. Testimony and Discussion. Under this heading the master shall set forth all the facts relating to the cause of divorce and such dis- cussion of the testimony as he may deem desirable. When the cause of divorce is desertion the master must find all the facts relating to the residence and intercourse between the parties from the date of the desertion to the time of hearing. IV. Conclusions of law. The legal conclusions reached by the master. V. Recommendation. The master's recommendation as to whether or not the divorce should be granted, and the form of decree to be entered. Reports of masters will not be approved unless they are prepared strictly in accordance with the above directions. 22. Exceptions to master's report. Where the case is contested, exceptions to the master's report may be filed by the losing party. The practice in the various courts as to the filing of exceptions is not uniform. In some of the courts the rule is that the exceptions must be filed with the master, and first passed upon by him, and reported by him to the court. In other courts the exceptions are filed with the clerk of the court, after the filing of the master's report. 23. Divorce argument list. After the filing of the master's report, whether the case has been tried ex parte, or contested, it must be placed upon the divorce argu- ment list to be passed upon and disposed of by the court in banc. The divorce argument list is heard once a month on a certain day fixed by the rules of court, and in Court No. 3 there is a rule that no case can be put on the divorce argument list, for a date occurring less than ten days after the filing of the master's report. The practice in calling the divorce argument list is not uniform in the several courts. In Court No. 4 the list is not called at all, but the Paper Books are handed to the crier of the court. In Court No. 3 only such cases are called for argument as the President Judge an- nounces they wish to hear argued. In the other courts there is a very perfunctory statement by counsel of the nature of the case, and whether there has been personal service on the respondent. The cases are disposed of by the court either by marking the master's report "Examined and approved," or by sending the case back to the master or by dismissing the libel. 24. Bule for final decree. When the master recommends a decree of divorce, and his report has been approved by the court, a rule is then entered of course, by 7S8 EQUITY PRACTICE IN PENNSYLVANIA. the libellant, on the respondent, to show cause why a decree of diverce should not be granted. At the same time the sum of ten dollars is paid to the clerk of the court to cover the prothonotary's costs, and the certificate of divorce. 25. Sendee of notice. Notice of such rule must be served upon the respondent personally, if possible, but if the notice cannot be served upon the respondent personally, then it must be served upon his or her counsel of record, if there be one, ten days before the time fixed for hearing the rule. In Court No. i, if the respondent lives in the County of Philadelphia, service by registered letter will not be permitted. In Court No. 3, if the respondent's residence is known, there must be a personal service; and this, though the respondent may live in a distant state. In such case the court will not permit service by registered letter. Service of notices or rules upon a respondent cannot be made by the libellant, or by an attorney in the case. In all cases where an affidavit of the time, place and manner of service shall be filed, and in case of service on the counsel for re- spondent, or by publication, the efforts which have been made to serve the respondent personally shall be stated in the affidavit. If the notice cannot be personally served upon the respondent, and his or her whereabouts is unknown, and there is no counsel of record, the notice for the final rule must be published once a week for four full weeks in The Legal Intelligencer, and in one daily newspaper in the city of Philadelphia, and such other notice by advertisement must be given, as the court may direct in the particular case. 26. Form of notice of rule for divorce. The notice to respondent of the rule for final decree of divorce is in the following form: To John Doe, late of 602 Vine Street, Philadelphia, Penna. : You are hereby notified that a final rule for divorce has been granted against you at the suit of Mary Doe, your wife, which will be heard in the Court of Common Pleas No. I, Philadelphia, of March Term, 1913, No. — , on Monday, the 15th day of September, 1913, on which day you may appear and show cause, if any you have, why such divorce should not be granted. F. F. Brightly, Attorney for Libellant. 27. Divorce list. Final rules for divorce are placed upon a divorce list, which is called once a month upon a day fixed by rules of court for the calling of other arg^ument lists. 28. Entry of final decree. When the divorce list is called, the name of the respondent in each case is called by the crier of the court, and proclamation is made by the crier for the respondent to come forward, and there being no answer, or no sufficient reason given otherwise, a final decree of , divorce is entered by the court in the following form: PRACTICE IN DIVORCE IN PHILADELPHIA. 759 29. Porm of final decree. IN THE COURT OF COMMON PLEAS NO. i For the County of Philadelphia. Mary Doe r March Term, 1913, No. — . V. ] In Divorce, A. V. M. John Doe (. Cause: Desertion, Cruel Treatment. DECREE. And now, to wit, the 15th day of September, A. D. 1913, the Mas- ter's Report in the above case having been duly approved, final rule granted, and proof of notices of final rule submitted, on motion of F. F. Brightly, Esquire, Attorney for Libellant, the Court, by virtue of the authority vested in it by law, makes the said rule absolute and decrees that the said Mary Doe, Libellant, and John Doe, Respondent, be, and they are hereby divorced from the bonds of matrimony and all the duties, rights and claims accruing to either of the said parties at any time heretofore, in pursuance of said marriage shall hence- forth cease and determine, and the said parties shall severally be at liberty to marry again in like manner as if they never had been married. F. Amedee Bregy, P. Judge. 80. Decree in case of adultery. Where the divorce is granted on the ground of adultery, there is added to the above decree a provision in the following words: "Ex- cept that it is hereby ordered and decreed that during the lifetime of the said Mary Doe, the libellant, the said John Doe, the respondent, shall not be permitted to marry Mary Smith, proof having been given that the said John Doe had committed adultery with the said Mary Smith." 31. Decree for annulment of jnamsige. Proceedings for the annulment of marriage are similar, and con- ducted in the same manner as proceedings for divorce. In such case the decree is in the following form: And now, to wit, the 15th day of September, A. D. 1913, the Mas- ter's Report in the above case having been approved, final rule granted, and proof of personal service on respondent of notice of final rule submitted, and it appearing frorti the said Master's Report that on the ist day of January, 1900, a pretended marriage was had and solemnized between Mary Smith, Libellant herein, and John Smith, Respondent herein, but that at the time of the solemnization of the said pretended marriage, he, the said John Smith, was in- capable of making such a contract, by reason of his having a wife living at the time to .whom he had previously been lawfully married ; therefore upon the reason above mentioned, the Court, on motion of F. F. Brightly, Esquire, Attorney for Libellant, by virtue of the authority vested in it by the act of the fourteenth day of April, A. D. 1859 (P. L. 647), makes the said rule absolute, and decrees that the said supposed or alleged marriage heretofore attempted to be contracted between the said Mary Smith, Libellant, and the said John Smith, the Respondent, was and is wholly and absolutely null and void, to all intents and purposes whatsoever. And the Court doth 76o EQUITY PRACTICE IN PENNSYLVANIA. hereby further decree that the said Mary Smith shall be at liberty to marry again, in like manner as if the said supposed or alleged mar- riage had never taken place. 32. Payment of master's fees. Upon the approval of the master's report, the master is entitled to the $50.00 which had been paid into the prothonotary's office on ac- count of his fees an'd costs, and an order is thereupon made by two judges of the court upon the prothonotary to pay the money to the master. All other sums due the master on account of his fees and disbursements in the case are chargeable by him to, and should be collected from, the libellant. Hjs legal charges are $50.00 for the first meeting, and $10.00 for each additional meeting. The order for the payment of the master's fee by the prothonotary is in the following form: Mary Doe ■» C. P. No. i, V. |- March Term, 1913. John Doe J No. And now, to wit, September 15th, 1913, the Master's Report in the above case having been filed, the Court orders and directs the prothon- otary to pay over to the Master, , the sum of fifty dollars, deposited, with the prothonotary on account of the Master's Fee, less the prothonotary's proper charges. F. Amedee Bregy, Edward W. Magill, Judges. 33. Certificate of divorce. All decrees of divorce, after being entered on the Appearance Docket, are handed by the clerk of the court to the exemplification clerk, who issues the Certificate of Divorce, which is simply an ex- emplification of the decree, under the seal of the court. 34. Service by publication. Note by the Editor. On Monday, Jan. 6, 1913, the Supreme Court of the United States sustained the legality of notice by publication, in divorce, when made according to the law of the matrimonial domicil, in re Thomp- son's Divorce, following the ruling of the same court in re Ather- ton's Divorce. PRACTICE IN DIVORCE IN PHILADELPHIA. 760% NOTE. The preceding chapter was prepared before the promulgation of the New Rules of Court taking effect March 3, 1913. We note some changes made by the New Rules: Order of Publication. Rule 171 provides that the first pub- lication under an order of publication must be not less than twenty-eight days prior to the next term of Court. Rule for Jury Trial. Rule 178 provides that the rule to show cause why the issues of fact should not be tried by a jury, shall be taken within ten days after the answer is filed. Notice of Master's Meeting Where There is No Service or Ap- pearance. By rule 180 of the new rules, the provision in the old rules that in cases where the respondent was last known to reside and last heard of in Philadelphia, it shall not be necessary to advertise, is omitted. Stenographers. By rule 188 the rule that the testimony before the Master shall be taken by the official stenographer is extended to all the Courts. Master's Report. By rule 189 the instructions to Masters as to the preparation of their reports, originally adopted by Court No. 5, now apply to all Masters, by this general rule. F. F. B. TABLE OF STATUTES ENGLISH LAWS. PAGE. S2d Henry IH, cap. 23, Sec. 2 Waste 680 ACTS OF CONGRESS. 1866 At large, P. 221 Telegraphs 182 1887 March 3, ch. 373 Suits aga,inst receivers 482 1888 August 13, ch. 866 Suits against receivers 482 1898 Bankruptcy 50 1903 Feb. S, 33 Stat. 797 Bankruptcy So 1909 Mar. 4, Sec. 6 (Comp. Sup. 1289) Copyrights 682 CONSTITUTION OF PENNSYLVANIA. 1838 Sec. 4, Art. 7 Eminent domain 147 1857 Sec. 26 Power reserved to alter, revoke and annul 150 1874 Art. S, Sec. 20 Chancery powers of Court of Common Pleas 512 Sec. 2, Art. 16 Acceptance of constitution 149 Sec. 3, Art. 16 Eminent domain 147 Sec. 5, Art. 16 Limitations on corporations .... 148 Sec. 6, Limitations to charter 148 Sec. 8, Art. 16 Corporations — compensation 147 Sec. ID, Art. 16 Reservation of power to alter. . . 148 Sec. I, Art. 17 Railroads and canals 148 Sec. 4, Art. 17 Consolidations prohibited 148 Sec. 7, Art. 17 Discrimination prohibited 149 Sec. 8, Art. 17 Passes 149 Sec. 9, Art. 17 Consent of municipalities 149 Sec. 10, Art. 17 Acceptance 149 ACTS OF ASSEMBLY. 1718 Feb. 22, Sec. I, I Sm. L. 99 . .Mariners' wives 261 Feb. 22, Sees. 2, 3 and 4, I Sm. L. 99 Mariners' wives 262 Feb. 22 Feme sole trader 263 1721 Feb. 24, 2 Sm. L. 124 Party walls 664 1785 Feb. 18, 2 Sm. L. 275 Habeas corpus 268 Feb. 18, Sec. I, 2 Sm. L. 275 . .Habeas corpus 269 Feb. 18, Sees. 2 and 3, 2 Sm. L. 27s Habeas Corpus 271 Feb. 18, Sees. 4, S, 6 and 7, 2 Sm. L. 27s Habeas corpus 272 761 762 TABLE OF STATUTES. PAGE. 1785 Feb. 18, Sees. 8 and 9, 2 Sm. L. 275 Habeas corpus 273 Feb. 18, Sees. 10, 11 and 12, 2 Sm. L. 27s Habeas corpus 274 Feb. 18, Sec. 14, 2 Sm. L. 27s Habeas corpus 275 1791 April 13, Sec. 9, 3 Sm. L. 30 Habeas corpus 269 1792 Mar. 31, 3 Sm. L. 66 Specific performance 520 1814 Mar. 26, Sec. 19, 6 Sm. L. 210 Insolvents 280 1815 Mar. 13, Sec. i, 6 Sm. L. 286 Divorce 59 Mar. 13, Sec. 2, 6 Sm. L. 286 Divorce 64 Mar. 13, Sec. 3 Divorce 66 Mar. 13, Sec. 4 Divorce 62 Mar. 13, Sec. 5, 6 Sm. L. 286 Divorce 60 Mar. 13, Sec. 6, 6 Sm. L. 286 Divorce 63 Mar. 13, Sec. 7, 6 Sm. L. 286 Divorce 78 Mar. 13, Sec. 10, 6 Sm. L. 286 , Divorce 89 Mar. 13, Sec. 11, 6 Sm. L. 286 Divorce 64 Mar. 13, Sec. 12, 6 Sm. L. 286 Costs — Divorce 98 1817 Feb. 26, Sec. i, 6 Sm. L. 405. .Divorce 63 Feb. 26, 6 Sm. L. 40S Costs 98 1823 Mar. 13, P. L. 74 D. & H. Canal Co 169 1825 Mar. 22, Sec. 3, P. L. 107 Trustee 503 1826 April 9, P. L. 192 State railroad 152 1828 Feb. 27, P. L. 123, 127 B. & O. R. Co 169 Sec. S, P. L. 221 State railroad 152 April 14, Sees, i and 2, P. L. 453 Trustees 497 1830 April 6, Sees, i and 2, P. L. 277 Partners 382 1831 Mar. 21, P. L. 192. Trustees 505 April 2, P. L. 3 73 - . ^ Cumberland Valley R. Co 168 1832 Feb. 23, P. L. 86, Phila. & Trenton R. Co 170 May S, P. L. 501 Lateral railroads 162 1833 Mar. 30, P. L. 107 Insolvents 280 April 4, P. L. 144 Phila. & Reading R. Co 158 April 4, Sec. 11, P. L. 144. . . .P. & R. R. Co 164 April 4, '32-3, P. L. 144 P. & R. R. Co 158 April 4, Sec. 11, P. L. 144 P. & R. R. Co 158 April 4, Sec. 12, P. L. 144. . . P. & R. R. Co 158 April 4, Sec. 13, P. L. 144 P. & R. R. Co 160 April 4, Sec. 14, P. L. 144 P. & R. R. Co 160 April 4, Sec. 15, P. L. 144. ... P. & R. R. Co 160 April 4, Sec. 13, P. L. 144. ... P. & R. R. Co 165 April 4, Sec. 18, P. L. 144. . . .P. & R. R. Co 165 April 4, Sec. 20, P. L. 144. . . .P. & R. R. Co 165 1834 Feb. 24, Sec. 13 Partition 362 April 15, Sec. 55, P. L. 537.. Books Etc. Co. auditors 277 TABLE OF STATUTES. 763 PAGE. 183s April II, P. L. 199 Partition 361 1836 March 11, P. L. 76 Interpleader 295 Mar. 21, P. L. 143 Limited partnerships 392 Mar. 21, Sec. 2, P. L. 143 Limited partnerships 393 Mar. 21, Sees. 3 and 4, P. L. 143 Limited partnership 394 Mar. 21, Sees. 5 and 6, P. L. -'43 Limited partnership 395 Mar. 21, Sees. 7 and 8, P. L. 143 Limited partnership 396 Mar. 21, Sees. 9, 10, 11 and 12, P. L. 143 Limited partnership 397 Mar. 21, Sees. 13, 14 and 15, P. L. 143 Limited partnership 398 Mar. 21, Sees. 16 to 20, P. L. 143 Limited partnership 399 Mar. 21, Sees. 21 to 23, P. L. 143 Limited partnership 400 Mar. 21, Sec. 24, P. L. 143 Limited partnership 401 June 13, Sees. 79 and 83, P. L. 572 Service in local actions real 370 June 13, P. L. 589 Lunacy etc 298 June 13, Sec. 2, P. L. 589 Lunacy etc 299 June 13, Sec. 3, P. L. 589 Lunacy etc 299 June 13, Sees. 5 and 6, P. L. 589 Lunacy etc 3cr3 June 13, Sec. 7, P. L. 589 Lunacy etc 304 June 13, Sec. 8, P. L. 589 Lunacy etc. 30S June 13, Sees. 13 and 14, P. L. 589 Lunacy etc 313 June 13, Sec. 16, P. L. 589 (Amended June 10, 1911) 315 June 13, Sec. 19, P. L. 589 Lunacy 316 June 13, Sees. 17 and 18, P. L. 589 Lunacy 317 June 13, Sec. 21, P. L. 589 Lunacy 319 June 13, Sec. 22, P. L. 589 Lunacy 320 June 13, Sec. 34, P. L. 589 Lunacy 320 June 13, Sees. 23 and 24, P. L. 589 Sale etc. of lunatic's realty 321 June 13, Sec. 25, P. L. 589... Sale etc. of lunatic's realty 324 June 13, Sec. 26, P. L. 589 Sale etc. of lunatic's realty 325 June 13, Sees. 27, 28, 29 and 30, P. L. 589 Sale etc. of lunatic's realty 326 June 13, Sees. 31 and 32, P. L. 589 Lunacy 327 June 13, Sees. 64 and 65, P. L. 589 Restoration 3 34 June 13, Sees, 40 and 41, P. L. 589 Accounts of Committee ........ 334 June 13, Sec. 42, P. L. 589 Account of Com 335 June 13, Sec. 43, P. L. 589 Control of Com 336 June 14, Sees, i and 2, P. L. 621 Quo Warranto 448 June 14, Sec. 3, P. L. 621 (Juo Warranto 449 June 14, Sec. 4, P. L. 621 Quo Warranto 450 June 14, Sees. S and 6, P. L. 621 Quo Warranto ._ 452 June 14, Sec. 7, P. L. 621.... Quo Warranto ." 453 764 TABLE OF STATUTES. PAGE. 1736 June 14, Sees. 8 and 9, P. L. 621 Quo Warranto 455 June 14, Sec. 10, P. L. 621 Quo Warranto 457 June 14, Sec. 11, P. L. 621 Quo Warranto 458 June 14, Sec. 13, P. L. 621 Quo Warranto 459 June 14, Sees. 12, 14 and 15, P. L. 621 Quo Warranto 460 June 14, Sec. 13, P. L. 628. .. .Chancery powers of Common Pleas 49S June 14, Sec. 15 P. L. 628 Chancery powers of Common Pleas 495 June 14, Sees. 16, 17 and 21, P. L. 628 Trustee 503 June 14, Sec. 22, P. L. 628 Trustee 504 June 14, Sees. 18, 24 and 30, P. L. 628 Trusts 499 June 14, Sec. 33, P. L. 268. . . .Practice in trusts 497 June 14, Sec. 34, P. L. 268. . . . Practice in trusts 498 June 14, Sec. 23, P. L. 268... . .Practice in trusts 498 June 15, P. L. 6S4 P. & R. R. Co 161 June IS, Sec. 29, P. L. 654. . . .P. & R. R. Co 161 June 16, P. L. 729 Insolvency 283 June 16, Sec. 9, P. L. 763 Equity — discovery 516 June 16, Sec. 13, P. L. 789. ..Equity jurisdiction 513 June 16, Sec. 13, P. L. 789... Equity jurisdiction 514 June 16, Sec. 13, P. L. 789. . .Chancery practice 538 1837 April 3, Sec. 11, P. L. i7o...Sunbury & Erie R. Co 161 April 4, P. L. 34S Pittsburg, K. & W. R. Co 170 April 4, Sec. 2, P. L. 378 Habeas corpus 269 1838 March 20, P. L. 148 P. &; R. R. Co 161 April 16, Sec. 17, P. L. 689.. General partner 401, 402 1839 June 20, P. L. 355 B. & O. R. Co 169 1840 April 13, Sec. 12, P. L. 319.. Qmo warranto 460 April 13, Sec. 13, P. L. 319.. Qmo warranto 461 April 13, Sec. 14, P. L. 319.. Quo Warranto 461 June 13, Sec. 39 (1841, p. l). Equity jurisdiction 515 Oct. 13, Sec. 19, P. L. 7 Equity — accounts 515 Oct. 13, Sec. 19 (1841, p. i). Accounts 387 1841 Feb. 16, P. L. 28 N. Y. & Erie R. Co 169 1842 April S, Sec. 9, P. L. 234 Partition 362 July 12, P. L. 339 Assignments 4 July 27, Sec. 15, P. L. 436. . . . Infant trustees 496, 498 1843 , April 13, Sec. 8, P. L. 235 Divorce 67 April 24, Sec. 10, P. L. 361 Railroad landings 173 1844 April 6, P. L. 213 Service of, bill in Equity 562 May 6, Sec. 5, P. L. 565 Bond, eminent domain.. .166, 520, 689' 1845 Mar. 17, Sec. 3, P. L. 158 Partition 362 April 15, P. L. 453 P. & R. R. Co 161 April IS, P. L. 455 Divorce 95 1846 April 8, Sec. I, P. L. 272 Public works, Phila 520, 671 April 13, P. L. 312, 326 Penna R. Co. charter 153 April 13, P. L. 326 Ascertainment of value 154 April 13, Sec. 12, P. L. 326 Penna. R. Co 153 April 13, Sec. 13, P. L. 326. . .Highways 154 April 13, Sec. 13, P. L. 326. . .Penna R. Co 154 April 13, Sec. 18, P. L. 326... Penna R. Co 154 April 13, Sec. 23, P. L. 326 . . . Penna R. Co 154 April 13, Sec. 24, P. L. 326. . . Penna R. Co 154 TABLE OF STATUTES. 765 1846 April 13, Sec. 23, P. L. 326. . .Resumption of franchise 154 April 13, Sec. 24, P. L. 326... Forfeiture of Penna. R. fran- chise 154 April 21, P. L. 424 Equitable ejectment 256 April 21, P. L. 448 B. & O. R. Co 169, 448 April 21, (P. L. 1850, 812)... Pittsburg & Erie R. Co 170 1848 Mar. 27, P. L. 274 Penna. Railroad Co 153, 157 April II, P. L. 516 Lateral railroads 162 April II, P, L. 536 Joint obligors 383 754 acts 1849 0. & P. R. Co 135 1849 Jan. 26, Sec. 10, P. L. 79 Turnpike Cos 173 Feb. 19, Sec. 10, P. L. 79 General railroad act 163 Feb. 19, Sec. 10, P. L. 79 Railroads, eminent domain 163 Feb. 19, Sec. 11, P. L. 79 Railroads 164 Feb. 19, Sec. 11, P. L. 79 Damages 164 Feb. 19, Sec. 13, P. L. 79 Change of location 165 Feb. 19, Sec. 12, P. L. 79 Change of location 165 Feb. 19, Sec. 13, P. L. 79 Change of location 165 Feb. 19, Sec. 18, P. L. 79 Change of location 165 Feb. 19, Sec. 20, P. L. 79 Change of location 165 Feb. 19, P. L. 79 Viewers 213 Feb. 19, P. L. 83 Railroad 136 April 9, P. L. 533 Assignments 11 April 9, Sec. 5, P. L. 524 Suits by executors 256 1850 Mar. 4, Sees, i and 2, P. L. 126 Lost insurance policy 287 Mar. 4, Sec. 3, P. L. 126 Lost insurance policy 288 Mar. II, P. L. 154 Huntingdon & Broad Top R. Co 170 April 6, P. L. 583 Majority of viewers to decide . . 154 April 25, Sec. II, P. L. 569. . .Married woman's trust 498 April 25, Sec. 19, P. L. 572. . .Recording accounts 336 April 25, Sec. 24, P. L. 573. . .Mines 518 April 25, Sec. 26, P. L. 573 Equity jurisdiction 515 April 26, P. L. 590 Suits by assignees 257 April 26, Sec. S, P. L. 591 Divorce 66 April 26, Sec. 6, P. L. 590 Divorce 64 May 3, P. L. 654 District attorneys 450 1851 April 8, Sec. 5, P. L. 354 Wharfage etc 519 April 14, Sec. II, P. L. 612 Service 257 April 14, Sec. 13, P. L. 612 ... Service 384 April 14, Sees. 13 and 14, P. L. 612 Partnership 379 April 15, Sec. 7, P. L. 714 Lunacy 300 Oct. 28, Sec. 7 (1852 P. L. 725) Lunatic wife 330 1852 May 6, P. L. 614 Huntingdon & Broad Top R. Co 170 1853 Jan. 7, P. L. I Lehigh Valley R. Co 168 Mar. 17, P. L. 208 Injunction bond 520 1854 Feb. 14, P. L. 39 Easement of water 665 Feb. 17, P. L. ^6 Penna. R. Co 155 Mar. 27, Sec. 2, P. L. 214 Service of bill 562 April 6, P. L. 301 Equity fee bill 642 April 24, P. L. 485 Wharfage 519 April 27, P. L. 520 Sale of State public works 155 May 3, P. L. 537 Northern Central R. Co 168 May 8, Sec. i, P. L. 644 Divorce 60, 64, 79, 94 766 TABLE OF STATUTES. PAGE. 1855 April 30, Sec. i, P. L. 386 Balances of accounts 504 May 3, P. L. 415 Assignment by non-resident .... 19 May 3, Sec. 2, P. L. 415 Trustees 504 May 3, Sec. 4, P. L. 415 Trustees 505 May 4, Sec. 2, P. L. 263 Feme sole trader 263 May 4, Sec. 4, P. L. 263 Feme sole trader 264 1856 April 9, P. L. 288 Notice of bond 210 April 9, P. L. 293 Dissolution of corporation 536 April 9 (P. L. 1857, 770) .. ..Resumption of charter 150 April 22, Sec. I, P. L. 502. . . .Accounts 519 April 22, Sec. 4, P. L. 532 Trusts 501 Nov. 6, Sec. I (1857, P. 797) . .Injunction bond 520, 689 1857 Feb. 14, P. L. 39 Chancery powers in partition 362, 515 Feb. 14, P. L. 39 Partnership 388 April 16, P. L. 209 Lehigh Valley R. Co 168 May s, P. L. 401 P. & R. R. Co 161 May 16, P. L. 519 Sale of public works 156 May 16, Sec. 9, P. L. 519 Penna. R. Co 156 May 16, Sec. 15, P. L. 629 Public highway 151 May 20, P. L. 629 Lateral railroad crossings 163 1858 April 13, P. L. 256 Service 257 April 16 (P. L. i8S9, 814) ...Lehigh Valley R. Co 169 April 20, P. L. 361 Duty of viewers 163 April 21, Sec. 2, P. L. 383. . . .Partnership 401 April 21, Sees. 3 and 4, P. L. 383 Limited partnership 398 April 21, P. L. 414 Sale of State canals 151 1859 Mar. 29, Sees, i and 2, P. L. 289 Lien of decree in Equity 634 April 6, P. L. 387 Service of bill on non-residents. 563 April 6, Sees. 2 and 3, P. L, 387 Service of bill on non-residents . 566 April 13, P. L. 60s Partition in chancery 362 April IS, P. L. 679 Penna. R. Co. water supply iss i860 Mar. 31, Sec. 142, P. L. 382 . . Railroads 646 1861 Mar. 7, P. L. 94 Phil. & Erie R. Co IS2 May 16, P. L. 702 Merger of railroads 167 1882 Mar. 22, Sec. i, P. L. 167 Partnership 388 Mar. 22, Sees. 2, 3 and 4, P. L. 167 ». ..Partnership 389 April s, P. L. 268 Service of bill S63 April II, P. L. 430 .- 63 April II, P. L, 449 Service of bill 564, 567 1864 Mar. 31, P. L. 162 ... . „ Township etc. debts 346 April 14, P. L. 414 Phila. & Erie R. Co 138 May 4, P. L. 775 Amendments 388, 579 May 4, Sec. 2, P. L. 762 Re-assignment 44 1865 Mar. I, P. L. 259 Beaver county 309 Mar. 24, P. L. 49 Consolidation of railroads 167 Mar. 30, See. I, P. L. 46 Limited partnership 393 Mar. 30, See. 2, P. L. 46 Limited partnership 394 April 18, P. L. 64 Lateral railroads 161 1866 Mar. 23, P. L. 312 Phila. & Erie R. Co 158 April 3, P. L. 419 Lehigh Valley R. Co 169 April II, P. L. 780 Sale etc. of lunatic's realty 329 April 17, P. L. 106 Annulled by constitution 166 April 17, Sec. i, P. L. 112 Witnesses 276 1867 April ID, P. L. 993 Penna. R. Co 153 TABLE OF STATUTES. 767 PAGE. 1868 April 4, P. L. 62 Grade crossings 167 April 14, P. L. 98 Costs a,nd fees 276 1869 Mar. 17, P. L. 12 Widening etc. railroads 1S3, 167 April 20, P. L. 78 Commitment to hospital for in- sane 310 1870 Feb. 17, P. L. 31 Lease of railroad 167 April 6, P. L. 56 Loan to partnership 391 April 7, P. L. 57 Common Pleas of Dauphin Co.. . 449 1871 May 2, P. L. 248 Jury trial 166 May, 15, P. L. 868 Lumbering in certain counties . . 184 June IS, P. L. 389 Partnership 392 June IS, P. L. 391 Damages 181 June 19, P. L. 1360 Railroads and corporations. .107, 167 June 19, P. L. 1360 Railroads 675, 677 1872 April 4, Sec. i Quo warranto 461 April 4, Sec. 2 Quo warranto 462 April 9, P. L. 47 Assignments 13 1873 Mar. 14, P. L. 46 Suit by assignee of insurance policy 289 Mar. 21, P. L. 28, 76 Iron and steel companies 204 April 8, P. L. 6s Execution against partners 410 June 14 (P. L. 1874, 421 ) 18s 1874 April 20, P. L. 6s Municipal debt limit 673 April 29, Sec. 33, P. L. 92 Telegraph Cos 183 April 29, Sec. 34, clause 7 Water company, P. L. 198.. 344, 528 April 29, Sec. 41, P. L. 104. . . .Viewers, eminent domain 196 May 8, Sec. i, P. L. 122 Traverse in lunacy 310 May 8, Sec. 2, P. L. 122 Traverse in lunacy 311 May 14, P. L. 156 Partition of coal lands 360 June 2, Sec. i, P. L. 271 Partnership associations 435 June 2, Sec. 2, P. L. 271 Partnership associations 437 June 2, Sec. 3, P. L. 271 Partnership associations 439 June 2, Sec. 4, P. L. 271 Partnership associations 440 June 2, Sec. s, P. L. 271 Partnership associations 441 June 2, Sees. 6, 7 and 8, P. L. 271 Partnership associations 442 June 2, Sec. 9, P. L. 271 Partnership associations 443 June 8, Sec. i, P. L. 280 Eminent domain 181 June 13, P. L. 283 Appeal 192 1875 Feb. 18, P. L. 3 Partnership associations 436 1876 Feb. 17, Sees, i and 2, P. L. 4. Assignee's sale 31 Feb. 17, Sec. 3, P. L. 4 Assignee's sale 32 May I, Sec. 49, P. L. 53 Receiver 482 May I, Sec. i, P. L. 89 Partnership associations 436 May s. Sec. i, P. L. 123 Corporation mortgages 516 May 8, Sec. i, P. L. 131 Bridge condemnation 184 May 8, Sec. 2, P. L. 131 Bridge condemnation 185 May 8, Sec. 3, P. L. 13 1 Bridge condemnation 185 May 8, Sec. 4, P. L. 131 Bridge condemnation 185 May 8, Sec. 5, P. L. 131 Bridge condemnation 186 1877 Mar. 23, Sec. i, P. L. 32 Corporation mortgages 517 Mar. 23, Sec. 2, P. L. 32 Corporation mortgages 517 1878 May 3, P. L. 42 Bridges, making free 184, 186 May 22, P. L. 95 Index docket for injunctions etc. 694 May 25, P. L. 156 Divorce 75, 33i June 12, Sec. 6, P. L. 184 Receivers 487 1879 Mar. 28, P. L. 14 Release of dower by wife 331 Mar. 19, P. L. 9 Street railways 173 Vol. 4 Practice — ^49 768 TABLE OF STATUTES. 1881 May II, P. L. 20 Insurance application 286 June 10, P. L. 112 Gas and water Cos 198 June ID, P. L. IIS Partnership assn 445 June ID, P. L. 117 Eminent domain 168 1883 May 8, Sec. 39, P. L. 30 Lunacy Com. of State Board... 316 June I, P. L. 58 County buildings, eminent do- main 193 June 22, Sec. 4, P. L. 156 . . . .Lumber companies 184 June zj, P. L. 165 Notice and proof of loss by fire. 288 1885 May 29, P. L. 29 Pipe lines 224 June 5, P. L. 78 Decrees as liens 636 June 23, P. L. 137 Insurance company 469 June 25, P. L. 182 Partnership associations 440 July 7, Sec. I, P. L. 257 Partition 359, 363 July 7, Sec. 2, P. L. 2S7 Partition 365 July 7, Sec. 3, P. L. 257 Partition 366 July 7, Sec. 4, P. L. 257 Partition 367 July 7, Sec. s, P. L. 257 Partition 367 July 7, Sec. 6, P. L. 257 Partition 368 1887 April 22, P. L. 61 Borough debts 346 May 6, P. L. 86 Discharge from prison 280, 281 May 23, P. L. 158 Habeas corpus 276 May 25, P. L. 267 .Water supply 191, 210 June 2, P. L. 306 Turnpike condemnation 188 June 2, Sees. 6 and 8, P. L. 300 Report of viewers 247 June 2, P. L. 310 Gas etc. companies 198 1889 April 26, P. L. 55 County buildings, land for 193 May 13, Sec. 2, P. L. 205 Consolidation 167 May 14, Sees. 14 and 15, P. L. 211, Street railways 173 May 14, Sec. 18, P. L. 211 Street railways 174 May 10, P. L. 183 Partnership associations . . . 441, 443 May 16, P. L. 226 Water works 198 May 21, P. L. 259 Lumber companies 184 i8gi May 12, P. L. 54 Assignments etc 13 May 23, P. L. 109 Road damages 241 May 26, P. L. 122 Assignments etc 13 June 2, P. L. 170 Electric etc. companies 183 June 2, P. L. 172 Payment into court 181 June 2, Sec. i, P. L. 176 Mining 679 June 16, P. L. 300 Conspiracy 683 1893 April 14, P. L. 15 Lateral railroads 161, 162 April 26, P. L. 26 Dissolution of corporation 467 May 4, P. L. 29 Stockholders of corporations ... 517 May 15, Sec. i. Art. 2, P. L. 52 Bituminous coal 679 May 26, P. L. 158 Water companies 199 June 3, P. L. 287 Lumber companies 184 June 6, P. L. 328 Habeas corpus 273 June 8, P. L. 345 Mandamus 345 June 8, Sec. 2, P. L. 345 Mandamus 351 June 8, Sees. 3 and 4, P. L. 345 Mandamus 347 June 8, Sees. 5, 6, 7 and 8, P. L. 345 Mandamus 352 June 8, Sec. 9, P. L. 345 Mandamus 353 TABLE OF STATUTES. 769 PAGE. 1893 June' 8, Sees. 10, 11, 23 to 28, P. L. 345 Mandamus 354 June 8, Sees. 12, 13 and 14, P. L. 345 Mandamus 355 June 8, Sees. 15, 16, 17, 18, 19 and 21, P. L. 345 Mandamus 356 June 8, Sees. 20, 22, 29, 30, 31 and 32, P. L. 345 Mandamus 357 June 8, Sec. 33, P. L. 345 Mandamus 358 June 8, P. L. 344 Married woman 266 June 8, P. L. 350 Title in dispute, bond 181 June 8, Sec. 2, P. L. 350 Title in dispute, bond 182 June 20, P. L. 471 Divorce 62, 72 189s May 21, P. L. 89 Waiver of assessment 166, 207 May 22, P. L. 105 Affidavit in divorce 65 May 22, P. L. no Bond, eminent domain 166 May 22, P. L. 114 Sale of land 368 June 7, Sec. 9, P. L. 135 Party walls 665 June 8, Sees. 1 and 2, P. L. 186 Partnership associations 444 June 8, Sec. 3, P. L. 186 Partnership associations 445 June 18, P. L. 19s Water companies 199 June 24, P. L. 230 Recorder of deeds 396 June 24, P. L. 237 , Rental in partition 364, 367 June 24, P. L. 248 Commission, surety Co 23 June 25, P. L Weak-minded persons 337 June 25, P. L. 308 Divorce 61, 85, 94 June 26, P. L. 345 Unseated lands 257 June 26, Sec. i, P. L. 381 Lunatic in partition 366 July 2, P. L. 425 Water companies 199 1897 June 10, P. L. 138 Lunacy, review of findings. 307, 313 June 15, P. L. 162 Restoration of lunatic 331 July 14, P. L. 268 Partition 367 July 16, Sec. I, P. L. 301 Lunacy 300 1899 Mar. 10, P. L. 8 Divorce (repealed by dubious act of 191 1 ) go April 28, P. L. 74 Relocation of streams 193 April 28, P. L. 79 Turnpikes 188 April 28, P. L. 84 Mandamus 345 May 5, P. L. 248 Appeals in Divorce 97 May 9, P. L. 261 Limited partnership 402 May 9, Sec. 2, P. L. 261 .Limited partnership 405 May 9, Sees. 3, 4 and 5, P. L. 261 Limited partnership 406 May 9, Sees. 6, 7 and 8 Limited registered partnership.. 407 May 9, Sees. 9, 10 and 11 Limited registered partnership.. 408 1901 April 23, Sec. 5, P. L. 91 Linseed oil 680 May 21, P. L. 270 Water companies 199 June 4, Sec. i, P. L. 404 Assignments 15 June 4, Sec. 2, P. L. 404 Assignments 16 June 4, Sec. 3, P. L. 404 Assignments 4 June 4, Sec. 4, P. L. 404 Assignments 17 June , 4, Sec. 5, P. L. 404 (amended 191 1) Assignments 282 June 4, Sec. 6, P. L. 404, insolvency, etc Assignments 280 June 4, Sec. 7, P. L. 404 Assignments, etc 45 June 4, Sec. 7, P. L. 404 Assignments, etc '. 46 770 TABLE OF STATUTES. PAGE. igoi June 4, Sec. 8, P. L. 404 Assignments, etc.. 47 June 4, Sec. 9, P. L. 404 Assignments, etc 6 June 4, Sec. 10, P. L. 404 Assignments, etc 8 June 4, Sec. 11, P. L. 404 Assignments, etc 10 June 4, Sec. 12, P. L. 404 Assignments, etc 10 June 4, Sec. 13, P. L. 404 Assignments, etc 11 June 4, Sec. 31, P. L. 404 Assignments, etc 13 June 4, Sec. 14, P- L. 404 Assignments, etc 13 June 4, Sec. 16, P. L. 404 Assignments, etc 17 June 4, Sec. 17, P. L. 404. . ..Assignments, etc 22 June 4, Sec. 18, P. L. 404 Assignments, etc 30 June 4, Sec. 19, P. L. 404 Assignments, etc 30 June 4, Sec. 20, P. L. 404 Assignments, etc 31 June 4, Sec. 21, P. L. 404 Assignments, etc 34 June 4, Sec. 23, P. L. 404 Assignments, etc 35 June 4, Sec. 24, P. L. 404 Assignments, etc 35 June 4, Sec. 25, P. L. 404 Assignments, etc 36 June 4, Sec. 26, P. L. 404 Assignments, etc 36 June 4, 'Sec. 27, P. L. 404 Assignments, etc yj June 4, Sec. 28, P. L. 404. . . .Assignments, etc 37 June 4, Sec. 29, P. L. 404. . . .Assignments, etc zl June 4, Sec. 3 1, P. L. 404. . . .Assignments, etc 11 June 4, Sec. 33, P. L. 404 Assignments, etc 42 June 4, Sec. 34, P. L. 404 Assignments, etc 43 June 4, Sec. 35, P. L. 404 Assignments, etc 43 June 4, Sec. 36, P. L. 404 Assignments, etc 44 June 4, Sec. 37, P. L. 404 Assignments, etc 49 June 4, Sec. 38, P. L. 404 Assignments, etc 49 June 4, Sec. 39, P. L. 404 Assignments, etc 41 June 4, Sec. 41, P. L. 404 Assignments, etc 45 June 4, 'Sec. i, P. L. 425 Resulting trust 502 June 4, Sec. 2, P. L. 425 Resulting trust 502 June 19, P. L. 575 Wealc-minded persons 29S, 337 June 24, P. L. 597 First cousins' marriage 60 June 20, Sec. 4, P. L. 582. ...Trade-marks 681 July 9, P. L. 614 ..Service act 353 July 9, P. L. 62s Limited registered partnership. . 402 July 10, P. L. 637 Quo Warranto 449 1903 Mar. 9, P. L. 19 Divorce 62 Mar. 20, Sec. i, P. L. 71 Cities, eminent domain 193 Mar. II, P. L. 25 Bond — Cities, eminent domain.. 200 Mar. 19, P. L. 32 Mandamus 345 April 27, P. L. 325 Private sale 320 April 28, Sec. i„ P. L. 236 Divorce 59 190S Mar. 16, P. L. 42 Widows' dower 36S Mar. 16, Sec. 2, P. L. 42 Possession 369 April 18, P. L. 211 Divorce 67 April 22, P. L. 293 ..Divorce 64 April 22, P. L. 293 Divorce 66 April 24, P. L. 302 Trade-marks 68t April 26, P. L. 309 Divorce 66 May 4, Sec. 4, P. L. 380 Change of location of bridges.. 168 1907 Mar. 14, P, L. 12 Cities, eminent domain 193, 200 April s, P. L. 59 "Two-cent fare law" 153, n. 12 April IS, P. L. 90 Water supply 191 April 25, P. L. 122 Churches 135 May 2, P. L. 159 Recording discharge in bank- ruptcy 284 TABLE OF STATUTES. 77i PAGE. 1907 May 7, P. L. 104 Turnpikes 191 May 7, Sec. i, P. L. 167 Relocation of roads 192 May 7, Sec. 2, P. L. 167 Relocation of roads 192 May 7, Sec. 3, P. L. 167 Relocation of roads 193 May 10, P. L. 196 Eminent domain 136 May 23, P. L. 227 Married Woman 535 May 25, P. L. 240 Boroughs 193 May 28, P. L. 288 Habeas Corpus 271 May 28, Sec. l, P. L. 292 Weak-minded persons 337 May 28, Sees. 2 and 3, P. L. 292 Weak-minded persons 338 May 28, Sees. 4, s and 6, P. L. 292 Weak-minded persons 339 May 28, Sees. 7 and 8, P. L. 292 Weak-minded persons 340 May 31, Sec. 2, P. L. 352 Common carrier 677 May 31, P. L. 355 Acquisition of water plant 194 May 31, Sees. 4, S, 6 and 7, P- L. 3SS .Acquisition of water plant 19s June I, P. L. 364 i Witness fees • • iS, n. 5 June I, P. L. 36s Boroughs 193 June I, P. L. 368 Appeal 247 June I, P. L. 368 'Street railways 20 235 Bausman's Ap.^ 90 Pa. 173 12 Baylis v. Baylis, 16 D. R. 283 69 Beale v. Bucher, 13 Supr. C. 474.. 604 Beale v. R. Co., 86 Pa. 509.... 134, 239 Bear v, Allentown, 148 Pa. 80.. 141, 234 Bear v. Bear, 13 Pa. 529 121 Bear v. Bear's Exs., 4 Berks Co. 164 lOI Beatty's Case, 20 D. R. 139.... 281, 282 Beatty v. Harris, 235 Pa. z77 680 Beatty v, Lycoming Etc. Co., 66 Pa. 9 290 Beatty v. Supreme Comd., 154 Pa. 484 286 Beaumont v. Beaumont, 1 66 Pa. 615 468 Beaumont v. Wilkes-Barre, 142 Pa. 198 IDS Beaver v. Bare, 104 Pa. 58 5 Beaver v. Harrisburg, 156 Pa. 547.. 233 Bechtel v. Ammon, 199 Pa. 81.... 501 Bechtle v. Boro, 3 D. R. 713 244 Beck V. Beck, 163 Pa. 649 86 Becker v. Becker Silk Garment Co., 22 Montg. 215 466 Becker v. Hill, 20 Lane. L. R. 345 ---Sgo, Z9T- Becker v. Lebanon Etc. R. Co., 4 Supr. C. 372 603 Becker v. Lebanon Etc. R. Co., 188 Pa. 484 646, 675 Becker v. R. Co., 177 Pa. 252 228, 230, 235 Becker v. Stucker, 18 C. C. 587 ■•• 34^ Beckley v. Pub'g Co., z7 Supr. C. 681 S3 Beckmyer's Est, 15 York, 157..., 51 Beckner v. Beckner, 37 C. C. 333.. 86 Beech v. Farmers* Etc. Assn., 137 Pa. 617 291 Beers v. Fenner, 30 C. C. 652 340 Bell V. Bell, 181 U. S. 175 64 Bell V, Blasting Co., 3 Berks Co. 258 661 Bell v. Clark, ni Pa. 92 258 Bell V. Farmers* Etc. Bank, 131 Pa, 318 583 Bell V. R. Co., I Grant 105 123 Bell V. Wood, 181 Pa. 175 466 Bellevue v. Mfg's Etc. Co., 20 D. R. 547 540» 674 Bender v. Streabich, 182 Pa. 251.. 669 Ben Franklin Etc. Co. v. Flynn, 98 Pa. 627 290 Benner v. Cassatt, 236 Pa. 248 559 Benner v. Fire Etc., 229 Pa. 75... 295 Bennett's Est., 21 C. C. 609 23, 40 Bennett v. Bennett, 28 C. C. 507... 87 Bennett v. Hayden, 145 Pa. 586 545 Bensalem Twp., 38 Pa. 368 245 Ben ■scoter v. Benscoter, 37 C. C. z-]b 81 Bentz V. Rockey, 69 Pa, 71 18 Berger v. Berger, 23 C. C. 232... 84 Berger v. Berger, 44 Supr, C. 305., 584 Bergner Etc. Co. v. Cobb & Co., 12 C. C. 460 394 Berkey v. Berwind Etc, Co., 220 Pa. 65 647, 648 Bertrand v. Bertrand, ij D. R. 693. 73 Bessemer Co. v. Coal Co., 18 C. C. 440 210 Best v. Best, 19 C. C. 155 69 Best V. Best, 161 Pa. 515 -^y Betham v. Fhila., 196 Pa. 302 103 Bethlehem Etc. Co. v. Boro, 12 Northam. 83 582 Biddle v. Biddle, 17 D. R. 748 82 Biddle v. Starr, 9 Pa. 461 360 Biddle v. Walton, 5 D. R. 287 347 Biddle v. Water Works, 190 Fa. 94. 125 Bierer v. Hurst, 162 Pa. i 656 Bierly v. P. & E. R, Co., 225 Pa. 182 13s Biery v, Steckel, 194 Pa. 445.... 100 Bigelow v. Pittsburg, 189 Pa. 455.. 227 Biggin V. Ogden, 20 D. R, 851..,. 377 Bigler v. Canal Co., 177 Pa. 28 117 Billmyer Etc. Co. v. Langdon, 14 D. R. 212 516 Billmyer Etc. Co. v. Langdon, 29 C. C. 628 564 Bing v. Schmitt, 226 Pa. 622 378 Birbeck's Case, 11 C. C. 336 303 Bishop V. Bishop, 30 Pa. 412 81 Bishop V. Buckley, 33 Supr. C. 123 615 Bishop V. Hill, 9 Dtl. Co. 522. 364 Bittenbender v. Kemmerer, 185 Pa. 13s 432 Bittenbender v. Sunbury Etc. R. Co., 40 Pa. 269 \Q Bittner v. Hartman, 139 Pa. 632... 25 Bixler v. Heilman, 44 Supr. C. 603 524, 584 Bixler v. Kresge, 169 Pa. 405 414 Black V. Black, 216 Pa. 116 368 Black's Case, iS Pa. 434 3 14 Black V. R. Co., 58 Pa. 249 112 Blain's Pet., 16 York, 167 sr Blair's Est., 20 Supr. C. 85 531 Blair's Est., 178 Pa. 582 638 Blair v. Supreme Council Etc., 208 Pa. 262 528 Blair v. Wood, 108 Pa. 275 415 Bland v. Tipton Water Co., 222 Pa. 28s 134, 210, 667 Blandburg Water Co.'s Cond., 233 Pa. 230 132 Blankenburg v. Black, 200 Pa. 629.. 540 Blankenburg v. P. R. T. Co., 18 D. R. 587 669 Blankenburg v. P. R. T. Co., i8 D. R. 587; 228 Pa. 338 672,677 Blasdell v. Bissell, 6 Pa. 258 121 Blau v, Hurwitz, 8 Lack. Jur. 5; 92 650 Blick V. Cockins, 234 Pa. 261 502 Blick V. Ladd, 21 York 106.... 573, 576 Bliem v. Daubenspreck, 169 Pa. 282 120 Bliem v. Schultz, 170 Pa. 563 640 Blood w. Erie Etc. Co., 164 Pa, 95.. 633 Bloom V. Bloom, 8 D. R. 563 78 Bloom V. Bloom, 17 C. C. 478 87 Bloom V. Miller, i D. R. 87 44 Blumenthal's Est., 227 Pa. 268...378f 385 Blumenthal v. Bacon, 170 Pa. 317.. 396 Blumenthal v. Whitaker, 170 Pa. 309 393 TABLE OF CASES. 77S Boak V. Ins. Co., 226 Fa. 493 526 Bole V. Belden Co., 58 Pitts. L. J. 236 597 Bole V. McKelvy, 189 Pa. 505 44 Bolt's Est., 133 Pa. 77 29 Bolton V. Swartz, 4 Montg. 9 565 Bonaparte v. R. Co., i Baldwin (C. C.) 205 104 Bonebrake v. Summers, 193 Pa. 22. 33 Boner v. Myer, ir York 58... 319, 321 Bonsall Ave., 16 Supr. C. i 678 Book V. Penna. R. Co., 207 Pa. 138 iSi Boom Co. V. Sanderson, 81 * Pa. 402 241 Boon V. Trust Co., 39 Supr. C. 65. 22 Borden, in re^ 29 C. C. 225 319 Border v. Border, 21 D. R. 749... 81 Borie v. Satterthwaite, iSo Pa. 542 ,•••• •• 551. 648, 653 Boroughs Ap., 158 Pa. 314 192 Borough's Case, 21 C. C. 89 127 Boro V. R. Co., 131 Pa. z 124 Boro V. Rinek, 116 Pa. 7 235 Boro V. Water Co., 9 Kulp 241... 199 Borton v. Brines-Chase Co., 175 Pa. 209 4, 4S9 Bortz V. Allentown, i Lehigh Co. 355 244 Boston V. Brookline, 156 Mass. 172.. 122 Boswell V. Buhl, 213 Pa. 450 523 Bosworth's Assnt., 7 D. R. 410.... 19 Bouslough V. Bouslough, 68 Pa. 495... 96 Bouvier v. Phila., 24 Leg. int. 340 Ill Boteler v. R. Co., 164 Pa. 397.. 232, 237 Botsford V. Lull, 30 Supr. C. 292.. 533 Bovaird v, Seyfang, 200 Pa. 261 -i 429, 539 Bowers v. Boro, 172 Pa. 596 192 Bowers v. Water Co., 162 Pa. g 127, 128, 235, 240 Bowman's Est., 19 Lane. L. R. 152, 154 •■ 23, 26 Bowman v. Cassell, 32 C. C. 316.. 561 Bowman v. McCaskey, 27 Lane. L. R. 193 529, 660 Boyce v. Hamburg Etc. Co., 24 Supr. C. 589 527 Boyd's Ap., 38 Pa. 241 94 Boyd V. Alabama, 94 U. S. 64s 106 Boyd V. Am. Carbon Co., 182 Pa. 206 377, 42s Boyd V. Negley, 53 Pa. 387 207 Boyd V. Reed, 57 Pitts. L. J. 287... 681 Boyd V. Thompson, 153 Pa. 78 413 Boyer's Case, 37 Pa. 257 214 Boyle V. Hamburg Etc. Co., 169 Pa. 349 290 Boyle V. Lansford Etc., 7 D. R. 709. 352 Boyle V. School Dist., 8 D. R. 436. . 344 Brace v. Evans, 35 Pitts. L. J. 399 684 Bradbury v. Burschell, 220 Pa. 439- 669 Braddock v. Water Co., 189 Pa. 379. 199 Braden's Est., 165 Pa. 184 18 Bradley v. Jennings, 201 Pa. 473... 378, 423, 594 Bradley v. West Chester Etc. Co., 160 Pa. 72 642 Branson v. City, 47 Pa. 329 106 Brant v. Brant, 17 Phila. 655 60 Brass v. N. Dakota, 153 U. S. 391 ■• "7 Braun v. Braun, 194 Pa. 287-297. . .68-79 Braun v. First Etc. Church, 198 Pa. 152 .• SOI Braymer v. Commercial Etc. Co., J99 Pa, 259 295 Breckons v. Snyder, 211 Pa, 176... 50, 55 Bredin v. R. Co^ 165 Pa. 262.. 206, 243 Breen v. Pitts. Etc. R. Co., 220 Pa. 612 661 Brehm v. Boro, 18 D. R. 727 248 Breinig v. Breinig, 26 Pa. 161.... 75, 86 Breneman's Est., 9 Lane. L. R. 129^.. 26 Brennan v. P. & C. R. Co., 230 Fa. 228 243, 244 Brenner v. Brenner, 9 D. R. 511.. 424 Brenner v. Carter, 203 Pa. 7s 431 Breslin v. Earley, 36 Supr. C. 49 . . 351 Brew v. Hastings, 196 Pa. 222 416 Brew v. Hastings, 206 Pa. 155 423 Briar Etc. Co. v. Atlas Works Ltd., 146 Pa. 290 439 Brice's Ap., 95 Pa. 145 28 Bridge Co. v. County, 157 Pa. 379.. 126 Bridge Co. v. County, 172 Pa. 243.. 183 Bridge Co. v. Dix, 47 U. S. 529.... 104 Bridge Co. v. R. Co., 201 Pa. 457'. 120 Bridgewater v. Beaver Etc. R. Co., 214 Pa. 343 583 Bright v. Allen, 203 Pa. 394 657 Brinckle v. Brinckle, 10 Phila. 144. 75 Brink v. Brink, 8 Kulp 367 76 Brinker v. Boro, 11 Northam. 26?., 141 Brinton v. Hogue, 172 Pa. 366 561 Bristol V. Mills, 14 Supr. C. 107.. 51, 55 Britt V. Britt, 30 C. C. 217 524 Broad Street Widening, 225 Pa. 184. 234 Broadhead v. Corman, 171 Pa. 322. 19 Brobst V. Albrecht, 3 Berks Co. 103. 616 Brobst V. Weidner, 18 D. R. 284... 668 Brode v. Phila., 18 D. R. 899 671 Brog v. Brog, 34 C. C. 263 72 Bromley v. Phila., 8 C. C. 600,. 133, 139 Brookes Est., 24 Supr. C. 430.. 299, 300 Brooks V. Bank, 125 Pa. 394 267 Brooks v. Hughes, 53 Pitts. L. J. i . 430 Brotherhead v. Brotherhead, 17 D. R. 264 88 Brower v. Brower, 17 Montg. 39.... 501 Brower v. Kantner, 190 Pa. 182.448, 528 Brown's Ap., 89 Pa. 139 420 Brown's Ap., 84 Pa. 457 362 Brown's Case, 11 D. R. 685 54 Brown's Est., 193 Pa. 281 23, 27 Brown's Pet., 236 Pa. i .' 158, i6s, 175.213 Brown v. Beecher, 120 Pa. 590 411 Brown v. Brown, 13 D. R. 484 91 Brown v. Brown, 21 D. R. 565.... 515 Brown v. Button Co., 149 Fed. R. 48. 56 Brown v. Church, 23 Pa. 495 360 Brown v. Corey, 43 Pa. 495 224 Brown v. Devitt, 131 Pa. 455 259 Brown v. Eq. Gas Co., 155 Pa. 3S9..651 Brown v. Gray, 17 Supr. C. 563.... 413 Brown v. McCrosky, 10 D. R. 583.. 344 Brown v. Nickle, 6 Pa. 390 25S Brown v. Peterson, 40 Pa. 373 128 Brown v. Phila., 142 Pa. 350 131 Brown v. Powell. 25 Pa. 229 241 Brown v. Rush Twp.. i8 C. C. 394, 397 347 Browne v. Scull, 27 Supr. C. 513.. 412 Brown v. Thissel, 6 Cushing (Mass.) 254 121 Brown v. Water Co., 213 Pa. 440... 221 Brubaker v. Brubaker, 4 D. R. 185. 85 Bryant v. R. Co., 6 C. C. 53 210, 214 Bryant v. Swoffard Bros., 214 U. S. 27? 52 Bryden's Est., 211 Pa. 633 337 Brymer v. Water Co., 172 Pa. 489. 199 Bryner v. Youghiogheny Bridge Co., 190 Pa. 617 678 11(^ TABLE OF CASES. Bryn Mawr Natl, Bank v. James, 152 ^ Pa. 364 567 Bryson v. Wood, 187 Pa. 366 629 Bucher v. Bucher, 25 C. C. 513 87 Buckeye Warehouse Co. v. Graup- ner, 31 C. C. 94 687 Buckley v. Kilker, 218 Pa. 176 654 Buckwalter v. Bridge Co., 38 Pa. 281 224 Budd V. Olver, 148 Pa. 194 632 Buffalo Etc. R. Co. v. P. & E. R. Co., 174 Pa. 263 561 Bullitt V. Hinchman, 227 Pa. 197... 650 Bunting: v. Bunting, igo Pa. 27 399 Burger v. Burger, 135 Pa. 499 3 Burgoon v. Johnson, 194 Fa. 6i... 390 Burke's Ap., 99 Pa. 380 583 Burke v. Boro, 18 D. R. 497 578 Burke v. Winkle, 2 S. & R. 189 261 Burkhard v. Penna. Water Co., 234 Pa. 4.1 115, 199 Burkholder's Ap., 94 Pa. 522 33 Burns v. Burns, 38 Supr. C. 221.... 8i Busch V. McKeesport, 166 Pa. 57.. 140 Bush V. Bush, 21 D. R. 744 69 Bush V. McKeesport, 166 Pa. 57.... zz^ Bushkill Water Co., 36 C. C. 136.. 116 Bussier v. Weekey, 11 Supr. C. 463. 656 Bussler v. Weeky, 4 Supr. C. 69... 577 Butler Boro v. Logan, 19 D. R. 952. 660 Butler V. Egge, 170 Pa. 239 651 Butler Sav. Bk. v. Osborne, 159 Pa. 10 377 Butz V. Romig, 17 D. R. i 576 Byers v. Byers, 208 Pa. 23 617 Byers v. Twp., 226 Pa. 278 667 Caffrey v. Caffrey, 28 Supr. C. 22 346* 447 Caldwell v. Coates, 78 Pa. 312 44 Caldwell v. Fire Ins. Assn., 177 Pa. 492 292 Caldwell v. Miller, 127 Pa. 442.... 378 Calhoun v. Calhoun, 19 Phila. 399. 98 Callaghan v. Myers, 128 U. S. 617.. 682 Cambria Etc. R. Co. v. Water Co., 226 Pa. 402 • 115 Cambria Iron Co. v. Schry, 38 C. C. 410 684 Cambridge Springs v. Moses, 22 C. C. 637 684 Cameron v. Carbondale, 227 Pa. 473. 651 Cameron v. R. Co., 137 Pa. 617.... 226 Campbell v. Campbell, z^i C. C. 671. 90 Campbell, V. Campbell, 11 D. R. 233. 91 Campbell v. Comth., 96 Pa. 344.... 44S Campbell v. Floyd, 153 Pa. 54, 84.. 379» 416 Canal Co. v. Bonham, 9 W. & S. 27. 112 Canal Co. v. Dunkle, loi Pa, 103... 136 Canal Co. v. Keiser, 19 Pa. 134 250 Canal Co. v. R. Co., 16 N. J. Eq. 419 113 Canal Co. v. Stump, 81* 255 131 Canavan v. Paye, 34 Supr. C. 91 . 525. 622 Canfield v. Johnson, 144 Pa. 61 413 Capital Etc. Co. v.' Boggs, 172 Pa. 91 481 Capwell V. Capwell, 8 Lack. Jur. 136. 78 .Carey v. Brown, 92 U. S. 171 546 Carey v. Carey, 25 Supr. C. 223.... 82 Carey v. Carey, 2(i C. C. 452 81 Carey v. Schaller, 10 Kulp 475 466 Carey v. Schaller, 16 Supr. C. 350., 363 Carl V, Carl, 12 Northam. 156 91 Carlenwright Etc. Co.*s Case, 44 Supr. C. 640 19 Carnegie Boro v. Pitts. Etc. R. Co., 234 Fa. 472 632 Carnes v. Farmers Etc. Co., 20 Supr. C. 634 294 Carother's Ap., 118 Fa, 468.... 115, 224 Carroll v. Miner, i Supr. C. 439 . 121 Carroll v. Phila., 183 Fa. SS 671 Carter v. Producers*^ Etc, Co. Ltd., 164 Pa. 463 439 Carter v. Producers* Oil Co., 200 • JPa. 579 431, 440 Carter v. Turnpike Co., 22 Supr. C. 1 62 1 44 Carter v. Turnpike Co., 208 Fa. 565. 145 Cascaden v. Cascaden, 140 Pa. 140.. 549 Casciola v. Donatelli, 218 Pa. 624.. 501 Casey v, Casey, 21 D. R. 705 81 Cassell's Est., 13 D. R, ^n 2, 31 Cassidy v. Knapp, 167 Fa. 205 sot Catlin V. Coal & Iron Co., 225 Fa. 2(i2 22 1 Cattison v. Cattison, 22 Pa. 275 83 Catts V. Catts, 33 Supr. C. 293 93 Catts V. Catts, z7 Supr. C. 398 93 Caughey v, Harrar, 21 Lane. L. R. „ 353 364 Central Etc. R. Co.'s Ap., 102 Pa. 38 214 Central Etc. Co. v. Comth., 114 Pa. 592 344 Central Pr. House v. Gross, 38 C. C. 21 522 Cerone v. Cerone, 15 D. R. 817 82 Chadwick v. Chaawick, 38 C. C. 199. jz Chadwick v. Stroud, 27 C. C. 393 366 Chamber Colliery Co. Ltd. v. Canal Co. (Eng.) App. Cas. 1895, p. 364. 122 122 Chambers v. Chambers, 20 C. C. 41 . 81 Chambers v. B. & O. R. Co., 139 Pa. 347 649 Chambers v. McKee, 185 Pa. 105 638 Chambersburg Etc. Dist. v. School Dist., 228 Fa. 119, 126 522, 541 Chandler v. Chandler, 220 Pa. 311.. 520 Chapman v. P. & R. T. Co., 224 Pa. 612 135, 690 Chappell V. U. S., 160 U. S. 499 117, 206 Chartier's Creek Bridge, 48 Supr. C. 106 168 Chase v. Chase, 15 D. R. 131 96 Chase v. Chase, 16 D. R. 448 81 Chase v. Irvin, 87 Pa. 286 25S Chatham Natl. Bk. v. Gardner, 31 Supr. C. 135. 413 Chatham St., 16 Supr. C. 103.. 206, 222 Chatham St., loi Pa. 604 141 Cheetham v. McCormick, 178 Fa. 186 348 Chester v. Schaflfer, 24 Supr. C. 162. 535 Chester v. Union R. Co. Etc., 218 Fa. 24 676 Chester v. White, 220 Fa. 646 543 Chester Etc, R. Co. v. Darby, zxy „ Pa. 273 676, 677 Chester Tr. Co. v. P. Etc. R. Co.. 180 Pa. 432 364 Chestnut Hill Etc. Co. v. County, 228 Pa. 1 247 Chestnut St., 118 Fa. 393 131 Cheyney v. Geary, 194 Pa. 27 525 Chicago V. Taylor, 125 U. S. 161 138 Chicago Etc. Co. v. U. S. Pet. Co., 57 Pa. 83 465 Chilcoat s Ap., loi Pa. 22 12 Child's Est,, 135 Pa. 214 38 TABLE OF CASES. 777 Chisholm v. Moore, 49 Supr. C. 132. 522 Cholmondely v. Oxford, 4 Brown's C. C. 156 555 Christ Church Charter, 8 C. C. 28 . . 446 Christ V. Zehner, 212 Pa. 188 52 Christy v. Sill, 131 Pa. 492 400 Chubb s Est., 27 Lane. L. R. 365... 3 Church's Ap., 165 Pa. 47s 105 Church V. County of Phila., 4 Clark 181 214 Church V. Winton, 196 Pa. 107 500 Cigar Co. v. Cohen, 28 Lane. L. R. 233 681 Citizens' Elec. Co. v. Broom Co., 227 Pa. 448 116, 651 Citizens' Etc. Co. v. Howell, 19 Supr. C. 118 532 Citizens' Etc. Bank v. Gass, 29 Supr. C. 125 2,47 Citizens' Natl. Bank v. Kehl, 25 Montg. Co. 55.. 53 City V. Black, 132 Pa. 568 105 City V. Jackson, 172 Pa. 86 105 City of Allegheny v. R. Co., 33 W. N. C. 397 149 City of Lancaster's Case, 2^ Lane. L. R. 233 193 Clarke's Ap., 107 Pa. 436 468 Clarke's Assd. Est., 38 C. C. 227 19 Clark's Case, 22 Pa. 466 309 Clark V. Burschell, 220 Pa. 435 669 Clark V. Caldwell, 6 Watts 139 313 Clark V. Clark, 14 D. R. 270 68 Clark V. Clark, 28 C. C. 503 86 Clark V. Clark, 17 D. R. 761 72 Clark V. Clark, 180 Pa. 186 496 Clark V. Comth,, 29 Pa. 129 272 Clark' V. ,Comth., 123 Pa. 555 270 Clark V. Fletcher, 96 Pa. 416 ^"j-j Clarke v. Slate Co., 136 Pa. 408.... 383 Clark V. Washington Boro, 145 Pa. 566 686 Claster v. Soble, 22 Supr. C. 631.. 56 Clauer v. Clauer, 22 Supr. C. 395 . . 524 Claxton V. Townsend, 13 Luz. L. R. 227 100 Cleaver v. Sheetz, 70 Pa. 496 264 Cleland v. Aiken, 23 C. C. i 521 Clements v. Fhila. Co., 184 Pa. 28. . 230 Cleveland Etc. R. Co. v. Erie, 27 Pa. 380 148 Cleveland Etc. R. Co. v. Speer, 56 Pa. 325 ..." 112, 134 Qifton Heights Boro v. Thomas Etc. Co., 212 Pa. 117 674 Climax Etc. Co. v. Sheesly, 13 D. R. 649 SI Clinton v. R. Co., 66 Pa. 404 166 Clymer Opera Co. v. Rural Etc. Co., 152 April T. 1912, Supr. C 285 Coal Co. v. Coal Co., 24 C. C. 104.. 112 Coal Co. V. Gas Co., 131 Pa. 522.... IIS, 224 Coal Co. V. French, 8i* Pa. 366 237 Coal Co. V. Phila., 156 Pa. 54 234 Coal Co. V. Price, 81 Pa. 156.... 134, 225 Coatesville Etc. R. Co. v. West Chester Etc. R. Co., 206 Pa. 40 . . 547 Cobb V. Warren St. R. Co., 218 Pa. 366 662 Cochran v. Cutler, 18 Supr. C. 282. 415 Cock V. Bailey, 146 Pa. 328 393, 439 Coder v. Arts, 213 U. S. 223 53 Coffin's Ap., 106 Pa. 280 399 Coke Co.'s Case, 5 D. R. 765 242 Cole's Case, 230 Pa. 162 265 Cole V. Cole, 20 C. C. 138 79 Cole V. Co., 216 Pa. 283 224 Cole V. Elwood Powder Co., 216 Pa. 283 221 Cole V. Lowery, 5 Lack. Tur. 225... 524 Cole V. Manchester Etc. Co., 188 Pa. 345 ^90 Coleman's Ap., 62 Pa. 252 360 Coleman's Ap., 75 Pa. 441 564 Coleman's Est., 200 Pa. 29 24 Coleman v. Blewett, 43 Pa. 176 360 Coleman v. Coleman, 19 Pa. 100... 360 Coleman v. N. Y. Etc. Co., 177 Pa. 239 290 Colliery Co. v. Canal Co. App., 11 R 264 Eng 225 Colket V. Verner, 236 Pa. 285 667 Collins' Ap^ 107 Pa. 590 441 Collins v. Collins, 2 Brewster 515.. 60 Collins V. Collins, 28 C. C. 47 81 Collins V. Houston, 138 Fa. 481 21 Collins V. Iron Works, 227 Fa. 326 650, 660 Collins V. Stone, 11 D. R, 432 603 Colt's Case, 215 Pa. 333.. -337. 338, 339 Columbus Twp. Road, 21 D. R. 29.. 179 Colvin V. White, 200 Pa. 2T] 9 Colwell V. Wehrly, 150 Fa. 523 38s Comrs. V. Phila. 7 Phila. 298 347 Commonwealth v. Airey, 5 Kulp 83. 278 Comth. V. Allport, 10 D. R. 659 ... . 99 Comth. V. Archbald, 195 Pa. 317.... 514, 620, 630 Comth. V. Atlantic Etc. R. Co.y 53 Fa. 9 456 Comth. V. Ayre, 5 D. R. 575 344 Comth. V. Bair, 5 D. R. 488 347 Comth. V. Beaumont, 4 Rawle 367.. 313 Comth. V. Becker, 11 D. R. 182.... 269 Comth. V. Bell, 145 Pa. 374 275 Comth. V. Bergstresser, 8 D. R. 721. 299 Comth. V. Berks Etc., 4 D. R. 605.. 277 Comth. V. Blatt, 165 Pa. 213 279 Comth. V. Boro., 2 Lack. L. N. 181. 348 Comth. V. Boro., 17 C. C. 187 34S Comth. V, Bowditch, 217 Pa. 527.... 451 Comth. V. Bowman, 29 C. C. 635 . . . . 269 Comth. V. Bright, 46 Pitts. L. J. 18 309 Comth. V. Brower, g Kulp 317 277 Comth. V. Brown, 28 Lane. L. R. 65. 78 Comth. V. Brown, 17 Supr. C. 520.. 28 Comth. V. Burrell, 7 Pa. 34 447 Comth. V. Butler, 19 Supr. C. 626.. 269 Comth. V. Canal Co., 66 Pa. 41 ... , 126, 128 130 Comth. V. City Controller, 7 Phila. 29 344 Comth. V. Clemmer, 190 Pa. 202..., 448 Comth. V. Cluly, 56 Pa. 270 447 Comth. V. Comrs., 32 Pa. 218 356 Comth. V. Council of Norristown, 17 C. C. 187 J 352 Comth. V. County Comrs., 14 D. R. 683 347 Comth. V. Co. Comrs., 16 D. R. 341. 348 Comth. V. Crans, 2 Clark 172 277 Comth. V. Crow, 218 Pa. 234 452 Comth. V. Cunningham, 60 Pitts. L. J. 209... 178 Comth. V. Curtis, 14 Fhila. 361 273 Comth. V. Davis, 109 Pa. 128 447 Comth. V. Deacon, 8 S. & R. 72.... 275 Comth. V. D. & H. Canal Co., 43 Pa. „ 295 447 Comth. V. Denworth, 145 Pa. 172... 456 Comth. V. Dieffenbach, 3 Grant 368 476, 477 Comth. V. Dillon, 61 Pa. 488 447 Comth. V. Dillon, 81* Pa. 41. ....... 450 778 TABLE OF CASES. Comth. V. Directors, 17 D. R. 716.. ^ 3Si> 3SS Comth. V. Doran, 15 C. C. 385 271 Comth. V. Doylestown Spr., 16 C. C. 161 348 Comth. V. Dumbauld, 97 Pa. 293.... 448 Comth. V. Dumn, 17 Supr. C. 90..., 23 Comth. V. Edgar, 44 Supr, C. 496.. 96 Comth. V. Fenicle, 6 D. R. 789 271 Comth. V. Finn Con. Co., 60 Pitts. L. J. 183 448 Comth. V. Fisher, i P. & W. 462 114 Comth. V. Filler, 136 Pa. 129 351 Comth. V. Flannery, 203 Pa. 28.... 149 Comth. V. Fleming, 23 Supr. C. 404. 344 Comth. V. Foltz, 33 April T. 1912, Supr. C 100 Comth. V. Foster, 215 Pa. 177 351 Comth. V. Fox, 7 Pa. 336 268 Comth. V. Freedley, 6 Wharton 100. 234 Comth. V. Friends* Home, 7 D. R. 653 276 Comth. V. Gas Co., 6 Kulp 328 347 Comth. V. Getz, 4 D. R. 391 454 Comth. V. Gibbons, 9 Supr. C. 527.. 269 Comth. V. Gill, 10 C. C. 71 271 Comth. V. Gillespie, 16 D. R. 244.. 451 Comth. V, Girard Etc. Directors, 15 D, R. 731 3SI Comth. V. Graham, 64 Pa. 339 453 Comth. V. Gray's Etc. Co., 20 Phila. „ 405 446 Comth. V. Green, 185 Pa. 641 275 Comth. V. Guarantor's Finance Co., 30 C. C. 569 486 Comth. V. Haeseler, 161 Pa. 92.. 449, 458 Comth. V. Hanna, 17 D. R. 308.... 356 Comth. V. Hanratty, 60 Pitts. L. J. 13 666 Comth. V. Hargest, 2 Dauphin 409.. 456 Comth. V, Harrity, 9 D. R. 204..,. 21 Comth. V. Harrold, 204 Pa. 154.... 310 Comth. V. Hartranft, 77 Pa. 154.... 34s Comth. V. Haskell, 2 Brewster 491.. 298 Comth. V. Hawk, 7 Lack. L. N. 125, 355 Comth. V. Heller, 31 C. C. 267 456 Comth. V. Hirschbein, 48 Pitts. L. J. 275 310 Comth. V. Hoffman, 4 Kulp 428 — . 270 Comth. V. Holloway , 5 Binney 512. 268 Comth. V. Huttel, 4 Supr. C. 95 ... . 347 Comth. V. Jailer, 26 Pa. 279 271 Comth. V. James, 214 Pa. 319 351 Comth. V. Jankovic, 216 Pa. 615 451 Comth. V, Johnson, 19 Supr. C. 241. 279 Comth. V. Judges, 3 Binney 273.... 345 Comth. V. Keeper Etc., 26 Supr, C. 191 269 Comth. V. Kempsmith, 13 C. C. 667. 447 Comth. V. Kessler, 222 Pa. 32 351 Comth. V, Ketner, 92 Pa. 372 277 Comth. V. Killacky, 3 Brewster 565. 270 Comth. V. Killinger, i Pearson 257. 352 Comth. V. Kirkbride, i Brewster 541. 276 Comth. V. Kistler, 149 Pa. 345.. 450, 452 Comth. V. Knorr, 25 C. C. 244.... 344 Comth. V. Lambert, 4 C. C. 439.... 303 Comth, V. Larkin, 216 Pa. 128 351 Comth. V. Lentz, 13 D. R. 388 450 Comth. V. Little, 33 W. N. C. 486.. 274 Comth. V. McAleese, 192 Pa. 410... 271 Comth. V. McAvoy, g Kulp 168.... 447 Comth. V. McClure, 204 Pa. 196.... 351 Comth. V. McCracken, 25 C. C. 512. 99 Comth. V. McDougal, 203 Pa. 291.. 278, 279 Comth. V. Martin, 170 Pa. 118 352 Comth. V. Masonic Etc., 20 C. C, 46s 455 Comth, V, Mathues, 210 Pa. 372.... 348 Comth, V. Maurer, 42 Supr. C, 17a.. 279 Comth. V. May, 24 C. C, 546 269 Comth. V. Meadville Telephone Co., 35 C, C. 456 3S5 Comth. V. Meanor, 167 Pa. 92 451 Comth. V. Meredith. 14 W. N. C. 188 306 Comth. V. Metz, 17 C. C. 541 303 Comth. V. Miller, 14 D, R. 667 450 Comth. V. Monon. Bridge Co., 216 Pa. 108 458 Comth. V. Moore, 199 Pa. 160 461 Comth. V. Newcomet, 18 Supr. C. S08 Comth. V. Nuber, 6 Supr. C. 420 Comth, V. O'Donnell, 188 Pa. 23 Comth. V. Order of Solon, 166 Pa. 279 269 459 33 447 Comth. V. Order of Vesta, 156 Pa. 531 20. 462 Comth. V. Overholt, 23 Supr, C. 199. 484 Comth. V. Parke, 6 C. C. 144 314 Comth. V. Parsons, 217 Pa. 43 s 451 Comth. V. Patterson, 13 Supr. C. ^136 • .-.314* 334 Comth. V. Penn Park St. R. Co., 19 York 193. 450 Comth. V, Penna. R. Co., 6 D. R. 266 356 Comth. V. Perkins, 124 Pa. 36. . . . 275 Comth. V. Phila., 30 C. C. 180 344 Comth. V. Phila., 176 Pa. 588 355 Comth. V. Phila., 180 Pa. 12 356 Comth. V. Phila., 193 Pa. 236 449 Comth. V. Phcenix Iron Co., 105 Pa. ^563 : 351 Comth. V. Pitcairn, 204 Pa. 514 311 Comth. V. Pittsburg, 209 Pa. 333 351 Comth. V. Pittsburg Co., 180 Pa. 578. 199 Comth. V. Pittsburg Councils, 34 Pa. 496 356 Comth. V. Pitts. Etc. R. Co., 32 C. C. 401 451 Comth. V. Potter Etc. Co., 212 Pa. 463 451 Comth. V. R. Co., 27 Pa. 339 113 Comth. V. R. Co., 58 Pa. 26 148 Comth. V. R. Co., 62 Pa. 286 106 Comth. V. R. Co., i C. C. 214, 223.. 149 Comth. V. R. Co.. 6 D. R. 565 348 Comth. V. R. Co., 203 Pa. 608.. 124, 132 Comth. V. Reed, 59 Pa. 425 273 Comth. V. Reeves, 140 Pa. 258 306, 307. 310 Comth. V. Reilly, 14 D. R. 531 450 Comth. V. Reno, 25 C. C. 442 44S Comth. V, Richards, 131 Pa. 209 100 Comth. V. Risser, 3 Supr. C. 196.. 346 Comth. V. Roberts, i Chester Co. 24. 307 Comth. V. Ross, 7 Lane. L. R. 342.. 282 Comth. V. Ross, 13 D, R. 493 275 Comth. V. Russell, 172 Pa. 506 666 Comth. V. Sage, 160 Pa. 399 278 Comth. V. Schneider, 59 Pa. 328 306 Comth Etc. Co. v. Seltzer, 227 Pa. ^410 538, 539 Comth. V. Shaffer, 32 Supr. C. 375 132* 136 Comth. V. Scranton, 2 J. L. R. 106.. 275 Comth. V. Sechrist, 27 Supr. C. 423. 269 Comth. V. Sheriff, 16 S. & R. 304.. 272 Comth. V. Sheriff, 7 W. & S. 108 270 Comth. V. Sheriff, 10 C. C. 341 277 Comth, V. Sheriff, 38 C. C, 55 269 Comth. V. Shortall, 206 Pa. 165 268 Comth. V. Shrontz, 213 Pa. 327 450 Comth. V. Skinner, 14 C. C. 347.... 449 Comth. V. Sperling, 11 Kulp 193.... 99 TABLE OF CASES. 779 Comth. V, Standard Trust Co., 31 C. C. 206 48a Comth. V. Steelton Etc. Assn., 2 Dauphin Co. 200 453 Comth. V. Stevens, 168 Pa. 582 455 Comth. V. Stevens, 10 D. R. 652.... 99 Comth. V. School Directors, 4 D. R. „3i4 355 Comth. V. Smith, 10 Northam. 340.. 351 Comth. V. Snavely, 28 C. C. 488 28 1 Comth. V. South Penn R. Co., i C. C. 214 112 Comth. V, Strickland, 27 Supr. C. 309 « 279 Comth, V. Stevens, 178 Pa. 543.. 616, 652 Comth. V. Straus, 32 Supr. C, 389 . . '451 Comth, V. Sturtevant, 182 Pa. 323... 453 Comth. V. Swank, 79 Pa. 154 454 Comth. V. Stroup, 29 C. C. 456 2S2 Comth. V. Supt. of County Prison, 220 Pa. 401 279 Comth. V. Taylor, 159 Pa. 451 458 Comth. V. Textile Etc. Co., 11 Dau- phin Co. 51 490, 493 Comth. V. Union Etc. Co., 37 Supr. C. 179 13 Comth. V. Wahlers, 7 Lack. Jur. 147 •• 447 Comth. V. Wallace, 114 Pa. 411 450 Comth. V. Warren, 217 Pa, 163.... 451 Comth. V. Warwick, 185 Pa. 623.... 356 Comth. V. Weaver, 14 D. R. 302.... 347 Comth. V. West Chester, 9 C. C. 542. 142 Comth. V. Westfield, i D. R. 49s--- 352 Comth. V. Whitlock, 12 D. R. 79' •• 45 6 Comth. V. Wickersham, 90 Pa. 311 345. 449 Comth. V. Wilkes-Barre Etc. Co., 12 Luz. L. R. 75 650 Comth. V. Williamstown Etc. Direc- tors, 16 D. R. 707 351 Comth. V. Willis, 10 Kulp 300 448 Comth. V. Winterstown Etc., 17 D. R. 775 4SO Comth. V. Wolfgang, 21 D. R. 193.. 455 Comth. V. Wright, 3 Grant 437 268 Comth. V. Wright, 126 Pa. 464 277 Comth. V. Yetter, 190 Pa. 488 448 Comth. V. Young, 11 Phila. 606 483 Comth. V. Young, 16 C. C. 540 282 Co. V. Phila., 15 W. N. C. 57 198 Comstock V. R. Co., 169 Pa. 582. — 138, 225, 226, 229 Condron v. R. Co., 233 Pa. 197.. 642, 677 Cone V. St. John, 180 Pa. 25 622 Conemaugh Gas Co. v. Jackson Etc. Co., 186 Pa. 433 523, 527, 620 Confer's Est., 17 D. R. 742 93 Conley's Petn., 3 D. R. 623 282 Conley v. Bentley, 87 Pa. 40 264 Conneaut Etc. Co. v. Rhoades, 34 C. C. 360 573 Conrad v. Conrad, 36 Supr. C. 154 525. 617 Conrad v. Dunmore, 12 Lack. Jur. 55 652 Conrad v. Groff, 17 Lane. L. R. 203. 54 Consolidated Ice Co. v. R. Co., 224 Pa. 487 232 Conshohocken Tube Co. v. Iron Etc. Co. 167 Pa. 592 482 Con. Oil Etc. Co. v. Jarecki Mf'g Co., 157 Pa. 342 601 Con. Stock Ex., 31 C. C. 326 450 Continental Ins. Co. v. Delpeuch, 82 Pa. 22s 594 Conway v. Chestnut St. Natl. Bk., 189 Pa. 610 482 Cooke V. Boynton, 135 Pa. 102 651 Cooke V. Central Etc. Co., 21 Supr. C. 43---; 548, 559 Cook V. Columbia Brush Co., 21 Lane. L. R. 17 46$ Cook V. Listen, 192 Pa. 19 527 Coolbaugh v. Kinsey, 11 Northam. 242 649 Cooley's Ap., i Grant 401 38 Coolidge V. Coolidge, 4 C. C. 374.... 76 Cooper V. Cooper, 37 Supr. C 246.. 81 Cooper V. Edeburn, 198 Pa, 229 . . . 422 Cooper V. Potts, i8s Pa. 115. 532 Corbe v. Burkett, 33 Supr. C. 317.. 527 Cope, in re, 7^ C. C. 406.... 303 Cope v. Hastings, 183 Pa, 300 652 Coppes V. Keystone Etc. Co., 36 Supr. C. 38 527 Corbe v. Burkert, 33 Supr. C. 317.. 527 Corbett v. Oil City Etc. Co., 21 Supr. C. 80 527 Cornell's Ap., 1 14 Pa. 153 539 Cort's Appn^ 7 D. R. 536 487 Costello V. Costello, 191 Pa. 379.... 77 Couch V. Kennedy, 31 C. C. 326.... 52 County's Ap., 119 Pa. 159 132, 241 County V. Bridge Co., no Pa. 54.. 186, 221 County V. R. Co., 118 U. S. 394.... 103 County of Chester v. Brower, 117 Pa. 647 231, 233 Cover V. Brown, 7 D. R. 19 383 Covert V. R. Co., 18 Supr. C. 541.. 14s Covert V. R. Co., 204 Pa. 341 ^ 144, 14s, 211 Cowans Ap., 2 Mona. 609 366 Cowan V. Penna. Plate Glass Co., 184 Pa. 1 467 Coward v. Llewellyn, 209 Pa. 582 . . 6s8 Cox v. Freedley, 33 Pa. 124 120 Cox v. R. Co., 21S Pa. 506 221, 222 Cox V. Watts Etc. Ltd., 157 Pa. 93 439 Craft V. Morrow, 25 C. C. 487 51 Craft V. Yeany, 66 Pa. 210 121 Craig's Ap., 92 Pa. 396 29 Crammond v. Bank of U. S., 4 Dallas 291 415 Crangle v. Harrisburg, 1 Pa. 132... 238 Crawford v. Burke, 195 U. S. 170.. 54 Crawford v. Crawford, 25 C. C. 289. 82 Crawford v. Hoffecker, 5 Lack. L, ^ N. 379 50 Crawford v. Rumpf, 205 Pa. 154. 51 Crawford Etc. v. Bank, 164 Pa. 109. 20 Crescent Twp. v. Pitts. Etc. R. Co., „2io Pa. 334 137 Crescent Twp. v. Pitts. Etc. R. Co., 216 Pa. 481 676 Croasdale v. Von Boyneburgh, 206 Pa. 15....... A---377, 474,639 Crocker v. Crocker, 19 C. C. 156. . . . 69 Crombie v. Order of Solon, 157 Pa. ^S88 46s Cronise v. Cronise, 54 Pa. 255 60 Cronkright v. Trexler, 187 Pa. 100.. 378 Cross v. Smith, 14 C. C. 36 20 Crouse v. Bedell, ii Supr. C. 598 491, 689 Crouse v. Fisher, 20 D. R. 447 581 Crouse v. Fisher, 15 Luz. L. R. 123. 573 Crow V. Green, in Pa. 637 391 Croyle v. Guelich, 35 Supr. C. 356. 533 Cumberland V. R. Co. v. McLanahan, 59 Pa. 23 112 Cumb. V. R. Co. v. Rhoadarmer, 107 Pa. 214 131, 141 Cumb. V. R. Co. v. Gettysburg Etc. R. Co., 197 Pa. 32 600 78o TABLE OF CASES. Cumb, V. R. Co. V. Gettyeburg Etc. R. Co., 177 Pa. 519 652 Cummins v. German Etc. Co., 197 _ Pa. 359 292 Cummins v, German Etc. Co., 192 Fa. 61 292 Cuhdey v. Hall, 208 Pa. 335 411 Curran v. Bore, 20 Supr. C. 590. — 141 Curran v. Coal Co., 6 Schuylkill Co, 330 680 Currey v. McCurdy, 29 Supr, C. 287 654 Curry v. Morrison, 40 Supr. C. 301. 379 Curry v. Morrison, 43 Supr. C. 648. 379 Curtin v. R. Co., 135 Pa. 20 229 Curtis V. Long, 12 Luz. L. R. 381.. 520 Gushing v. Perot, 175 Pa. 66.... 475, 480 Dallett V, Ogden, 20 D. R. 846 377 Damms v. Humboldt F. Ins. Co., 226 Pa. 358 292 Damon v. R. Co., 119 Pa. 287 ^34 Daniel v. Lance, 29 Supr. C. 454 — . 378, 379, 380, 384 Danko v. Nydeck, 4 Schuylkill Co. 195 553 Danville Etc. R. Co. v. Gearhardt, 8i* Pa. 260 227 Danzer v. Hersker, 34 C. C. 251.... 653 Dare v. Bennett Bretz Piano Co., 30 C. C. 48 1 466 Darlington's Ap., 86 Pa. 512 579 Darlington v. Clemson, 41 Supr. C. 309 578 Darlington v. U. S., 82 Pa. 382.. 106, 207 Dartmouth College v. Woodward, 4 Wheaton 41S 106 Dasey v. Dasey, 13 C. C. 612 74 Daugherty v. Daugherty, 28 Supr. C. 327 77> 83 Daugherty Etc. Co. v, Kittanning Etc. Co., 178 Pa. 215 661 Davenport v. Davenport, 10 Luz. L. R. 48 91 Davenport v. Davenport, 17 D. R. 1005 72 Davies v. First Welsh Baptist Church, 4 Lack. Jur. 181 348 Davis V. Davis, 12 Luz. L. R. in., 87 Davis V. Davis, 50 Pitts. L. J, 399.. 69 Davis V. Davis, 25 C. C. 495. 72 Davis v. Davis, 26 Montg. Co. 109.. 60 Davis v. Davis, 24 York 63 60 Davis V. Jefferson Gas Co., 147 Pa. 130 i37» 140* 224 Davis V. Michener, 106 Pa. 395.... 33 Davis V. Patterson, 12 Supr. C. 479- 344 Davis V. R. Co., 114 Pa. 308 131, 237 Davis v. R. Co., 14 Luz. L. R. 419.. 673 Davis v. R, Co., 215 Pa. 581.... 229, 243 Davis v. Sidle, 25 C. C. 122 383 Davis v. S. Etc. Lines, 34 Supr. C. 438 115. 438, 674 Davis v. S. Etc. Lines, 223 Pa. 56.. 674 Davis Coal Etc. Co. v. Hess, 30 Supr. C. 193 483 Davison v. Shenandoah, 38 C. C. 697 656, 666 Daw V. Enterprise Etc. Co., 160 Pa. 479 661 Dawes v. Dawes, 8 Lack. Jur. 87.. 69, 94 Dawson v. Lancaster, 12 D. R. 501. 364 Dawson V. Lancaster, 28 C. C. 657.. 540 Dawson v. Roney, 15 Phila. 92 264 Day's Est., 21 Supr. C. 118 532 Deacon v. Deacon, 11 D. R. 112. .89, 93 Dean v. Winton, 8 Lack. L. N. 73., 500 Dechert v. Comth., 113 Pa. 229.,.. 34s De Coursey's Est., 211 Pa. 92 432 Deemer v. R. Co., 212 Pa. 491.. 105, 107 Degen v. Water Co., 3 Lack. Jur. 233 118, 209^ Degenhardt v. Aacken Etc, Co., 44 Supr. C. 644 294 De Haven's Est., 24 Lane. L. R. 97; 41 Supr. C. 382 634 Deibert v. Deibert, 3 Schuylkill Co. 193 97 Deitzler v. Mishler, 37 Pa. 82 256 Delaware County's Ap., 119 Pa. 159 549f 645 D. & H. C. Co. v. Boro., 224 Pa. 387 660 Del. & Hudson Co. v. Coal Co., 12 Lack. Jur. 49 663 D. L. & W. R. Co. V. Burson, 6i Pa. 369 144, 211, 240 D. L, & W. R. Co. V. D. B. R. Co., 211 Pa. 591 141,679 D. L. & W. R. Co. V. R. Co., 11 C. C. 165 . . . . ^. 141 De Long v, De Long, 19 D. R. 771 . . 89- Delosier v. Canal Co., 11 Atl. R. 400 X06' Delp V. Ediis, 190 Pa. 25 413. Del. Vecchio v. Del Vecchxo, 21 D. R. 564 68^ Dempster v. Baxmyer, 231 Pa. 28.. 531 Dennis v. Grove, 4 Supr. C. 480.... 267 Dengler's Ap., 125 Pa. rz 41a Denniston v. Phila., i Supr, C. 599 167, 251 Denniston v. Phila. Co., 161 Pa. 41 222, 224, 229, 230 Denny v. Bellevue Boro, 56 Pitts. „L. J. 25 671 Denny v. Fronheiser, 207 Pa. 174.. 652 Denney v. Susq. I. & S. Co., 21 Lane. L, R. i 46s Detrick's Ap., 117 Pa. 452 83 Dettra v. Kestner, 147 Pa. 566.... 482- De Turk v. Comth., 129 Pa. 151 45S De Turck v. Woelfel, 19 Supr. C. 265-70 2a Detwiller's Ap., 96 Pa. 323 27 Dever v. Knapp, 7 Schuylkill Co. 47. 55^ Devine's Case, 9 Phila. 553 181 Devine v. Frankford Etc. Co., 205 Pa. 114 466- Devine v. R. Co., 29 Leg. Int. 220.. 22a Devlin's Est., 12 D. R. 595 5, 21 Devlin v. Poor Richard Club, 19 D. R. 326 650- De Walt v, Bartley, 146 Pa. 525... 686 Dick's Ap., 106 Pa. 589 388, 552 Dickey v. Norris, 216 Pa. 184 525 Dickey v. Stevenson, 198 Pa. 447... 532 Dickson's Est., 166 Pa. 134 15 Dickinson v. A. O. U, W., 159 Pa. 258 286- LViller v. Pipe Line Co., 9 Lane L. R. I2S 211 Dillon V. Hegarty, 222 Pa. 166 Dilts V. Plumville R. Co., 222 Pa. 516 112, 131, 237 Dilworth v. Kennedy, zoi Pa. 388.. 424 Dilworth Coal Co. v. Kidney, 43 Supr. C. 625 529 Dimmick v. Brodhead, 75 Pa. 464.. 242 Dinner v. Van Dyke, 25 Supr. Q. 433........... '■'••• -53^' 549, 653 Dipple V. Dipple, 15 D. R. 547 9& Dixon v. Wood, 22 C. C. 634 383 Dobson V. R. Co., 6 Montg. Co. 109. 114. TABLE OF CASES. 781 Dock V. Dock, 180 Pa. 14 553, 682 Dodd V. Smith, 144 Fa. 340 682 Doescher's Petn., 18 Supr. C. 346 . . 283 Doherty v. Ross, 189 Pa. 434 532 Dolhenty's Est, 11 D. R. 187 470 Dollar Etc. Co. v. Bellevue, 230 Pa. 240 238 Dominico v. Prudential Etc. Co., 49 Supr. C. 156 285 Donaldson v. R. Co., 15 W. N. C. 312 • 236 Donatelli v. Casciola, 215 Pa. zi.,.. 531 Donner v. Donner, 217 Pa. 37 622 Donora Etc. R. Co. v. Penna. R. Co., 213 Pa. 119 145 Dooley v. R. Co., 19 W. N. C. 87.. 23S Dooner v. R. Co., 142 Pa. 36 233 Doran v. R. Co., 46 Pa. 520 229 Doremus v. Patterson, 63 N. J. Eq. 605 128 Dorrance v. Bristol, 224 Pa. 464.... 116 Dorsheimer v. Slaymaker, 27 Lane. L. R. 158 664 Dougherty v. Cumberland County, 26 Supr. C. 610 ..281 Dougherty v. McBride, 10 Kulp 551. 354 Douglass V. McLean, 25 Supr. C. 9 344 Dowd V. Crow, 205 Pa. 214 531 Dowling V. Merchants' Ins. Co., j68 Pa. 234 294 Dowling V. R. Co., 21 W. N. C. 527. 166 Doyle V. Brundred, 189 Pa. 113.359, 363 Doyle V. Comth., 107 Pa. 20 279 Doyle V. Longstreth, 6 Supr, C. 475. 413 Drape v. Coleman, 233 Pa. 585 530 Dreisbach t. Bank, 113 Pa. 554 18 Dreisbach v. Serfass, 126 Pa. 32.... 258 Dryden v. R. Co., 208 Pa. 316.. 135, 167 Dubois' Ap., 38 Pa. 23 1 3 DuBois V. Kirk, 158 U. S. 58 638 DuBois V. Water Co., 176 Pa. 430.. 199 Duff V. Heppenstall Co., 59 Pitts. L. J. 24 590 Duncan v. Iron Works, 136 Pa. 478. 512 Duncan v. R. Co., 7 W. N. C. 551.. 149 Duncan t. R. Co., 94 Pa. 435 124 Dunham v. Loverock, 158 Pa. 1^7.. 377 Dunmore Boro v. Scranton, 34 Supr. C. 294 676 Dunn V. Farmers* Fire Ins. Co., 34 Supr. C. 245 288, 293 Dunshee v. Traveler's Ins. Co., 25 Supr. C. 559 296 Duplex Etc. Co. v. Qipper Pub'g Co. 213 Pa. 207 479 Duquesne Sav. Bk's Ap., 96 Pa. 298. 266 Dusenberry v. Dusenberry, 20 D. R. 723 68 Dusenberry v, Dusenberry, 59 Pitts. L. J. 133 72 Dwyer v. Wright, 162 Pa. 405 258 Dyer v. R. Co., 28 Montg. Co. 18.. 132 Dzmura v. Gyurki, 41 Supr. C. 398 664 E Earp's Est., 6 Phila. 138 SS7 Eastman v. Water Co., 222 Pa. 355. 671 East Penn R. Co. v. Hiester, 40 Pa. 53 • 220 East Etc. R. Co. v. Ranck, 78 Pa. 454 223 East Penna. R. Co. v. Schollen- berger, 54 Pa. 144 130 Easton Etc. R. Co. v. Easton, 133 Pa. 505 688 Eau Claire Natl. Bank v. Jackman, 20^ U. S. 522 51 Eberly v. Lehman, 100 Pa. 542 258 Eberly's Est., 22 Lane. L. R. 278... 29 Ebert v. Kaufman, 41 Supr. C. 491 ■ ■ 68 r Ebling's Est., 134 Pa. 227 307 Ebling's Est., 134 Pa. 235 31a Eckert v. Eckert, 3 Berks Co. J13.. 81 Eckert v. Eckert, 38 C. C. 625 87 Economy Imp. Co. v. R. Co., 57 Pitts. L. J. 273 115, 209 Edgar v. Edgar, 23 Supr, C. 220... 90, 92 Edgewood R. Co.^ Ap., 79 Pa. 257 1 14, 242 Edgewood Water Co. v. Troy Water Co., 7 C. C. 476 115,209 Edison Etc. Co. v. Tamaqua Etc. Co., 21S Pa. 237 €17 Edmond's Ap., ^ Pa. 232 92 £dm(undson v. R. Co., jii Pa. 316 138, 222, 223 Edson V. Edson, 11 Kulp 268 72 Edwards v. Lycoming Etc, Co., 75 Pa. 378 293 Edwards v. Pbg. June. R. Co., 215 Pa. 597 675 Edward Thompson Co. v. Aip. Law Book Co., 122 Fed. R. 922 682 EiHnger v. Hain, 10 D. R. 107 520 Egbert v. Kimberly, 146 Pa. 96.... 438 Egolf V. Egolf, 4 Berks Co. 183 94 Ehret V. R. Co., 151 Pa. 158.... 213, 232 Ehrhart v. Bear, 15 Oct. T. 1911 Supr. C 100 Eichbaum v. Sample, 213 Pa. 216... 523 Eichenberg v. Cooper, 20 Lane. L. R. 78 12 Eichman v. Hersker, 170 Pa. 402.269, 481 Einwer v. Trafford Water Co., 15 D. R. 876 346 Eisenberger v. Eisenberger, 38 Supr. C. 569 521 Elberman v. Bloom, 10 C. C. 413... 25 Elbert V. O'Neill, 102 Pa. 302 258 Elec. Etc. Co. V. Chappell, 12 Lack. Jur. 361 56 Elk Brewing Co. v. Neubert, 213 Pa. i;i 547 Ellerman, in re, 32 C. C. 241 338 Ellis V. Agricultural Ins. Co., 7 Supr. C. 264 292 Ellis V. Anderson, 49 Supr. C. 245. 285 Ellis V. Ellis, 8 D. E. 722 367 Ellis V. Martin, 170 Pa. 129 41 Ellison V. Anderson, no Pa. 486.... 264 Elmendorf v. Whitney, 153 Pa. 460. 100 Elmer v, Elmer, 350 Pa. 205 (t2, 94, 96 Elsey V. McDaniel, 95 Pa. 472 265 Emericfc v. Moir, 124 Pa. 49S. .399, 411 Emenr v. DeGolier, 117 Pa. 153.... 259 Emirs Est., 18 York 97 38, 40 English V. English, 19 Supr. C. 586 „ •. 84, 90, 02, 93, 98 Ephrata Natl. Bank v. Sheaffer, 18 Lane. L. R. 385 , 54 Equitable Trust Co. v. Garis, 190 Pa. „ 544 • 318 Erb's Est., 14 D. R. 286 318 Erben v. Heston, 202 Pa. 406 399 Erdner v. Erdner, 234 Pa. 500 466 Erie Etc. R. Co. v. Casey, 26 Pa. 287 137 Erwin's Aa, 39 Pa- 53S 381 Eshbach s Est., 197 Pa. 153; 162... 500 Eshelman v. Stewart, 25 Lane. L. ^R. JS9 6s7 Eslen s Est., 211 Pa. 215 55 Esterly v. Bressler, 15 Supr. C. 455. 418 782 TABLE OF CASES. Eureka Knitting Co. y. Snyder, 36 Supr. C. 336 412 Evans v. Evans, 155 Fa. 572 267 Evans v. Evans, 6 Scliuylkill Co. 32. 688 Evans v. Goodwin, 132 Pa. 136.... 5 Evans v. Reading Etc, Co. Ltd., 160 Pa. 209 439, 661 Evans v. Watts, 192 Pa. 112 416 Everett v. Everett, 16 C. C. 599 68 Everhart v. Everhart, 16 D. R. 791. 73 Everly v. Harrison, 167 Pa. 355 502 Everson Bore, 31 Supr. C. 170.... 584 Exler V. Box Co., 226 Pa. 384 53 F. L. Grant Shoe Co. v. Laird, 212 U. S. 44S •■••• 54 Fackner v. Fackner, 9 D. R. 739 .. . 72 Failey v. Stockwell, 2 D. R. 197... 45 Fair Etc. Est., 183 Pa. 96, 103 439 Fale's Est., 17 D. R. 125 496 Farber v. Laubach, 9 Northam. 185. 530 Farmers' Etc. Bank v. Penn Bank, 130 Pa. 209 26 Farnham v. Canal Co., 61 Pa. 265.. 241 Farrell's Est., vj Supr. C. 240 39 Farrell v. Young, 26 Supr. C. 135.. 422 Farrow v. Farrow, 16 D. R. 978 • ■ . • 465. 637 Faunce v. Faunce, 20 Supr. C. 220 . . 92 Faust V. R. Co., 3 Phila. 164 142 Fay V. Fay, 2j Supr. C. 328 74. 80, 93, 97 Fehl V. Fehl, 17 D. R. 331 96 Fehr v. Nav. Co., 69 Pa. 161 241 Fellbush v. Fellbush, 216 Pa. 141.. 584 Fellows v. Smith, 190 Pa. 301 524 Felty v. Calhoon, 147 Pa. 27 557 Felty V. Deaven, 166 Pa. 640 25 Fenn v. McCarrell, 208 Pa. 615 620 Ferguson v. Greth, 195 Pa. 272 52 Ferguson v. Yard, 164 Pa. 586...... 548 Fernald v. Fernald, s" Supr. C. 629. 97 Ferrance's Ap., 107 Pa. 180 19 Ferree v. Ralph, 56 Pitts. L. J. 182. 590 Fessler's Ap., 75 Pa. 483 633 Fidelity Ins. Co.*s Ap., 93 Pa. 242. 94 Fidelity Etc. Co. v. Bell, 188 Pa. 637. 420 Fidelity Etc. Co. v. Schenley Etc. R. Co., 189 Pa. 363 485 Fidelity Etc. Co. v. Weitzel, 152 Pa. 498 583 Fifth Etc. Assn. v. Goldberg, 22 Supr. C. 197 54 Fillman's Ap., 99 Fa. 286 72 Finch V. Finch, 9 Lack. Jur. 89 ... . 79 Fink v. Van Fossen, 206 Pa. 362,. 523 Finletter v. Appleton, 19s Pa. 349. . 548 Finletter v. Baum, 207 Pa. 361.... 431 Finn v. Water Co., 99 Pa. 631 .... 127, 128, 251 Finney v. Somerville, 80 Pa. 59 116 Firmstone v. Spatter, 150 Pa. 616.. 122 First Natl. Bank Etc. v. Bartlett, 35 Supr. C. 593 57 First Natl. Bk. Etc. v. Creveling, 177 Fa. 270 437 First Natl. Bank v. Maikranz, 44 Supr. C. 225 291 First Natl. Bank Etc. v. McKinley Coal Co., 213 Fa. 413 637 First Natl. Bank v. Staake, 202 U. S. 141 S3 Fischer v. R. Co., 17s Fa. 554.. 132, 209 Fischer v. Riehl, 219 Pa. 505. 552 Fisher v. Am. Etc. Co., 189 Pa. 419. 661 Fisher v. Gas Co., i Fearson 118.. 224 Fisher v. D. L. & W. R. Co., 227 Fa. 635 232 Fisher v. Fidelity Etc. Assn., 188 Pa. 1 , 4 286, 296 Fisher v. Hartman, 165 Pa. 16 654 Fisher v. Maurer, 16 D. R, 752.388, 552 Fister's Est., 14 D. R. 881 28,51 Fitzpatrick v. Engard, 175 Fa. 393.. 629 Fitasimmons v. Lindsay, 205 Pa. 79 4 522, 576 Fitzsimmons v. Robb, 173 Pa. 645.. 616 Flaccus V. Smith, 199 Fa. 128 683 Flaccus Glass Co. v. Boro, 56 Pitts. L. J. 251 659 Flannery v. Lynch, 141 Luz. L. R. 125 669 Fleming's Ap., 65 Fa. 444 128 Fleming v. Ogden, 152 Pa. 419 5 Flitcraft v. Comth. Etc. Co., 211 Pa. 114 .533 Flower v. R. Co., 132 Fa. 524 251 FoUansbee v. Walker, 72 Pa. 228.. 383 FoUweiler v. Lutz, 102 Pa, 585 9 Fonda v. Fhcenix Etc. Assn., 18 York 204 296 Forbes Street, 70 Fa. 125 3^1 Ford V. Ford, 193 Fa. 530 524 Foreman v. Hosier, 94 Pa. 418 266 Fornof's Est^ 60 Pitts. L. J. 225.. 417 Forsyth v. Colonial Trust Co., 220 Pa. 60 532, 617 Foster's Ap., 74 Pa. 391 382 Foster v. Barnes, 87 Pa. 377 381 Foster v. Verner, 152 Pa. 46 640 Foulke V. Harding, 13 Pa. 242 24 Fourth Etc. Bank v. Bacon, 170 „Fa. 30s 396 Fox v. Curtis, 176 Pa. 52 4, 465 Fox V. R. Co., 12 C. C. 180 142 Fraim Lock Co. v. Shimer, 43 Supr. C. 221 681 Frank's Ap., 59 Pa. 190 23,41 Frank's Est., 195 Pa. z(t\ 19 Supr. C. 396 100 Frank v. Stone, 12 back. Jur. 363.. 56 Frank v. Vollkommer, 205 U. S. 521 50 Frankford Etc. R. Co. v. Phila., 175 Fa. 120 118 Franklin St., 14 Supr. C. 403 „ 131. 232, 249,251 Frantz v. Frantz, 11 C. C. 467 62 Fraternal Guardians' Est., 159 Fa. 603 462 Frazee v. Light Co., 20 Supr. C. 420 167 Frazer v. Linton, 183 Pa. 186 425 Frazier v. Frazier, 32 Pitts. L. J. 222 73 Fredericks v. Canal Co., 148 Pa. 317 128, 226, 232 Fredericks v. Huber, 180 Fa. S72... 650 Freeby v. Freeby, 9 Kulp 373 90 Freedman v. Fire Assn., 168 Pa. 249 J 291 Freedley v. Jacoby, 220 Fa. 609 .. . 379 Freeland v. S. Penn. Etc. Co., 189 „Fa. 54 596 Freeman v. Lafferty, 207 Pa. 32 ... . 502 Freeze v. County, 6 W. N. C. 14s . . 233 Freiburg v. Stoddard, 161 Pa. 259.. 39 French v. R. Co., 13 Phila. 187 161 French v. Pitts. Etc. Co., 184 Pa. 161 476 Freseman v. Purvis, 59 Pitts. L. J. „ 234 652 Frey v. Stipp, 224 Fa. 390 628 Fricke Coke Co. v. Fainter, 198 Pa. 468 207, 208 TABLE OF CASES. 783 Fricke v. Quinn, 188 Pa. 474.. 600, 630 Friday v. Fenna. R. Co.» 204 Pa. 40s 243 Fries v. Ennis, 132 Pa. 195 421 Fries v. R. Co., 85 Fa, 73 132, 209 Frisbee's Ap., 88 Pa. 144 388 Frisbie v. McFarlane, 196 Pa. no... 378 Frisbie v. McFarlane, No. 2, 196 Pa. 116 383 Fritz V. British Etc. Co., 208 Pa. 268 295 Fritz V. Bucbman, Northam. 303 . . 283 Fritz V. Erie Etc. K., 155 Pa. 472 . . 651 Fromert v. Blank, 205 Pa. -299 489 Frothingham v. Boro, 12 Lack. Jur. 347 667 Frye \. Allen, 59 Pitts. L. J. 58 47 Fry V. Leopold, 21 Hontg. Co. 135. • 520 Fry V. Penna. Trusty Co., 192 Pa. 343 52 Fulford V. Fullford, 19 D. R. 821.. 630 Fulford V. Fulford, 38 C. C. 142 535. 536 Fuller V. Friske, 43 Supr. C. 489.... 656 Fulmer v. R. Co., i C. C. 46 244 Fulton's Est., 51 Pa. 204 38 Fulton V. Miller, 192 Pa. 60 364 Furey v. Metropolitan Etc. Co., 49 Supr. C. 592 287 Furth V. Stahl, 205 Pa. 439 50 Fyock's Est, 135 Fa. 522 267 G Gable v. Gable, 13 Luz. L. R. 382.. 8z Gable v. Hain, i P. & W. 264 260 Gabriel v. Sedor, 13 Luz. L. R. 396. 570 Gailey v. New Castle Etc. Co., 34 Supr. C. 533 527 Gaines v. BrockerhofF, 136 Pa. 135. 615 Galbraith v. Phila. Co., 2 Supr. C. 359 222 Galbraith v. Rutter, 20 Supr. C. 554. 654 Gale V. Gale, 13 W. N. C. in 64 Gallagher's Ap., 114 Pa. 353 16 Gallagher v. McAdams, 49 Supr. C. 81 673 Gambe v. Gambe, 22 C. C. 23 68,94 Gamble v. Elkin, 205 Pa. 226 51 Gandy v. DicksoiK 166 Pa. 422 415 Ganster v. Elec. Co., 214 Pa. 628... 115 Gantt V. Cox Etc. Co., 199 Pa. 208. 604 Gardner v. Austin, 14 C. C. 549 382 Gardner v. Chester, 13 C. C. 4..J92, 248 Gardner v. Chester, s Del. Co. 293 « 192, 248 Garis' Est., 185 Pa. 497 309> 637 Garrett v. Garrett, 11 Del. Co. 273.. 79 Garrett v. Garrett, 20 D. R. 757- •• 98 Garrett v. Garrett, 27 C. C. 237. . . . 69 Garrison v. City, 88 U. S. 196 J 04 Gartsee v. Citizens' Ins. Co., 30 Supr. C. 602 289 Garvey v. Harbison-Walker Co., 213 Pa. 177 661 Gas Co., 6 D. R. 200 117. 209 Gas Co. V. Butler Water Co., 210 Pa. 177 115 Gas Co. V. Coal Co., 192 Pa. 80 122 Gas Co. V. Pittsburg, 34 Pitts. L. J. 240 115 Gas Co. V. R. Co., 167 Pa. 6 226, 230, 234 Gas Co. V. Water Co.. 210 Pa. 177 197. 199 Gatzmer v. St. Vincent Etc., 147 Pa. 313 •• 652 Gaul's Est., 7 W. N. C. 522 307 Gauntt V. Gauntt, 16 D. R. 135 79 Vol. 4 Practice — 50 Gay V. Chambers, 37 Supr. C. 41.. 654 Gaynor v. Quinn, 212 Pa, 362 SOI, 505, 616 Gazzam v. Bair Etc. Co., 55 Pitts. L. J. 189 466 Gearhart v. Water Co., 202 Pa. 292. 221 Gearing v. Carroll, 151 Pa. 79 436 Gee V. Gee, 2 D. R. 773 78 Gehr v. Mont Alto Iron Co., 174 Pa. „430 484 Geissmger v. Boro, 133 Pa. 522.... 222 Geist's Ap., 104 Pa. 351 29 Gensemers Est., 170 Pa. 96 310 Gergenmuller v. Groff, 18 D. R. 40.. 13 German v. Gabbald, 3 Binney 304.. 236 Germanton's Assd. Est., 12 Northam. 3 Gest V. Phila. Etc. R. Co., 33 C. C. ^97 678 Getty V. Penna. Inst. Etc., 194 Pa. „57i 528, 576 Getz V. Getz, 14 D. R. 69 74 Getz V. R. Co., I Walker 427 210 Getz V. R. Co., iqs Pa. 547.212, 235, 246 Gibb's Est., IS7 Pa. 59 377 Gibble's Est., 134 Pa. 366 38 Gibbon's Ap., 104 Pa. 587 367 Gibbons v. Gibbons, 175 Pa. 475.. 622 Gibson v. Bridge Co., 192 Pa. 55.. 131 Gibson v. Johnson, 23s Pa. 115.... 617 Gibson v. IT. S., 166 U. S. 269 128 Giering's Est., 10 Northam. 137.338, 620 Gilbert's Est., 29 Lane. L. R. 76 . . . 11 Gilbert v. Gilbert, 30 C. C. 418. . . 96 Gilbert v. Gilbert, 14 D. R. 534 96 Gilfillan v. Grier, 145 Pa. 317.. 549, 647 Gilkeson v. Thompson, 210 Pa. 355 537, 548 Gill V. Gill, 13 D. R. 10 73 Gillespie v. Blair Glass Co., 1S9 Pa. SO 475 Gillespie v. Keating, 180 Pa. 150. . 18 Gilmore v. R. Co., 104 Pa. 27s 230 Gilmore v. R. Co.,, 153 Pa. 31 124 Gilmore v. Smith, 31 C. C. 113 56 Gilroy's Ap., 100 Pa. 5. 346, 447 Gilroy v. Comth., 105 Pa. 484 450 Ginn v, Benner, 180 Pa. 396...... 433 Girard Ave., 44 Leg. Int. 166 142 Girard Etc. Co. v. Bedford Etc. . Co., 20 Supr. C. 304 491 Given v. Given, 25 Supr. C. 467... 94 Given v. Sands, 216 Fa. 463 596 Glaser v. R. Co., 208 Pa. 328 13s Glenn v. Mickey, 130 Pa. 586 32 Globe Ref. Co.'s Est., 151 Pa. 558.. 28, 439 Gloninger v. Hazard, 42 Pa. 389 . . . 540 Glynn v. Bank of England, 2 Vesey Sr. 41 584 Godino v. Kane, 26 Supr. C. 596 .. . 664 Goff V. Campbell, 11 Kulp 168 534 Goggins V. Risley, 13 Supr. C. 316 „ •,-,• ■••••, v; • • • ■■■S'4, 532. 583 Golden s Ap., ijo Pa. 581 2X Golden v. Golden, 36 Supr. C. 648.. 81, 83 Goldman v. Reyburn, 36 C, C. 581 . . 669, 673 Goldsworthy v. Boyle, 17s Pa. 246 346, 668 Good v. Altoona, 162 Pa. 493. 131 Good's Insolvency,^ 21 Supr. C. 625. 470 Good V. Fire Brick Co., 224 Pa. 496 66a Good V. Queen's Run Etc. Co., 32 C. C. 419 541,628 Good Etc, Assn. v. Amweg, 22 Supr. C. 143 267 Goodwill V. Heim, 212 Fa. 595 431 784 TABLE OF CASES. Goodwin v. Colwell, 213 Pa. 614... 496 Goodwin Etc. Co.'s Est., 166 Pa. 296 iS Goodwin v. McMinn, 193 Pa. 646.,, 502 Googe V. Gaskill, 18 Supr. C. 39... 531 Gordon v. Gordon, 48 Pa. 226 62 Gordon v. Gordon, 208 Pa. 186 84 Gordon v. Moore, 134 Pa. 486.. 432, 640 Gorgas v. R. Co., 144 Pa. 1.227,231, 251 Gorgas V. R. Co., 215 Pa. 501... 222, 228 Gorgas V. Saxman, 216 Pa. 237 337 Gorman v, McDermott, 42 Supr. C. 516 663 Gosser v. Gosser, 183 Pa. 499 78 Gould V. Brock, 221 Pa. 38 655 Gould V. Dwelling Etc. Co., 134 Pa. 570 291 Gould V. Gould, 14 C. C: 18s 68 Gourley v. Kinley, 66 Pa. 270 360 Graeff v. Felix, 200 Pa. 137.448, 531, 579 GrafiE v. R. Co., 2 C. C. 502 148 Graham's Ac^ 20 D. R. 887 16 Graham v. Carnegie Steel Co., 217 Pa. 34 327 Graham v, Cummings, 208 Pa. 516. 434 Graham v. Graham, 30 C. C. 612... 61 Graham v. Murray, 20 D. R. 298... 381 Graham v. R. Co., 145 Pa. 504. .220, 240 Grand Council v. Cornelius, 198 Pa. 46 534 Grant Etc. Co. v. Pennypacker, 6 Dauphin Co. 89 543 Grape Street, 103 Pa. 121 166 Gratz V. Lex, 6 Phila. 183 498 Graver v. Otto, 23 C. C. 227 581 Gray v. Chambers, Z7 Supr. C. 41.. 617 Gray v. Citizens' Gas Co., 206 Pa. 303 616 Gray v. Citizens' Gas Co., 212 Pa. 473 522 Graybill's Case, 2 York, 109 310 Graybill v. Hildebrand, 23 Lane. L. R. 238 378, 392 Greeby v. Greeby, 27 C. C. 95..., 90 Green v. Green, 17 D. R. 150 72 Green v. Prince Etc. Co., 25 Supr, C. 415 629 GreenawaH v. Dixon, 194 Pa. 363.. 616 Greenogle v, Greenogle, 8 D. R. 516. 74 Greensburg Etc. Co, v. Fayette Co. Etc. Co., 200 Pa. 388 529 " Gribbel v. Brown, 202 Pa. 10 616 Griel v. Buckius, 114 Pa. 187 551 Grier v. Sampson, 2-^ Pa. 183.... 122 Griffiths V. Monon. R. Co., 20 D. R. 534 528, 656 Griffith V. Smith, i Clark 479 67 Grim v. Walbert, 155 Pa. 147 639 Grimes v. Grimes, 12 Lane. L. R. 23 81 Gring v. Lerch, 112 Pa. 244.... 61, 84 Gring v. Sinking Springs Water Co., 20 D. R. 891 666 Groff's Ap., 128 Pa. 621 120, 647 Groff's Est, 139 Pa. 169 38 Groff's Est., 146 Pa. 415 41 Groflf V. City Etc., ^2 Supr. C. 416.. 492 Groff V. City Etc. Co., 46 Supr. C. 423 13 Groff V. Trust Co., 38 Supr. C. 567 622 Groff V. Turnpike Co., 144 Pa. 150.. 120 Grove's Ap., 68 Pa. 143 95 Grugan v. Phila., 158 Pa. 337 244 Guarantee Etc. Co. v. Craig, 155 Pa. 343 24 Guaranty Etc. Co. v. Powell, 150 Pa. 16 38 Guillon v. Peterson, 89 Pa. 163.... 397 Gumbert v. Gumbert, 38 C. C. 562.. 66 Gundaker v. Ehrgott, 209 Pa. 284.. 617 Gunnison v. Erie Etc. Co., 157 Pa. 303 39 Gwinn v, Lee, 6 Supr. C. 646... 4 16, 543 Gwinner v. Union Tr. Co., 226 Pa. 614 378 Gyger v. R. Co., 136 Pa. 96 149 H Hackman v. Hertzler, 12 D. R, 74 561, 639 Haddock v. Grinnell Mfg. Co., 109 Pa. 372 396 Haddock v. Haddock, 201 U. S. 562 64, 99 Haddock v. Plymouth Coal Co., 336 Jan. T., 191 1 491 Haddock v. Plymouth Coal Co., 16 Luz. L. R. X 491 Hagar v. Dist, iii U. S. 701 116 Hagerman v. Monroe Etc. R. Co., 10 Northam. 243 • 470 Hagerman v. Slate Co., 97 Pa. 534. . 148 Hagman v. Hagman, 38 Supr. C. S19 81 Hagner v. R. Co., 154 Pa. 475- •i34, i35 Haines' Est. 17*6 Pa. 354 ^92 Hake v. Sterner, 15 York 123 576 Haldeman v. R. Co., so Pa. 425 .. . 225 Hale V. Hale, 33 C. C. 526 413 Hale Etc. Co. v. Norcross, 199 Pa. 283 617 Hall's Ap., 56 Pa. 238 162, 248 Hall V. Penna. R. Co., 215 Pa. 172. 661 Hallett V. Pollock, 48 Pitts. L. J. 232 522 Hallowell v. Williams, 217 Pa. 501 . . 483 Hambleton's Ap., 102 Pa. 50 319 Hambright, in re, 10 Lane. L. R. 161 311 Hamilton v. Clarion Etc. R. Co., 144 Pa. 34 541 Hamilton v. R. Co., 190 Pa. 51..,. 229 Hamme's Est., 12 York 129 24 Hammett v, Phila., 65 Pa. 146.... 119 Hammond's Ap., 123 Pa. 503 29 Hamory v. R. Co., 222 Pa. 631.... 221 Hancock's Ap., 64 Pa. 470 75 Hancock's Est., 29 C. C. 191 340 Hancock v. Melloy, 187 Pa. 371... 616 Hancock v. Phila., 175 Pa. 124. 244 Hancock v. Watson, 9 D. R. 113.. 364 Hancock v. Watson, 27 C. C. 399.. 576 Hand v. Wiedner, 151 Pa. 362.... 583 Handy's Est., 167 Pa. 552 3, 33 Hanker's Est., 176 Pa. 19 337 Hankey v. Phila., 5 Supr. C. 148.. 143, 223, 241 Hanover Boro Alley, 4 D. R. 160.. 248 Hanover Etc. v. Mathias, 2Z York 73 660 Hanover Nat. Bank v. Moyses, 186 U. S. 181 50 Hanna v. Clark, 189 Pa. 321... 363, 496 Hanna v. Clark, 204 Pa. 149 363 Hannigan v. Hannigan, 14 York 18. 83 Hannum v, Boro, 63 Pa. 475 144, 166, 211, 240 Hannum v. Media Etc. R. Co., 221 Pa. 454 675 Hansbury v. Hansbury, 25 C. C. 508 82 Hansell v. Downing, 17 Supr. C. 235 650 Hanzell v. Allegheny, 50 Pitts. L. J- 313 659 Harbaugh Ave., 10 C. C. 440 208 TABLE OF CASES. 78s Harbison-Walker Co. v. Stanton, 56 Pitts. L. J. 339 681 Hardie v. Hardie, 163 Pa. 2^7.. 8i, 83 Hare v. Comth., 92 Pa. 141 410 Hare v. Rice, 142 Pa. 608 192 Harkins v. Buxton, 11 D. R. 159... 416 Harlan v. Langham, 69 Pa. 235 ... 361 Harley v. Leonard, 4 Sujpr. Cf. 431. 264 Harley v. Meshoppen Water Co., 174 Pa. 416 647,666 Harris v. Brewster, 154 Pa. 22.... 238 Harris v. Brown, 202 Pa. 16 412 Harris v. Parry, 215 Pa. 174.. 520, 523 Harris v. R. Co., 141 Pa. 242 222f 226, 236 Harris v. R. Co., 159 Pa. 468 252 Harris v. Rosenburg, 161 Pa. 367.. 421 Harrisburg v. Crangle, 3 W. & S. 464 144 Harrisburg Etc. v. County, 225 Pa. 467 190 Harrisburg Etc. R. Co. v. Harris- burg, 7 C. C. 5C13 149 Harrison v. Harrison, i Phila. 389. 67 Hart's Est., 203 Pa. 503; 211 Pa. „2i9 3. 16 Hartje v. Hartje, 35 Supr. C. 14... 78 Hartje v. Hartje, 39 Supr. C. 490.. 86 Hartje v. Hartje, 222 Pa. 371 86 Hartley v. Henderson, 189 Pa. 277. 433 Hartley v. Phillips, 198 Pa. 9 500 Hartman's Lunacy, 21 D. R. 708... 337 Hartman v. Hartman, 11 Lack. Jur. 285 85 Hartman v. Penna. Etc. Co., 24 C. C. 324 537 Hartwell v. Carlisle Etc. Co., 17 C. C. 565 480 Harvey v. Knapp, 194 Pa. 219 524 Harvey v. Lloyd, 3 Pa. 330... 102, 133 Haslett V. Foster, 46 Pa. 471 257 Haslet V. Kent, 160 Pa. 85 436 Hassenplug's Ap., 106 Pa. 527 309 Hassett v. Hassett, 18 C. C. 269... 82 Hasson v. Hasson, 8 D. R. 297.... 367 Hasson v. R. Co., 8 Phila. 556 118 Hastings Water Co. v. Hastings Boro, 2j6 Pa. 178.: 618 Hatton V. Brooks, 21 D. R. 817.... 346 Haught V. Irwin, 166 Pa. 548.. 47s, 487 Haupt V. Unger, 222 Pa. 439 521 Hawn V. Norris, 4 Binney yy 256 Hay V. Co., 7 Kulp 401 246 Hay V. Pipe Line Co., 8 Kulp. 112. 245 Hay V. Valley Pike Co., 38 Supr. C. 145 247 Hayes' Ap^ 123 Pa. no 363, 550 Hayes v, Sturges, 215 Pa. 605.... 668 Hays V. Briggs, 74 Pa. 373. — 138, 228 Hays V. Colonial Trust, 217 Pa. 53. 378 Hays V. Comth., 82 Pa. 518 149 Hays V. Hinkleman, 68 Pa. 324.... 127* Hays V. Risher, 32 Pa. 169... 125, 134 Hays V. S. Easton, 10 Supr. C. 390. 222 Heath v. Gardner, 10 W. N. C. 495. 260 Heath v. Heath, 44 Supr. C. 118.68, 82 Heaton v. Heaton, 8 D. R. 658.... 83 Hebb V. Ins. Co., 138 Pa. 174 238 Heck V. Collins, 231 Pa. 358. ..425, 552 Heckman v. Heckman, 215 Pa. 203 128, 524 Hecksher v. Water Co., 2 Foster 273 128, 212 Hedderson v. Hedderson, 35 Supr. C. 629 82, 93 Hedge's Ap., 63 Pa. 273 377 Heere v. Penn Natl. Bk., 160 Pa. 314 411 Heffner v. Barr, 49 Pitts. L. J. 444. 652 Heffner v. Comth., 28 Pa. 108 351 Heffner v. Heffner, 23 Pa. 104 67 Heft, in re, 22 C. C. 289 338 ,303. 6-11 Heidenreich v. Heidenreich, 9 D. R. 123 61 Heidrich v. Heidrich, 22 Supr. C. 72 77 Heilbron v. Heilbron, 158 Pa. 297 6i, 80 Heilman v. Canal Co., 50 Pa. 268.. 131 Heilman v. Lebanon Etc. R. Co., 175 Pa. 188; 180 Pa. 627.. .646, 649 Heilman v. R. Co., 14s Pa. 23.. 140, 143 Hein's' Est., 22 Supr. C. 31 99 Heine v. Lancaster Etc. Co., 49 Supr. C. SOI 28s Heintzenreither v. DuBois Bank, 4 Supr. C. 524 IS Heise v. R. Co., 62 Pa. 67 166, 248 Heiter v. Heiter, 4 Berks Co. 144 62, 63, 98 Helb V. Hake, 203 Pa. 626 413 Heller v. Moyer, 17 D. R, 905.... 570 Helt V. Helt, 7 D. R. 746 69 Hendler v. R. Co., 209 Pa. 2^(}... 123 Hendler v. Wilkes-Barre, 11 D. R. 586 688 Henkel v. R. Co., 213 Pa. 485.. 228, 243 Henry, in re, 24 C. C. 79 314, 334 Henry v. Bigley, 5 Supr. C. 503.... 267 Henry v. Black, 210 Pa. 245 548 Henwood v. R. Co., 2 Lack. Jur. 244 246 Heppenstall v. Leng, 217 Pa. 491.. 525 Hercules Etc. Co. v. Segal, 185 Pa. 60s 532 Herman v. Potamkin, 24 Supr. C. II 385 Herr v. Herr, 17 Lane. L. R. 209, II 83, 86 Herr v, Reinoehl, 209 Pa. 483 .... 267 Herron v. Wampler, 194 Pa. 277; 198 Pa. 77 417 Hespensheide s Ap., 4 Penny. 71... 112 Hess* Est., 68 Pa. 454 27 Hess* Est., 2? Supr. C. 498 532 Hess V. Hanover Etc. Co., 38 Supr. C. isi 294 Hess V. Hartford Etc. Co., 38 Supr. C. is8 294 Hessenbruck v. Markle, 194 Fa. 581 570 Hetrick's Case, 23 C. C. 522... 300, 331 Hettrick v. Hettrick, 55 Pa. 290.... 99 Hetzel V. Sawyer, 10 D. R. 29 20 Hewit V, Berlin Etc. Works, 194 U. S. 296 54 Hewitt's Ap., 88 Pa. 55 138 Hewitt V. Huling, 11 Fa. 27 258 Hewitt V. R. Co., 19 Supr. C. 304.. 222 Hey V. Springfield Water Co., 207 Pa. 38 199,651 Hexamer v. Hexamer, 42 Supr. C. 226 61, 79, 86 Hibberd v. Hubbard, 211 Pa. 331; . 338 419 Hicks V. Am. Nat. Gas. Co., 207 Pa. 570 650, 6s8 Higgins V. Higgins, 216 Pa. 397... 583 Highspire Boro v. York Haven Etc. Co., 32 C. C. 95 650 Hildebrand v. Bowman, 100 Pa. 580 II Hill V. Hill, 32 C. C. 466 79 Hill V. Stetler, 127 Pa. 14s 436 Hilliard v. Enders, 196 Pa. 587 20 Hilliard v. Sterlingworth Etc. Co., 221 Fa. 503 493 786 TABLE OF CASES. Hilt T. Hilt, 9 D. R. 169 62 Hilt T. Hilt, 23 C. C. 422 96 Hilt V. Hilt, No. 94 April T., 1912, Supr, C 99 Hinchman, in re, 4 Clark 184 299 Hinds V. Battin, 163 Pa. 487 437 Hinnershitz v. Tr. Co., 206 Pa. 91 140, 223 Hintermeister v. Ithica Etc. Co., 3 Kulp. 490 490 Hirst V. Freeman, 3 D. R. 261 44 Hiscock V Varick Bank, 206 U. S. 28 50 Hite Natl. Gas Co.'s Ap., 118 Pa. 436 438 Hoats V. Hoats, 12 Northam. 186.. 79 Hobson V. Phila., 155 Pa. 131 234 Hoch V. Hoch, 197 Pa. 3S7 524 Hodder v. Hogg Co., 223 Pa. 196.. 351 Hodder v. Hogg, 230 Pa. 9 674 Hodenpuhl v. Mines, j6o Pa. 466.. 4, 15, 439 Hofecker v. Pfeil, 193 Pa. 288 524 Hofferditz v. R. Co., 129 Pa. 264.. 236 Hoffman's Ap., 118 Pa. 512....... 132 Hoffman's Est., 209 Pa. 357 337 Hoffman v. Hoffman, 30 Pa. 417.... 61 Hoffman v. Hoffman, 53 Pitts. L. J. 43 424 Hoffman v. K. Co., Z43 Pa. 503.. 134, 229, 230, 25 X Hoffman v. R. Co., 157 Pa. 174.... 225 Hoffman v. R. Co., 43 Supr. C. 19.. 135 Hoffman v. Strong, 49 Supr. C. 546. 667 Hoge V. Rush, 173 Fa. 264 413 Hogg, in re, 5 D. R. 561 3J0 Hogg, in re, 17 C. C. 509 309 Hogg's Est., 219 Pa. 486 414 Hogsett's Ap., 182 Pa. 618 185 Hohenstein v. Perelstein, zy Supr. C. 540 681 Holden v. Bernstein Mfg. Co., 232 Pa. 366 530 Holland v. Hallahan, 211 Pa. 223 434, S16 HoUenback's Ap., 121 Pa. 322 578 Holleran v. Life Assn. Co., 18 Supr. C. 573 286 Hollinger v. R. Co., 225 Pa. 419... 252 Hollis V. Glass Co., 220 Pa. 49 ... . 252 HoUister v. HoUister, 6 Pa. 449 .... 64 HoUister v. HoUister, 54 Pitts. L. J. 7 80 Holloway v. Frick, 149 Pa. 178. — 430 Holman v. Witmer, 25 Lane. L. R. 388 565 Holmes v. Dowler, 216 Pa. 500 527 Holmes v. Fulton, 193 Pa. 270 366 Holmes v. Woods, 168 Pa. 530... 366 Holt V. McWilliams, 21 Supr. C. 137 522 Holton V. New Castle R. Co., 138 Pa. Ill 539 Home Brewing Co. v. Coal Co., 37 C. C. 686 680 Honnett v. Thompson, 37 Pitts. L. J. 103 367 Hoofstitler v. Hostetter, 172 Pa. 575 621 Hoopes' Est., 174 Pa. 373 316 Hoopes Etc. V. Ebel, 37 Supr. C. 459 654 Hooven Mer. Co. v. Evans Mining Co., 193 Pa. 28 484 Hoover v. Ober, 42 Supr. C. 308 47, 280 Hoover v. Potter, 42 Supr. C. 21.. 55 Hoover v. School Dist., 4 C. C. 520 250 Hopper V. Canal Co., 87 Pa. 221... 225 Hope's Ap., 20 W. N. C. 365 319 Hope V. R. Co., 211 Fa. 401... 220, 243 Hopkins v. Catasauqua Mfg. Co., 180 Fa. 199 67s Hopkins v. Stoneroad, 2Z Supr. C. 168 664 Hopkins Mfg. Co. v. Ketterer, No. 186, Jan. T., 1912, Supreme Court 526, 534 Hopper's Est., 192 Pa. 287 44 Hopper V. Hopper, 146 Pa. 365 .. , 667 Horme v. Luria, 49 Supr. C. 171.. 52 Horine v. Mengel, 30 Supr. C. 67,, 552 Horlacher v. Bertolett, 12 Lane. L. R. 17 6 Horn V. Horn, 17 Supr. C. 486 82 Hornstein v. R. Co., 51 Fa. 87 222 Horstman v. Kauffman, 97 Pa. X47 . . 15 Horton's Ap., 13 Pa. 67 594 Hosack v. Greer, 57 Pitts. L. J. 323. 530 Hosie V. Hosie, 5 Lack. Jur. 44, 525 Hottenstein v. Miller, 12 Northam. 282 54 Hottenstein v. Miler, 20 D. R. 667., 56 Hottner v. Aacken Etc. Co., 31 Supr. C, 461 288, 293 House of Refuge v. Dyer, 43 Supr. 0. 320 660 Houston V. R. Co., 204 Pa. 321 229 Howe V. Howe, 16 Siipr. C. 193.80, 92,93 Howard v. Lewis, 6 Phila. 50 67 Howell v. Natl. Etc. Co., 9 Northam. 3:9 620 Hower's Ap., i Mona. 24 24 Hower's Ap., 127 Pa. 134 347 Hoyt v. Kmgston Coal Co., 203 Pa. S09 .■ 616 Huber's Est., 21 Supr. C. 612 27 Huber's Est.^ 21 Lane. L. R. 98.... 41 Huey v. Christ, 232 Pa. 131 38s Huey v. Prince, 187 Pa. 151 9, 15, 16 Hufnagle v. Shap, ri Lack. Jur. 197 650 Hughes v. Berger, 4 Schuylkill Co. 139 641 Hughes v. Central Etc. Co., 222 Pa. 462 296 Hughes v. Clark, 35 Supr. C. 518... 653 Hughesville Water Co. v. Persun, 182 Pa. 450 667 Huidekoper v. Meadville, 83 Pa. 156 los Hukill V. Yoder, 189 Pa. 233 531 Hull's Est., 10 D. R. 661 2,50 Hull V. Hull, 8 D. R. 420 60,64 Hull V. Hull, 14 Supr. C. 520 82 Hummel v. R. Co., 17s Pa. 537.... 137 Humphreville v. Humphrevilfe, 29 Lane. L. R. 102 86 Hunnings v. Hunnings, 21 T>. R. "825 530 Hunts Lunacy, 28 C. C. 417 332 Hunt v. Stonecipher, 14 D. R. 416.. 564 Hunter v. Anderson, 152 Fa. 386 . 504 Hurley v. A. T. Etc. R. Co., 213 U. S. 126 52 Huston V. Clark, 173 Fa. 361 641 Hutchinson's Ap^, 82 Fa. 509 361 Hutchinson v. Dennis, 217 Pa. 290 „•; ■•; • 529, 531, 549 Hyde v. Baker, 212 Pa. 224 522 Hysong v. Gallitzin Boro School Dist., 164 Pa. 629 669 I Imhoff V. Witmer's Admr., 31 Pa. 244 299 TABLE OF CASES. 787 Immendorf's Est., 190 Fa. 590 99 Imp. Co. V. Ives, 144 Pa. 114 209 IngersoU v. Ingersoll. 49 Pa. 249 ... 83 Inland Etc Co. v. Stau£fer, 33 Pa. 397 292 Int. Etc. Co. V. Kleber, 29 Supr. C. 200 269 Isaacs V. Ford, S Kulp 80 344, 351 Ives V. Ives, 12 Luz. L. R. 19 55*87 J Tack y, Klepser, ig6 Fa. 187 415 Jack V. Twyford, 10 Supr. C. 475.. 269 Jackson's Est, 203 Pa. 33 532 Jackson v. Gunton, 218 Fa. 275 420 Jackson v. Jackson, 49 Supr. C. 18.. 75 Jackson v. Pittsburg, 36 Supr, C. 274 126 Jackson v. Smyth, 24 Supr, C. 545 . , 620 Jackson v. Thomson, 203 Pa. 622 , , 600 Jacobs V. Clearview Etc, Co., 220 Pa. 388 los, ij6 Jacobs V. Featherstone, 6 W. & S. 346 261 Jacobs V. Peters, 5 Northam. 317. . . 5 Jacoby v. Nor. Br. & Mer. Co., 10 Supr. C. 366 292 Jagode V. Smalley, 10 Supr, C. 320. 480 James' Petn., 15 Phila. 176 317 James v. West Chester Boro, 220 Pa. 490 115 Jamison's Est., 163 Pa. 143.... 26, 28, 39 Jarecki v. Hays, 161 Pa. 613 418 Jansen v. Tansen, 16 D. R. 408 jz Jayne v. Jayne, 4 Kulp 74 82 Jeanette v. Eschalier, 7 D. R. 26S.. 131 Jenkins v. Baxter, 160 Pa. 199 447 Jenkins v. Coray, 14 Luz. L. R. 119. 363 Jenkins Twp, v. Yatesville Boro, i Kulp 190 347 Jennings v. Beale, 146 Pa. 125 442 Jennings, Beale & Co.'s Case, 157 Pa. 630 640 Jennings v. Bloomfield, 199 Pa. 638 , •• ■• 319. 545 Jessup V. Boro, 225 Pa. 583 629, 659, 687 Jessup V. Loucks, 55 Pa. 350 127 John Church Co. v. Guernsey, 190 Pa. 284 , 434, 616 Johnson's Ap., 103 Pa. 373 3 Johnson's Ap., 115 Pa. 129 411 Johnson's Case, 13 C. C. 170 282 Johnson v. Callery, 173 Pa. 129.... J31 Johnson v. Hulings, 103 Pa. 498.... 379 Johnson v. Johnson, 3 D. R. 166... 69 Johnson v. Johnson, 4 D. R. 460 — 88 Johnson v. Johnson, 31 Supr. C. 53. 85 Johnson v. Judge, 16 Supr. C. 137.. 417 Johnson v. Kite, 9 D. R. 584.... 363, 364 Johnson v. P. & R. R. Co., 163 Fa. 127 286 Johnson v. Sharon Building Assn., 16 Supr. C. 311 534 Johnston v, Johnston, 34 Supr. C. 606 67 Johnston v. Markle Paper Co., 153 Pa. 189 543 Johnston v. Price, 172 Pa. 427 429 Tones, in re, 2 Jus. L. R. 68 278 Jones' Est., 15 D. R. 30 496 Jones V. Enterprise Powder Co., 6 Lack. Jur. 303 583, 590 Jones V. Farquhar, 186 Pa. 400.. 431, 640 Jones V. Tones, 66 Pa. 494 61, 80 Tones V. Jones, 37 Supr. C. 442 86 Jones V. Locust Mt. Etc. Co., 34 C. C. 537 647 ones V. R. Co., 143 Pa. 374 236 ones V. R. Co., 144 Fa. 629 136 ones V. R. Co., 151 Pa. 30 131, 143 ones V. R. Co., 169 Fa, 333 136 ones T. Tatham, 20 Pa. 398 129 ones V. Weir, 213 Fa. 135.... 473, 616 ones V. Weir, 217 Pa. 321 ^ ••,■•;••■. v,--377. 468, 474, 642 Jordan's Ap., 107 Pa. 75 28,41 Jordan v. Jordan, 13 W. N. C. no.. 77 Jordan V, Mosser, 8 Dauphin Co. 268 549 Jordan v. Patrick, 207 Fa. 245.-378, 392 Juniata Etc. Co. v. Elec. Co., 226 Pa. 407 688 Justice V. Meeker, 30 Supr, C. 207 . , 384 Justice V. R. Co., 87 Pa. 28 240 Justice V. Scranton, 13 Lack. Jur. 29 420 K Kaechle v. Tr. Co., 15 Supr. C. 73.. 124 Kaiser's Est,, 199 Fa. 269, rev. 14 Supr. C. 155 loi Kalbf ell's Est., 47 Pitts. L. J. 273; 17 Supr. C. 255 419 Kalle V. Heft, 154 Pa. 470 33 Kammerer's Est., 50 Pitts. L. J. 218. 265 Kane Etc. Case, 177 Fa. 638 59S Kane v. Laughlin, ipo Pa. 598 434 Kane v. Schuylkill Etc. Co., 199 Pa. 198 434, 604 Kappner v. Kappner, 35 C. C. 199... 78 Kase V. Burnham, 206 Pa. 330 532 Kase V. Penna. R. Co., 12 D. R. 85. 630 Katharine v. Water Co., 32 Supr. C. 94 132, 209, 210 Katz V. Johnson, 178 Fa. 346 412 Kauffman t. KauSman, 24 Supr. C. 437 62 KaulTmann v. Kauffmann, 222 Pa. 58 „■■■ ■ : 378, 420, 576 Kauimann v. Liggett, 209 Pa. 87. , . . 652 Kaufman v. R. Co., 210 Pa. 441.... X31, 228, 232 Kayser's Est., 18 C. C. 609 498 Keeler v. Fort Etc. Co., 23 C. C. d^'j 53 Keeling v. Pittsburg Etc. R. Co., 205 Pa. 31 648 Keene v, Bristol, 26 Pa. 46 133 Keil V. Gas Co., 131 Fa, 466 232 Keim v. Phila., 2 C. C. 149 142 Keim v. Reading, 32 Supr. C. 613 224, 243, 252 Keim v. Reading, 217 Pa. 613 221 Keith V. Gettysburg Natl. Bank, 23 Supr. C. 14 SI Kell V. Rudy, i Supr. C. 507 344, 348, 35 Keller v. Lamb, 11 Kulp 249 465 Keller v. R. Co., 151 Pa. 67 166, 240 Keller v. Riyerton Etc, Co., 34 Supr. C. 301 115 Keller v. Water Co., j6i Fa. 422.... 112, 125 Kelley v. Shay, 206 Fa. 215 378, 412, 597 Kelly V. Donnelly, 16 Supr. C. 363.. 632 Kelly V. Kelly, 56 Pitts. L. J. 87... 85 Kelsey's Ap., 113 Fa. 119 363, 366 Kemble v. R. Co., 140 Pa. 14 123 Kemp V. R. Co., 156 Pa. 430 236 Kendall v. McClure Coke Co., 182 Pa. 1 29, 654 Kenly v. Kenly, 2 Yeates 207 63 Kennedy v. Johnston, 65 Pa. 451... 318 Kennedy v. Kennedy, 43 Pa, 413.... 557 788 TABLE OF CASES. Kennedy v. McCloskey, 170 Pa. 354 ^ 466. 50Z. 599. 61S Kensington Natl. Bank v. Ware, 32 Supr. C. 247 413 Kent's Ap., 87 Pa. i6s. 20 Kenyon v. Davis, 17 D. R. 340 637 Kepler v. Erie Etc. Co., loi Pa. 602. 25 Kepner's Ap., 94 Pa. 74 98 Keppel V. Tiffin Savgs Bank, 197 tJ. S. 3S6 52 Kerin v. Trust Co., 226 Pa. 557 525. 596 Kerlin v. Ewen, 149 Pa. 58 491 Kerr v. Kerr, 216 Pa. 641 95,97 Kerr v. Penna. R. Co., 169 Pa. 95.. 264 Kerr v. Trego, 47 Pa. 292 447 Kersey v, R. Co., 133 Pa. 234. .222, 232 Kershaw v. Kershaw, s D. R. 551.. 100 Keystone Bank v. Donnelly, 21 D. R. 62Z 409 Keystone Etc. Co. v. People's Etc. Co., 200 Pa. 366 530 Kidney v. Beemer, 27 Supr. C. 558.. 485 Kille V. Reading Iron Works, 134 Pav 225 • 626 King V. King, 36 Supr. C. 33 81, 82, 86,97 King V. Thompson, 87 Pa. 365. .262, 264 Kingston Coal Co. v. Coal Co., 14 - Luz. L. R. 267 529 Kingston Coal Co. v. Dunn Coal Co., 18 D. R. 1083 624 Kinney v. Mexican Plantn. Co., 233 Pa. 232 351 Kinter v. Connolly, 233 Pa. 5 481 Kisler v. Kisler, 2 Watts 323 501 Kitchen v. Wilkenson, 10 Kulp 465. 583 Kittanning Etc. Co.'s Est., 210 Pa. 6. 16 Kittanning Brewing Co. v. Gas Co., 224 Pa. 129 690 Kittanning Boro v. Thompson, 211 Pa. 169 659 Klaas V. Klaas, 14 Supr. C. 550 67 Klages V. Terminal Co., 160 Pa. 386 235 Kleckner's Est., 150 Pa. 519 33 Kleckner v. Kleckner, 212 Pa. 515.. 525 Klein v. Livingston Club, 177 Pa. 224 684 Kleinert v. Ehlers, 38 Pa. 439 100 Klohs v. Reifsnyder, 61 Pa. 240.... 330 Kneeland v. Luce, 141 U. S. 491.... 489 Kness v. Anchor Etc. Co., 31 Supr. C. 521 293 Knight v. Turnpike Co., 4 Luz. L. R. 269 240 Knipe v. Livingston, 209 Pa. 49 431 Knipe v. Scholl, 16 Montg. 209 . 48 1 Knoll V. R. Co., 121 Pa. 467 238 Knox V. Church, 21 D. R. 63 618 Koch V. Hinkle, 35 Supr. C. 421... 533 Koch V. Water Co., 65 Pa. 288 241 Kochenauer's Est., 17 York 116.... 12 Koenig's Ap., 57 Pa. 352 99 Koenig v. Koenig, 29 Lane. L. R. 133 538 Kosler v. R. Co., 208 Pa. 50 221, 226, 252 Krall V. Forney, 182 Pa. 6 377, 424 Kramer v. Arthurs, 7 Pa. 165 381 Kramph's Est., 228 Pa. 457 497 Kreamer v. Smith, 215 Pa. 330 412 Kreamer v. Voneida, 213 Pa. 74 257 Krebs v. Clark, 9 C. C. 420 264 Krebs v. StrouD, 116 Pa. 405 259 Kreider's Est., 13s Pa. 578 11 Krodel's Est., 27 C. C. 421 40 Krodel's Est., No. i, 27 Supr. C. 419 23 Krug V. Krug, 22 Supr, C. 572 85 Kucker v. Sunlight Oil Cot, 230 Pa. 528 638 Kuhlbach v. Irving Cut Glass Co., 220 Pa. 427 351,355 Kuhn V. Ogilvie, 178 Pa. 303 267 Kuhn v. Skelley, 25 Supr. C. 185.. 638 Kulp v. Kulp, 34 C. C. 3^8 74 Kuntz's Case, 2 Lehigh Co. 231 207 Kurtz V. Bubeck, 33 C. C. 294 552 Kurtz v. Bubeck, 39 Supr. C. 370... 539 Kurtz v. Parrel, 44 Supr. C. 355.... 573 Kurtz v. Phila. Etc. R. Co., 187 Pa. 59 576 L Lackawanna Etc. Co. v. Gomeringer, 236 Pa. 164 534 Lady Francis Howard v. Robert, Earl of Essex, i Eng. State Trials, 307 61 Lady Ormond v. Hutchinson, 13 Vesey Jr. 5^ 385 Lady Shaftesbury v. Arrowsmith, 4 Vesey Jr. 66 587 Lafean v. York, 20 Supr. C. 573.... 167, 234, 251 Lafean v. Weeks, 177 Pa. 412 681 Lafferty's Est., 181 Pa. 51 412 Lafferty v. Lafferty, 174. Pa. 536 425 Lafferty v. R. Co., 124 Pa. 297.. 230, 237 Laflin v. Steytler, 146 Pa. 434.. 393, 436 Laird v. Pittsburg, 205 Pa. i 117 Lally v. R. Co., 215 Pa. 436 243 Lamb v. Redding, 234 Pa. 481 528 Lance's Ap., 55 Pa. 16 105, 137 Lance's Ap., 112 Pa. 456 538 Lane v. Washington Hotel Co., 190 Pa. 230 484 Langan v. Royal Ins. Co., 162 Pa. 357 290 Langbem s Est., 15 D. R. 961 ^2 Lancaster Etc. Bank v. Huver, 114 Pa. 21 24 Lancaster Etc. Bank v. Moore, 78 Pa. 407 315 Lancaster v. Flowers, 198 Pa. 614... 363 Lancaster v. Flowers, 208 Pa. 199.. 522 Lancaster & Northern R. Co., 27 Lane. L. R. 257 210 Lancaster Etc. Turnpike Case, 26 Lane. L. R. 6 -^3^, ^9^, 210 Lapcevic v. Lebanon Etc. Co., 39 Supr. C. 294 291 Lauge V. Penn, 6 S. & R. 488 121 Larkin's Est., 132 Pa. 534 12 Larkin v. Scranton, 162 Pa. 289 . 222 Lasco v. Ins. Co., 16 Luz. L. R. 29... 289 Latrobe v. Fritz, 152 Pa. 224 366 Latshaw v. Latshaw, i8 Supr. C. 465 84 Laubach v. Penna. R. Co., 28 Supr. C. 247 55 Lauder v. Tillia, 117 Pa. 304 438 Laughlin v. Crookston, 32 Pitts. L. , J. 187 463 Laughlin v. Laughlin, 219 Pa. 629.. 332 Laughlin v. Solomon, 1S8 Pa. 177.. 545 Lawandowski v. R. Co., 33 Supr. C. 10 222 Lawrence's Ap., 78 Pa. 363 134 Lawrence v. Yard, 15 W. N. C. 190. 19 Lazarus v. Lehigh Etc. Co., 13 Luz. L. R. 271 329 Lazarus v. Lehigh Etc. Co., 221 Pa. 415 332 Lazarus v. Morrts, 212 Pa. 128.... "8, 137, 22s TABLE OF CASES. 789 League Island, i Brewster ^24,.. 106, 117 Leahy v. Tompkins, 48 Pitts, L. J. 218 : 64s Leard's Est., 164 Fa. 435 33 Lee's Ac, 20 C. C. 274 496 Lee V. Burnley, 195 Pa. 58 437 Lee V. Hamilton, 218 Pa. 468 501 Lee V. Lee, 28 C, C. 604 363 Lee V. Sallade, 7 Supr. C. g8 533 Lee V. Water Co., 176 Pa. 223 . 1 28, 226, 234 Leeds v. Comth., 83 Pa. 453 9 Lefevre's Ap^ 69 Pa. 122 381 Lehigh Etc. Co. s Ap., 112 Pa. 360.. 347 Lehi^ Coal Etc. Co.'s Ap., 10 Northam. 359 13S Lehigh Etc. Co. v. Coal Co., 13 Luz. L. R. 367 529 Lehigh Iron Co.'s Est., 2 D. R. 543. 4 Lehigh Etc. Co. v. Hanhauser, 222 Pa. 248 655 Lehigh Etc. Co. v. Lentz, 228 Pa. 34fi 649 Lehigh V. C. Co. v. Pipe Line Co., 7 Kulp 77 116 L. V. R. Co. V. Trone, 28 Pa. 206.. 127, 212 Lehighton Etc. Assn. v. Snyder, 39 C. C. 370 i 575 Leiby v. Water Co., 205 Pa. 634.. 131, 251 Leidich's Est., 161 Pa. 451 ^3>3^ Leidich v. Phila. Etc. R. Co., 215 Pa. 342 676 Leininger v. Summit Br. R. Co., 180 Pa. 287 645 Leiper v. R. Co., 5 C. C. 60 250 Leith V. Leith, 19 C. C. 656 76 Lemke's Case, 23 C. C. 93 235 Lemon \. Glass Co., 60 Pitts. L. J. 185 467 Lenhart v. Lenhart, 35 C. C. 458... 68 Lenox v. Greenwich Etc. Co., 165 Pa. 575 286 Leonard v. Smith, 162 Pa. 284 415 Leonard v. White, 8 Mass. S 121 Lerch v. Gring, 112 Pa. 244 83 Lesh V. Meminger, 17 D. R. 841.... 356 Lesher v. Lesher, 9 D. R. 69 82 Lesser v. Henry, 50 Supr. C. 440 . . 516. 591 Lewis* Est., 170 Pa. 376 21 Lewis V. Darby, 166 Pa. 613 245 Lewis V. Linden Steel Co., 183 Pa. 248 486, 488 Lewis V. Walker, 165 Pa. 30 652 Lewis V. Water Co., 176 Pa. 230.... 128 Lewisburg Bank v. Sheffey, 140 U. S. 445 628 Lewisburg Bridge Co. v. County of Union Etc., 232 Pa. 255 255 Lichtenwalner v. Allentown, i Le- high 357 224 Liebelsperger's Est., 2 Berks Co. 79. 12 Liggett V. Kaufmann, 17 Supr. C. 631 652 Light Co.'s Petn., 208 Pa. 460 124 Light Co. V. Hart, 9 Montg. 65 124 Light Co. V. Hart, 13 C. C. 369.... 142 Light V. Light, 221 Fa, 136 524 Lilly V, R. Co., 213 Fa, 247 119 Lilley v, R. Co., 210 Pa. 447 222 Lincoln, in re, i Brewster 392 303 Lincoln t, Africa, 22S Fa. 546 538 Lindsey, in re, 16 D. R. 1014 281 Lindsey, in re, 16 D, R, 1014 281 Line Co.'s Case, 6 York 73 209 Line v. R. Co,, 218 Pa. 604 245, 247 Lines v. Lines, 142 Fa. 149 500 Linn t. Chambersburg, 160 Pa. 511.. 641 Linton v. Bridge Co^ 1 Grant 414.. 112 Lippincott's Est., 8 Phila. 236 12 Lithgow V. Supreme Tent Etc., 165 Pa. 292 286 Little V. Comth., 48 Fa. 337 28 Little V. Hazlett, 197 Fa. 591 414 LUewellyn v. Cauffiel, 215 Pa. 23. . . . " 6i_5, 664 Llewellyn v. LUewellyn, 31 C. C. 670 82 Lloyd V. Phila., 17 Phila. 202 141 Lloyd Co. V. Construction Co., 14 Dauphin Co. i 3 Loble V. Fhila., 174 Fa. 11 1 248 Locher v. Beyer, 218 Fa. S74-..365, 617 Lock Haven Bridge Co. v. Clinton T S°L' '57 ?.*-,^79----v; "*' '47 Lockhart v. R. Co., 139 Pa. 413, 419. 114 Lockwood v. Exchange Bank, 190 Cf. S. 294 57 Loeb V. Mellinger, 12 Supr. C. 592.. 414 Logan V. Logan, 10 D. R. 738 68 Long V. Bricklayers' Etc., 17 D. R. ,. 984 692 Long V. Fuller, 68 Fa. 170 117, 139 Long V. Girdwood, 150 Pa. 413 20 Long V. R. Co., 126 Pa. 143 222, 226 Long V. Water Co., 8 Del. Co. 151 , ;• •.; • • ■^•„ • • - • •,- 344. 3S6 Long V. Wilson, 8 York 32 ii Longbotham v. Longbotham, 18 C. C. 460 262 Longenecker v. Barron, 10 D. R. 429- • . . -•••••■• ■ . .344. 346. 355 Longwell v. Bentley, 23 Fa. 09 360 Loomis V. Loomis, 2 Berks Co. 56... 81 Loomis V. Loomis, 20 D. R. 731. . . . 68 Loraine v. R. Co., 205 Pa. 132 346 Lord V. Meadville Water Co., 135 Fa. J 22 123, 127 Lorenz v. Orlady, 87 Pa. 226 6 Lotz V. Iron Co., 10 C. C. 497 120 Loucheim v. Clawson Etc. Co., 12 Supr. C. 53 482 Loucks V. Thompson, 1 1 D. R. 563 . . 344 Love's Est., 4 Supr. C. 556 33 Love V. Robinson, 213 Pa. 480.. 364, 575 Lowry v. Boro, 39 Supr. C. 276 671 Lowry v. Phila. Etc. Co., 161 Pa. Loyal Sock Twp. v. Montoursville Passr. R. Co., 7 D. R. 291 648 Lubenguth v. Gruver, 20 D. R. 687.. 526 Lucas V. Sunbury R. Co., 32 Pa. 458. 3 Ludwick V. Comth., 18 Pa. 172 299 Luther v. Luther, 25 C. C. 16 96 Luther v. Luther, 216 Pa. i 604, 628 Lutz V. Matthews, 37 Supr. C. 354, 501 Lycoming Water Co. v. Moyer, 99 , Pa. 61S 212 Lycoming Etc. Co. v. Storrs, 97 Fa. ^354 s Lyle V. R. Co., 131 Pa. 437 134 Lyle V. Shay, 165 Fa. 637 422 Lynch v. Joyce, 11 Lack. Jur. 327.. 524 Lyon V. Gormly, 53 Pa. 261 225 Lyon V. Lyon, 13 D. R. 623 60,91 Lyon V. Phillips, 106 Fa. 57 53 Lyons v. Benney, 230 Pa. 117 22 Lyon V. Importers' Etc. Bank, 214 Pa. 428. 655 Lyons V. Lyons, 10 D. R. 594 365 Lyons v. Lyons, 30 C. C. 342 64 Lyons v. Lyons, 199 Fa. 302 425 Lyons v. Lyons, 207 Fa. 13 41^ Lyons V. R. Co., 209 Pa. 550 21^ 790 TABLE OF CASES. M Machen v. Machen, Jan'y T. 1912 Supreme Court 346 Maclc V. R. Co., 10 D. R. 102 105 Mack V. K. Co., 5 Northam. 378.... 250 Mackentile v. Savoy, 17 S. & R. 104. 121 Mackintyre v. Jones, 9 Supr. C. 543 6i6 Madden's Lunacy, 13 D. R. 658 303 Maffitt V. Rynd, 60 Pa. 380 soi Magill's Ap., 59 Pa. 430 89, 578 Magilton v. Stevenson, 173 Pa. 560. 414 Magraw v. Irvin, 87 Pa. 142 545 MahaflEey v. R. Co., 163 Pa. 158 227, 231, 251 Mahanoy City R. Co. v. Ashland, 224 Pa. 375 671 Makof v. Sherman, 36 Supr. C. 624. 628 Mallory v. Bradford, 2 Lack. Jur. 399 141 Manegold v. Foundry Co., 17 D. R. 973 600, 659 Manheim Boro v. Manheim Water Co., 229 Pa. 177 116, 133, 195, 210 Mankey v. Stocking, 213 Pa. 299.... 2S0, 2S3 Mann v. Darlington, 15 Pa. 310 18 Mann v. Wakefield, 11 Supr. C. 18.. 21 Manners v. Phila. Lib. Co., 93 Pa. 165 577 Manning v. Shoop, 170 Pa. 236 640 Mantel Co.'s Assigned Est., 4 Supr. C. I06 4. 437 Mantz v. Kistler, 221 Pa. 142 655 Manufacturing Co. v. R. Co., 212 Pa. 156 240, 245 Marcello v. Ins. Co., 234 Pa. 31.... 290 Marcy Twp. Indebtedness, 9 Kulp 425 347 Marcy Twp.'s Case, 10 Kulp 43 347 Marcy v. Hamerty, 28 C. C. 33s 417 Margarge v. Ziegler, 9 Supr. C. 43S. 582 Marino v. Hartford F. Ins. Co., 227 Pa. 120 293 Market Co. v. R. Co., 142 Pa. 580.. 117, 1 24, 209, 242 Markle v. Wilbur, 200 Pa. 457 414, 457. 639 Markovitz v. R. Co., 216 Pa. 53s 243 Marks' Ap., 85 Pa. 23 1 g Marks v. Willenski, 31 Supr. C. 177 283 Marlin v. Willink, 7 S. & R. 297 255 Marlor v. R. Co., 166 Pa. 524 135 Marshal v. Foltz, 221 Pa. 570 411 Marshall v. Grove, 10 C. C. 532 250 Marshall v. Marshall, 17 D. R. 833. 80 Marshall v. Penna. Co., 44 Supr. C. 68 136, 529 Marshall v. Tel. Co., 16 Supr. C. 615 222 Marshall v. Tel. Co., 16 Supr. C. 6j5 231 Martin v. Baird, 175 Pa. 540 501 Martin v. Riddle, 26 Pa. 415 127 Mason v. Hay, 12 D. R. 17 668 Mason V. Mason, 131 Pa. 161 85 Mason v. Smith, 200 Pa. 270 604 Matchin v. Matchin, 6 Pa. 332 78 Matthei v. Pownall, 235 Pa. 460.522, 584 Matheson v. Matheson, ix D, R. 289 92 Matthew's Est., 144 Pa. 139 19 Matthews v. Koch, 20 C. C. 363 .... 264 Mattern v. Allegheny Co. Comrs., 12 D. R. 244 ■ 353 Maust T. Penna. Etc. Co., 219 Pa. 568 617 Maust V. Penna, Etc. Co., 219 Pa. 568 649 May's Case, id C. C. 2S3 331 May V. Newingham, 17 Supr. C. 469. 533 May v. Traction Co., 167 Pa. 343... 223 Mayer v,. Pipe Line Co., s York i . . 224 Mayor v. R. Co., 26 Pa. 35s 113 Mays ■ v. Melot, 29 Supr. C. 365 ... . 620 Maytown Etc. T., 27 Lane. L. R. 133 190 Mazaika v. Kraunczunas, 229 Pa. 47 509, 615 McAndrews v. McAndrews, 31 Supr. C. 252 87 McCabe v. Watt, 224 Pa. 253; 259.. 651 McCahan v. Smith, 9 Supr. C. 318.. 418 McCandless' Ap., 70 Pa. 210 118 McClain v. McClain, 40 Supr. C. 248 60 McClane v. McClane, 213 Pa. 286.. 676 McClaren v. Co., 14 Supr. C. 167.. i 383. 384 McCleery v. Stoup, 32 Supr. C. 42.. 532 McClintock v. Y. R. Club, 210 Pa. 115 352 McClinton v. R. Co., 66 Pa. 404. . . . 109, 143, 166, 211, 241 McClurg's Ap., 66 Pa. 366 95 McConahy v. Western Etc. R. Co., 31 Supr. C, 215 657 McConnell v. McConnell, 21 D. R. 781 , 68 McConomy v. Reed, 152 Pa. 42.. 416, 622 McCormick's Op., 18 C. C. 87 392 McCoy V. Kane, 19 Supr. C. 187..., 584 McCracken's Case, 45 Supr. C. 230.. 333 McCrea v. Patrons' Etc. Co., 46 Supr. C. 618 289 McCrossin v. McCrossin, 21 C. C, 33 410 McCue V. Holleran, 9 Kulp 433 ... . 596 McCulloch V. Maryland, 4 Wheaton 332 103 McCuUough V. Barr, 145 Pa. 459.. 377, 420, 594 McCullough V. Staver, irg Pa. 432.. 258 McCune v. Lytle, 197 Pa. 404 597 McCune v. McCune, 31 Supr. C. 248 78, 90 McCurdy's Ap., 65 Pa. 290 513 McCurdy v. R. Co., 8 W. N. C. 143. 214 McCutcheon v. Smith, 173 Pa. loi.. 412 McDermott v. Lawrence, 7 S. & R. 441 381 McDevitt V. Gas Co., 160 Pa. 367... 140, 142 McDonald v. Shafer, 13 D. R. 571 . . 346 McDowell's Ap., 123 Pa. 381 653 McElheny v. Bridge Co., 153 Pa. 108 223, 243 McElree v. Darlington, 187 Pa. 539. 487 McFadden v. Johnson, 72 Pa. 33s . . 223 McFarland's Est., 16 Supr. C. 152.. 12 McFarland v. Heverly, 46 Supr. C. 434 548, 628, 629 McFarlane v. La Porte Etc. Direct- ors, 33 C. C. 119 669 McFarlane v. Kipp, 206 Pa. 317.... 384 McFarlin v, Lehder, 17 Supr. C. 319 34 McGarry v. McGarry, 9 Supr. C. 71. 20 McGee's Ap., 114 Pa. 470 143 McGeorge v. Chemical Mf'g Co., 141 Pa. 575 441 McGinn v. Benner, 180 Pa. 396.... 531 McGinnis v. Comth., 74 Pa. 245.299, 312 McGinnis v. Fink, 198 Pa. 404 422 McGinnis v. St. Paul Etc. Co., 38 Supr. C. 390 291 TABLE OF CASES. 791 McGovern v, R. Co., S Lane. L. R. 59 250 McGowan t. Haberstroh, 38 C. C. • 702 57 McGraw v. Hilton, 221 Fa. 568 620 McGregor v. Gas Co., 139 Pa, 230.. 137, 14OF 224 McGuigan v. Ball, 1 1 York 30 5 McGunnegle v. R. Co., 213 Pa. 383. 211 McHale v. Easton Ete. Co., 169 Fa. 416 548 Mcllhenny v. Mcllhenny, 40 Leg. Int. 446 89 Mcllvaine v. Souders, 15 Lane. L. R. 371 21 McKay v. Water Co., 6 D. R. 364.. 125 McEee v. Susq. Etc Co., 135 Pa. 544 290 McKeesport Gas Co. v. Carnegie Steel Co., 189 Fa. 509 667 McKesson's Est., 142 Fa. 538 31 McKinney v. Nav. Co., 14 Pa. 65... 241 McKnight v. Park, 55 Pitts. L. J. 113 46s McLaughlin, in re, 22 C. C. 268 33S McLellan's Ap., No. 2, 76 Pa. 235.. 26 McMahen t. McMahen, 186 Pa. 485. 79 McManus v. Doughton, 223 Pa. 578. 377 McManus v. Watson, 214 Pa. 652., 620 McMaster v. Comth., 3 Watts 292.. 105 McMillin v. McMillin, 183 Pa. 91.. 97 McMillan v. Fhila. Cfo., i Sdpr. C. 648 137. 224 McMillin Frtg. Co. v. R. Co., 216 Pa. 504 232 McMinn v. R. Co., 147 Pa. 5 236 McMuIlen's Petn., 26 C. C. 157 470 McMullin V. Pittsburg; 36 Pitts. L. J. 159 ^^^Vn ^^1?' '^* McMunn v. Haverkamp, 8 D. R. 680 365 McQuaide v. McQuaide, 8 Montg. Co. 150 70 McTighe v. Schwartz, 223 Fa. 277 . . 530, 652 Meadville Comrs. v. Meadville, 31 C. C. J45 668 Meckes v. Water Co., 203 Pa. 13.. 252 Meehan v. Owens, 196 Fa. 69 522 Megahey v. Farmers' Etc. Assn., 215 Pa. 351 531 Meigs V. Milligan, 177 Pa. 66 052 Melizet v. Melizet, 3 Clark 45 95 Mellander, in re, 16 D. K. 301 331 Melleris v. Freeman, 211 Pa. 202... 502 Mellon's Ap., 32 Pa. 121 4' Mellon V. Lemmon, 11 1 Pa. 56 258 Mellon V. Mellon, 59 Pitts. L. J. 650 66 Mellor V. Fhila., 160 Pa. 614 140 Melvin v. Melvin, 130 Fa. 6 75. 85 Mencke v. Rosenberg, 202 Pa. 131.52,55 Mendenball v. Mendenhall, 12 Supr. C. 290 78, 83 Mengel Exs. v. Water Co., 224 Pa. 120 V';,- ^35 Mengel v. Lehigh Etc. Co., 24 C. C. 152 •, 547 Mercantile Lib. Co. v. University of Fa., 220 Fa. 328 628 Mercer v. R. Co., 36 Pa. 99...- '24 Mercur v. Media E. T. Co., 19 Supr. C. 519 ■• 344. 357 Mercur v. State Line R. Co., 171 Pa. 12 ■ 622 Merrell v. Merrell, 5 Kulp 125 258 Merrick's Ap., 150 Fa. 508. .._ .. 29 Merriman v. Mernman, 40 Pitts. L. J. 173 83 Merriman v. Munson, 134 Pa. 114.. 600 Merritt v. Getz, 19 Supr. C. 505.... 527 Mershon v. Fidelity Etc. Co., 208 Pa. 292 663 Messersmith's Est., x Dauphin Co. 223 24 Messner v. Lykens Etc. R. Co., 13 Supr. C. 429 648 Metz^s Case, 5 D. R. 132 303 Meurer's Ap., 119 Fa. 11^ 298 Meyer v. Richmond, 172 U. S. 82.. 231 Meyer's Est., 232 Pa. 89 55 Meyers T. Lebanon Etc. Co., 156 Pa. 420 294 Michael t. Crescent Etc. Co., 159 Pa. 9 243 Michener v. Phila., 118 Pa. 535 141 Middle Creek Elec. Co. v. Hughes, 34 C. C. 270 115 Middleton t. Middleton, 187 Fa, 612 83, 91, 95,98 Mikesell v. Wehrle, 37 Supr. C. 231, 527 Miles V. Miles, 76 Fa. 357 61 Miles V, Miles, 15 D. R. 796 82 Miles Land Co. v, Fenna. Coal Co,, 20 D. R. 54 624 Miles Land Co. v. Coal Co., 231 Fa. 155 529. 530 Miles Med, Co. v. May Drug Co,, 53 Pitts, L. J, 249 649 Miller's Ap„ 218 Fa, 50 13, 501 Miller's Lunacy, 7 D. R. 269..,. 3 10, 311 Miller v, Billington, 184 Fa. 583.,. 600 Miller v, Billington, 194 Pa, 452 432 Miller v. Clement, 205 Pa, 484, , . . 344 Miller v. Cockins, 231 Fa. 449 502, 616, 617 Miller v. Doyle, 211 Pa. 59 481 Miller v, Fufmer, 25 Supr, C, 106,. 521 Miller v, Henderson, 212 Fa. 263.. 351 Miller v. Jackson, 34 Supr, C. 31,.. 2 Miller v. Lynch, 149 Pa, 460,,, 656, 665 Miller v. Miller, 21 C, C, 252 97 Miller v. New Orleans Etc Co,, 212 U, S. 406 50 Miller v, Piatt, 33 Supr. C, 547 . , . . 524, 548,613 Miller v. Pipe Lines, 2 D. R. 602,.. 249 Miller v. Royal Etc. Works, 172 Pa, 70 383 Miller v. Schindel, 15 C, C, 341 661 Miller v, Shriver, 197 Pa, 191,, 3, 16, 52 Miller v. Water Co,, 148 Pa. 429.,,. 127, 128, 222, 223, 251 Miller v. Western Etc, R, Co,, 47 Supr, C. 613 228 Mill Creek Twp, v. Erie Etc, R. Co,, 209 Fa. 300 674 Mill Creek Sewer, 196 Pa, 183 181 Mill Etc. Est., 4 Supr. C. 106 29, 377, 439 Milleman v. Kavanaugh, 213 Fa. 240 552 Mills V. Ritter, 197 Pa, 353 3.1 Miltimore v, Miltimore, 40 Pa, 151. gg Minsker v. Robinson, 2 Yeates 344,, 255 Mint Realty Co. v. Wanatnaker, 18 D. R, 977 656 Mirkil v. Morgan, 134 Fa, 144 658 Misselwitz's Lunacy, 177 Pa, 359... 340 Missimer t. Ebersole, 87 Pa. log... 19 Miskey v. Phila,, 68 Pa, 48 236 Mitchell V, Columbia Etc. R. Co., 233 Pa, 25. 247 Mitchell V. Dana, 19 Montg. Co. 206 522 Mitchell's Lessee v. De Roche, i Yeates 12 255 792 TABLE OF CASES. Mitchell V. R. Co., 28 Lane. L. R. ,33 211 Mitehell v. Richmond, 164 Pa. 566.. 267 Mitchell V. Spaulding, 206 Pa. 220 312, 313, 321 Mitchell V. Spaulding, 20 Supr. C, 296 313 Model Etc. Est., 159 Pa. 496 26 Moers V. City, 21 Pa. 188 148 Moffett V. Moffett, 29 C. C. 658 94 Mohler v. Ephrata Water Co., 16 C. C. 493 S83 Moninger v. Ritner, 104 Pa. 298.. 265, . 266 Monongahela Water Co.'s Case, 223 Pa. 323 140, 196 Monongahela Etc. Co. v. Forsythe, 48 Pitts. L. J. 398 521 Monroe v. Monroe, 26 Supr. C. 47. 366 Monsoratt v. Equitable Trust Co., 14 Supr. C. 541 480 Montgomery Co. v. Bridge Co., no Pa. 54 223 Moore's Est., 238 Pa. 516 381 Moore V. Hirsch, 30 C. C. 7 537 Moore v. Lincoln Park Etc. Co., 196 Pa. 519 484 Moore v. Moore, 26 C. C. 604 90 Moore v. Moore, ir D. R. 253 92 Moore v. Moore, 153 Pa. 40;; 385 Moore v. Reifsnyder, 22 Supr. C. 326 481 Moore v. Susa. Etc. Co., 196 Pa. 30. 290 Moorehead v. Scovel, 210 Pa. 446.. 524 Moran's Est., 8 D. R. 315 334 More V, Court Olympia, 9 Northam. 22 63 1 Morey v. Black, 21 Montg. Co., 102. 660 Mtfrrell v. Brooks, 19 D. R. 429.... 571 Morris v. McCutcheon, 213 Pa. 349. 523 Morris v. Stevens, 1 78 Pa. 563 ... , 649 Morrison v. Curry, 43 Slipr. C. 648, 378 Morrison v. Nevin, 130 Pa. 344 578 Morrison v. Warner, 197 Pa. 59... 534 Morrow v. Highland Etc. Co., 219 Pa. 619 661 Morse v. Rollins, 121 Pa. 537 121 Mosebach's Guardian v. Hess, 13 York 123 340 Moser v. Phila. Etc. R. Co., 35 C. C. 49 652 Meser v. Phila. Etc. R. Co., 233 Pa. 259 617 Mosgrove v. Golden, loi Pa. 605.... 383 Moss' Est., 138 Pa. 646 39 Mott V. Mott, 21 Montg. Co. no... 53 Mott V. E. Co., 30 Pa. 9 151 Moudy Mf'g Co. v. R. Co., 215 Pa. no 222 Mould V. Mould, 28 Supr. C. 318... 486 Mountain Water Co. v. Boro, 43 Supr. C. 179 116, 530,666 Mountz V. R. Co., 203 Pa. 128 206 Mowday v. Moore, 133 Pa. 598.... 658 Moyer v. Garrett, 96 Pa. 376 259 Moyer v. Water Co., 99 Pa. 613.... 223 Mt. Carmel v. Phila. Coal Etc. Co., 33 & 34 Jan'y T. 1912 616 Muckel's Est. 4 Del. Co., 386 Ji Muelhof V. Boltz, 215 Pa. 124 524, 526, 600, 641 Mueller v. Mon. Etc. Co., 183 Pa. 4S0 466 Mueller v. Mueller, 18 C. C. 400 82 Muenich's Est., 52 Pitts. L. J. 191.. 303 Mulholland's Est., 217 Pa. 63 337 Mulholland v. Wood, 166 Pa. 486... 13 Muller V. Muller, 27 Lane. L. R. 335 64 Mulligan's Est., 157 Pa. 08 5 MuUinix v. Mullimx, 16 D. R. 977.. 99, 637 Mumma v. R. Co., i Pearson 65 . . . 238- Munhall v. Weinman, 227 Pa. 34... ZTJ Munn V, Illinois, 94 U. S. 113 117 Munson v. German Fire Ins. Co., 33 Supr. C. 551 294 Murdock v. Walker, 152 Pa. 595... 683 Murphy's Election Case, 8 D. R. 445 447 Murphy v. Campbell, 4 Pa. 480.... 121 Murphy v. Marvel, 49 Su_pr, C. 576. 391 Murphy v. Murphy, 8 Phila. 357.... 76 Murphy V. Sheafer, 27 C. C. 89.... 379 Murray v. Herrick, 171 Pa. 21 384 Musgrove St., 10 C. C. 180 244 Musgrove v. Musgrove, 185 Pa. 260. 8i Musser v. Brindle, 2j, Supr. C. 37.. 2 Musser v. Musser, 16 York 181... 75, 89 Myers' Est., 192 Pa. 458 33 Myers v. Bryson, 158 Pa. 246.. 538, 640 Myers v. Myers, 9 Kulp 173 74 Myers v. R. Co., 3 Kulp 347 210 Myers v. R. Co., 14 Luz. L. R. 247. 210 Myers v. Sprankle, 20 Supr. C. 549. 385 Myers v. South Bethlehem, 149 Pa. 85 249 Myers v. Union League, 17 D, R. 3or 355 Myersdale Etc. Co. v. Penna. Etc. Co., 219 Pa. 558 4SI, 616, 648, 675 N Nagle V. Nagle, 43 Supr. C. 442 93 Nann v. Wakefield, 1 79 Pa. 398 3 Nanticoke Bridge, 40 Supr. C. 345.. 185 Naomi Coal Co. v. More, 36 C. C. 321 529, 663 Narberth S. Co. v. Narberth, 21 Montg. 84 576 Natalie Etc. Co. v. Ryon, 188 Pa. 138 541, 654 Natl. Bk. Etc. v. Earle, 196 Pa. 217 516, 553 Natl. Etc. Co. v. Lupoid, loi Pa. in 289 Nav. Co. v. Thoburn, 7 S. & R. 4n 222, 234 Neal v. R. Co., 31 Pa. 19 134, 24S Neale v. Bigler, 25 C. C. 359 633 Neill V. Shamburg, 158 Pa. 263 377 Neely v, R. Co., 219 Pa. 349 221 Negley Ave., 146 Pa. 456 226 Neiman v, Shoolbraid, 47 Pitts. L. J. 301 53 Nelson v. Gufl^, 131 Pa. 273 633 Nerve Food Co. v. Robertson, 199 Pa. 486 526 Nether Etc. Dist. v. Mercur, 46 Supr. C. 470 689 Netter v. Refowich, 12 D. R. 196... 51 Neubert v. Armstrong Water Co., 2n Pa. 582 346, 351 Pa. 582 346, 351 Newberry v. Newberry, 22 C. C. 361 72 New Brighton v. Piersol, 107 Pa. 280 141 New Brighton Etc. R. Co. v. R. Co., 103 Pa. 13 131 New Castle Etc. R. Co.'s Ap., 3 Walker, 28 1 471 New Castle Wire Nail Co.'s Case, 18 Supr. C. 257 536 New Era Life Assn. v. Musser, 120 •Pa. 384 286 TABLE OF CASES. 793 New Idea Pattern Co. v. Whitner, 215 Pa. IB3 651 New Jersey v. Anderson, 203 U. S. 483 56 Newlm s Est., 1 1 Del. Co. 409 93 Newlin's Pet., 123 Pa. S4i 345 Newlin v. Harris, 209 Fa. 55S 668 Newman v. Shreve, 229 Pa. 200.... 530, 541 Newman v. Shreve, 23s Pa. 450.... 617 New York City v. Pine, 185 U. S. 93 682 New York Tr. Co. v. Coal Co., 227 Pa. 6i.i 516 N. Y. Etc. Co. V. Graham, 226 Pa. 348 524 N. Y. & E. R. Co. V. Young, 33 Pa. 175 118 Nicholson v. Ertel, 231 Pa. 105 526 Nimick's Est., J79 Pa. 591 411 Nisley v. Drase, 29 Lane. L. R. 121 662 Nittany V. R. Co. v. Empire Etc. Co., 21S Pa. 224 676 Noel V. Karper, 53 Pa. 97 315 Nogic V. Nogic, 25 C. C. 397 87 Noon V. Scranton, 7 C. C. 123 234 Normal School, 213 Pa. 244 117 Norris v. Crowe, 206 Pa. 438 522 Norristown Title Co. v. Ins. Co., 132 Pa. 385 286 North Etc. R. Co. v. Davis, 26 Fa. 238 247 North C. R. Co. v. Holland, 117 Pa. 613 233 North Etc. R. Co. v. Swank, 105 Pa. 555 236 N. C. R. Co. V. Walworth, 193 Pa. 207 523 North Braddock v. Corey, 205 Pa. SS 528 North V. Holloway, 18 D. R. 1021.. 516 N. Mountain Etc. Co. v. Troxell, 232 Pa. 155 629 Nor. Penna. R. Co. v. Inland Tr. Co., 205 Pa. 579 679 North Penn Etc. Co. v. Intl. Etc. Co., 217 Pa. 538 533 Northrup v. Hall, 228 Pa. 9 525 North Shore R. Co. v. Penna. Co., 193 Pa. 641 529 North Shore Etc. R. Co. v. Penna. Co., 235 Pa. 395 617 Norton's Case, 37 W. N. C. 64 283 Note V. Patten, 38 C. C. 323 521 Nulton V. Nulton, 15 Luz. L. R. 501 535 Nungesser v. Nungesser, 32 C. C. 383 80 Nye's Ap., 126 Pa. 341 267 O Oakford v. Sheatz, 19 D. R. 1113... 670 Oberholtzer's Ap., 124 Pa. 583 38 Obert V. R. Co., 109 Pa. 193 118 Obney v. Obney, 26 Supr. C, 116; 122 524, 532 O'Brien v. Collins, 205 Pa. 651 378 O'Brien v. McKenna, 28 Montg. Co., 31 561 O'Brien v. R. Co., 119 Pa. 184 240 O'Conner v. Rexford, 34 C. C. 179.. 615 Ogontz Ave., 225 Pa. 126 140 O'Grady v. Prudential Etc. Co., 3 Supr. C. 548 289 O'Hara v. R. Co., 25 Fa. 445 207 O'Hara v. Stacke, 90 Pa. 477 639 Ohio Pail Co. v. Cook, 222 Pa. 487. 652 Ohio Etc. R. Co. V. Penna. Co., 216 Pa. 316 676 Olcott v. Supervisors, 16 Wallace 678 108 Old Col. Tr. Co. v. AUentown Etc. Co., 192 Pa. 596 62a O'Leary v. R. Co., 210 Pa. 522.. 135, 167 Oliver v. R. Co., 131 Pa. 408 238 Oliver's Est., 136 Pa. 43 412 Olsen V. Olsen, 27 Supr. C. 128.... 81, 92, 98 Olyphant, 198 Pa. 534 247 O'Malley v. Olyphant Boro, 198 Pa. 52s 532, 650 O Neill V. Behanna, 182 Pa. 236 633, 683 O'Neill V. McKeesport, 201 Pa. 386. 529 Orbin v. Stevens, 13 Supr. C. 591... 530 Order of Solon v. Folsom, 161 Pa. 22s 4 Ormsby v. Ormsby, 47 Pitts. L. J. 272 72 Orne v. Fridenberg, 143 Pa. 487.... 649 Orr V. Peters, 197 Pa. 606 531 Orrell v. Van Gorder, 96 Pa. 180.. 264 Osborne v. First Natl. Bank, 175 Pa. 494 25 Osborne v. Del. Etc. Co., 9 Supr. C. 632 222 O'Shea v. Flannery, 26 C. C. 89.... 447 Osterman v. Patterson, 219 Pa. 162. 617 Oswalt V. Hartford Etc. Co., 175 Pa. 427 294 Ottenberg v. Ottenberg, 32 C. C. 208 79 Overholt & Co. v. United Firemen's Ins. Co., 218 Pa. 409 289 Owens v. Goldie, 213 Pa. 579.. 529, 552 Oxley V. Oxley, 191 Pa. 474 yy, 85 Oyster's Case, 11 Dauphin Co. 233.. 232 Oyster v. Short, 177 Pa. 601 484 P Packard v. Thiel College, 209 Pa. 349 674 Packer v. Sunbury & Erie R. Co., 19 Pa. 211 120, 126, 687 Packer v. Taylor, 2 D. R. 443 267 Page V. Carr, 232 Pa. 371 13 Page V. Edmunds, 187 U. S. 596... 55 Page V. Lytle, 229 Pa. 198 68a Page V. Rogers, 211 U. S. 575 52 Page V. Williamsport Suspender Co., 191 Pa. 511 553 Pame v. Lambach, 57 Pitts. L. J. 26 653 Painter v. Pittsburg, 46 Pa. 213.... 233 Painter v. W. U. Tel. Co., 19 Supr. C. 168 651 Pairpoint Etc. Co. v. Phila. Opt. Co., i6r Pa, 17 470 Paladini v. Maryland Silk Co., 18 C. C. 175 490 Palairet's Ap., 67 Pa. 479 no, 120 Palethorpe v. Palethorpe, 184 Pa. 585 364 Palethorp v. Palethorp, 19S Pa. „395 36S Paley v. Paley, 6 Montg. Co. 58 83 Palmer v» Truby, 136 Pa. 556 487 Pangburn v. Am. Vault Co., 205 Pa. 93 490 Pantall v. Mclntyre, 197 Pa, 520.. 432, 475 Paponthei v. Paponthei, 2 Berks Co. 362 60 Park Steel Co. v. A. V. R. Co., 213 Pa. 322 678 794 TABLE OF CASES. Parke's Case, 41 Supr. C. 531 340 Parker's Ap., 44 Pa. 309 60 Parksr v. Broadbent, 134 Pa. 322.. 423 Parker v. Parker, 58 Pitts. L. J. 353- 73 Parker v. Parker, 35 Supr. C. 34' •■ 94 Partnership Banks, 40 C. C. 96.... 379 Patrick & Co. v. Smith, 165 Pa. 526 266, 267 Patten v. R. Co., 33 Pa. 426 105 Patterson v. Building Trades Coun- cil, 31 Supr. C. 112 683 Patterson v. Franklin, 176 Pa, 612.. 21 Patterson v. Patterson, 207 Pa. 252 485 Patterson v. Pittston, 8 Kulp 530... 142 Patterson v. Williams, 9 Lack. Jur. I 618 Pattison v. Cobb, 212 Pa. 572 54 Pattison v. Harlan, 124 Pa. 67 122 Pattonville Turnpike Road, 32 Supr. C, 122 190 Pauksztis' Est., 9 D. R. 80 3 Paul V. Carver, 26 Pa. 223 122 Pauley's Est., 149 Pa. 196 33 Pauli V. Pauli, 5 D. R. 62 87 Peach Etc. R. Co. v. McAllister, 7 Supr. C. 574 214 Pearce Mf'g Co. v. Lebanon Mut. Ins. Co., 216 Pa. 265 289 Peck V. Connell, 21 Supr. C, 22 51 Peck Etc. Co. V. Mitchell, 8 D. R. 203 52 Peebles v. Reading, 8 S. & R. 484.. 256 Peifer v. Peifer, 22 C. C. 593 82 Peifley v. Mountain Etc. Co., 214 Pa. 340 IIS, 125,674 Pellio V. Bull's Head Coal Co., 9 Lack. Jur. 271 628 Pellio V. Coal Co., 224 Pa. 379 523 Pembina Mining Co. v. Penna., 125 U. S. 181 103 Penn Bank's Est., 105 Pa. S48 28 Penna. Co. v. R. Co., 204 Pa. 356.. 513 Penna. Co. v. R. Co., 151 Pa. 334.. 138, 226 Penn Etc. Co. v. Jones, 189 Pa. 290. 3 Penna. Etc. Co. v. Jones, 30 Supr. C. 3S8 529 Penna. Co. Etc. v. Phila. Natl. Bank, 195 Pa. 34 641 Penna. Etc. R. Co. v. R. Co., 167 Pa. 576 124 Penna. Etc. R. Co. v. Billings, 94 Fa. 40 224 Penna. Etc. R. Co. v. Cleary, 12S Pa. 233 228, 229 Penna. Etc. R. Co. v. Keller, 20 W. N. C. 125 223 Penna. & M. Etc. Co. v. Kenneth Coal Co., 20 D. R. 496 64S Penna. Etc. E. Co. v. Walsh, 124 Pa. 544 142, 233 Penna. Etc. Co. v, Ziemer, 124 Pa. 560 233 Penna. Coal Co.'s Ap., 45 Pa. 181.. 381 Penn Coal Co. v. Versailles Gas Co., 131 Pa. 522 137 Penn v. Baltimore, 1 Vesey 444 568 Penn Furniture Co. v. Lumberman's Etc. Co., 47 Supr. C. 77 521 Penn Hardware Co.'s Case, i Berks Co. 21 513 Penn Hardware Co. v. Penn Hard- ware Co., 3 Berks Co. 6 681 Penn Iron Co. v. Lancaster, 25 Supr. C. 478 645,670 Penn Water Co. v, Pittsburg, 226 Pa. 624 116 Penna. R, Co.'s Ap., 93 Pa. 150.120, 125 Penna. R. Co.'s Case, 33 C. C. 251.. 136 Penna. R. Co.'s Ap., 115 Pa. 514.. 120, 647 Penna. R. Co.'s Bond, 31 C. C. 537 210 Penna. R. Co.'s Case, 213 Pa./373.. iii Penna. R. Co. v. Bogert, 209 Pa. 589 528 Penna. R. Co. v. Bunnell, 81 Pa. 414 213 Penna. R. Co. v. Duncan, 129 Pa. 181; III Pa. 352; 132 U. S. 75 112, 149, 233,677 Penna. R. Co. v. Eby, 107 Pa. 166.. 232, 234 Penna. R. Co. v. Edgewood Boro, 220 Pa. 45 133, 140 Penna. R. Co. v. Glenwood Etc. Co., 184 Pa. 227 646 Penna. R. Co. v. Lilly Boro, 207 Pa. 180 651 Penna. R. Co. v. Lippincott, 116 Pa. 472 142, 233 Penna. R. Co. v. Marchant, 119 Pa. 541 229, 231 Penna. R. Co. v. Marchant, 153 U. S. 380 23 1 Penna. R. Co. v. Miller, 112 Pa. 34 127, 134 Penna. R. Co. v. Montg. Co. Passr. Assn., 167 Pa. 62 143 Penna. R. Co. v. Phila. County, 220 Pa. 100 153, ni2 Penna. R. Co. v. Pass. R. Co., 167 Pa. 62 141, 242 Penna. R, Co. v. Porter, 29 Pa. 165 207, 213 Penna. R. Co. v. R. Co., 151 Pa. 334 • 229 P. R. Co. V. R. Co., 157 Pa. 42.... 124 Penna. R. Co. v. R. Co., 167 Pa. 62.. 114 Penny v. Penny, 34 Supr. C. 88. .82, 91 Pennypacker v. Jones, 106 Pa. 237.. 390 People V. N. Y. C. Etc. R. Co., 28 Hunter (N. Y.) 543 107 People's Etc. Co. v. Am. Etc. Co., 233 Pa. 569 521 People's Natl. Bank v. Liq. Car Co., 226 Pa. 503 660 People's Natl. Bank v. Kern, 193 „Pa. 59„ ••••• 434, 516. 554 Peoples Sav. Bk. v. Denig, 131 Pa. 241 264 Perot V. Harrison, 13 Montg. 214.. 29 Perry v. Livingston, 191 Pa. 349... 502 Perry Co. R. Co. v. R. Co., 150 Pa. 193 123, 148 Pettebone v. Everhart, 4 Kulp. 353.. 516 Petition of Gas Co., 6 D. R. 200... 115 Peters v. Light, 76 Pa. 289 18 Pew V. Minor, 216 Pa. 343 576 Pfeil V. Pfeil, 16 D. R. 764 89 Pfoutz V. Tel. Co., 27 C. C. 609 114 Phila. Ball Club v. La Joie, 202 Pa. 210 521 Phila. V. Dickson, 38 Pa. 247 235 Pbila V. Jenkins, 162 Pa. 451 257 Phillips V. Kleinman, 58 Pitts. L. J. IS" S3 Phila. V. Linnard, 97 Pa. 242. ..131, 23s Phila V. Meredith, 49 Supr. C. 600., 500 Phila. V. P. R. T. Co., 18 D. R. 567.. 672 Phila. V. R. Co., j7 C. C. 390 161 Phila V. River Front R. Co., 133 Pa. 134 537 Phila. V. Ward, 174 Pa. 45 123 Phila. & Reading R. Co. T. Getz, 113 Pa. 214 232 TABLE OF CASES. 795 P. & R. E. Co., V. Obert, 109 Pa. 193 136 P. & E. R. Co. V. Patent, 17 W. N. C. 198 233 P. & E. R. Co. V. E. Co.. 12 C. C. 313 20S P. &. E. E. Co. V. E. Co., 151 Pa. 596 238 P. &. E. E. Co. V. Water Co., 18 C. C. SOI 123 P. & E. E. Co. V. Water Co., 182 Pa. 418 126 Phila. Etc. Co.'s Petn., 203 Pa. 354 "2 Phila. Etc. Co.'s Eec, 25 Lancas. L. B. 377 484 Phila. Etc. R. Co.'s Ap., 120 Pa. 90 124 Phila. Etc. R. Co.'s Bond, 31 C. C. 340 13s Phila. Etc. R. Co.'s Petn., 203 Pa. 3S4 124 Phila. Etc. R. Co. v. Cooper, 105 Pa. 239 144, 2" Phila. Etc. R. Co. v. Kiefer, 15 D. R. 664 481 Phila. Etc. R. Co. v. Patterson, 107 Pa. 461 228 Phila. Etc. R. Co. v. Upper Darby Twp., 202 Pa. 429 677 Phila. Etc. E. Co. v. Williams, .54 Fa, 103 112,212 Philipsburg Water Co. v. Water Co., 189 Pa. 23 199 Phillips' Est., 15 Supr. C. 226 24 Phillips' Est. No. 2, 205 Pa. 511... 532 Phillips' Est. No. 3, 205 Pa. 525- •• 533 Phillips V. Co., 153 Pa. 230 123 Phillips V. Henry, 160 Pa. 24 21 Phillips V. Phillips, 26 C. C. 182... 87 Phillips V. E. Co., 78 Pa. 177 106, X42, 242 Philips V. R. Co., 184 Pa. 537- ■•138, 229 Phcenix Iron Co. v. Comth., 113 Pa. Sfi3 344, 351 Picard v. Clone, 25 Montg. 179.... 520 Pickard v. Henry, 30 C. C. 173.... 561 Pickett V. Ins. Co., 144 Pa. 79.... 286 Pietz V. Pietz, 38 C. C. 538 68 Pile V. Pedrick, 167 Pa. 296 665 Piro V. Shipley, 211 Pa. 36... 648, 663 Piscetelo v. Piscetelo, 37 C. C. 660.. 88 Pitcairn v. Pitcairn, 201 Pa. 368... 513 Pittock V. Tel. Co., 31 Supr. C. 589 109, 120, 123 Pittsburg's Ap., 115 Pa. 4 iis Pittsburg's Ap., 118 Pa. 458 64s Pittsburg V. Epping-Carpenter Co., 194 Pa. 318 662 Pittsburg V. Pitts. R. Co., 234 Pa. 193 S30 Pittsburg V. R. Co., 48 Pa. 355.. 112, 124 Pittsburg V. Railway, 230 Pa. 189.. 598 Pittsburg V. Scott, i Pa. 309 108 Pitts. R. Co. V. Gamble, 204 Pa. 198.. 209 Pittsburg Etc. Co. v. Ashton Valve Co., 184 Pa. 41 391 Pittsburg Etc. Co. v. Bridge Co., 223 Pa. 133 -J.-- 529 Pitts. Etc. Co. V. Foundry Etc. Co., 208 Pa. 73 223 Pitts. Etc. Co. V. McClosky, no Pa. 436 226 Pitts. Etc. Co. V. Myers, 36 C. C. 61 582 Pitts. Etc. R. Co. V. Altoona Etc. R. Co., 203^ Pa. 108 638 Pittsburg Etc. R. Co. v. Bentley, 88 Fa, S78 ...222,232,238 Pittsburg Etc. R. Co. r. Bruce, 102 Pa. 23 1 13, 225 Pitts. Etc. E. Co. V. Guth, 38 C. C. 583 13s Pitts. Etc. R. Co. V. Jones, :ii Pa. 316 233 Pitts. Etc. R. Co. V. Lawrence Co., 198 Pa. I 141 Pittsburg Etc. R. Co. v. Peet, 152 Pa. 488 136 Pitts. Etc. R. Co. V. R. Co., 159 Pa. 331 138 Pittsburg Etc. R. Co. v. R. Co., 77 Pa. 173 148 Pittsburg Etc. R. Co. v. R. Co., 146 Pa. 297 123, 124 Pittsburg Etc. R. Co. v. Rose, 74 Pa. 362 221 Pitts. Etc. R. Co. V. Robinson, 95 Pa. 426 221 Pittsburg Etc. R. Co. v. Vance, 115 Pa. 325 221, 226 Pittston V. Joyce, 15 Luz. L. R. 183.. 659 Plains' Twp.'s Ap., 206 Pa. 556... 347 Plank's Est., 10 Lane. L. R. 201.... 21 Plank's Inquisition, 5 Clark, 35 . . . 307 Piatt V. Piatt, 38 Supr. C. 551 79 Platzek V. Sparks, 36 C. C. 271... 529 Plitt V. Cox, 43 Pa. 486 120 Plymouth Etc. E. Co. v. Colwell, 39 Pa. 337 118 Plymouth Twp. Comrs. v. Sweeney, 10 D. E. 617 353 Pocapson Road, 16 Pa. 15 in Pocono Pines Assn. v. Miller, 229 Pa. 33 681 Pomeroy v. Pomeroy, 11 D. R. 299.. 92 Pontius V. Walls, 197 Pa. 223 411 Poor V. McClure, 77 Pa. 214 127 Porter v. Beacon Co., 154 Pa. 8. .442, 439 Porterfield v. Bayer, 31 C. C. 17.. 390 Post V. Am. Central Ins. Co., 37 Mar. T., 1912, Supr. C 283 Pote V. Pote, 8 D. R. 660 82 Poterie Gas Co. v. Poterie, 179 Pa. 68 69a Potter's Est., 54 Pa. 465 44 Potter V. Rend, 201 Pa. 318 649 Potter V. Union Etc. Co., 195 Pa. 537 290 Potts V. El. E. Co., 3 D. E. 172; 161 Pa. 396 242 Potts V, Hoster, 21 Lane, L. E. 159 638 Potts V. Phila., 195 Pa. 619 671 Potts V. R. Co., 119 Pa. 278 226 Potts V. Rose Valley Mills, 167 Pa. 310 4 Potts V. Smith Mfg. Co., 25 Supr. C. 206 2, 47, so, 280 Pound V, Turck, 93 U. S. 459 126 Powell's Est., 163 Pa. 340. ..24, 27, 39 Powell V. Derickson, 178 Pa. 612.. 417 Powell V. Ins. Co., 2 Supr. C. 151.. 289 Power's Ap., 120 Pa. 320 74,86 Prager v. Armstrong Co., 48 Supr. C. 140 133 Pressed Etc. Co. v. Standard Etc. Co., 210 Pa. 464 530, Preston v. Preston, 11 D. R. 97.... 79' Preston v. Preston, 202 Pa. 315.... 502 Price V, Hurley, 201 Pa. 606.. .528, 547 Price V, R. Co., 200 Pa. 81 123 Printing Co. v. R. Co., 2i5 Pa. 304.. 212 Prizer-Painter Co.'s Case, 2 Berks Co. 343 573 Provost V. Water Co., 162 Pa. 275.. 140 Purcell V. Purcell, 9 D. R. 188 364 796 TABLE OF CASES. Purvis V. Overlander, 44 Supr. C. zz 663 Pusey V. Allegheny, 98 Pa. 523..I38, 233 Pusey V. Dusenbury, 75 Pa. 437- ■• 400 Putnam Nail Co. v. Dulaney, 140 Pa. 20s 68' Pyle V. Pyle, 10 Phila. 58 60 Q Quade v. Columbia Etc. R. Co., 233 Pa. 20 212 Quade v. E. Co., 27 Lane. L. R. 217 249 Quaker Etc. Co. v. Lamcreaux, 21 Supr. C. 493 ■ • 54 Quarry ville Natl. Bk. v. Hill, j6 D. R. 693 340 Quigley's Case, 3 P. & W. 139 212 Quigley v. R. Co., 121 Pa. 35 226 puinn V. Bore, 10 Northam, 370.... 221 Quinn v. P. R. T. Co., 224 Pa. 162.. 252 K Race Street, 9 D. R. 615 230 Radenbusch s Pet., 120 Pa. 328 345 Rader v. Worcester Twp., 32 Supr. C. 548 671 Radnor Twp. v. Phila. Etc. R. Co., 214 Pa. 299 678, 693 Raeder's Lunacy, 167 Pa. 597 334 Rafferty v. Central Tr. Co., 147 Pa. S79 142, 547 Rahn Twp. Etc. Dist. v. Lehigh Etc. Co., 221 Pa. 141 617 Railroad Co.'s Appeal, 13 Atl. 214.. 118 R. Co.'s Ap., 79 Pa. 257 107, 210 R. Co.'s Appl., 28 W. N. C. 117.. 209 R. Co.'s Case, 6 Wharton 25...111, 124 R. Co.'s Case, 7 Phila. 461 113. 210 Railroad Co.'s Case, 8 D. R. 65... 210 R. Co. V. Beckwith, 129 U. S. 2S.. 103 R. Co. V. Bruner, 55 Pa. 318 243 R. Co. V. Burson, 61 Pa. 369 166 R. Co. V. Cake, 95 Pa. 139 246 R. Co. V. Church, 108 U. S. 317- •• J30 R. Co. V. Cicero, 154 111. 656 ili R. Co. 9. Congregation, 53 Pa. 445.. 244 R. Co. V. Cummins, 8 Watts, 450.. 241 R. Co. V. Gorsuch, 84 Pa. 411 252 R. Co. V. Harris, 124 Pa. 215 249 R. Co. V. Kohler, 3 Lane. Bar, No. 2 241 R. Co. V. Magee, 13 Atl. 839 233 R. Co. V. R. Co., II Phila. 321 223 R. Co. V. R. Co., 15 C. C. 445 142 R. Co. V. Reed, 44 Leg. Int. 92 ... . 231 R. Co. V. Renwick, 102 U. S. 180.. 127 R. Co. V. Richmond, 96 U. S. 521.. 11 1 R. Co. V. Tompkins, 176 U. S. 172.. 103 R. Co. V. Vance, 115 Pa. 325 228 R. Co. V. Ziegler, 167 U. S. 65 212 Rainey v. Frick Co., 8 D. R. 144... 365 Ralston's Ap., 93 Pa. 133 72 Ralston's Ap., 169 Pa. 254 28,40 Ramsay v. Hersker, 1 53 Pa. 480 32 Ranck's Est., 14 D. R. 456 2,33 Rankin v. Hammond, 25 C. C. 45.. 523 Ranney v. Byers, 219 Pa. 332 501 Rapp V. Rapp, 2 Berks Co. 63 60 Rarick v. Smith, 17 C. C. 627 647 Rathfon v. Locher, 215 Pa. 571 480 Raush V. Nipple, is D. R. 262 622 Raymond v. Raymond, 14 D. R. 309.. ^4 Raymond v. Schoonover, 181 Pa. 352 6 Rea V. Corbett, 60 Pitts. L. J. 228.. 362 Reading v. Althouse, 93 Pa. 400 . . 140, 212, 232 Reading v. Davis^ 153 Pa. 360.. 126, 127 Reading v. Reading Traction Co., 3 Berks Co. 245 584, 618 Reading v. Reading Tr. Co., zy C. C. 195; 232 Pa. 303 672 Reading Etc. Est., 149 Pa. 182 29 Reading Etc. Co. v. Balthaser, 119 Pa. 472: 126 Pa. 1 222,224 Reading Co. v. Seip, 30 Supr. Co. 330 118 Real Est. Etc. Co.'s Est., 13 D. R. 740 23 Real Etc. Co.'s Est., 212 Pa. 304... 21 Real Est. Etc. Co. v. Cook, 223 Pa. 158 584 Real Est. Tr. Co. v. Hatton, 194 Pa. 449 651 Real Est. Co. v. Roop, 132 Pa. 496.. 267 Realf V. Realf, 77 Pa. 31 75 Reber, Petition of, 235 Pa. 622.... 158, 165, 178, 213 Reed Street, 19 Leg. Int. 141 245 Reed v. Reed, 14 D, R. 109 60 Reeder v. TruUinger, 151 Pa. 287... 632 Rees' Ap., 12 Atl. 427.... 117, 118, 138 Rees V. R. Co., 13s Pa. 629.. 226, 240 Rees V. Watertown, 86 U. S. 107.. 653 Reese v. Winton, 47 Pitts. L. J. 97. . 55 Reeve's Ap., 3 Walker 199 479 Regan v. Scranton, 9 Lack. Jur. 293.. 671 Rehfuss V. Moore, 134 Pa. 462 436 Reiber v. R. Co., 201 Pa. 49 234 Reld V. Reid, 237 Pa. 171 610 Reifsnyder v. Reifsnyder, 3 Berks Co. 68 60 Reigel v. Am. Life Ins. Co., 153 Pa. 134 594 Reilley v. Reilley, 4 Brewster, 169.. 262 Reinbold v. Reinbold, 15 C. C. 335.. 88 Reitenbaugh v. R. Co., zi Pa. 100 208, 213 Reiter v. Fruh, 150 Pa. 623 384 Reitzel v. Haines, 170 Pa. 306.... 396 Resp V. Eyre, i S. & R. 352 638 Retterly v. Machine Co., 4 W. N. C. 525 J48 Reynolds v. Boland, 202 Pa. 642.. 531 Reynolds v. Craft, 38 Supr. C. 46 521, 526 Reynolds v. Creveling Etc., 17 C. C. ^28 395 Reynolds v. Creveling, 177 Pa. 267.. 626 Reynolds v. .Maryland Etc. Co., 30 Supr. C. 456 296 Rhawn V. Comth., 102 Pa. 450 28 Rhea v. Forsythe, 37 Pa. 503 121 Rhoads' Est., 15 Lane. L. R. 289... 318 Rhoads v. Fitzpatrick, 166 Pa. 294.. 422 Rhodes v. Dunbar, 57 Pa. 274 651 Rhymer v. Fretz, 206 Pa. 230 658 Rice v. Palatine Ins. Co., 17 Supr. C. 261 289, 295" Rice V. Ruckle, 225 Pa. 231.... 529, 628 Rice v. West, 22 C. C. 122 516 Rich v. Black, 173 Pa. 92; 181 Pa. 290 502 Richard v. Allen, 117 Pa. 199 410 Richardson v. Richardson, 8 D. R. 242 68 Richardson v. Richardson, 193 Pa. 279 98 Richards v. Gas Co., 130 Pa. Z7"' 235 Richards v. Lawrence, 30 C. C. 155.. 500 Richards v. R. Co., 137 Pa. 524.. 237, 242 Richards v. Richards, Z7 Pa. 225... 92 Richards v. Richards, 19 C. C. 322.. 61 TABLE OF CASES. 7V^ Richards v. Twp., lo D. R. 274... iii Ricbart v. Wisner, 15 Luz. L. R. 308 6j8 Richmond v. Bennett, 205 Fa. 470.. 529 Ricketts v. Capwell, 228 Pa. 268... 631 Riddle's Est., 19 Fa. 431 635 Riddle v. Elder, ss Pitts. L. J. 347.. 479 Ridge Ave. Bk. v. Bruner, 24 Lane. L. R. 172 413 Ridgway's Ac, 206 Pa. 587 .... 522, 532 Ridgway Etc. Ap., 15 Pa. 177 381 Rieder v. Rieder, 21 Supr. C. 488.. 86 Riegel v. Am. Ins. Co., 153 Pa. 134.. 584 Rieger v. Stoudt, 39 Supr. C. 59.. 660, 664 Riel V. Gannon, 161 Fa. 2S9 259 Riester v. Riester, 11 D. R. 99.. 61, 80 Rifenbury's Insolv., 39 C. C, 71... 71 Rigby V, Oppenheimer, 12 Supr. C, 97 422 Rigg V. Reading Etc. Co., 191 Pa. 298 523 Righter v. Livingstone, 214 Fa. 28.. 2^^ Riley v. Fenna. Co., 32 Supr. C. 579 547, 661 Ripka v. Fire Ins. Co., 36 Supr. C. 517 295 Ripley v. Waterworth, 7 Vesey Jr. 424 ; 381 Rishel V. Rishel, 24 Supr. C. 303.. 93 Rittenhouse v. Creasy, 12 Luz. L. R. 14 !05 Rittenhouse v. Newhard, 232 Fa. 433 628 Ritter V. Brendlmger, j8 Pa. 68... 41 Ritter v. Lehigh Etc. Co., 16 D. R. 715 678 River Coal Co. v. Gas Co., 38 C. C. 151 680 Riverton Ferry Co. v. McKeesport Etc. Co., 1 79 Pa. 466 649 Road Co. V. Braden, 172 Pa, 460... 127 Road Co. V. R. Co., 177 Pa. 585... 132 Road Co. V. Tel Co., 18 Lane. L. R. 61 143 Roaring Creek Water Co. v. Anthra- cite Coal Co„ 212 Pa. 115 658 Robb V. Van Horn, 150 Fa. 508.... 29 Robbins v. Robinson, 176 Pa. 341.. 442 Robbins V. Scranton, 217 Pa. 578... 193 Robbins v. Western R. Co., 48 Pitts. L. J. 181 649 Robbins v. Westmoreland Coal Co., 198 Pa. 301 639 Robbins Elec. Co. v. Weber, 172 Fa. 635 437 Roberts' Est., 197 Fa. 621 333 Roberts v. Loan & Tr. Co., 39 Supr. C. 358 527 Roberts v. Orr, 56 Pa. 176 257 Roberts v. R. Co., ji Pitts. L. J. 278 231 Roberts v. R. Co., 158 U. S. i 237 Roberts v. Roberts, i Berks Co. 90,. 72 Roberts v. Roberts, 5 Kulp. 528... 6g Robertson v. Schmenk, 18 C. C, 577 594 Robins v. R. Co., 31 Pitts. L. J. j8i 109 Robinson v. Boro, zy Supr. C. 481.. 237 Robinson v. Floyd, 159 Fa. 165 416 Robinson v. Myers, 67 Fa. 9 122 Robinson v. R. Co., 72 Fa. 316.... 225 Robinson v. R. Co., 174 Fa. 199... 213 Roche, in re, 5 Lack. Jur. 379 282 Rochelle v. Rochelle, 12 D, R, 297.. 80 Rochelle v. Rochelle, 28 C. C. 458.. 61 Rochester Boro v. Kennedy, 229 Pa. 251 137 Rodenbaugh v. Rodenbaugh, 17 C. C. A,^^ 81 Rodenbaugh v. Rodenbaugh, 17 Supr. C. 619 100 Rodgers v. Black, 15 Supr. C. 498. . 480 Roddy V. Reynolds, 31 C. C. 145... 447 Roe V. Ins. Co., 149 Pa. 94 289 Rogers Printing Co. v. Santa Claus Co., I D. R. 388 4 Rogers v. Rogers, 21 D. R. 569.... 93 Rogers v. Stoever, 24 Fa. 166 120 Rogers v. Waltz, 5 D. R. 645 378 Rohrbach v. Rohrbach, 21 D. R. 734 64 Rohrbacher s Est., 168 Pa. 158 419 Rommel v. Summit Etc. Co., 18 Supr. C. 482 520, 522 Rondinella v. Metr. Ins. Co., 18 Supr. C. 613 296 Rook v. Greenwalt, 17 C. C. 642... 121 Root's Case, "jj Pa. 2-jS 117, 181 Rose v. Barclay, loi Fa. 594 523 Rose V. Weidenfeld, 19 D. R. 653.. 56 Rosenberry v. Rosenberry, 180 Pa. 221 84 Rosenbluth v. Reis Co., 36 C. C. ^332 651 Rosenblatt v. Weinman, 225 Pa. 200.. Z77 Ross Common Water Co. v. Blue Mt. Con. Water Co., 228 Fa. 235.. 656 Rote v. Furnace Co., 37 C. C. 315.. 660 Roth v. Marshall, 158 Fa. 272 670 Roth v. Roth, 15 Supr. C. 192 85 ' Rothermal v, Moyer, 24 Supr. C. 325 50 Rothschild's Est., 47 Supr. C. 234 . . 24 Rotonti v. Fenna. R. Co., 49 Supr. „C. 595 296 Rowland v. Estes, 190 Fa. 111..377, 418 Royer v. BorOj 171 Fa, 429 252 Royersford Bridge, 112 Pa. 627.... 186 Rudderow v. Phila., 166 Pa. 241 . . . 141 Rudolph V. R. Co., 166 Pa. 430 112, 114, 134 Rudolph V. R. Co., 186 Pa. 541..226, 656 Rudy V. My ton. No, 2, 19 Supr, C. „3I9 650 Ruffner v. Luther, 6 D. R. 588.. 299, 316 Rumsey v. N. Y. & P. R. Co., 203 Pa. 579 523 Runkle v. Runkle, 18 York, 122. ..69, 75 Rush Etc. Co. V. Hillis, 3 Supr. C. 527 377 Rushbrooke Coal Co. v. Jenkins, 214 Pa. 517 584 Russell V. Rusell, 37 Supr. C. 348..79, 85 Russell V. Stewart, 204 Pa. 211.... 629 Rust, in re, 177 Pa, 340 299 Rutherford v. Fenna. Mid. R. Co., 178 Pa. 38 487 Ryan v. R. Co., i C. C. 650 141 Ryan v. Ryan, 19 D. R. 856 75 Ryder v. Jacobs, 196 Pa. 386.. 378, 392 S St. Mary's Gas Co. v. Elk County, 191 Pa. 458 667 St. Peter s Etc. Church v. Bean, 15 D. R. 636 664 Safe Dep. Etc. Co. v. Diamond Etc. Co., 234 Fa. 100 521 Safe Etc. Co. v. Mehaifey, 227 Fa. 48 521 Safe Etc. Co. v. Hollinger, 216 Pa. 645 5 24 Sallades' Ap., 36 Pa. 429 28 798 TABLE OF CASES. Salsberg v. Salsberg, lo Kulp. 378.. 87 Saltsburg Gas Co. v. Saltsburg Boro, 138 Pa. 250 645 Sample v. Pittsburg, 312 Pa. 533 — . 670 Sampson^ in re, 5 D. R. 717 312 Sampson, in re, 19 C. C. i 302 Sargent v. Hancock Etc. Co. , 49 Supr. C. 239 296 Sarver's Ap., 81 * Pa. 193 210 Sarver v. Sarver, 23a Pa. 60 S^S Saunders v. Racquet Club, 17a Pa. ^265 645 Sawyer v. Link, 193 Pa. 424 53 Sayers v. Phillips, 5 Supr. C. 343 • • • 34 Saylor's Ap., 39 Pa. 495 580 Scanlon v. Conshohocken, 209 Pa. 48 529. 658 Schaefers Est., 194 Pa. 420 16 Schaeflfer v. Coldren, 15 Jan. T., 1912, Supreme Ct 629 Schaeflfer v. Fowler, iii Pa. 451 y^^ Schaeffer v. Herman, 16 Jan. T., 1912, Supreme Court 521 Schalck V. Helms, 4 Schuylkill Co. 37 657 Scheel v. German Etc. Co., 228 Pa. 44 295 Scheep v. Reading, 2 Woodward 460 127 Schenck v. Olyphant Boro, 181 Pa. 191 600 Schiavoni v. Ins, Co., 48 Supr. C. 252 290 SchimpflF v. Dime Etc. Bank, 208 Pa. 380 S2I Schlecht's Ap., 60 Pa. 172 475 Schomaker v. Schwebel, 204 Pa. II 62 Schlott V. Schlott, 14 Lane. L. R. 201 78, 95 Schmaltz v. York Mfg. Co., 204 Pa. 1 647 Schmidt V. Baizely, 184 Pa. 527 616 Schmidt v. Schmidt, 12 Luz. L. R. 100 68 Schmitz V. Metallic Con. Co., 11 D. R. 442 489 Schofield's Est., 167 Pa. 479 26 Schofield V. Laflferty, 17 Supr. C. 8.. 481 SchoAeld v. Root, 12 Phila. 333.... 274 Schofield V. Schofield, 20 D. R. 805.. 60 Scholl V. Emerich. 36 Supr. C. 404- • 122 Schomaker v. Scnmebel, 204 Pa. 470 55 Schonhardt v. R. Co., 216 Pa. 224; 218 Pa. 224 221, 229, 251 School Dist., 21 C. C. 23 117 School Dist. V. Humrich, 18 C. C. 322 355 School Dist. V. Pittston Twp., 15 D. R. 663 347 Schraeder's Ap., 14 W. N. C. 537.. 38 Schuldice v. Pittsburg, 234 Pa. 90.. 633 Schuler v, Schuler, 39 Supr. C. 635.. 529 Schuylkill Etc, R. Co.'s Petn., 17 Phila. II 210 Schuylkill Etc. R. Co. v. Port Car- bon, 6 Schuylkill Co. i 6(>2 Schuylkill Etc. R. Co. v. Stocker, 128 Pa. 233 226 Schultzenburg v, Schultzenburg, 31 C. C. 520 64 Schulze V. Schulze, 33 Supr. C. 325.. 79 Schwartz v. Keystone Oil Co., 153 Pa. 283 47S Schwears v. Muhlenberg, 19 Supr. ^ C. 388 348 Scott s Est., 147 Pa. 102 100 Scott's Est., 4 Supr. C. 567 32 Scott's Petn., 10 Supr. C. 286 269 Scott V. Kennedy, No. 1, 201 Pa. 462 392 Scott V. R. Co., zi Supr. C. 574.. ^Z2, 136, 243 Scott V. R. Co., 222 Pa. 634 221 Scott V. Scott, 9 Kulp. 442 61 Scranton v. Scranton Steel Co., 154 Pa. 171 652 Scranton v. Wheeler, 179 U. S. 141 116, 1 2S Scranton Co. v. Co., 145 Pa. 21.... 120 Scranton Etc, Co. v. Canal Co., iSo Pa. 636 141 Scranton Gas & Water Co. v. Hall, 9 Lack. Jur. 80 648 Scranton Gas & W. Co. v. R. Co., 8 Lack. Jur. 161 135 Scrantoman v. Brown, ^d Supr, C. 1 70 3S4, 422 Scull's Ap., IIS Pa. 141 414 Seabolt v. Comrs., 187 Pa. 318 356 Seads v. Seads, 11 D. R. 689 87 Searight v. Carlisle Dep. Bk., 162 Pa. 504 630 Searle v. R. Co., 33 Pa. 57 227 Sears v. Scranton Trust Co., 228 Pa, 126; 10 Lack. Jur. i.. 522, 528, 596 Seaton v. Shaner^ 158 Pa. 69 433 Secombe v. R. Co., 90 U. S. 108.. no Second Ave., 7 Supr. C. 55 252 Seibel v. Firemen s Ins, Co., 212 Pa. 604 290 Seibert's Ap., 19 Pa. 49 498 Seip V. Werner, 10 Northam. Z7'" 647 Seipal V. R. Co., 129 Pa. 425 j66, 213, 240 Seiple V. Seiple, 4 Northam. Co. 105 80 Seiple V. Seiple, 21 C. C. 559 "jz Seitz V. Seitz, 170 Pa. 71 92 Selser's Est., 141 Pa. 529 23, 39 Seltzer v. Boyer, 224 Pa. 369 287 Seminary v. Boro, 153 Pa. 583.... 249 Semple v. R. Co., 172 Pa. 369 133 Setzler v. R. Co., 112 Pa. 56 227 Sewickly Dairy Co.'s Est., 198 Pa. 63 2^ Shaaber v. Reading, 150 Pa. 402.... 232 Shaeflfer's Ap., loi Pa, 45 12 Shafer's Pet.^ 12 D, R. 216 51, 283 Shaflfer v. List, 114 Pa. 486 319 Shamburg v, Abbott, 112 Pa. 6.... 422 Shamberg V. Abbott, 121 Pa. 443 389 Shannon v. Shannon, 7 D. R. 552,. 81 Shano v. Bridge Co., 189 Pa. 245.. 234 Sharon R, Co.'s Ap., 122 Pa. 533 120, 122 Sharp V. Murray, 48 Pitts. L. J. ^301 38s Sharp V. U. S., 191 U. S. 341.. 226, 251 Sharp V. Woolslare, 25 Supr. C. 251 56 Sharpless v. Boro, i Grant 257.... 209 Sharpless v. Mayor of Phila., 21 Pa. 147 107 Sharpless v. Willauer, 39 Supr, C. 20s 663 Shaunce v. McCrystal, 162 Pa. 457.. 378 Shaw V. Merrill, 16 D. R. 708 384 Shaw V. Phila., 169 Pa. 506 244 Shaw V. Shaw, 36 Supr. C. 122.. 79, 97 Shea's Ap., 121 Pa. 302 6x8 Sheaffer v. Hershey, 21 Lane. L. R. ^ 38s 52 Sheble V. Strong, 128 Pa. 315 438 Shedwick v. Prospect M. E. Chtirch, 160 Pa. 57 639 Sheesley's Est., 30 C. C. 577 32 Shefify*s Ap., 97 Pa. 317 40 TABLE OF CASES. 799 Shellenberger v. Shellenberger, 6 C, C. 287 75 Shenango Etc. R. Co. v. Braham, 79 Pa. 447 221 Shenango Furnace Co. v. Township, 229 Pa- 357 S'S Shepard v. Shepard, iS Supr. C. 407 69 Shepherd v. Fenna. R. Co., 29 Supr. C. 291 ' 533 Shepherd v. Shepherd, 18 C. C. 614.. 87 Shepp V. R. Co., 211 Pa. 425.. 227, 230 Sheridan v. Sheridan, 136 Pa. 14. . 362 Sherman v. Del. Etc. Co., 36 Supr. C. 487 524 Sherman v. Herr, 220 Pa. 420 .... 502, 521, 523, 584 Shetzline v. Layer, 19 I>. R, 1025.. 660 Shevalier v. Tel. Co., 22 Supr. C. 506 221, 235 Shick's Case, 1 Pearson 266 250 ^ick V. R. Co., I Pearson 259.. 12s, 243 Shields v. Pittsburg, 201 Pa. 328.. 237 Shields v. Shields, 17 D. R. 745... 74 Shimer t. R. Co., 205 Pa. 648^ 227 Shimp's Est., 197 Pa. 12S 12 Shimp V. Gray, 41 Supr, C. 542.... loi Shipley v. R. Co., 216 Pa. 512.. 212, 232 Shoe V. Providence, 3 Supr. C. 138.. in Shoemaker t. Shoemaker, 25 Supr. C. 183 93 Shoemaker v. U. S., 147 U. S. 282,. 247 Sholes V. Asphalt Etc. Co., 183 Pa. 528 483 Shoop*s Ap., 34 Pa. 233 62 Shroder v. Lancaster, 170 Pa. 136.. 243 Shropshire Co. v. Bush, 204 U. S. 18S S6 Shuck V. Reading, 186 Pa. 248 671 Shuster v. Cent. Dist. Etc. Co., 34 Supr. C. 513 23J Siegel T. Haines, 15 C. C. 40 394 Siegwarth v. Siegwarth, 58 Pitts. L. J. 123 S3S Sigler V. Sigler, 18 D. R. 345 338 Sill V. Blaney, 159 Pa. 264 363 Silliman v. Whitmer, 173 Pa. 401.. .637, 693 Simon's Est., 20 Superior C. 450.. 266 Simon v. Kessler, 12 D. R. 781.... 265 Simon v. Simon, 34 Supr. C. 182..79, 85 Simpson v. Summerrllle, 30 Supr. C. 17 378, 391. 552 Singer's Est., 217 Fa. 295 524 Singer's Est., 233 Fa. 55., loi Singmaster's Ap., 86 Pa. 169 41 Sites V. Sites, 9 D. R. 192.' 68, 74 Sitzberger v. Sitzberger, 21 Lane. L. R. 309 87 S. Jarvis Adams Co. y. Knapp, 213 Pa. 567 637 Slemmer's Ap., 58 Pa. 168 390 Slifer V. SUfer, 34 C. C. 107 365 Sloan V. Hoyt, 40 Supr. C. 181.... 21Z, 237, 238 Sloan V. James, 13 Supr. C. 399- • 614, 616, 6&& Sloan V. Moore, 3> Pa. 217 388, 465 Sloan V. Reese, 7 Del. Co. 318 614 Smalley v. Langenour, 196 U. S. 93.. 56 Smedley v. Irwin, 51 Pa. 445.... 108, 109, 131 Smethport Etc. R. Co. v. Pitts. Etc. R. Co., 203 Pa. 176 678 Smith's Ap., 104 Pa. 387 20 Smith's Ap., 117 Fa. 30 20 Smith's Case, 30 C. C. 377 310 Smith's Est., 144 Pa. 428 500 Smith's Est., 18 Supr. C. 329 33 Vol. 4 Practice — 51 Smith's Est., 13 D. R. So 19 Smith, in re, 12 Supr. C. 649 306 Smith, ex (arte, 17 Leg. Int. 332.. 303 Smith V. Aiman, 19 Montg. Co. 89.. 3 Smith V. Carter, 219 Pa. 315 565 Smith V. Corbett, 49 Pitts. L. J. 434., 52 Smith V. Equitable Trust Co., 215 Pa. 418 20,533 Smith V. Erwin, 168 Pa. 271 398 Smith V. Kammerer, 152 Pa. 98..564, 654 Smith V. Lenhart, 39 C. C. 28. .380, 391 Smith V. Moors, 215 Pa. 421 534 Smith V. Reading Etc. Co., 156 Pa. S 651 Smith V. R. Co., 141 Pa. 68 223 Smith V. Smith, 19 Phila. 389 85 Smith V. Smith, 15 Supr. C. 366... 91 Smith V. Smith, 38 Supr. C. 251 . . . 521 Smith V. Union Etc. Co., 17 Supr. C. 444 659 Smith & Wolff's Ap., 104 Fa. 381.. 24 Smith V. R. Co., 5 D. R. 543 116 Smock V. Nazareth, ji Northam. 310 57a, 690 Smucker v. R. Co., 188 Fa. 40.... 136 Smyth V. Glendenning, 194 Pa. 550.. 412 Smythe v. O'Brien, 198 Pa. 223... 522 Snader v. Bomberger, 21 Supr. C. 629 481 Snader v. Hurst, 16 Lane. L. R. 102 482 Snee v. R. Co., 210 Fa. 4S0....136, 163 Snively's Est., 9 C. C. 422 40 Snowden v. Dunlavy, 11 Pa. 522.. 567 Snyder's Ap., 36 Fa. j66 361 Snyder v. Bougher, 14 D. R. 757.. 55 Snyder v. Globe Etc. Ins. Co., 38 Supr. C. 623 286 Snyder v. McLanahan, 203 Pa. 55 . . 32 Snyder v. R. Co., 55 Pa. 340 241 Snyder v. R. Co., 210 Pa. 50a.... 167 Snyder v. Smjrthe, 224 Fa. 36 378 Society v. Robinson, 5 Wharton 18. . 121 Solis V. Blank, ip9 Pa. 600 489 Somerton Turnpike Co., 16 Supr. C. ^ 400 180, 223 Souricker v. Souricker, 39 Supr. C. 652 79 Sourwine v. Claypool, 138 Pa. 126.. 501 Southern Etc. Assn. v. Fenna. Etc. Co., 23 Supr. C. 88 295 Sower's Ap., 89 Pa. 173 86 Sower T. Phila., 35 Pa. 231 242 Spackman v. Steidel, 88 Pa. 453... 122 Spangler's Ap., 64 Pa. 387 241 Spangler v. Leitheiser, 182 Fa. 277.. 671 Sparhawk v. Union Fassr. R. Co., 54 Fa. 401 ..'. 658 Spatz V. Berks Co., 34 C. C. 198... 351 Spaulding v. Bullock, 20 Supr. C. 301; 216 Pa. 224 320,33s Speer v. Huidekoper, 221 Pa. 44S.. 620 Spotts V. Eisenhauer, 31 Supr. C. 89 520 Sprigg V. Comth. Etc. Co., 206 Pa. 548 388, 434 Spring City Etc. Co. v. R. Co., 167 Pa. 6 222 Springer v. Springer, 15 D. R. 133.. 86 Sprout V. Mussina, 16 D. R. 304... 653 Squires v. Howell, 12 Supr. C. 8.. 530 Stainer v. Royal Ins. Co., 13 Supr. C. 25 292 Stahl V. Pothj 220 Pa. 335 378 Stahl V. R. CO;, 155 Pa. 309 134 Standard Etc. Co. v. Printz Etc. Co., 232 Pa. 64 287 Stanton v. Stanton, 40 C. C. i..., 368 Stark's Ap,, 128 Pa. 545 40 8oo TABLE OF CASES. Stark V. Phila.^ 195 Pa. loi 223 Starr v. Caldwell, 17 D. R. 669 309 State V. R. Co., 44 Md. 131 168 State Bank Etc. v. Kirk, 216 Pa. 452 479 Stauffer v. Boro, 215 Pa. 143 166, 208, 211, 221, 222, 243 Stedman v. Cooke, 13 S. & R. 171 •• 256 Steel V. Goodwin, 113 Pa. 288 20 Stegmaier v. Tones, 203 Pa. 47 ... . 348 Stegmaier v. Keystone Coal Co., 232 Pa. 140 575 Steigerwalt v. Rife, 9 Supr. C. 363.. 527 Steinmyer v. Seibert, 190 Pa. 471.. " 523. 617 Steinruck's Insolv., 225 Pa. 461 45 Sterling's Ap., iii Pa. 33 143 Sterling v. Ashton, 12 Phila. 2zy . . 573 Stevens v. Ball Club, 142 Pa. 52... 436 Stevens v. R. Co., 34 N. J. L. 532.. 119 Stewart's Ap., 56 Pa. 413 118 Stewart's Est., 193 Pa. 347 414 Stewart v. Allegheny Natl. Bk., loi Pa. 342 362 Stewart v. Masterson, 131 U. S. 151 ■••• 576 Stewart v. Stewart, 34 C. C. 543 — . 68 Stewart v. Stewart, 230 Pa. 475... 523 Stewart v. Wagoner, 46 Pitts. L. J. 359 320 Stewart Wire Co. v. Lehigh Etc. Co., 203 Pa. 474 64s Stibich v. Goenner, 8 D. R. 227.... 416 Stickles v. Oviatt, 212 Pa. 219 364 Stitzer v. Fonder, 214 Pa. 117.. 552, 584 Stobert v. Smith, 189 Pa. 240 334 Stockdale v. McGinn, 207 Pa. 226.. 419 Stocker v. Hutter, 134 Pa. \q 640 Stokes V. Dewees, 24 Supr. C. 471.. 533 Stockett V. Ryan, 176 Pa. 71 616 Stockham v. Stockham, 185 Pa. 337.. 365 Stockley v. Hartley, 12 Supr. C. 628 469 Stockley v. McClurg, 14 Supr. C. 629 481 Stockley v. Riebenack, 12 Supr. C. 169 481 Stockley v. Schwerdfeger, 19 Supr. C. 289 481 Stone v. Marshall Oil Co., j88 Pa. 602 516 Stoner v. Creitz, 3 Lehigh Co. i . . 538 Stoner v. R. Co., 229 Pa. 521. .584, 594 Stoner v. Stoner, 2 Berks 53 79 Stout V. Williams, 203 Pa. 161 529, 645, 648 Stover V. Stover, 180 Pa. 425 378 Strange v. Williams, 12 Luz. L. R. 321 447 Strasburg v. Bachman, 21 W. N. C. 462 131 Strathern v. Gilmore, 184 Pa. 265.. 669 Strause v. Berger, 220 Pa. 367.. 523, 617 Straw V. Murray Etc. Ltd., 182 Pa. 642 439 St. R. Pub. Co. V. Connor, 16 D. R. 148 402 St. R. Pub. Co. V. Connor, 29 C. C. , 236 409 Struber's Ap., 229 Pa. 184 538, 539 Strickland v. R. Co., 154 Pa. 348 138, 237 Strock V. Comth., 90 Pa. 272 314 Strohl V. Ephrata, 13 Lane. L. R. I 116 Strohl V. Ephrata Boro, 178 Pa. 50.. 616 Struthers v. R. Co., 87 Pa. 282 134 Struthers V. R. Co., 174 Pa. 291... 225 Struthers Etc. Co. v. Trust Co., 227 Pa. 29 523 Stuchul V. Stuchul, 233 Pa. 299... 643 Studebaker v. Gas Co., 7 Supr. C. 641 209 StuU's Est., 183 Pa. 625 99 Sturges v. Scranton R. Co., 9 Lack. Jur. 53 578 Sturgeons Case, 31 C. C. 406 338 Sturgeon v. Appollo Etc. Co., Ltd., 203 Pa. 369 437 Suburban Press v. Phila. Sub. Pub. Co., 227 Pa. 148 681 Sullivan v. Jones Etc. Co., 208 Pa. 540; 222 Pa. 72 64s, 647 Summers v. Shryock, 46 Supr. C. 231 594i 604 Summit Water Co.'s bond, 16 D. R. 355 ^ -209 Sunbury Etc. R. Co. v. Cooper, 33 Pa. 278 225 Sunday v. Hagenbuch, 18 C, C. 540.. 559 Sunderland's Est., 29 C. C. 267 . . . 338 Sutcliff V. Mariner, 202 Pa. 557.. 420, 525 Sutton V. Penna. R. Co., 211 Pa. S54 "5 Sutton V. R. Co., 214 Pa. 27^.. 243, 244 Sweitzer v. Coal Co., 38 C. C. 180.. 663 Swearingen v. Barnsdall, 210 Fa. 84.. 529 Sweatman's Ap., 150 Pa. 369 28 Sweeney v. Horn, 190 Pa. zz^ 411 Sweet V. Rechel, 159 U. S. 3S0. . . . 116 Swift's Ap., Ill Pa. 516 134 Swift V. Teutonia Ins. Co., 28 Supr. C. 253 292 Swoope V. Wakefield, 10 Supr. C. 342 416 Sykes v. Thornton, 152 Pa. 94 487 T Tabor St. No. i, 26 Supr. C. 167.. 53s Talley v. Talley, 215 Pa. 281; 29 Supr. C. 535 78 Tannehill v. Phila. Co., 2 Supr. C. 159 224 Tanner v. Fox Etc., 40 C. C. 136.. 482 Tappan v. Tappan, 8 Lack. Jur. 243.. 101 Tarr's Est., 10 Supr. C. 554 298 Taylor v. Entriken, 214 Pa. 303.... 356 Taylor v. Fried, 161 Pa. 53 377 Taylor v. Guarantee Etc, Co., 149 Pa. 409 18, 29 Taylor v. McCafferty, 27 Supr. C. 122 ....* 561, 631 Taylor v. Paul, 6 Supr. C. 4g6 3, 501 Taylor v. Sauer, 40 Supr. C. 229 . . 652, 687 Tel. Cable Co. v. R. Co., 114 Fed. R. 787 1 17 Tel. Co. V. Hoover, 24 Supr. C. 96.. 114 Tel. Co. V. Hoover, 209 Pa. 555 114 Tel. Co. V. Kesey, s D. R. 366 114 Tel. Co. V. R. Co., 123 Fei R. 33.. 113 Telegraph Co. v. Wilt, i Phila. 270.. 183 Temples Est., 22 Lane. L. R. 377... 40 Tenbrooke v. Jahke, tj Pa. 392.... 223 Tenth Natl. Bank Etc. v. Smith Con. Co., 20 York 15 480 Terrell v. Allison, 21 Wallace 291.. 478 Tetlow V. Rust, 227 Pa. 292 525 Thirteenth Etc. R. Co. v. Broad Etc. R. Co., 219 Pa. 10 (>y7 Thomas' Est., 36 Supr. C. 186.. 525, 641 Thomas v. Borden, 222 Pa. 184.... 584 Thomas v. Boswell, 14 Phila. 197... 575 TABLE OF CASES. 8oi Thomas v. Taggart, 209 U. S. 385 . . 54 Thomas v. Western Ins. Co., 5 Supr. C. 383 290 Thompson's Ap., 126 Pa. 367... 548, 604 Thompson's Ap., 16 Montg. 102; 17 Montg. 183 332, 333 Thompson v. Fitzgerald, 233 Pa. 259 584 Thompson v. Graham, 34 C. C. 362.. 384 Thompson v. Griggs, 31 Supr. C. 608 S34 Thompson v. McCleary, 159 Pa. 189 485 Thompson v. South Etc. Dirs., 35 C. C. 353 688 Thompson v. Tr. Co., 181 Pa. 131 X43, 223 Thomson v. Wooster, 114 U. S. 104 5^3 Thornton v. Thorton, 11 Lack. Jur. 312 526 Thouron v. Schuylkill Etc. Co., 174 Pa. 366 651 Thrall v. Williamsport, 4 Supr. C. 165 687 Tibhins v. Burrell, 46 Supr. C. 466.. 617 Tiedemann v. Tiedemann, s C. C. ■n 74 Tilge V. Brooks, 124 Pa. 178 396 Tilli V. Vandegrift, 18 Supr. C. 485.. 379 Timney v. Timney, 21 Supr. C. 538. 72 Tindel v. Park, 154 Pa. 36 431 Tindle v. Birkett, 205 U. S. 183... 54 Tinicum Fishing Co. v. Carter, 90 Pa. 85 231 Tinker v. Colwell, 193 U. S. 473... 56 Tobias v. Natl. Slav. Soc, 20 D. R. 427 353 Tobin V. Tobin, 32 Supr. C, 186.... 73 Todd V. Todd, 149 Pa. 60 60,61 Tomlinson's Ap., 90 Pa. 224 33 Tomlinson v. Trenton Etc. R. Co., 31 C. C. 81 649 Totten V. Totten, 27 C. C. 312 90 Towanda Bridge Co., 91 Pa. 216 125, 147, 192,214 Townsend v. Lacock, 222 Pa. 330.. 527 Tozer v. Satturlee, 3 Grant 162.... 316 Tozier v. Brown, 202 Pa. 359 532 Tradesman's Natl.. Bank's Ap., 149 Pa. 268 22 Trant v. R. Co., is Atl. 678 167 Treat v. Penna. Etc. Co., 199 Pa. 326 483 Treat v. Penna, Mut. Life Ins. Co., 203 Pa. 21 467 Tredway v, Kaufman, 21 Supr. C. 256 51 Tredway v. Kaufman, Reversed, 195 U. S. 271 52 Treskon v. Treskon, 60 Pitts. L. J. 192 94 Trevose Etc. Est., 159 Pa. 496 29 Trexler v. Kuntz, 36 Supr. C. 352 527, 533 Trexler v. Reynolds, 43 Supr. C. 168 379 Trexler v. Reynolds, 232 Pa. 174... 391 Trotter v. Trotter, 47 Pitts. L. J. 109 68 Troy Water Co. v. Troy, 200 Pa. 453 «98 Truitt v. Phila., 221 Pa. 331 351, 355 Trust Co.'s Petn., 3 D. R. 205 352 Trust Co. V. Hoffstot, 219 Pa. 497.. 524 Trustees of Kingston v. Lehigh V. Coal Co., 236 Pa. 350 680 Tubbs v. Tubbs, 25 C. C. 26 94 Tucker v. Frankford Strs., 166 Pa. 336 140 Tull v. Brooke, 24 Supr. C. 426.... 631 Turnpike, 2 Dkuphin Co. si 214 Turnpike Road, 20 Supr. C. 173... Ill, 223 Turnpike Co. v. County, 172 Pa. 243 223 Turnpike Co. v. County, 196 Pa. 21.. 223 Turnpike Co. v. R. Co., 177 Pa. 585 24.1 Turnpike Co. v. Sanderson, 164 U. S. 521 • 103 Turnpike Co. v. Traction Co., 174 Pa. 273 223, 230 Turrell v. Ball, 26 C. C. 36 54 Tussey v. Clark, 45 Supr. C. 433 . . . 573, 604, 6S2 Tustin's Ac, 176 Pa. 382 24 Twenty-Second Street, 102 Pa. 108.. 106 Tygert-Allen Etc. Co. v. Tygert Co., 191 Pa. 336 681 Tyler v. Parliman, 14 D. R. si7.... 56 Tyler Etc. Co. v. Washington Boro, 48 Pitts. L. J. 363 659 U Ulmer v. Cowen, 199 Pa. 316 241 Ulysses Elgin Butter Co. v. Hart- ford Etc. Ins. Co., 20 Supr. C. 384 290, 440 Ulysses Elgin Butter Co. v. Home Ins. Co., 20 Supr. C. 320 289 Unangst's Ap., 55 Pa. 12S 236 Unangst v. Easton Etc. Co., 9 Northam. 105 658 Union Banking Co.'s Est., iz Phila. 214 26 Unruh v. Lukens, 166 Pa. 324 502 UpdegrafE v. Crans, 47 Pa. 103 447 Updegrove's Case, 38 C. C. 97 3 Updegrove v. R. Co„ 132 Pa. 540... 236 Upper Ten Mile Plank Road, 15 D. R. 988 191 U. S. V. Alexander, 148 U. S. 186.. 128 U. S. V. Chicago, 48 U. S. 185 119 U. S. V. Edme, 9 S. & R. 147 567 U. S. V. Gettysburg R. Co., 160 U. S. 668 106 U. S. V. Hegeman, 21 Supr. C. 459.. 417 U. S. V. Jones, 109 U. S. 513 104 U. S. V. Lynah, i88 U. S. 445.. 130, 231 V Vail V, Osburn, 174 Pa. 580 564 Valley Forge, 14 Mont^^. 129 139 Vandegrift v. Vandegrift, 35 C. C. 389 424 Vandegrift v. Vandegrift, 22(1 Pa. 254 379 Van Dyke v. Van Dyke, 135 Pa. 459 83 Van Eman v. Fidelity Etc. Co., 201 Pa. S37 296 Van Horn v. Corcoran, 127 Pa. 255.. 436 Van Sciver v. Churchill, 21s Pa. 53.. 529 Vare v. Controller Walton, 21 D. R. 77> 127 348 Varney v. Varney, 19 D. R. 753.... 64 Vaughn v. Vaughn, 7 Lacfc. Jur. 231; 217 Pa. 496 570 Vellis v. Vellis, 4 C. C. 100 78, 84 Venango County v. Penn Bridge Co., 14 D. R. 221 51$ Vernon Park, 163 Pa. 70 248 802 TABLE OF CASES. Versailles Gas Co. v. Lynch, 36 Pitts. L. J. 285 IIS Verstine v, Yeaney» 210 Pa, 109... 364 Vinton Coll. Co. v. R. Co., 226 Pa. 131 112, 167 Vitte V. Vitte, 52 Pitts. L, J. 325... 633 Voegtly V. R. Co., 2 Grant 243,.,, 212 Volkmar St., 124 Pa. 320 231 Vollmer's Ap., 61 Pa. 118 584 Von Helmold v. Von Helmold, 19 Supr. C. 217 262 W Waddell's Ap., 84^ Pa. 30 112, 112 "Wadhams v. R. Co., 42 Pa. 303 132, 209, 239 Wadsworth v. Reel, 15 C. C. 440... 347 Wagner's Est., 18 W. N. C. 430 314 "Wagner v. Burnham, 224 Pa. 586.. 53 Wagner v. Fehr, 211 Pa. 435. 524 Wagner v. Hazel Twp., 215 Pa. 219. 252 Wagner v. King, 41 Supr. C. 292.. 656 Wagner v. Phila., 132 Pa. 612 109 Wagner v. Township, -132 Pa. 636.. Ill, I33» 150 Wagner v. Water Co., 39 C, C. 337. 143 Wahl V. M. E. C. Assn., 197 Pa. 197 648 Wahl V. R. Co., 158 Pa. 257 145 Wakeling V. Cocker, 208 Pa. 651 652 Wales, Princess of, v. Lord Liver- pool, I Swanston 114 58S Wallace \. B. & O. R. Co., 216 Pa. 311 676 Wallace v. Camp, 200 Pa. 220 52 Wallace v. Duffield, 2 S. & R. 521.. 256 Wallace v. Gas Co., 147 Pa. 205.., i37» 140, 224, 235 Wallace v. Metropolitan Etc. Co., 14 Supr. C. 617 295 Wallace v. R. Co., 138 Pa. 168 242 Wallace v. United Elec. Co., 211 Pa. 473 564 Waller's Ap., 112 Pa. 579 655 Waller's Ap., 1 50 Pa. 494 27 Waller v. Kingston Coal Co., 1 3 Luz. L. R. 421 575 Walnut Street Bridge, 191 Pa. 153 127, 128 Walker v. R. Co., 174 Pa, 288.. 221, 228 Walker v. Walker,, 13 D. R. 278... 69 Walker v. Walker, 199 Pa, 435..., 502 Walker v. Tupper, 152 Pa. i 377 Walser v, Gottlieb, 12 Luz. L. R, 21. 54 Walsh V. Kirby, 22S Pa. 194 383 Walsh V. Langan, 5 Lack. Jur. 303. 378 Walter's Ap., 70 Pa, 392 60 Walters v. McElroy, 151 Pa. 549... 648, 656 Walter v. West Br. Etc. Co., 12 D, R. 529 480 Waltram v. Waltram, 19 W. N. C. 181 96 Wanamaker v. Buchanan, 33 Supr. C. 138 378. 412 Wanamaker v. Schuylkill Etc. Co., 21 D. R. 669 209,676 Wanamaker v. Wanamaker, 2 Pear- son 166 94 Warden v, Phila., 167 Pa. 523 220, 221, 234 Warner v. McMuUin, 131 Pa. 370.. 25 Warrell v. R. Co., 130 Pa. 600 237 Warren v. Warren, 9 Lack. Jur. 85. 79 Warrington v. Perry, 13 D. R. 806.. 564 Washington Ave., 69 Pa. 352 105 Washington's Est., 220 Pa. 204 501 Washington Boro v. Fouse, 41 Supr, C. 462 662 Water Co. v. Boro, 200 Pa. 453 106 Water Co. v. Canal Co., 4 D, R. 637 126 Wate*. Co. V. Catasauqua, 3 Lehigh 319 116, 19s Water Co. v. Iron Co., 84 Pa. 279 128, 223 Water Co, v, Scranton, 11 D, R. 671 126 Water Co. v. Tyrone, 195 Pa, 566., 199 Water Co. v. Water Co.. 7 C. C. 476 127, 197 Water Co. v. Water Co., 15 C, C. 603 199 Water Co. v. Water Co,, 148 Pa. 568 198 Water Power Co. v. Canal Co,, 142 U, S. 254 128 Water Power Co. v. Raff, 36 N. J. L. 335 241 Water Sup. Co, v. Brooklyn, 166 U. S. 685 ii5» 119, 138 Water Works v, Prager, 3 C. C. 371 198 Watkins v. Hughes, 206 Pa. 526.... 617 Watson's Est., 29 Pitts. L. J, 190., 320 Watson V. Jones, 85 Pa, 117 121 Watson V. McManus, 224 Fa. 430.. 542 Waverly Bank v. Hall, 150 Pa. 466. 392 Way V. Hooten, 156 Pa. 8 501 Wayne v. Fenna. R. Co., 231 Pa. 512 ., 23s Weaver v. Getz, 16 Supr. C. 418 120 Western Penna. R. Co.'s Ap., 99 Pa. 155. 124 Western Penna, R. Co. v. Hill, 56 Pa. 460 138 Western Etc, R. Co. v. Johnston, 59 Pa. 290 119 W. U. Tel. Co. v. P. R. Co., 195 U. S. 540 114 V/. U. Tel. Co, V, P. R, Co., 123 Fed, R, 33 114 Weast V, Derrick, 100 Pa. 509 32 Weaver, in re, 116 Pa, 225. .307, 309, 310 Weaver v, Craighead, 104 Pa. 288.. 259 Weaver v. Getz, 16 Supr. C. 418 663 Webster v. Webster, 19 D. R. 181.. 93 Weed's Est., 163 Pa. 595 23 Weigley v. Coffman, 144 Pa, 489 . . , 429 Weil V. Scott, 29 C. C. 197 620 Weil V. Scott, 12 D. R. 463 37S Weiler v. Greiner, 12 Phila, 440.,.. 262 Weiler v. Kershner, 109 Pa. 219 . 24 Weiler v. Lancaster Etc. Co., No, 17, Oct. T. 1911, Supr. C 285 Weinmann's Est., 164 Pa. 405 27 Weir V. Weir, 22 Lane. L. R. 84.... 94 Weiser v. Freeman, 227 Pa. 78 652 Weisfield v. Beale, 44 Supr. C. 386., 54 Weisfield v. Beale, 231 Pa. 39 56 Weiss v. Beihl, 232 Pa. 97 55 Welch V. Miller, 210 Pa. 204.... 3S4, 390 Welch V. Sheaffer, 29 Supr. C, 619... 690 Welles' Ac, 191 Fa. 239 411 Wells V. Hotchkiss, 2$ W. N. C. 26.. 20 Wells Whip Co. v. Tanners' Etc. Co., 209 Fa, 604 290 Welsh's Est, 45 Supr. C. 115 521 Welsh V. Loncfon Etc. Co., 151 Pa. 607 290 Welsh V. R. Co., 6 C. C. 56 210 Wenger's Est., 2 Supr. C. 611.... 16, 41 Wentz's Est., 225 Pa. 566 385 Werneka v. Werneka, 12 Lack. Jur. 366 68 TABLE OF CASES. 803 Wesley t. Sulzer, 224 Fa, 311 652 Wessels v. Weiss, 166 Pa. 490 392 West Co. V. Lea, 174 U. S. 590... 50, 51 West Chester Etc R. Co. v. Chester Co., 182 Pa. 40 223 Western Etc. Lines v. Home Ins. Co., 145 Pa. 346 291 Western Etc. R. Co. v. Buffalo Etc. Co., 193 Pa. 127 679 Western Union Tel. Co. v. P. R. Co., 19s U. S. 594 118 West Mead Twp. v. Meadville Etc R. Co., 31 C. C. 104 52a Westmoreland Etc. Co. v. Dewitt, 130 Pa. 235 649 Westmoreland Coal Co. v. McCart- ney, 20 D. R. 58 683 Westover Boro v. Fenna. R. Co., 33 Supr. C. 359 678 West Pub'g Co. V. Edward Thomp- son Co., 176 Fed. R. 833 682 West Reading v. R. Co., 3 Berks Co. 17 660 Westwater v. Ferguson, 22 C. C. 582 636 Wetherill v. Gallagher, 211 Pa. 306.. 530 Wetmore v. Wetmore, 17 C. C. 11.. 69 Wettengel v. Light Co., 223 Pa. 79.. 659 Wetzler's Est., 3 Supr. C. 43s 19 Wharton v. Morris, i Dallas 125.... 512 Wheatland's Ap., 125 Fa. 38 32a Wheeling Etc. R. Co. v. Warrell, 122 Fa. 613 144, 211,259 Wheeler v. Wheeler, 20 D. R. 723.. 68 Whelan v. Whelan, 37 C. C. 115 64 Whitaker v. Boro, 141 Fa. 327.. 234, 235 Whitaker v. Canal Co., 87 Pa. 34.. 127 White's Est., 209 Fa. 627 32 White V. Bridge Co., 189 Fa. 500... 226 White V. Empire Etc. Co., 47 Supr. C. 52 296 White V. German Etc. Co., 12 D. R. 293 616 White V. Meadville, 177 Pa. 643.... 199 White V. Metropolitan Etc. Co., 22 Supr. C. 501 295 White V. Trowhridge, 216 Pa. 11.... 412 White V. Wright, 179 Pa. 75 622 Whiteman v. Fayette Fuel Gas Co., 139 Pa. 492 646 Whiteside v. Winans, 29 Supr. C. 244 521, 599 Whitlock's License, 39 Supr. C. 34.. 53 ' Whitney v. Dresser, 200 U. S. 532.. 54 Whitney v. Olney, 3 Mason 28a.... 121 Wick China Co. v. Brown, 164 Pa. 449 683, 691 Wicfcham v. Taylor, 225 Pa. 246 529 Wickham v. Twaddell, 25 Supr. C. 188 650 Widger v. Widger, 13 Luz. L. R. 34. 89 Wiegold V. R. Co., 208 Pa. 81 134 Wiggins V. Columbian Co., 227 Pa. Pa. sii 522 Wilck V. Wilck, i Berks Co. 3 68 Wild V. Provident Trust Co., 214 U. S. 202 52 Wile T. Wile, 48 Supr. C. 494 8s Wiley's Est., 90 Pa. 173 12 Wilhelm's Ap., 79 Fa. 120 5 So Wilhelm's Est., 182 Fa. 281 40 Wilhelmi v. Wilhelmi, 9 D. R- 685.69.72 Wilkes-Barre v. Soc, 134 Fa. 616... 117 Wilkes-Barre Twp. v. Wilkes-Barre Tr. Co., 13 Luz. L. R. 193, 210... 678 Wilkinson v. Evans, 34 Supr. C. 472 445 William's Ap., loi Fa. 474 28 Williams' Ap., 122 Fa. 472 385 Williams v. Bristol Etc. Co., 174 Fa. 29^ 6 Williams v. Concord Cong. Church, 193 Fa. 120 639 Williams v. Fowler, 201 Pa. 336.. 529. S3t Williams v. Irwin, 99 Pa. 37 259 Williams v. Ivory, 173 Fa. 536.... 4 Williams v. Kerr, 152 Fa. 560 639 Williams v. Ladew, 161 Fa. 283.... £50 Williams v. Williams, 12 Luz. L. R. 347 68 Williams Etc. R. Co. v. Lykens Etc. R. Co., 192 Fa. 552 679 Williamsport v. Citizens' Etc. Co., 232 Fa. 232 343, 528 Williamsport v. Eldred Twp., 84 Fa. 429 100 Williamsport v. R. Co., 8 C. C. 350. 225 Williamsport Etc. R. Co. v. R. Co., 141 Pa. 407 113 Williamsport Pass. R. Co. v. Wil- liamsport, 120 Pa. 1 149 Williamsons Case, 26 Pa. 9 26S Williamson v. Lewis, 39 Pa. 9 272 Willis v. Phila. Etc. R. Co., 6 W. N. C. 461 633 Willis v. Pitts. R. Co., 234 Pa. 120.. 679 Willis V. Swartz, 28 Fa. 413 121 Wilson's Est., 14 Lane. L. R. 370... 27 Wilson V. Black, 164 Pa. 555 423 Wilson V. Gather^ 214 Fa. 3 664 Wilson V. Coursin, 72 Fa. 306 266 Wilson V. Gas Co., 152 Fa. 566.... 140, 222, 224 Wilson V. Keller, 195 Fa. 98 424 Wilson V. R. Co., 7 Montg. 46 211 Wilson V. R. Co., 34 Supr. C. 57s.. 135 Wilson V, Rand Powder Co., 30 C. C. 130 658 Wilson V. Scranton, 141 Pa. 621.... 223, 249 Wilson V. Wilson, 142 Pa. 247 642 Wiltbank v. Tobler, 181 Pa. 103 267 Windsor Glass Co. v. Carnegie Co., 204 Pa. 4S9 667 Wing V. Bradiier, 162 Pa. 72 20 Wingenroth v. Dellenbach, 219 Pa. 536 SOI Winpenny v. Winpenny, 16 Phila. 24 89 Winternitz v. Porter, 86 Pa. 35 264 Winters v. Cohn, 4 Berks Co. 206.. 559 Wise v. Vosburg, 4 Supr. C. 221 410 Wissler's Est., 15 Lane. L. R. 294.. 31S Wister's Ap., 115 Pa. 246 363 Wister v. McManus, 54 Pa. 318.... 553 Witman v. Reading, 191 Pa. 134.,.. 237 Wobbilus V. Am. Assn. Co., 3 Schuylkill 209 29s Woddrop V. Ward, 154 Pa. 307 5 Wolf's Ap., 106 Fa. 545 38 Wolf's Case, 195 Pa. 438 310, 316 Wolf V. Augustine, 197 Pa. 367 620 Wolf Chemical Co. v. Phila., 217 Pa. 215 670 Wolf V. Christman, 202 Pa. 475. .525, 616 Wolf V. Glassport Lumber Co., 210 Pa. 370 528, 653 Wolf V. Lamborn, 17 W. N. C. 425.. 383 Wolf V. Shortridge, 29 C. C. 81 S39 Wood, in re, 10 D. R. 374 306, 338 Wood & Henderson, in re, 210 U. S. 246 54 Wood V. Kerkeslager, 227 Pa. 536.. 3 8o4 TABLE OF CASES. Wood V. McGrath, 150 Pa. 451 658 Wood V. Standard Etc. Co., 154 Pa. 157 269 Wood V. State Hospital, 164 Pa. 159 132, 249 Wood V. Wood, 2 Brewster 447 .... 93 Woods V. Gas Co., 204 Pa. 606 113 Woods V. Klein, 323 Pa. 256 53 Woods V. Pitts. Coal Co., 230 Pa. 197 520, 527 Woods V. U. S. Novelty Co., 54 Pitts. L. J. 298 479 Woodrofife v. Blagerty, 35 Supr. C. 576 659 Woodward v. Brace, 139 Pa. 316 . 641 Woomer v. Stanley, i8 Lane. L. R. 2?? 480 ' "Worthington v. Worthington, 9 Kulp 513 362 Wright's Est., 182 Pa. go 9, 23, 41 Wright V. Weber, 17 Supr. C. 451.. 647 Wright V. Wright, 20 D. R. 1004... 70 Wuller's Est., 14 D. R. 89 332 Wurst V. Wurst, 14 D. R. 682 76 Wylie's Ap., 92 Pa. 196 29 Wyoming Etc. Co. v. Price, 81 Pa. 156 iiS Y Yaple V. Dahl Etc. Co., 193 U. S. 526 52 Yardley v. Yardley, 38 C. C. 556 68 Yaryan Co. v. Penna. Glue Co. Ltd., 180 Pa. 480 439 Yeager v. Tool, i Dauphin Co. 120,. 13 Yeager v. Wallace, 44 Pa. 294 345 Yeager v. Yeager, 2 Berks Co. 61... 91 Yeatts V. Doyle, 190 Pa. 129 665 Yeingst v. R. Co., 40 Supr. C. io6.. 135 Yerger v. Hunn, 23 1 Pa. 245 606 Yetter v. Yetter, 11 Lack. Jur. 211.. 86 Yetter v. Yetter, 45 Supr. C. 332 535 Yocum V. Coml. Etc. Bk., 195 Pa. 41 1 599 Yocum V. Yocum, 3 D. R. 613 77 Yoho V. Allegheny Co., 218 Pa. 410. 576 York Mf'g Co. v. Cassell, 201 U. S. 344 54 York Mf'g Co. v. Oberdick, No. 2, 15 York 39 683 York Mf'g Co. v. Oberdick, No. 2, zs C. C. 321 645, 684 York Railways Co. v. Stiles, 23 York 69 115, 209 York Trust Co.'s Petn., 12 York 78 499 York Trust Co. v. Pullman Etc. Co., 289 Jan'y T. 1911 491 Yonkers v. Warden, 8 Supr. C. 395. 526 Yost's Report, 17 Pa. 524 139 Yost V. Yost, 21 Lane. L. R. 307..., 85 Young V. Britt, 4 Schuylkill Co. 17. 657 Young V. Forest Oil Co., 194 Pa. 243 547 Young V. Oviatt, 35 Supr. C. 603 . . . 663 Youngstown Etc. Co. v. Butler Etc. ' Dist,, 21 Supr. C. 95 522, 526 Zahn V. R. Co., 184 Pa. 66 136, 243 Zanziger v. E. L. Etc. Co., 6 D. R. 577 •• 115. 241 Zebiey v. Storey, 117 Pa. 478 2^7 Zeigler v. Weil, 21 D. R. 809 56 Zell's Ap., 126 Pa. 329 640 Zellar v. Farrand, 38 Supr. C. 398.. 673 Ziegler's Ap., 84 Pa. 342 28 Zeno V. Zeno, 5 Lack. jur. 140.... 60, 91 Zerbey v. Allan, 215 Pa. 383 616, 618 Zook V. R. Co., 206 Pa. 603 604, 614 Zug V. Pittsburg, 194 Pa. 367... 167, 251 INDEX EXPLANATORY NOTE. Each volume of this series has its own index and table of con- tents by page and paragraph. The index in this volume is not only by page and paragraph to its contents — but also has reference to the subjects and divisions in the first volumes, pointing to the Chapter page where a complete analysis of each subject by paragraph may be found. Thus everyone with any perspicacity should be able to find the law and the practice readily. ABANIKJNMENT. PAGE PAR. Easement in canal — reversion 121 — 5 Equivalent to desertion 80 — J126 State canals 137 — 17 State's railroads and canals 225 — 13, 14 Suit, presumption after 20 years 618 — 37 ABATEMENT. Actions, Vol. I Johnson 305 — • Mandamus 3S4— 25, 26, 27 ABBREVIATIONS— Vol. i Johnson xxviii ABSENT OWNERS, BOND, STREET RAIL- WAYS 203— 74 ABSENTEE. Guardian ad litem, eminent domain 182 — 5 Mariner, execution against estate 262 — 3 ABUSE OF FRANCHISE, REACHED BY QUO WARRANTO 447— 2 ABUTTER. Compensation for added servitude 142 — 34 Compensation in damages 181 — 2 Compensation in damages 140 — 27 Damages for railroad on street 233 — 45 Measure of damages, for 223 — 8 80s 8o6 INDEX. PAGE PAR. ACCEPTANCE. Of assignment lo — 12 Of assignment, form 10 — 13 Of constitution by railroads etc 149 — 10 ACCIDENT INSURANCE, NOTICE OF ACCI- DENT 296— 20 ACCOMMODATION ENDORSER. MARRIED WOMAN, AS 266— II ACCOUNTS. Assignees for creditors 23 — 35 Advertisement of 36 — 59 Advertisement of, Allegheny Co 36 — 61' Advertisement of, Philadelphia 36 — 60 Filing by assignee, notice — from 35 — 58 Reference of 36 — 62 Bill for, requisites 551 — 11 Committee in lunacy 334— 81, 82 Committee in lunacy, form 335 — 84 Committee of person of lunatic ,:3S — 83 Duty of general partner 399 — 52 Equity jurisdiction of 515 — 5 Executors, audit, distribution and discharge. Vol. 3 Johnson 864 — Partnership, chancery powers of C. P. Court .... 387 — 16 Partnership, liability 424 — 107 Partnership, right to 423 — 106 Recording of, com. of lunatic 336 — 86 Receiver and form " 492 — 44, 45 Statement by partners 430 — 115 Tenants in common in mines, according to the course of chancery 518 — 13 ACCOUNTANTS AS ASSESSORS, RITLE 71 621— 4 ACCOUNT RENDER. As between partners 391 — 24 Practice and forms. Vol. 2 Johnson 547 — ACKNOWLEDGMENT. Assignment for creditors 6 — 7 Ce'tificate of limited partnership 395 — 35 Deed of assignment, form 8 — 10 INDEX. 807 PAGE PAR. ACTIONS AT LAW, PROPER, Vol. i Johnson.... 295— See volumes i and 2 Johnson Bankruptcy 55 — 9, 10 Required to settle disputes about title to land .... 529 — 27 ACTION OF MANDAMUS, WHERE NO OTHER LEGAL REMEDY APPLIES 343— i ACTIONS. Against partnerships 384 — 9 Against receivers, statute annuls the rule in Between partners 384 — 10 By and against legal representatives, 3 Johnson . . 173 — Partnerships, assigned claim 383- — 8 chancery 482 — 30 Real, service on minors 370 — 28 Real, service of process in, Vol. i Johnson 403 — Transitory, see "Venue" ACTS ultra vires, MAY BE INJOINED 675— 35 ADEQUATE REMEDY AT LAW 527— 26 Vol. I Johnson 4 — 12 ADJACENT OWNER, RIGHT TO COMPENSA- TION 140— 28 ADMINISTRATION ACCOUNT. Vol. 3 Johnson 382 — Letters, appraisement, widow's exemption, etc.. Vol. 3 Johnson 43 — ADMINISTRATORS AND OTHER FIDUCIAR- IES, DISCHARGE AND REMOVAL, 3 Johnson.. 58— ADMINISTRATRIX OF PARTNER, POWER TO SETTLE ACCOUNT 443— 120 ADMISSIONS. By the pleadings in Equity 585 — 40 Form of in Equity 589 — 44 When plenary or otherwise 593 — 55 ADULTERESS, LIVING WITH PARAMOUR, CANNOT ALIEN PROPERTY 99— 74 8o8 INDEX. PAGE PAB. ADULTERY. Condonation and recrimination on libel for divorce, 78 — 41 Divorce a mensa for 63 — 1 1 Divorce not granted, when 77 — 40 Divorce, form of answer yy — - 40 Form of libel, for 70 — 22 ADVANCEMENTS, Vol. 3 Johnson 481— ADVANTAGES, ASSESSMENT OF DAMAGES, IN 2^7 — 19, 20 ADVERSE POSSESSION, WHY NOT APPLIC- ABLE TO EMINENT DOMAIN 144— 44 ADVERTISEMENT, ASSIGNEE'S ACCOUNTS 36— 59, 60, 61 AFFIDAVIT. For appeal, report of water viewers 192 — 43 Claim on assigned fund 35 — 57 Form, libel for divorce 70 — 23 Demurrer is not interposed for delay 575 — 15 General partner in a limited partnership 396 — 37 General partner in a limited partnership, form . . . 396 — 38 Libel for divorce 64 — 13 Proofs of lunacy 303 — 10 AFFIDAVITS. Accompanying bill for injunction 687 — 3 Character and pertinence 614 — 26 AFFIDAVITS OF DEFENSE, Vol. i Johnson 490— AFFIDAVITS AND DEPOSITIONS IN THE FIRST PERSON 605— 7 By whom administered 591 — 48 AGED, INFIRM AND GOING WITNESSES. TES- TIMONY 554— 14.1S AGENCY OF EXERCISE OF EMINENT DOMAIN 105— 4 AGREEMENT. Creditors of assigned estate, form 34 — 56 Creditors with assignor 29 — 44 To give the land 236 — 54 INDEX. 809 PACE PAR. AGREEMENTS. Amounting to partnerships 378 — I As to survivorship among partners 420 — 102 To separate, when binding 100 — 76 ALIAS SUBPOENA IN DIVORCE 66— 16 ALIEN AMY AND ENEMY, AS PARTIES 544— 20 ALIENATION OF AFFECTIONS, ACTION, FORMS, 2 Johnson 856— ALIENATIONS BY MARINERS, WHEN VOID.. . 262— 2 ALIMONY. Bond for, divorce a mensa 95 — 67 Collection, divorce a mensa 95 — 67 Divorce a mensa 63 — 10, 1 1 Pendente lite etc 86 — 52 Permanent in divorce 94 — • 66 Rule to pay 95 — 68 ALLEGATIONS. In bill in Equity, see "Bill in Equity" And proofs, in Equity 614 — 28 ALLEGHENY COUNTY. Framing issue in eminent domain 250 — 50 Rules to show cause in 574 — 10 ALLOWANCE. Of exception, answer afterwards 592 — 51 Subpoena in divorce 69 — 21 ALTERATION, CHARTERS, POWER OF GEN- ERAL ASSEMBLY 148— 5 ALTERNATIVE. Writ of Mandamus 344 — 2 Writ of Mandamus 355 — 32 Amendable 354 — 28 Form 349 — II Time, service and return 352 — 22 AMENDMENTS. Vol. I Johnson 455 — Adding signature to affidavit 591 — 48 Answer, discretionary 6oi- — 67 8io INDEX. AUENDU.'E'tiTS— (Continued) page pah. At law, I Johnson 367 — 4 Bill after answer, before or after replication 598 — 63 Bill for partition 366 — ; 17 Bill on demurrer 578 — 22 Bill varying relief, answer or demurrer 577 — 18 Filing and service of copy, when allowed 601 — 68 In Equity 388, 579— 17, 23 In Equity, manner of 600 — 66 In lieu of bill of revivor, etc S43 — 18 Libel in divorce 74 — 35 Mandamus 354 — 28, 30 Pleadings in Equity as to parties 599 — 64 Relief 599— 65 Reformation of decree 633 — 1 1 Time of allowance 599 — 66 View, petition for 213 — 16 AMENDMENTS OF COURSE. Before replication filed 601 — 69 A MENSA ET THORO. Divorce and alimony 6j — 10, 11 Collection of alimony 95 — 67 For indignities 85 — 50 Issue for jury 89 — 57 AMERICAN HEIRESSES, DIVORCE FOR 62— 7 AMICABLE EJECTMENT, i Johnson 316— et seq. ANALOGY OF TURNPIKE TO PUBLIC ROAD 145— 45 ANCILLARY. Commission of lunacy 317 — 36 Receiver for foreign receivership 489— 41 "AND COMPANY." Significance of in partnership 394 — 31 Use of by limited partnership 398 — 47 ANNEXATION TO CITY, TAXATION 138— 21 ANNULMENT. Marriage, false rumor of death 63 — 9 Marriage, form of decree 71 — 27 INDEX. 8ii PAGE PAK. ANSWER. Divorce, to charge of adultery ^^ — 40 Divorce, intolerable conduct 78 — 42 Respondent in divorce 76 — 39 ANSWER TO BILL IN EQUITY. Responsive when 583 — 36 To bill in Equity, not responsive when 583 — 37 To bill by defendant, in chancery 592 — S3 ANSWER AND CROSS BILL. Bona Ude purchaser 581 — 31 ANSWER OR DEMURRER. When bill is amended as to relief 577 — 18 ANSWER. After over-ruling demurrer to bill 579 — 25 Argument on objection for want of parties 580 — 28 Denial of plaintiff's equity, essential 583 — 3 S Defendant to quo warranto 455 — 21 Exceptions to 582 — 34 Exceptions to, printing of S9i — 49, So Leave to, after opening decree pro confesso s8o — 30 Or demurrer when bill is amended as to relief. . . . S77 — 18 Reading of by complainant, rule stated by Lord Erskine 585 — 40 Reading part as explanatory, Lord Eldon's rule . . s8s — 40 Sufficiency and effect, in Equity 582 — 35 To bill of discovery 594 — 58 To bill for partition 365 — 13 To bill in partition — form 372 — ^3 To interrogatories specially filed in Equity S90 — 4S. 46 To petition for view to assess damages 208 — 7 When not equivalent to evidence S86 — 41 When party may decline, as to interrogatories . . . S90 — 46 ANTE NUPTIAL CONTRACTS. Vol. 3 Johnson... 482— "ANTICIPATIVE CONSEQUENCES" IN DRAW- ING BILL IN EQUITY S86— ANTICIPATIVE REMEDY BY INJUNCTION TO PREVENT IRREPARABLE INJURY 646— APPEALS. Generally, adjudications, 2 Johnson 132 — 40 8i2 INDEX. PAGE PAR. AP'P'KALS— (Continued) Statutory under act of 1897, i Johnson 107 — From decrees, in Orphans' Court, 3 Johnson 523 — Assigned estate 41 — 75 Condemnation of bridge 186 — 18 Divorce, consideration of 97 — ?l Divorce in forma pauperis 97 — 7" Order for counsel fees in divorce 87 — • 52 Divorce, recognizance 97 — 70 Eminent domain 253 — 59 Costs etc., eminent domain 249 — 43 Eminent domain, motion to strike off 249 — 45 Eminent domain, report of viewers, affidavit 248 — - 43 Report of viewers 247 — • 38 Heirs and devisees etc 248 — 41 Tenant 248 — 40 Under school code 175 — ■ 106 Turnpike 190 — 37 Water supply 192 — 42, 43 APPEALS IN EQUITY 642— 41 In Equity, i Johnson 107 — In Equity, 2 Johnson 132 — What will be considered 618 — 36 Generally, does not lie from interlocutory decree.. 627 — i Appointment of receiver 475 — 20 Appointment of receiver. Act 1897, i Johnson.... iii — 15 Injunctions 693 — 14 Injunctions, I Johnson no — 9 Habeas corpus 279 — 26 Mandamus, regulated by Act of 1897, i Johnson., no — Mandamus, supersedeas 357 — 42 Mandamus, Vol. I Johnson Mandamus 358 — 47 Quo warranto, regulated by Act of 1897 460 — 34 Vol. I Johnson.... no — Remedy for irregular taxation 668 — 28 Weak-minded persons 340 — 98 APPEARANCE. Vol. I Johnson 485 — Answer by defendant in Equity 558 — 21, 22 De bene esse in Equity 631 — 6 De bene esse — motion to quash 354 — 31 Entering on Equity docket 560 — 26 INDEX. 8i3 PAGE PAR. APPELLATE COURTS, POWERS IN MANDA- MUS 358— 47 APPELLATE COURTS, SEE i Johnson APPLICATION FOR INSURANCE POLICY, COPY TO BE ATTACHED 286— . 2 APPOINTMENT. Ambulatory masters in divorce 65 — 14 Committee in lunacy 3'^3 — 3° Receiver, object sought 464 — 3 Receiver, matter of discretion 465 — 4 APPOINTMENT, POWER OF— EXERCISE 499— 10 APPRAISEMENT, WATER WORKS, UNDER CONTRACT I9S— S6 APPRAISERS, WATER PLANT— POWERS, RE- PORT ETC 194— 52 APPROVAL, BOND, EMINENT DOMAIN 132— 4 APPURTENANCE. Easement under eminent domain 120 — ■ 2 When way is 120 — 3 APPURTENANT. Defined 121 — 3 Rights — eminent domain 123 — 9 ARBITRATION. Compulsory, trial by, 2 Johnson 22 — Voluntary, trial, 2 Johnson i — ARGUMENT. And trial lists in Equity — Rule 73 624 — 12 Setting down Equity cause for 577 — 19 ARTICLES OF PARTNERSHIP, SEE PARTNER- SHIP 401— 62 ASSESSMENT OF DAMAGES. See eminent domain Bar 241 — 8 B. & O. R. Co. by Maryland Charter 169— 86 8i4 INDEX. ASSESSMENT OF HANI AGES— (.Continued) page pak. By whom to be made 214 — 22 Eminent domain 206 — i Eminent domain, waiver 166 — 73 Interest 235— Si Items of estimate 226 — 16, 17, 18 Life tenants 238— 58 Penna. R. Co. Charter iS3— 27 P. R. Co. title in dispute IS5— 34 Railroads, Act 1849 164 — 65 Separate interests 244 — 23 Statutory 241 — 9 Street railways 173 — 99 Telegraph Co.'s damages by 183 — 8 Water rights ' 127 — 22 ASSESSMENTS OF MUT. INS. CO., RECEIVER'S RIGHT TO COLLECT 481— 29 ASSETS. Assignment, delivery to assignee 11 — 16 Of decedent for payment of debts, 3 Johnson .... 124 — Marshalling of 534 — 38 Right of receiver to 480 — 28 ASSIGNEE. Acceptance by 10 — 12 Acceptance by, form 10 — 13 Account, advertising, Allegheny Co 36 — - 61 Account, advertising, Phila 36 — 60 Bond, form and requisites 10 — IS Creditors — rights and powers 20 — 32 Deposit after sale 34 — 55 Duties, credits, compensation 23 — 35 Form of oath 10 — 14 Insurance policy, suit by 289 — 6 Liability for interest 27 — • 39 Liability for rent 27 — 40 Notice of filing account — form 35 — 58 Party to bill in Equity S40 — 6 Power as to claims and debts 30 — 46 Power to examine witnesses 14 — 22 Powers and rights under Act of 1901 22 — 33 Right to bill of discovery etc 22 — • 34 Practice in suits by 25 — 37 Purchase, with leave of Court 31 — 49 Removal or discharge 49 — 91 Rights in litigation 24 — 36 INDEX. 8is ASSIGNEE— (Cowfinwerf) pace par. Sales by 30 — 47, 48 Sales by 31 — 49. So Vacancy, how filled 49 — 90 ASSIGNMENT. 4— INDEX— Assets of limited partnership 400 — 54 Bequest by general partner 401 — 60 Chose in action, notice 533 — 35 Wages, must be accepted by employer 533 — 34 ASSIGNMENT FOR BENEFIT OF CREDITORS . . i— Acceptance by assignee 10 — 12 Acceptance by assignee, form , 10 — 13 Advertisement of account 36 — 59. 60, 61 Agreement of creditors with assignor 29 — 44 Affidavit of claim — form 35 — 57 Appeal, right of 41 — 75 Assignee, duties, credits and compensation 23 — 35 Assignee, liability for interest 27 — 39 Assignee, rights and powers 20 — 32 Assignee, rights in litigation 24 — 36 Assignor, duties as to assets 11 — 16 Assignor — rights and relations 44 — 81 Bill of discovery, right of assignee, to 22 — 34 Bond and form 10 — 15 Character of — what is 3 — 2 Claim, date, liability etc 37 — 64 Claim, effect of adverse proceedings 29 — 43 Claim, objections to — practice 37 — 63 Claim tainted by fraud or collusion 37 — 65 Collusion by creditor — presumption 16 — 25 Conditions, stipulation of 17 — 28 Costs and expenses 39 — 7i Creditors, claims of 28 — 42 Creditors, notice of meeting 13 — 19 Delivery essential 9 — n Deposit of money by assignee or receiver 34 — 55 Discharge of insolvent — exceptions 42 — 77 Discovery of secreted property — reward 15 — 23 Distributioa by auditor 37 — 66 Distribution, preferences in 39 — 69 Dividends and subrogation 40 — 72 Effect of 18— 29 Estate which passes, by S — 5 Estoppel and laches before auditor 41 — 74 Vol. 4 Practice — 52 8i6 INDEX. ASSIGNMENTS, ETC.— (Continued) page par. Executions and attachments i7 — 27 Executions and attachments 18 — 30 Exemption of after-acquired estate 43 — 79 Exemption, right of insolvent 11 — • I? Form not essential 3 — 2, 3 Foreign, recording of 19 — 31 Form of acknowledgment of deed 8 — 10 Form of agreement of lien creditors 34— S6 Form of deed 7 — 9 Form of oath of assignee 10 — 14 Form of oath of assignor 7 — 8 Form of triplicate release 42 — 76 Interest 39 — 70 Instrument of, forma,lities 6 — 6 Inventory and examination of insolvent and wit- nesses 14 — 22 Involuntary insolvency, how compelled 45 — 82 Judgment creditors, rights, etc 40— 73 Landlord's claim for rent 13 — 18 Mechanic's liens preserved 32 — 52 Member of partnership 17 — 26 Mortgages, in distribution of assigned estate .... 38 — 67 Notice to creditors to prove claims 14 — 20 Notice to creditors to prove claims, form 14 — 21 Notice of filing account, by assignee, form 35 — 58 Persons who may make it 4 — 4 Preferences, unlawful — as insolvency 15 — 24 Preferred claims 13 — 18 Power, assignee, as to claims and debts 30 — 46 Powers of assignee under Act of 1901 22 — 33 Purchaser, title by assignee's sale 32 — 53 Recording and effect of 8 — • 1 1 Reference, assignee's account, to auditor 36 — 62 Release of persons secondarily liable 43 — 78 Removal or discharge of assignee or receiver.... 49 — 91 Rent, assigned premises 27 — 40 Restoration of estate to insolvent 44 — 80 Sale, alias order and stay 32 — 51 Sale — effect of 33 — 54 Sale, effect upon liens 30 — 48 Sale, public or private 30 — 47 Sale, purchase by assignee 31 — 49 Sale — time and manner 31 — 50 Schedules and acknowledgment 6 — 7 Second distribution 45 — • 81 Suits by assignee, practice in 25 — 37 INDEX. 817 ASSIGNMENTS, ETC.— (Continued) page par. Sureties of assignee, liability 28 — 41 Termination of trust in another state 20 — 31 Time of filing deed 6 — 7 Time to present claims 29 — 45 Transfer must be absolute 3 — 3 Vacancy in assignee, filling 49 — 90 Vacation of attachments, executions, etc 17 — 27 ASSIGNOR. Duties as to assets 1 1— 16 Insolvent — ^exemption 11 — 17 Rights and relations 44 — Br ASSISTANCE, WRIT OF. To obtain possession 476 — 22 Rule 87 638— 23 ASSOCIATION, PARTNERSHIP, SEE LIMITED PARTNERSHIP ASSOCIATION ASSOCIATIONS, CLUBS, ETC., MAY BE EN- JOINED 673— 34 ASSUMPSIT. Practice and forms Vol. 2 Johnson SS3 — When, it will lie against partnership 389 — 22 ATTACHMENT. Affidavit for by mariner's wife 263 — 4 Compel answer in Equity 572 — 8 Enforce decree, how obtained 636 — ■ 17 Enforce a decree 637 — 19 Form of affidavit for 637 — 20 Decrees may be enforced by 95 — 67 Enforcement of divorce with alimbny 96 — 69 Form of petition for, mandamus 350 — 14 Form of petition for, by receiver 474 — 18 Mandamus, form of 350 — i;6 Orphans' Court, 3 Johnson SiS— et seq. Receivers 482 — 30 Rule for, answer 474 — 18 Sequestration to enforce decree . : 635 — 16 Status of on assignment 18 — 30 Vacation of on assignment 17 — 27 "ATTACHMENT EXECUTION,". .Vol. 2 Johnson 415— Partnership, . , Vol. 2 Johnson 435 — 38 8i8 INDEX. PAGE PAR. ATTACHMENT AND LIEN ON VESSELS, 2 John- son 573— ATTORNEYS— RULE IN BANKRUPTCY 57— 12 ATTORNEY AT LAW— OFFICE, RIGHTS, DUTIES. LIABILITIES Vol. i Johnson 253— ATTORNEY GENERAL, DUTIES IN QUO WAR- RANTO 449— S AUDITA QUERELA Vol. 2 Johnson 590— AUDITOR. Appointment on application to sell lunatic's real estate 324 — • 54 Assignee's account — reference to 36 — 62 Distribution of assigned estate 37 — 66 Form of appointment, lunacy case 324 — 55 AVERMENTS. In Equity pleading 572 — 7 Essential to a good bill in Equity 549 — 4 Necessary in bill for partition 364 — 11 A VINCULO MATRIMONII, PERMANENT ALI- MONY 94— 66 BACON. CHANCELLOR, ORDINANCE AS TO DECREES 63s— 15 BAIL. HABEAS CORPUS, DISCHARGE OF PRISONER 271— s "BALANCE OF INJURY," IN REMEDY BY IN- JUNCTION 64S- 3 BALTIMORE & OHIO R. CO. ADMITTED INTO PENNSYLVANIA 169— 85 BANKRUPTCY. Law renders subsequent acts inoperative except as to farmers and wage-earners 280 — i Actions against bankrupt SS — 10 Acts constituting 51 — 3 Attorneys, rule as to, Western District 57 — 12 Contest of liens and conveyances 53 — 6 INDEX. 819 BANKRUPTCY— (CoMfinM^d) page par. Effect on liens 52 — 5 Exemptions of bankrupt 56 — ■ 11 Exemptions regulated by state laws S6 — 11 Jurisdiction of state courts limited SO — 2 Petition and proof of claims 53 — 7 Power of Congress exclusive SO — i Preferences which constitute 51 — 4 Recording discharge 284 — 6 Trustee, actions by 55 — 9 Trustee — rights and duties of S4 — 8 BAR. Assessment of damages 241 — 7, 8 Plea in, action of partition 360 — 3 Recovery in mandamus 3S6 — 38 BED AND BOARD, DIVORCE 63— 10, 11 BENEFICIAL ASSOCIATIONS, ETC., AS PAR- TIES IN EQUITY S4S— 22 \ BENEFICIARIES UNDER A WILL, 3 Johnson . . . 718— BIDS. WHEN MASTER IN PARTITION RE- CEIVES 366— 15 BILL FOR ACCOUNT. In certain cases 434 — 122 When it will lie 42s — 107 Form of 42s — 108 Form 702 — 7 Joining all parties S38 — 4 Partnership, certificate of no remedy at law SS2 — 11 BILL FOR CONTRIBUTION, FORM OF 69S— 2 BILL OF DISCOVERY. To obtain testimony 516 — 7 When necessary SPi — 47 Answer to S94 — S8 Assignment, in 22 — 34 Demurrer to S77 — 17 Fictitious setting, affidavit as to delay 586 — 40 BILL IN EQUITY. All essential facts to be averred S48 — 4 Allegations of fraud 549 — 5 820 INDEX. BILL IN EQUITY— (Continued) page par. Allegation of no remedy at law S5i— "39 552— II Amendment after answer, before or after replica- tion 598— 63 Amendment on demurrer 578— 22 Assignee may bring 24 — 36 Assignees as parties S40 — 6 Certainty to a. common intent necessary 551 — 9 Corporations, parties to 538 — • 5 Decree of dismissal of (see decrees) 630 — 5 Defenses, to perpetuate testimony 556 — 17 Demand, joint and several 542 — 1 1 Demurrer in part and answer in part 574 — 14 Discovery, allegations in 552 — 12 Dismissal, consent to 580 — 29 Divided into numbered paragraphs 548 — 3 Filing etc. duty of prothonotary 559 — 25 Form of affidavit of non-residence 565 — 9 Form of order for publication 566 — 13 Form of order for service 565 — 10 Formal statement of parties 538 — • 2 Framing of 547 — i Guardian ad litem for parties under incapacity . . . 542 — 14 Heirs at law as parties 542 — - 13 Intervention and substitution 543 — 17 Manner and style of printing 558 — 23 Manner of service 562 — 2 Multifarious, when 429 — iii Multifarious, when not 674 — 34 Multifarious as to facts 549 — 6 Multifarious as to relief asked 550 — 7 Parties to 537 — i Parties complainant 540 — 7 Parties defendant 540 — 8 Parties by representation 545 — 22 Printing of, except in emergency 557 — 20 Printing of, except in emergency 558 — 23 No process of contempt, in service by publication. 566 — ■ 12 Production of books and papers 553 — 13 Vol. I Johnson 628, 629 — Recital of documents, not in hxiec verba 550 — 8 Requirement that defendant appear and answer... 558^ 21 Requirement that defendant answer 558 — 22 Requisites of 550 — 9 Requisites, for accounting 551 — n Scandal or impertinence, exceptions for 570 — 3 Service when Commonwealth is a party 562 — 4 INDEX. 821 BILL IN EQUITY— (Continued) page par. Service on corporation 562 — 4 Service when defendant cannot be found 566 — 1 1 Service in other cases 567— 16 Service on husband and wife 562 — 3 Service on non-resident defendant 564 — 8 Service on non-resident mortgagees and judgment creditors 562 — 6 Service on parties out of the jurisdiction 563 — 7 Service by publication, rule 12, Supreme Court 566 — 14 Service by publication under Act of 1862 S67— IS Signing and affidavit 551 — 10 Sovereign as party 544 — 21 Statement as to infants' etc 543 — ■ 15 Statement as to persons without the jurisdiction.. 543 — 16 Structure, scandalous and impertinent matter to be expunged 547 — 2 Trust estate in realty S42— 12 BILL FOR INJUNCTION (See Injunctions) 686— 2 Restrain use of firm name, form 706 — ■ 8 BILL OF INTERPLEADER 557— 19 BILL OF PARTICULARS. Divorce, form 76 — 37 Rule for, or non pros 75 — 36 Insurance policy 291 — 10 BILL FOR PARTITION. Answer to 365 — 13 Demurrer to 365 — 14 Form 369 — 25 Interest required 363 — 11 Multifa-rious, when 364 — 11 Requisites to maintain 363 — 12 BILL TO PERPETUATE TESTIMONY. In Chancery 609 — 14 In Equity SS4— H, IS Form 556 — 16 BILL IN EQUITY FOR RECEIVER 470— n For partnership 471 — 12, 13 BILL TO REMOVE CLOUD UPON TITLE TO LAND, quia timet 525 — 23 822 INDEX. PAGE PAR. BILL OF REVIEW 556— 18 63s— 15 In O. C, 3 Johnson 399 — BILL OF REVIVOR. Amendment in lieu S43 — 18 Not needed in partition 366 — 16 Supplied by amendment 601 — 70 BOARD OF MANAGERS OF LIMITED PART- NERSHIP ASSN.— SALARIES 441— 7 BONDS. Approval gives right to possession 132 — 4 Approval, in eminent domain 132 — 4 Approval after suit 242 — 11 Assignee's — form and requisites 10 — 15 Assignee, surety co.'s commission 23 — 35 Bridge condemnation, by county 188 — 26 Committee of lunatic, form 314 — 32 Committee in lunacy, sale of real estate, form.... 327 — 64 Damages, when title is in dispute 181 — 4 Eminent domain, approval by court 166 — 70 Eminent domain, approval by court 210 — 10 Effect of in eminent domain 232 — - 42 Eminent domain, municipality need not give 132 — 5 Eminent domain, notice 210 — 9 Guardian for estate of non-resident weak-minded. 341 — 100 Injunction 689 — 7, 8 Lumber company, approval of 184 — 12 Master in partition, on sale of land 368 — 23 Municipal water works, exemption from taxes.... 195 — 55 Municipal, for purchase of water works 195 — 54 Municipalities, land for water supply 191 — 40 Petition for approval in eminent domain 208 — 8 Pre-requisite to injunction 520 — 16 Receiver, chancery rule 474 — 19 Receivership, forms 473 — 16, 17 Street railway re-location 203 — 74 Sufficiency only considered, on petition for ap- proval 209 — 8 210 — 10 Tender and refusal 197 — 58 Tender — Penna. R. Co 153 — 27 Trustee, cancellation 505 — 31 INDEX. 823 PAGE PAR. BOOKS AND PAPERS. Production of 553 — 13 Vol. I Johnson, 628, 629 — Examination of, in hands of receivers 487 — z7 Dismissal of trustee 503 — 25 Must be produced on injunction 692 — 12 BOOMS FOR LOGS, EMINENT DOMAIN 116— 32 BOROUGHS, ACQUISITION OF WATER SUP- PLY PLANT 194— SI, 52, 53 BOROUGH, EXCLUSIVE RIGHT TO SUPPLY WATER 197— 60 BOROUGH DEBTS, MANDAMUS 346— 6 BOYCOTTS AND STRIKES. INJUNCTIONS TO RESTRAIN 682— 45 BREACH OF PROMISE TO MARRY, SEE "AS- SUMPSIT," Vol. 2 Johnson 565— BRIDGES. Change of location, etc 168 — 80 Condemnation by county, bond 188 — 26 Condemnation, effect of discontinuance 188 — 27 Condemnation, time of appointment of viewers . . . 187 — 24 Condemnation, witnesses to be heard 185 — 17 County line, condemnation 186 — 20 Eminent domain applied 117 — 33 Land for, measure of damages 223 — 9 Proceedings to condemn by county and free of tolls 184 — 14 Practice before viewers to value 187 — 23 Public, when 188— 28 Report of viewers, condemning, approval 185 — 16 BRIGHTLY ON DIVORCE PRACTICE IN PHILA- DELPHIA 748— et seq. BROUGHAM, LORD, ORDER AS TO FORM OF FINAL INTERROGATORY 607— 12 BURDEN OF PROOF. Defendant in quo warranto 456 — 21 Eminent domain 251 — 52 Waiver 236 — 54 824 INDEX. PAGE PAR. BURYING GROUND EXEMPT FROM EMINENT DOMAIN 134— 12 BY-LAWS, ADOPTION BY LIMITED PARTNER- SHIP ASSOCIATION 444— U CANALS. See Eminent Domain Abandonment of easement I2I — S Public highways 148 — 6 CANAL BRIDGES, REPAIR OF 131— 19 CANAL COMPANIES, ACTS INCORPORATING 172— 94 CANALS, STATE— ABANDONMENT 137— i7 CANALS, STATE BUILT, SOLD TO PENNA. R. CO 151- 20 CANCELLATION, INSURANCE POLICY 29S— 18 CAPIAS. Commencement of action by Vol. i Johnson 407 — Ad Satisfaciendum Vol. 2 Johnson 411 — CAPITAL. Of limited partnership association 436 — 3 Limited partnership, how increased 398 — 45, 46 Profits of a partnership 430 — 114 "CAPITAL STOCK," ONLY APPLIES TO COR- PORATIONS AND NOT TO PARTNERSHIPS. . 430— 114 CAPITAL SUBSCRIPTIONS, LIMITED PART- NERSHIP ASSOCIATION 438— 4 CASE STATED Vol. i Johnson 312— CATTLE, STRAYING ON RIGHT OF WAY 136— 15 CAUSES OF DIVORCE. Absolute divorce S9 — i A mensa et thoro 63 — 10, 1 1 American heiresses disappointed 62 — 7 Arising beyong the state 62 — 6 Conviction of crime 62 — 8 Cruelty of wife 61 — 5 INDEX. 82s CAUSES OF DIWORCK— (Continued) page par. False rumor of death 63 — 9 Fraud or coercion 60 — 4 Impotence 61 — 4 Occurring abroad 59 — 2 CAUSEWAYS— P. &. R. CHARTER PROVI- SIONS 160— 49 CAUTIONARY ORDERS IN INJUNCTION BILLS 68&— s CAVEAT EMPTOR— ASSIGNEE'S SALE 34— S4 CERTIFICATES. Limited partnership, contents 394 — 33 Limited partnership, to be acknowledged 39s — 35 Limited partnership, to be recorded 395 — 36 Magistrate or notary to loss by fire 293 — 15 No adequate remedy at law in account 388 — 16, 17 Value of goods etc. contributed by special partner. 393— 30 CERTIORARI TO INFERIOR COURTS, Vol. 2 Johnson 194 — CESTUI QUE TRUST, CLAIM ON ASSIGNMENT 29— 42 CESTUIS QUE TRUSTENT, WHEN PARTIES TO BILL FOR ACCOUNT 538— 4 CHANCELLOR, REQUEST TO, FOR FINDINGS OF LAW AND OF FACT 615— 31 CHANCERY. High Court of England, orders as "analogies" — Rule 94 606— 10 Church election, not within its scope 615 — 29 Evidence of witnesses in 606 — 11 Jurisdiction of Common Fleas, in partnership ac- counts 387 — 16 Jurisdiction of partnership accounts 429 — in Jurisdiction as to receivers 463 — i Parties under disability in 544 — 19 CHANCERY ORDERS IN, REGULATE CHAN- CERY PRACTICE 606— 10 CHANCERY POWERS. Application to partnerships 388 — 17 Common Pleas sitting in Equity 512 — i 826 INDEX. CHANCERY POWERS— (Continued) page par. Common Pleas over trusts 495 — I Conferred in partition 362 — 10 In writ of assistance 477 — 22 CHANCERY PRACTICE. "Anticipative consequences" in bill S86 — 40 Bill to perpetuate testimony 609 — 14, 15 Impeaching witness 601 — 20 Interrogatories 592 — 52 Parol trusts 256 — 2 CHANCERY PRINCIPLES. Applied to answers 593 — 55 Applied to depositions, etc 608 — 12 Applied to eminent domain 476— 22 Applied to injunctions 520 — 16 Applied to perpetuation of testimony 554 — 15 Applied to proceedings on the Law-side of the C. P S13— I CHANCERY RULES. Adopted in Penna 256 — 2 568— 18 Admissions and waivers in pleading 589 — 44 Documents referred to in bill 588 — 43 Equitable procedure 255 — i Evidence 584 — 39 Lunacy proceedings 333 — 77 Objections to bill for receiver 470 — 11 Partnership account adopted 424 — 106 Production of documents relative to the pleadings 588 — 42 CHANGE OF RAILROAD ROUTE— EMINENT DOMAIN 134— 9 CHARGES ON LAND, PROCEDURE TO RE- LIEVE, Vol. 3 Johnson 502 — CHARTERS OF CHURCHES, ETC.— Vol. 2 Johnson 592— CHARTER. Forfeiture by quo warranto 448 — 2 Penna. R. Co. — Examination and forfeiture 154 — 32 Penna. R. Co. valuation on forfeiture 154 — 33 INDEX. 827 PAGE PAR. CHARTERS. To railroad companies, early laws 152 — 21 Power to revoke 165 — 69 Power to alter, revoke or renew 148 — S Revocability of 150 — 12, 13 Revocation of by state 137 — 18 CHATTELS, CLAIMS TO, IN EQUITY S30— 28 CHILD, WARD OR APPRENTICE, HABEAS CORPUS FOR 278— 24 CHOSE IN ACTION, NOTICE OF ASSIGNMENT S33— 35 CHURCH. Exempt from condemnation for right of way 134 — 12 Militant, in Chancery 615 — 29 Property — trustees of 509 — 38 CHURCHES, SCHOOLS, ETC., HOW TO CHAR- TER, Vol. 2 Johnson S92 — CITATION. To assignee or trustee, when returnable 498 — 6 To trustee for waste 503 — 23 CITIES. Acquisition of water supply plant 194 — 50, 51, 52 Control of railways on streets, etc 143 — 38 Privilege of eminent domain 200 — 71 CITIZEN, DIVORCE, TIME OF RESIDENCE .... 64— 12 CITIZENS. Parties to mandamus, when 347 — 7 Must show special interest in Phila. to have Man- damus writ 348 — 7 CITY AS CO-PARTNER WITH A TRACTION COMPANY 672— 31 CIVIL CASE, HABEAS CORPUS IN 278— 24 CIVIL LAW, AS TO CORPORATIONS 102— 2 CIVIL LIBERTY, THE COMMON LAW 104— i 828 INDEX. PAGE PAK. CLAIM. Affidavit of— form 35— 57 Assigned estate, fraud and collusion 37 — 65 Creditors, on assignment 28 — 42 Date, liability etc 37 — 64 Effect of adverse proceedings, on assignment 29 — 43 Notice to creditors to prove 14 — 20 Notice to creditors to prove — form 14 — 21 Objections to before auditor or court n — 63 Power of assignee 30 — 46 Preferred, in assignment 13 — 18 Proof of — in bankruptcy S3 — 7 Time to present to assignee 29 — 45 Tort, unliquidated not provable in bankruptcy ... 56 — 11 CLARENDON, LORD, ON DEFENDANT'S DE- NIAL, NEGATIVE PREGNANT 593— 55 "CLEAN HANDS," COMPLAINANT IN EQUITY 521— 19 CLERICAL MISTAKES IN DECREES OR OR- DERS 633— 1 1 CLOUD UPON TITLE TO LAND, BILL TO RE- MOVE 525- 23 COAL AND GAS COMPANIES, EMINENT DO- MAIN 137— 16 COAL AND IRON COMPANIES, ACTS INCOR- PORATING 172— 94 COAL. Underlying land, valuation of 224 — 11 Underlying right of way 134 — 10 CODICILS TO WILLS. Vol. 3 Johnson 563 CODICILS, INTERPRETATION OF, Vol. 3 Johnson 670 — COERCION. Cause for divorce 60 — 4 Form of averment 71 — 26 CO-HABITATION— OFFERS TO RENEW IN DI- VORCE 81— 46 INDEX. 829 PAGE PAR. COKE AND OTHER COMPANIES, LIMITATION OF 20s— 80 COLLATERAL IINHERITANCE TAX, Vol. 3 Johnson 198 COLLATERAL SECURITY FOR CLAIM, IN AS- SIGNMENT ^^— 64 COLLECTION OF LEGACIES OR INHERIT- ANCE IN EUROPEAN COUNTRIES, Vol. 3 Johnson 884 — COLLUSION. Fraud, assigned estate 37 — 65 Presumption as to creditor 16 — 25 COLUMBIA, ETC., R. CO., ACT 1826, P. L. 216.. .. 152— 22 COMITY THE BASIS OF INTERNATIONAL JURISDICTION 567— 17 COMMENCEMENT OF ACTON BY SUMMONS, Vol. I Johnson 392 — COMMISSION. De bene esse in Chancery 608 — 13 Return of, practice on : . . 60s — 5 Roving, in divorce, see "Divorce" Testimony taken by — Rule 54 604 — 4 COMMISSIONER, DIVORCE, CAN ONLY TAKE TESTIMONY 90— 60 COMMISSION IN LUNACY. Another state 317 — 36 Finding and return 307— 18 File testimony as part of report 306 — 17 How obtained 299 — 2, 3 Number of 303 — 1 1 Scope and manner of inquiry 305 — 16 COMMISSIONS, ASSIGNEE FOR CREDITORS.. 24— 35 COMMITTEE AD LITEM FOR LUNATIC IN PARTITION 366— 17 830 INDEX. PAGE PAR. COMMITTEE IN LUNACY. Appointment of 3I3 — 3° Appointment extends over state S'S — 33 Authority to sell timber 328 — 67 Appointment for non-resident lunatic 317 — 37 Control by the court 336 — 87 Final account 334 — 82 Inventory of estate 316 — 35 Investments by 320 — 41 Officers of the court 314 — 30 Powers, duties and liabilities 318 — 39 Powers in partition 330 — 72 Security 314— 31 Security — form 314 — 32 Security required on sale of real estate 326 — 62 Triennial account 334 — 81 COMMITTEE OF PERSON OF LUNATIC, AC- COUNT BY 33S— 83 COMMON BAIL— DISCHARGE ON 277— 23 COMMON LAW. Actions, see Vol. 2 Johnson Civil liberty 104 — i Writ of habeas corpus 275 — 16 COMMON PLEAS. Chancery jurisdiction of receivers , 463 — i Chancery powers, in partnership accounts 387 — 16 Dauphin Co. — Mandamus 345 — 4 Jurisdiction of divorce 59 — i, 2 Jurisdiction of lunacy, etc 298 — ■ i Jurisdiction of mandamus 345 — 4 Jurisdiction of quo warranto 448 — 4 Jurisdiction generally, see Vol. 1 Johnson. COMMONWEALTH. Bond for injunction not required 689 — 8 Cannot be sued without leave by law 541 — 8 Claim not postponed 18 — 29 Party to mandamus when 347 — 7 COMPENSATION. Abutting owner, right to 140 — 27 Abutter's right to 142 — 34, 36, 37 Assignee for creditors 23 — ■ 35 INDEX. 831 COMPENSATION— (CoMiiMMerf) page par. Commissioners etc. in lunacy 309 — 22 Condition precedent to taking property log — 11 Corporation 140 — 29 Constitutional requisite in taking property 147 — 3 Definition and right 138 — 20 Eminent domain, how ascertained 157 — 42 Eminent domain, Penna. R. Co 156 — 41 Expenses of receiver 490 — 42 Necessary to a valid law for taking property 243 — 16 Particular injuries, elevated roads 139 — .25 Property taken by municipalities 139 — 23 Riparian owner 143 — 40 Streets, etc 139 — 24 Street servitudes 141 — 30 Water rights taken 128 — 24 COMPLAINANTS IN BILL IN EQUITY 540— 7 COMPLAINT, SERVICE, ETC., IN HABEAS CORPUS 269— 2 COMPETENCY OF WITNESSES. 614— 25 Vol. 3 Johnson 1 17 — 23, 24 Before viewers 243 — 21 COMPROMISE, DISSOLUTION OF PARTNER- SHIP 388— 81 389— 19 CONCLUSIVENESS OF CHANCELLOR'S FIND- INGS OF FACT 616— 32 CONDEMNATION PROCEEDINGS. See Eminent Domain Lands contiguous to streams igg — 69 Lands lying in diflferent counties 168 — 7g School district 175 — 104-5-6 Toll bridges and purchase by county 184 — 14 Turnpike 188 — 2g, 30 Water Co., not limited to one 199 — 68 CONDITIONAL VERDICT IN EJECTMENT 259— 8 CONDITIONS PRECEDENT. In laws conferring right to take property 113 — 23 To suit upon fire insurance policy 289 — 7 Vol. 4 Practice — 53 832 INDEX. PAGE PAR. CONDITIONS. Stipulation of an assignment 17 — 28 In a will, restraints, etc., Vol. 3 Johnson 78.'? — CONDONATION. In divorce, for adultery 7y — 40 In divorce, for adultery 78 — 41 Cruel and barbarous treatment 79 — 43 CONFESSION, JUDGMENT BY PARTNER 382— 7 CONFIRMATION. Assignee's account 36 — 59 Report of viewers 247 — yj, 38 CONGRESS. Power to create a corporation withheld 103 — 6 Power to enact bankruptcy laws 50 — i CONSENT, OWNER OF WATER WORKS, OR DISCLAIMER 195— S3 CONSEQUENTIAL DAMAGES, ALLOWED BY CONSTITUTION 138— 22 CONSOLIDATIONS. Of railroads and canals prohibited 148 — 7 Railroads, competing lines 167 — 75 CONSPIRACY. Action for, forms and manner. Vol. 2 Johnson.... 850 — Restraint of trade, injunctions for 692 — 12 CONSTITUTION. Act of 1897, P. L. 237 IS — 22 Consequential damages 138 — 22 Right and privilege of eminent domain 147 — ■ i, 2, 3 Right and privilege of eminent domain 148 — 4, s, 6, 7 Right and privilege of eminent domain 149 — 8, 9, 10, 11 Right and privilege of eminent domain 150 — 12, 13 Scott divorce act 6s — 14 Self-executing 112 — 20 CONSTITUTIONAL AND STATUTORY PROVI- SIONS ON EMINENT DOMAIN 146— ch.8 CONSTRUCTION OF LAWS, FAVORABLE TO THE OWNER OF PRIVATE PROPERTY 243— 17 INDEX. 833 PAGE PAR. CONSTRUCTIVE NOTICE, RULE 535— 39 CONTEMPT. To disobey injunction 692 — 12 Not involved when service is made by publication in Equity 566 — 12 Refusal or evasion of writ of habeas corpus 273 — 10 See Vol. I Johnson, "Contempt of Court." CONTESTS OF WILLS. Vol. 3 Johnson 586— CONTINUANCE OF CAUSE ON TRIAL LIST Vol. I Johnson 609 — CONTINUANCE OF EQUITY CAUSE, COSTS OF 615— 29 CONTINUING OF INJUNCTION, MANNER 690— 9 CONTRACT. Compensation or rescission, in Equity 523 — 22 Concerning stocks and bonds 522 — 21 Insurance policy, as 285 — I Married woman, competency to make 266 — 12 Municipalities, restraint of 671 — 31 No vested rights against eminent domain 126 — 17 Restraint of trade 680 — 42 Specific performance, inter vivos 520 — 18 Ultra vires, between partnership and corporation.. 377 — i CONTRIBUTION. As equitable relief, defined by Newcomb, J 534 — 36 By partners 414 — 94 CONVEYANCE. By trustee, compulsion 499 — 11 Without consideration, fraudulent on its face .... 522 — 19 CONVEYANCES, CONTEST OF IN BANK- RUPTCY 53— 6 CONVICTION, CRIMES FOR WHICH DIVORCE MAY BE HAD ON 62— & CONVICTS OF FORNICATION, ETC., MUST SERVE SENTENCE 280— 2 CO-PARTNERSHIP, FORM OF ARTICLES 380— a 834 INDEX. PAGE PAR. COPYRIGHT, INJUNCTION TO PROTECT 682— 44 CORPORATE AGGRESSION UPON PRIVATE RIGHT 662— n.27 CORPORATE MORTGAGES, RAILROADS, ETC., ENFORCEMENT IN EQUITY 516— 8 CORPORATE PROPERTY MAY BE TAKEN UN- DER EMINENT DOMAIN 124— 13 CORPORATIONS. Assignment by 4— 4 Assignment does not dissolve 44 — 81 Bill for a receiver, when proper 466 — 5 CORPORATIONS AND ASSOCIATIONS, INJUNC- TIONS AGAINST 673— 34 CORPORATIONS. Charters revocable 150 — 12, 13 Civil law, as to 102 — 2 Claim of stock-holder on assignment 29 — 42 Classes 102 — i Constitutional limitations 148 — 4 Damages for taking its works 222 — 4 Defendant in mandamus 352 — 20 Dissolution 102 — 3 Dissolution by Common Pleas — See Equity Juris- diction Dissolution in Equity 536 — 42 Distinguished from partnership 377- — i Execution against Vol. 2 Johnson 400 — Franchises may be taken by eminent domain 125 — 16 Immunities inter-state no — 13 "Injurious acts" shall be restrained 675 — 35 Jurisdiction, in mandamus 345 — 5 Ouster of, officers hold in trust thereafter 461 — 38 Parties to bill in Equity with reference to 538 — s "Persons" : 103 — 5 Proof of when dispensed with 536 — 43 Railroads, suits against in counties where property is 483— 30 Receiver for, to be appointed by Supreme Court when 462 — 39 Receiver for, after judgment of ouster 467 — ■ 5 Receiver for, status of 475 — 21 INDEX. 83s CORPORATIONS— (Con/mw^d) page par. Right to compensation for franchise 140 — 29 Stock-holders, rights in Equity 517 — 10 Title by prescription 43 — 41 Trustee after ouster of officers 461 — 37 "Vested rights" 103 — 4 COSTS AND FEES. Condemnation of land for school purposes 176 — - 109 In Federal courts, Vol. 2 Johnson 75 — In State courts, Vol. 2 Johnson 79 — COSTS. Account when not partners 640 — 29 Appeal from decree for 642 — 39 Assigned estate 39 — 71 Before final decree 640 — 33 Bridge view, county liable 187 — 24 Collection of 642 — 38 Continuance of Equity case 615 — 29 Corporate contest 640 — 30 Decree as to payment, marriage 93 — 64 Defendant in quo warranto 460 — 32 Divorce, deposit under rules 98 — 72 Eminent domain, view 249 — 43, 46 Eminent domain, by whom to be paid 250 — 49 Equity, as at Law, follow suit, in general 638 — 24 Liability of county on discharge of prisoner 281 — 3 Lunacy proceedings 309 — 21, 23 Lunacy proceedings, power of court 335 — 82 Mandamus 356 — 38, 39 Partnership acounts 639 — 28 Quo warranto, part of judgment 459 — 28 Security for 641 — 37 Time when determined 640 — 32 When divided, in Equity 639 — 27 When put on winner 639 — 26 When follow suit 639 — ' 25 When county liable in quo warranto 460 — 32 COSTS AND FEES, HABEAS CORPUS 276— 20 COSTS AND EXPENSES, PARTNERSHIP 432— 118 COSTS, UPON INJUNCTION 693— 13 COSTS ON INTERLOCUTORY PROCEEDINGS.. 641— 36 836 INDEX. PAGE PAR. COSTS OF INTERPLEADER 640— 31 CO-TENANTS OUT OF POSSESSION, SHARE OF RENTALS 367— I9 COUNSEL. Certificate as to no adequate remedy at law 388 — 16, 17, n.4 Fees and other expenses of receivers 491 — 42 COUNSEL FEES. Additional 87 — 52 Form of petition for allowances 87 — 53 Form of rule — in divorce 88 — 54 Pendente lite 86 — 52 COUNSEL PRIVILEGE IN CHANCERY, AS TO DOCUMENTS IN HIS HANDS S88— 42 COUNTY BOARD OF VIEWERS, ACT OF 1911. . . 139— 24 178— 118 213 — 17 COUNTY COMMISSIONERS. Discharge of insolvent prisoners by leave of court. 281 — • 3 Exercise of privilege of eminent domain 176 — • no, iii 112 COUNTY. Condemnation of toll bridge by 186 — ■ 21 Municipality under constitution 233 — 43 Proceedings by to free bridges 184 — 14 Road system 205 — 83 Roads, jurisdiction in Quarter Sessions 176 — no Roads, view in Common Pleas 176 — in CO-TRUSTEE FOR FEMALE TRUSTEE WHO MARRIES INTO ANOTHER JURISDICTION.. 498— 8 COURT OF COMMON PLEAS, CHANCERY POWERS OVER TRUSTS 495— i COURT AND JURY, PROVINCES IN EMINENT DOMAIN 230— 31 COURTS. Judges of public use, when 108 — 10 Jurisdiction of habeas corpus 268 — i Payment of damages into 181 — 3 INDEX. 837 COVRTS— (Continued) page par. Payment into, damages, by school district 176 — 107 Power, to hear and determine divorce 89 — 58 Power over viewers' report 252 — 55 Records of — as evidence 610 — , 18 Records of — exemplification Vol. 3 Johnson 98 — Will restrain acts contrary to Equity as well as to Law ; 646 — I Supervision of exercise of eminent domain no — 15 COUSINS, MARRIAGE, WHEN VOID 60— n2 CUMBERLAND VALLEY R. CO. INCORPORA- TION 168— 82 CREDITORS. Agreement with assignor 29 — 44 Assignee for creditors 23 — 35 Assignment for benefit of 2 — i Claims of — assigned estate 28 — 42 Collusion by — presumption 16 — 25 Involuntary insolvent 45 — 84 Judgment — rights in assignment 40 — 73 Limited partnership when protected against special partner 400 — 57 Notice of meeting 13 — 19 Notice to prove claim 14 — 20, 21 Partnership, compromise with, on dissolution 388 — 18 Partnership, compromise with, on dissolution . . . 389 — 19 Partnership, rights as to property 414 — 95 Right to execution suspended by receivership .... 484 — 33 CRIME. CONVICTION OF, DIVORCE 62— 8 CRIM. CON., WHEN AND IN WHAT FORM AC- TION LIES Vol. 2 Johnson 856— CRIME, LIBEL FOR SENTENCE, DIVORCE 71— 28 CRIMES AND OFFENCES MAY BE INJOINED. . 684— 46 CROSS-BILLS. Bona fide purchaser 581 — 31 By defendant, when advisable 596 — 60 For discovery not allowed, Rule 40 590 — 47 Injunction on 688 — 6 838 INDEX. PAGE PAK. CROSS-EXAMINATION, WHAT MAY NOT BE CALLED OUT, BY 228— 27 CROSSINGS, SEE "GRADE CROSSINGS" CROSSINGS AT GRADE— ORDERS OF COURT.. 251— 52 CRUEL AND BARBAROUS TREATMENT— WHAT CONSTITUTES AS GROUND FOR DI- VORCE 79— 43.44 CRUELTY— WIFE TO HUSBAND— DIVORCE . . . 61— S CUSTODIA LEGIS, PROPERTY IN HANDS OF RECEIVER 464— 2 CY PRES, IN EQUITY, AS TO TRUSTS 496— 2 DAM, TAKING BY EMINENT DOMAIN 127— 20 DAMAGES. See "Compensation," Eminent Domain. Assessment of 206 — i Assessment of 223 — 5, 9 Advantages to be considered by viewers 227 — ig, 20 Allowed or disallowed 231 — 36, 37 Assessment by commissioners 254 — 65 Assessment, disputed title, Penna. R. Co 155 — 34 Assessment, eminent domain 164 — 65 Assessment of, elements etc 228 — 22 to 27 Assessment, measure of 222 — 3 Assessment, lands taken changing roads 193 — 46 Assessment, railroad cos 164 — 65 Assessment of — Street railways 173 — 99 Assessment, Sunbury & Erie R. Co 161 — 54 Assessment for water rights 127 — 22 Awarded to whom 236 — 55 Bond for, disputed title 181— 4 Bond for protection of persons non sui juris 191 — 40 Consequential, eminent domain 138 — 22 Consequential, eminent domain 232 — 43 Consequential, when they accrue 240 — 2 Costs for plaintiff, in mandamus 356 — 38 Death of owner of land taken 238— 60 Direct and consequential 225 — 15 Diversion of water 128 — 23 Due abutting owners 181 — 2 INDEX. 839 DAMAGES — (Continued) page par. Elements in eminent domain 229 — 28, 29, 30 Elements to be or not to be considered 230 — 32 to 35 Elements to be or not to be considered 227 — 20 Enforced by ejectment 237— 56 Exemplary 232 — 41 , 42 Facts immaterial in estimating 227 — 21 Injury without taking 222 — 4 Lien for, when no security is given 253 — 62 Mandamus 356 — 38, 41 Manner of estimating for street railways 202 — 73 Measure and assessment 224 — 10, 11, 12 Measure of, when the fee is taken 220 — i Mortgagee, when entitled 238 — 61 Payment into court 173 — 99 Payment into court 181 — 3 Payment into court 238 — 61 Payment, for county road 177 — 1 14 Penna. R. Co. tender of bond iS3 — 27 Present use as element 228 — 22 Presumption of payment of 145 — 46 Presumption of payment 253 — 61 Proceedings to ascertain, time 239 — ! Punitive, altercation no ground for 222 — ■ n27 Railroad, bond for, approval 166 — 70 Railroad grade crossmgs 141 — 30 Riparian owners, floating logs, etc 184 — 11 Statute of limitations no bar 166 — 72 Telegraph Co.'s assessment of 183 — 8 Tenant for years entitled to 237 — 57 Time at which to be estimated 234 — 49 Trees by electric etc. Cos 183 — 10 Unlawful acts of strikers, as relief 633 — 10 Waiver of assessment of 166 — 73 DAMNUM ABSQUE INJURIA, APPLIED TO EMI- NENT DOMAIN 231— 36 DANGEROUS OR OFFENSIVE BUSINESS, RE- STRAINT OF 661— 18 DARTMOUTH COLLEGE CASE. Legal lachrymosity 109 — 12 Modified 106 — 5 DAUPHIN COUNTY, Common Pleas, jurisdiction of, mandamus 345 — 4 Court of Common Pleas, jurisdiction of taxes, etc. 449 — 4 Receivership in, effect 469 — 9 840 INDEX. DEATH, NOTICE OF, LIFE INSURANCE POLICY 295— 19 DE BENE ESSE. Appearance in mandamus 3S4 — 3 i Testimony on order of 604 — 4 DEBT OF CITY, INJUNCTION TO OBSERVE THE CONSTITUTION 673— 33 DEBT LIMIT OF LIMITED PARTNERSHIP AS- SOCIATION 441— 7 DEBTS, ASSIGNEE'S POWERS 30— 46 DEBTS OF DECEDENT Vol. 3 Johnson 124— DECEIT AND FRAUD, ACTION HOW BROUGHT AND FOR WHAT CAUSE. WITH FORMS, Vol. 2 Johnson 866 — DECREES. Amendment or reformation of 633 — 11 Alternative or substituted relief 633 — 10 Defined and divided 627 — i Dismissing bill 630 — S Dismissal, Rule 68 618 — 37 Divorce — enforcement 96 — 69 Divorce, enforceable by attachment 9S — 67 Divorce, granting and entering 93 — 64 Divorce — rule to shovir cause 92 — 63 Divorce, vacating of 93^ 65 Drawing — notice and copy. Rule 84 629 — 3 Effect, lien on real estate, Act at 1859 634 — 12 Enforcement by attachment 637 — 19 Equity, force of 628 — i Final process, attachment hovir obtained 636 — 17 Form, annulling marriage 71— 27 Form and entry — Rule 83 629 — 2 Order interlocutory 632 — 8 Ordinance of Chancellor Bacon 635 — 15 Orphans' Court, and enforcement.. Vol. 3 Johnson 506 — Partition, same effect as judgment at lawr 367 — 20 Payment of money, minute of 630 — 4 Petition for re-hearing of cause 635 — 13 Process to compel obedience, Rule 86 635 — 16 Pro confesso, force and effect 573 — 9 Pro confesso, form of s73 — 9 INDEX. 841 DECREES — ^Continued) page par. Pro confesso, opening with leave to answer s8o — 30 Pro confesso in partition, opening 364 — n Pro confesso, practice and incidents 631 — 6 Pro confesso, quod partitio fiat, form 371 — 32 Pro confesso, rule as to, in Equity S72 — 8 Pro forma not allowed 632 — 7 Quod partitio fiat — averments necessary 364 — 11 Relation of to proofs 632 — 9 Relief must conform to the pleadings 628 — i Revocation of 634 — 1 1 DEED. Assignment for creditors, form 7 — 9 Assignment — recording, etc 8 — 1 1 Calls for monuments control 121 — 4 Execution by committee of lunatic 327 — 65 Execution, when committee of lunatic dies, etc .... 327 — 66 Master in partition 368 — -23 Partnership 381 — 5 Proof of by subscribing witness 610 — 18 Proves itself after thirty years 610 — 18 Reformation of S27— 25 DEFENDANTS IN BILL IN EQUITY 540- 8 DEFENDANTS. Documents in possession of 587 — 42 Evidence on habeas corpus hearing 276 — ■ 21 Parties in partition 362 — 8 Required to appear and answer in Equity 558 — 21,22 Several may be joined in quo warranto 455 — 20 DEFENSE IN EQUITY MUST BE BY ANSWER OR DEMURRER 574— 13 DEFENSES, DIVORCE. WHAT ARE GOOD AND WHAT BAD 83— 48 DEL. & HUDSON CANAL CO. INCORPORATION i6g— 84 DELAY. AFFIDAVIT THAT DEMURRER IS NOT FOR THE PURPOSE OF 575— 15 PAGE PAR. DELEGATION OF AGENCY TO EXERCISE POWER 106— s DELIVERY, ASSIGNMENT, DEED OF 9— n 842 INDEX. DEMAND AND REFUSAL, PRE-REQUISITE TO MANDAMUS 3Si— i8 "DEMISE, SET AND TO FARM LET," LEASE ONLY THE SURFACE 68a- 40 DEMURRER. To bill in Equity 574 — ■ I4 Admits only facts fairly pleaded 576 — • 16 Affidavit that it is not for delay 575— iS Amendment of bill 578 — 22 Answer after over-ruling 579 — 25 Bill of discovery 577 — 17 Bill for partition 365 — 14 Character and effect 576 — - 16 When not to be over-ruled 578 — 20 Effect of in Equity 575 — 14 Effect of over-ruling 579 — 24 Effect of sustaining 578 — 21 Mandamus, to return 355 — • 34 Quo warranto 4Sa — • 23 Rule as to, in Equity 572 — 8 Should not be argumentative 576 — 15 DENIAL OF PLAINTIFF'S TITLE IN INJUNC- TION 6gi — 10 DEPOSIT, COSTS, BEFORE SUIT IN DIVORCE.. 98— 72 DEPOSITIONS. Of witnesses, practice on rule Vol. i Johnson 632 — Form of, divorce 90 — 60 Suppression of 613 — 22 DESCENT ON DEATH OF OWNER, EMINENT DOMAIN 238— 60 DESERTION. Acts which do not constitute in divorce 81 — 46 Defenses and what are not excuses 83 — 48 Definition of legal — divorces 80 — 45 Form, averment for divorce 70 — 24 Libel may be filed after 6 months 66 — 17 Proof of 82 — 47 DETINUE, HOW AND WHEN TO SUE IN, FORMS Vol. 2 Johnson 606 — INDEX. 843 PAGE PAR. DEVISES UNDER WILL Vol. 3 Johnson 728— DISADVANTAGES, OBVIOUS, ASSESSMENT OF DAMAGES 235— so DISCHARGE. Bankruptcy, to be recorded 284 — 6 Habeas corpus 277 — 23 Insolvent, after account 42 — 77 Insolvent held on civil process 282 — - 4 Prisoner on bail 271 — S Receiver , 493 — 48 Trustee 503 — 26 Trustee on his application S04 — 27 DISCONTINUANCE. Divorce 76 — 38 Quo warranto 458 — 26 Suits, see i Johnson. View, by leave of court 249 — 47, 48 DISCOVERY. In aid of execution, 2 Johnson 3S9 — Bill for, allegations in 552 — 12 Right of assignee to have 22 — 34 Character and purpose of 516 — 7 Cross-bill for, not allowed 590 — 47 DISCRETION OF COURT, IN APPOINTMENT OF RECEIVER 465— 4 DISCRIMINATION, RAILDOADS ETC 149— 8 DISENCUMBERING ESTATES OF CHARGES, 3 Johnson 840 — DISMISSAL. Of bill, consent to 580 — 29 Of suit in Equity 618 — ^7 DISPUTE AS TO TITLE REAL, MUST BE SETTLED AT LAW 664— 22 DISSOLUTION. Corporations, in general 102 — 3 Corporation for profit, in Equity 536 — 42 Limited partnership, by alteration of terms 397 — 44 844 INDEX. DISSOLUTION— (Co»«WMed) page par. Limited partnership, notice 401 — 58 Limited partnership, notice, form 401 — 59 Notice, by limited registered partnership 408 — 77 Of injunction, effect 690 — 9 Of limited partnership association 442 — 10 DISSOLUTION OF PARTNERSHIP. 41S— 97 Compromise with creditors 388 — 18 Compromise with creditors 389 — 19 Effect of 417 — 99 Notice .., 417 — 98 Receivership 468 — 6 Remedy for wrongful 418 — 100 Withdrawal etc 390 — 24 DISTRIBUTION. Assigned estate by auditor 37 — 66 Balance in hands of administrator, 3 Johnson.... 413 — ■ Estates by auditors etc., 3 Johnson 419 — Funds of limited partnership assn 444 — 12 Mortgages, assigned estate 38 — 67 Partnership effects, assigned estate 38 — 68 Preferences in 39 — 69 Proceeds of sheriff's sale, 2 Johnson 515 — Second, additional funds 45 — 81 DISTRICT ATTORNEY, WHEN TO ACT IN QUO WARRANTO 450— 6 DIVIDENDS. Assigned accounts 40 — 72 Of limited partnership assn 442 — 8 DIVORCE, PRACTICE IN. Adulteress, cohabiting with paramour, cannot alien 99 — 74 Agreements to separate binding, when 100 — 76 Alimony, collection, a mensa et thoro 95 — 67 Alimony pendente lite, and counsel fees 86 — 52 Alimony, permanent 94 — 66 Amendment of libel 74 — 35 A mensa et thoro, effect on feme sole trader 264 — 6 American heiresses — disappointed 62 — 7 Answer of respondent 76 — 39 Appeal — recognizance, in forma pauperis 97 — • 70 Acts which are not legal desertion 81 — 46 A vinculo matrimonii. See "Causes" 59 — i INDEX, 84s DIVORCE PRACTICE Itl— (Continued) page par. Bed and board and alimony 63 — 10 Causes of absolute — statutory 59^ — i Causes beyond the state 62 — 6 Causes occurring abroad 59 — 2 Consideration on appeal 97 — 7i Conviction of crimes 62 — 8 Costs, deposit under rule of court 98 — 72 Cruel and barbarous treatment of husband 79 — 44 Cruel and barbarous treatment of wife 79 — 43 Cruelties and indignities of wife toward husband.. 61 — S Decrees, enforceable by attachment 95 — 67 Decree, enforcement of 96 — 69 Decree, granting and entering 93 — 64 Decree — rule to show cause 92 — 63 Decree — ^vacating of 93 — 65 Desertion, defences to charge of 83 — 48 Desertion, legal, defined 80— 45 Desertion, petition may be filed after six months. . 66 — 17 Desertion, proof of 82 — • 47 Discontinuance 76 — 38 Effects 99— 75 Examiner, master or commissioner 90 — 60 Evidence in 91 — 61 False rumor of death 63 — 9 Fraud, force or coercion as causes 60 — 4 Form, affidavit to libel 70 — • 23 Form, answer to charge of intolerable conduct... 78 — 42 Form, answer to libel for adultery 77 — 40 Form — averment of desertion 70 — 24 Form — averment of fraud or coercion 71 — 26 Form — averment, intolerable conduct 70 — 25 Form, decree of annulment of marriage 71 — 27 Form, decree of support and counsel fees 88 — 55 Form, libel for adultery 70 — 22 Form, libel, for criminal sentence „ . 71 — 28 Form, libel for impotence or organic obstruction.. 71 — 29 Form, notice by publication 73 — 33 Form, order allowing rule to show cause 88 — 54 Form, petition for support, etc., pendente lite 87 — 53 Form, replication and demand for jury 88 — 56 Form — rule for bill of particulars 76 — 37 Form, subpoena in 71 — 30 For other forms in Philadelphia Practice see Ch. 36, P. 748, Practice in Divorce, by Hon. F. F. Brightly. Impotence as cause 61 — 4 846 INDEX. DIVORCE PRACTICE IN— (.Continued) page par. Impotence as cause 84 — 49 Incestuous marriages voidable 60 — 3 Indignities to person of wife, as cause 84 — 50 Issues for injury, framing of 88 — 57 Jury trials and masterships 65 — 14 Libel, amendment 68 — 20 Libel, character and contents 68 — 20 Libel, form. See "Forms' Libellant must be a citizen or resident 64 — 12 Lunacy not a ground for 67 — 19 Lunatic wife, petition by next friend 67 — 19 Master, appointment, duties, etc. (see act 191 1) ... . 90 — 59 Master, appointment, duties, etc. (act 191 1 65 — 14 Other state jurisdictions 64 — 12 Paramours not to marry 99 — 73 Pending cases, affected by act of 191 1 66 — 15 Petition or libel, affidavit 64 — 3 Petition, void marriage 67 — 18 PHILADELPHIA PRACTICE BY BRIGHTLY. .. 748— i Alias subpoena 752 — 10 Appearance of respondent 751 — 8 Argument list 757 — 23 Certificate of divorce 760 — 33 Decree for cause of adultery 759 — 30 Directions to masters in divorce 756 — 21 Exceptions to master's report 757 — 22 Form of decree for adultery 759 — 30 Form of decree of annulment 759 — 31 Form of final decree 759 — 29 Form of notice of rule for divorce 758 — 26 Form of subpoena 750 — 5 Form of warrant of attorney 732 — 9 Libel, form of 748 — 2 Libel, requisites of 748 — i Master's fee 755 — 16 Master's duties 753 — 15 Master's minutes — exceptions 755 — ■ 17 Master's report 755 — ■ 20 Notice of master's meeting 753 — 15 Notice of rule to appear and answer 750 — 4 Order of publication 752 — 12 Payment of master's fees 760 — 32 Practice before master 753 — 15 Proceedings before master 753 — ■ 14 Publication 7S2— 1 1 INDEX. 847 PHILADELPHIA PRACTICE, KTC.—{Continued) page par. Respondent's answer 753 — ■ 13 Rule to appear and answer 750 — 3 Rule for final decree 757 — 24 Security for costs 755 — 18 Service of notice of rule for final decree 758 — 25 Service of subpoena 751 — 6 Sheriff's return of service 751 — 7 Stenographer's fees 755 — 19 Subpoena 750 — 5 DIVORCE GENERALLY. Plea of bankruptcy suspends alimony pendente lite 55 — 10 Power of court to hear and determine 89 — 58 Practice, rules and forms in Philadelphia, by F. F. Brightly, LL. B 748— Publication of subpoena, proof 74 — 34 Record, conclusiveness 00 — 75 Recrimination and condonation 78 — 41 Report of master 92 — ■ 62 Return, non est inventus 73 — 32 Rule for bill of particulars — non pros 75 — 36 Rules of court must be consulted 91 — 60 Rules in Phila., strictness of 69 — 20 Rule to pay alimony 95 — 68 Service of subpoena 72 — 31 Subpoena, allowance of 6g- — 21 Subpoena, issuance, rettirn 65 — 13 Turning wife out of doors 86 — 51 DIVORCED WIFE. Loses no right when divorce to husband is granted out of the state 99 — 75 Loses exemption 99 — 75 DOCKET FOR EQUITY CAUSES, ETC 560— 26 DOCKS, DAMAGES, ASSESSMENT OF 173 96 DOCUMENTS. In possession of counsel, Lord Brougham on 588 — 42 In possession of defendant 587 — 42 Referred to in bill, to be exhibited 550 — 8 Referred to in bill, defendant's right to inspect .... 588 — 43 DOMESTIC ATTACHMENT, COMMENCEMENT OF ACTION BY, Vol. i Johnson 712— Vol. 4 Practice— 54 848 INDEX. PAGE PAS. DOMICIL. Law of, Vol. 3 Johnson 578 — Husband's right to change 82 — 47 Libellant in divorce 68 — 20 DOORS, BREAKING OF BY OFFICER 638— 2 DORMANT PARTNER, CHARACTER OF z^^ i DOUBTFUL RIGHT DOES NOT EXIST 113— 24 DOWER AND PARTITION IN ORPHANS' COURT, Vol. 3 Johnson 307— Inchoate, owner of — eminent domain 212 — 15 Wife of lunatic, release 331 — 75 Vnde nihil habet, how to maintain action, Vol. 2 Johnson 616 — • DRAINS, EMINENT DOMAIN 116— 30 DRAWING, NOTICE AND COPY OF DECREE. . . 629— 3 DRUNKARDS, CLASSIFIED WITH LUNATICS.. 299— 1 See "Lunacy, etc." for practice. "DUE PROCESS OF LAW," APPLIED TO COR- PORATIONS 103— 5 Not necessarily trial by jury 244 — 25 DUNCAN, J., ON CHANCERY PRACTICE IN PENNSYLVANIA 255,256— 1,2 DWELLING HOUSE, WHEN EXEMPT, EMI- NENT DOMAIN 134— 12 EASEMENT.... Eminent domain confers 136 — 15 Enjoyment, twenty-one years, presumption 136 — 13 Light, air, etc. — injunctions to preserve 663 — 22 Movable 660 — n. 40a Railroad right of way 224 — 12 Rural road, abutters' rights 142 — 37 Under eminent domain 120 — 2 "EJECTMENT BILLS" NOT FAVORED IN EQUITY 529— 27 INDEX. 849 PAGE ■ PAR. EJECTMENT, ENFORCEMENT OF DAMAGE PAYMENT BY 237— 56 EJECTMENT EQUITABLE, NATURE AND PUR- POSE 2SS— I EJECTMENT AND RULE TO BRING, Practice in this action with accurate forms. . . .Vol. 2 Johnson 621 — 10 Vol. 2 Johnson 621 When land was taken illegally 242 — 10 ELDON, LORD, ON RELEVANCE OF DOCU- MENTS REFERRED TO IN ANSWER 588— 42 ELECTION, AFTER JUDGMENT OF OUSTER FROM OFFICE 461— 36 ELECTRIC AND OTHER CO.'S. Damages to trees 183 — 10 Eminent domain 114 — 27 Power, consent of municipality 199 — 67 Railways on rural roads, damages to abutters.. ... 143 — 2i7 ELEMENTS OF DAMAGES IN EMINENT DO- MAIN. See Damages ELEVATED ROADS, COMPENSATION FOR DAMAGES 139— 25 ELLENBOROUGH, LORD, ON PROOF OF DEED 610— 18 EMANCIPATION OF MARRIED WOMAN AS TO CONTRACTS 266— 12 EMBANKMENTS, CUTS, ETC., DAMAGES— EV- IDENCE 233— 46 EMINENT DOMAIN, AGENCY OF, PUBLIC USES, PUBLIC NECESSITY, Ch. V 104— Abandonment of easement in canal 121 — 5 Abandonment and reversion 137 — 17 Abutting owners, damages 181 — 2 Abutting owner, rights of 140 — 27 Abutter, compensation for added servitude 142 — 34 Abutters on street railway line 142 — 36 Acceptance of constitution 149 — 10 8so INDEX. EMINENT DOMAIN, ETC.— (Continued) page par. Acquisition of lands to prevent contamination of water supply 192 — 45 Adjacent owner, rights of 140 — 28 Advantages of improvement to owner 227 — 19, 20 Affidavit on appeal — costs 248 — 43 Affidavit of failure to agree, form 216 — 26 Affidavit of tender of bond, form 217 — 28 Agency, not delegation of power log — 12 Agreement to give the land 236 — 54 Annexation to city 138 — 21 Answer to petition for view 208 — 7 Appeal by heirs, devisees, etc 248 — 41 Appeal, motion to strike off 249 — 45 Appeal from report of viewers, school code 175 — 106 Appeal, right of 253 — 59 Appeal by tenant from award of viewers 248 — 40 Appeal, waiver of irregularities, by 249 — 44 Appeal from water supply viewer's report 192 — 42,43 Appointment of guardian ad litem for persons under disability, etc 182 — 5 Appointment and oath of viewers 189 — 32 Appraisement water works, under contract 19S — 56 Appraisers, report, filing of 194 — 51 Appraisers, powers, report appeal, water plant .... 194 — 52 Approval of bond 210 — 16 Approval of bond after suit 242 — 11 Appurtenant rights 123 — 9 Assessment of damages 206 — • i Assessment by commissioners 254 — 65 Assessment of damages, jurisdiction 206 — 2 Assessment of damages, B. & O. R. Co 169 — 86 Assessment, by whom to be made 214 — 22 Assessment of damages, must follow the statute 241 — 9 Assessment, life tenants 238 — 58 Assessment of damages, Penna. R 153 — 57 Assessment when title is in dispute, P, R. Co 155 — 34 Assessment of damages, practice 164 — 65 Authority to buy water plant after valuation 195 — 53 Award in money 245 — 30 Award of viewers, finality 248 — 39 Baltimore & Ohio R. Co 169— 83 Bar of proceedings to assess damages 241 — 7, 8 Bar as to damages 166 — 72 Bar of proceedings to assess damages 241 — 7,8 Bond, approval for lumber company 184 — 12 Bond by county, for bridge condemnation 188 — 26 Bond for damages, water supply for municipalities... 191 — 40 INDEX. 8si EMINENT DOMAIN, ETC.— (Continued) page par. Bond, effect of giving — treble damages 232 — 42 Bond, when title is in dispute 181 — 4 Bond by railroad co — approval i66 — 70 Bond, tender and refusal 197 — 58 Bonds, water works, redemption, exemption from all taxes 19s — ss Bridge condemnation, change of venue, 186 — 19 Bridge, petition for condemnation 184 — 14 Bridge on county lines — condemnation 186 — 20 Bridge, condemnation, witnesses to be heard 185 — 17 Bridge, proceedings by viewers to free 187 — 23 Bridge, making free, report of viewers 185 — 15 Bridge, viewers' report, approval 185 — 16 Bridge, when to become public 188 — 28 Burden of proof — orders of Court 251 — 52 Calls for highway in deed 121 — 4 Causeways for land owners, P. & R. Charter 160 — 49 Change of grade by railroad, damages 141 — 33 Change location of bridge etc 168 — 80 Change of location of railroad 165 — 66 Change of route 134 — 9 Charters, reservation by state 165 — 69 Charters, revocable 150 — 12, 13 Church, exempt from condemnation 13S — 12 Cities, power to take lands etc 200 — 71 Coke and manufacturing companies 205 — 80 Coal underlying right of way 134 — 10 Coal underlying stone quarries etc 224 — 1 1 Columbia Etc. R. Co 152 — 22 Compensation, constitutional requirement 147 — 3 Compensation — definition and right to 138 — 20 Compensation or security necessary 132 — 4 Compensations, Gas Companies and pipe lines ...... 224 — 10 Compensation by municipalities 139 — 23 Compensation for particular injuries 139 — 23 Compensation for streets etc 1.39 — 24 Compensation of viewers on turnpike 190 — 34 Compensation for water rights 128 — 24 Competency of witnesses 243 — 21 Condemnation of bridge, appeal '. . 186 — 18 Condemnation of land lying in different counties 168 — 79 Condition precedent 109 — 11 Conditions precedent to use 1 13 — 23 Conferrence upon municipalities by their charters.... 178 — 117 Conferrence for railroad purposes 1 12 — 18 Consequential damages 138 — 22 Consolidations of railroads and canals prohibited 148 — 7 8S3 INDEX. EMINENT DOMAIN, ETC.— (.Continued) page par. Constitution, self-executing 113.— 25 Constitutional and statutory provisions 146 — Ch.8 Construction of law to be favorable to the owner . . . 243— 17 Contractual "vested rights" 126 — 17 Corporate franchises may be taken 125 — 16 Corporate property — railroad crossings 124 — 13 Corporation, right to compensation 14a — 29 Costs and fees, condemnation for school purposes... 176 — • 109 Costs, by whpm payable 250 — 49 Cost of restoration 228 — 25 Counties, condemnation of toll bridge 186 — 21 County board of viewers stick under general laws... 178 — 118 County road system 208 — 83 Court must answer defendant's point as to value 244 — 22 Cumberland Valley R. Co 168 — 82 Damages allowed, for what 231 — 37 Damages, assessment, water supply 193 — 46 Damages, assessment See "Assessment, Supra." Damages, bridge, ferry, mill race 223 — 9 Damages, consequential 232 — ■ 43 Damages, enforced by ejectment 237 — 56 Damages, facts immaterial in estimating 227 — 21 Damages, incidental not to be estimated 230 — 32 Damages, for injury without taking 222 — 4 Damages, for irregular taking 223 — 6 Damages for land taken by railroad co ' 225 — 15 Damages, limit of use by municipality 223 — 7 Damages, measure for abutting owner 223 — 8 Damages. See "Measure of Damages." Damages, part owner, vendee 223 — s Damages, present use as element 228 — 22 Damages, presumption of payment 253 — 61 Damages, to whom to be awarded 236 — - 55 Damages from railroad laid on a street 233 — 45 Damages to trees by electric cos. etc 183 — 10 Damnum absque injuria 231 — 36 Definition, origin in civil liberty . . . : 104 — i Del. & Hudson Canal Co 169 — 84 Descent on death of owner 238 — 60 Description of land by petition 208 — 6 Disadvantages which are obvious 235 — 50 Disagreement of viewers 245 — 29 Discontinuance, bridge condemnation 188 — 27 Discontinuance by leave 249 — 47 Discontinuance and quashing 249 — 48 Discrimination prohibited 149 — 8 Docks, assessment of damages 173 — 96 INDEX. 8S3 EMINENT DOMAIN, lETC— (Continued) page par. Distinguished from police power lOS — 3 Diversion of water 128 — 23 Divestiture of title by giving bond 132 — 4 Duty of Penna. R. Co. to repair canal bridges 151 — 19 Early laws, granting charters to railroad companies. . . 152 — 21 et seq. Effect of entry for survey only 231 — 38 Effect of report of viewers 245 — 31 Efficient cause of injury stated in petition 2H — 12 Ejectment when taking was illegal 242 — 10 Election of remedy — appeal 244 — 26 Electric Railroad Companies 1 15 — 27 Electric railroads and light companies 1 14 — 27 Embankments, cuts, etc., damages 233 — 46 Entry and damages, Sunbury & Erie R. Co. . . .-. i6i — 53, 54 Equity will not interfere with location, when 133 — 8 Estate, quantity when taken 232 — 40 Evidence, ancient map etc 136 — J4 Evidence — summing up 251 — 53 Examination and forfeiture of Penna. R. Co.' Charter 154 — 32 Examples of conferrence on municipalities iii — 17 Execution, without stay 253 — 58 Exceptions to report of viewers 247 — 37 Exceptions to report of viewers of county road 178 — u6 Exceptions to report of turnpike viewers igo — 36 Exceptions to viewers' report 176 — 108 Exclusive privileges to supply water, ended 198 — 62 Exclusive right to supply water 197 — 60 Exclusive remedy by statute, when 242 — 15 Exercise depends on what 105 — 2 Exercise of right by the state 147 — 2 Exercise by County Commissioners 176 — 110,11,12 Expert opinions on value 228 — 24 Extent — agency of its exercise 105 — 4 Fencing private lands, gates 204 — yj Fencing right of way of railroad 229 — 30 Finding of the jury — dispute as to title 243 — 19 Findings by viewers 246 — 33 Foreign corporations — not retroactive 117 — 36 Form of bond for security, to owner 216 — 25 Form of notice of application to file bond 215 — 24 Form of notice of application to file bond 215 — 24 Form of order to and report of viewers 218 — 30 Form of petition to file bond 214 — 23 Form of petition for view to assess damages 217 — 29 Form of report of viewers 219 — 31 8S4 INDEX. EMINENT DOMAIN, KTC— (Continued) page pak. Franchises may be taken by 197 — 59 Free passes prohibited 114 — 25 Fruition of use 118 — 38 Gas companies iiS — 28 Gas company, remedy for damages 139 — 26 General railroad act of 1849 163 — 64 Grade crossings by street railways 174 — 100 Ground rents — two estates 238 — 59 Guardian ad litem for persons under disability 203 — 75 Habere facias possessionem on proof of notice... 174 — 102 Huntingdon & Broad Top. R. Co 170— 88 Implication defined 122 — • 7 Improvements made by taker of property 230 — 33 Incidental rights- • 126 — 18 Inclined plane — discharge of water 143 — 39 Injunction as for nuisance 242 — 14 Injunction to restrain illegal taking 242— 12 Injunction when law is void 243 — 16 Injuries for the jury, restrictions for the Court... 230 — 31 Instructions to jury 245 — 28 Interest in assessing of damages 235 — 51 Interest on award of viewers 235 — 52 Iron ore, as element of damages 227 — 20 Iron and steel companies 204 — 79 Irrigation systems, bridges 117 — 33 Issue, framing for trial, rule in Allegheny Co 250 — 50 Joint tenants, apportionment 245 — 23 Judgment, finality of 252 — 57 Jurisdiction of Quarter Sessions 346 — 6 Jurisdiction when land lies in different counties 204 — 76 Jury to find damages '. . . . 243 — 20 Jury, when necessary 244 — 25 Jury, province of 244 — 23, 24, 25 Jury trial preserved 166 — 71 Lancaster City, special act unrepealed 243 — 18 Lands contiguous to stream, to prevent pollution 199 — 69 Lateral lines of Penna. R 154 — 30 Lateral railroads — Act 1832 162 — 58 Lateral railroads 162 — 59, 60, 61 Lease, consolidation or sale of railway line 112 — 20 Legislature judge of public use 108 — 10 Legislation, public use, railways 107 — 6 Lehigh Valley R. Co 168— 83 Lien for damages 253 — 62 Limitation 1 18 — 39 Limitation not applicable in 231— 9 Limitation not applicable in 239 — i INDEX. 8ss EMINENT DOMAIN, ETC.— (.Continued) page par. Limitation of time to exercise 138 — 19 Limitations upon corporations by the constitution . 148 — 4 Line surveyed but not, adopted 113 — 21 Local jurisdiction where land lies 241 — 6 Logging booms 1 16 — 32 Loss of privilege 118 — 40 Lumber companies 184 — 11 Lumbering over improved land — damages 184 — 13 Mandamus to compel exercise of public uses no — 14 Manufacturing companies — reservation 204 — 78 Manufacturing companies, use of streams by 205 — 81 Measure of damages — when the fee is taken 220 — i Mills etc 116 — 31 Minerals, subjacent 123 — iq Miscellaneous applications 1 17 — 35 Mode of exercise by United States 181 — i Mode of service of notice 214 — 20 Mortgagee, when entitled to damages 238 — 61 Municipal improvements, steps, sewers etc 234 — 47 Municipal purposes 1 17 — 34 Municipalities, limited by their charters in — 16 Municipalities, condemnation for water supply 191 — 39,40,41 Municipalities, prior consent 149 — 11 Municipality, issuance of water works bonds 195 — 54 Municipality need not give bond 132 — s Necessity for taking, delegation 125 — 14 New trial, power of Court 252 — SS New view. Act 1846 154 — 28 New York & Erie R. Co. admitted to Penpa 169 — 87 Northern Central R. Co 168— 81 Not for private use 108 — 9 Notice of presentation of bond 210 — 9 Notice of view 213 — 18, 19 Offers to sell, evidence and effect 228 — 27 Owners all to join in petition for view 212 — 14 Paramount right of highways 154 — 29 Passes regulated 149 — 9 Payment of damages, county road 177 — 114 Penna. R. Co. — beneficiary of State 153 — 25 Penna. R. Co. compensation, how ascertained 157 — 42 Penna. R. Co. privilege how to be exercised 156 — 41 Penna. R. Co. water supply, taking 155— 35 Petition for view, by taker 207— 4 Petition, amendment of 210 — 16 Petition, amendment of 213 — 16 Petition for approval and filing of bond 209 — 8 Petition for view, by owner of the land 211 — n 856 INDEX. EMINENT DOMAIN, 'ETC.— (Continued) page par. Petition for view, prerequisites 208 — S Phila. & Erie R. Co 158— 43 Phila. & Reading R. Co 158— 44, 45 Phila. R. Co. charter provisions 161 — 50, 51, 52 Phila. & Reading R. Co. entry — compensation etc. . . . 159 — 46 Phila. & Reading R. Co., power to survey and fix route 158— 45 Phila. & Trenton R. Co 170— 89 Pipe lines, city license 143 — 38 Pipe lines, drains etc 116 — 30 Pipe line — subjacent support 137 — 16 Pittsburg & Erie R. Co 170— 91 Pittsburg, Kittanning & Warren R. Co 170 — 90 Possession, right to 136 — 15 Power to alter, revoke or renew charters 148 — 5 Power inalienable — license revocable 106 — s Powers granted incidental to main power 112 — 19 Powers and privileges of manufacturing companies.. 205 — 82 Power to purchase gas works 198 — 64 Practice in ascertaining damages 239 — i Presumption as to time of assessment 240 — 5 Private waters, rule of relative rights 127 — 20 Privilege not right 147 — i Privilege conferred on railroads 150 — 15 Privilege limited by the Constitution 113 — 22 Privilege not transferable ir8 — 37 Proceedings to view, Act 1874 196 — 57 Procuring possession of lands condemned 174 — loi Property that may be taken — necessity etc 119 — i Property taken for another use 122 — 6 Public roads paramount, under P. & R. charter 160 — 48 Public uses illustrated by examples 114 — 26 Public use for private gain no — 13 Purchase of water works 198 — 63, 64 Quantity of land taken — width of railroad 128 — 25 Railroad — exemption of dwellings etc 134 — 12 Railroads, grade crossings 141 — 30 Railroads for a public use 108 — 8 Railroads, objects of creation — public use 107 — 7 Railroad right of way, an easement 224 — 12 Railroads and canals, connections and crossings 148 — 6 Railroad landings 173 — 95 Railroads subject to Constitution 233 — 44 Railroad taking water 134 — 11 Reason of the law 144 — 44 Re-location of natural stream 193 — 47 Re-location of roads, water supply condemnation.... 192 — 44 INDEX. 8s7 EMINENT DOMAIN, ETC.— (Coniinu^d) page par. Re-location of street railways, viewers 202 — Ti Report of viewers, confirmation, appeal 247 — 36 Report of viewers — setting aside 246 — 34, 35 Reserved power by the State 150 — 16 Reserved right to purchase and resume the Penna. R. . 154 — 31 Restriction of exercise by the Courts no — 15 Revocation of charter 137 — 18 Revocation of privileges of gas companies 200 — 70 Right of entry, Penna. R. Co 156 — 41 Right of possession 253— 60 Right of way — easement — reversion 120 — 2 Riparian owner's rights 127 — 21 Riparian owner's rights, compensation 143 — 40 Sale and release 236 — 53 School code, payment into Court 176 — 107 School districts, petition for viewers 175 — 104 'School districts, privilege conferred 174 — 103 Selling price, element in valuation 228 — 26 Separate interests — releases 244 — 23 Servitude defined 142 — 35 Sidewalks — no compensation to abutters 141 — 32 Smoke, noise, vibration etc 229 — 29 Special findings by jury 24s — 27 Speculative uses, profits, damages 234 — 48 State canals — abandonment of 225— 13, 14 State canals, sale of 151 — '20 State loan, forced sale of public works 152^ 24 State ownership of public utilities 151 — 17 'State railroad — ^April 9, 1826, P. L. 192 152 — 23 State railroad to remain a public highway 156 — zl State's reservation of power 151 — 18 Statute of limitations no bar 166 — 72 Statute of limitations discussed 144 — 42,43,44,43 Streets and highways — prior right of the public 123 — 12 Street railway companies 173 — 98, 99 Street railway companies 174 — 100,101,102 Street railways — bond for absent etc. owners 203 — 74 Street railways, relocation of tracks 200 — 71 Street servitudes, compensation 141 — 30 Strict construction — no doubtful rights 113 — 24 'Structures erected by taker 240 — 4 Subordinate rights — money 123 — 11 Sunbury & Erie R. Co. (now P. & E. R. Co.) 161— 53 Sureties, plea of abatement 253 — 63 Taking by the legislature 131 — 2 Taking, what constitutes— exemption of dwell- ings, etc 130 — I 8s8 INDEX. EMINENT DOMAIN, KTC— (Continued) page par. Taking, when right attaches — evidence of title 131 — 3 Telegraph companies in Penna 183 — 7 Telegraph companies, under Act of Congress 182 — 6 Telegraph Co., assessment of damages 183 — 8 Telegraph Co., municipal consent 183 — 9 Tenant for term, entitled to damages 237 — 57 Tenants in common, damages 228 — 23 Timber, right of taker 230 — 35 Time to appeal — ^public parks 248 — 42 Time of appointment of bridge viewers 187 — 24 Time when damages begin 231 — 39 Time of estimate of damage 234 — 49 Time of fixing value of lands taken 240 — 3 Time of valuation 221 — 2 Title to land, when divested 240 — 2 Title how acquired 144 — 43 Title must be stated in petition 211 — 13 Title by prescription — limitation 143 — 41 Township roads, inapplicable 150 — 14 Township roads not subject to 133 — 7 Tract of land — damages 226 — 18 Trespass, exemplary damages for 232 — 41 Trial jury — view of premises by 166 — 74 Turnpike companies 173 — 97 Turnpike, adverse report of viewers 191 — 38 Turnpike, condemnation of 188 — 29, 30 Turnpike condemnation, master and stenographer 189 — 31 Turnpikes, public roads, etc 150 — 14 Turnpike view, appeal from report of viewers 190— 37 Unopened street, house on line 226 — 17 Use confined to purpose 123 — 8 Vacation of part of old road by county 177 — 113 Vacation proceedings 133 — 6 Valuation when part of tract is taken 222 — 3 Valuation of Penna. R. Co. on forfeiture 1 54 — 33 Valuation of water power, etc 226 — 16 Valuation as to timber 226 — 16 Verdict of jury 252 — 54 View by trial jury 251 — 51 View to value, on failure to agree on price of bridge. . 186 — 22 View, waiver of — rule to plead 207 — 3 Viewers, Act of 191 1 165 — 65 Viewers, appointment, pay etc 178 — 115 Viewers, condemnation of water supply — notice of meeting 191 — 41 Viewers, duties, school code condemnation 175 — 105 Viewer's fees — costs 249 — 46 INDEX. 8S9 EMINENT DOMAIN, ETC.— (Continued) pace par. Viewers, qualification of 213 — 17 Viewers, quorum 189 — 33 Viewers, report of, for county purposes 176 — 112 Viewers, turnpike, report, contents of 190 — 35 Waiver of assessment of damages 166 — Waiver of right to sue by appearance before viewers. . 242— 13 Washington & Pittsburg R. Co 170 — 92 Water, power to take — extent 198 — 61 Water companies 1 15 — 29 Water companies may take land in fee 199 — 65 Water Co. — electric power, furnishing 199 — 67 Water Co. — ^power of condemnation 199 — 68 Water courses 126 — ig Water plants, mode of acquiring 194 — 50 SI 52 Water rights, assessment of damages 127 — 22 Water rights — private corporation — injunction.... 125 — 15 Water works, extension of plant 199 — 66 Way, when appurtenant 120 — 3 Width of Penna. R I53— 26 Width of railroad, presumption of location 136 — 13 Writ of assistance under Rule 87 476 — 22 EMPLOYEES' SHARE OF PROFITS NOT TO MAKE THEM PARTNERS 392— 26 END OF TRUST 505— 30 ENLARGEMENT OF TIME TO ANSWER IN EQUITY 580— 26 ENTRY FOR SURVEY ONLY, EMINENT DO- MAIN 231— 38 "EQUALITY IS EQUITY," HOW LIMITED 531— 31 EQUITABLE ASSIGNMENT, WHEN DOCTRINE ARISES 532— 34 EQUITABLE EJECTMENT. Action by vendee — tender 258 — 6 Action by vendor 259 — 7 Applied to parol trusts 256 — 2 Conditional verdict and judgment 259 — 8 Form of motion for rule 257 — 5 Nature and purpose 255 — i Service acts, as to unseated lands 257 — 4 Time of the essence 256 — 3 86o INDEX. PAGE PAK EQUITY ABHORS "LACHES" 532— 33 EQUITY ARGUMENT LIST 572— 8 EQUITY WILL NOT AID INEQUITY— "CLEAN HANDS" 531— 31 "EQUITY FOLLOWS THE LAW" IN EVIDENCE 584— 39 EQUITY CASES, TRIAL, IN PHILA. UNDER RULE OF COURT 624— 13 EQUITY, CONDEMNATION BY WATER CO 199— 68 EQUITY A PART OF THE LAW. CH. J. GIBSON 514— i EQUITY WILL NOT ACT WHEN IN VAIN 521— 18 EQUITY STEPS NOT IN WHERE REMEDY AT LAW IS LOST BY LACHES 529— 27 EQUITY WILL NOT COMMAND A VAIN THING 651— 8 EQUITY, CHALLENGING RAILWAY'S RIGHT TO EMINENT DOMAIN 107— 6 EQUITY NEVER CONTRAVENES THE LAWS.. 656— 14 EQUITY— DIVORCE A PROCEEDING IN 93— 64 EQUITY DOCKET, MOTIONS ETC. TO BE EN- TERED ON 62s— 16 EQUITY COURT IS ALWAYS OPEN 559— 24 Vol. I Johnson 51 — 29 EQUITY ENFORCEMENT IN ASSISTANCE OF MUNICIPAL ORDINANCE 684— 47 EQUITY EVIDENCE— RULE AS TO RESPON- SIVE ANSWER 584— 38, 39 EQUITY FEE BILLS; ACTS OF ASSEMBLY 642— 40 EQUITY HEARING IN, RULE 60 604— 2 EQUITY, WHEN INVOCABLE TO DISSOLVE PARTNERSHIP 41&— 97 INDEX. 86i PAGE PAR EQUITY POWERS OF COMMON PLEAS, AS TO PARTNERSHIPS 387— 16 388— 17 EQUITY PROCESS AND SERVICE 561— i EQUITY— WHEN WILL NOT INTERFERE WITH LOCATION OF A ROAD 133— 8 EQUITY PROCEEDINGS TO DISSOLVE PART- NERSHIP 390— 24 EQUITY OF REDEMPTION, OWNER OF, EMI- NENT DOMAIN 212— IS EQUITY, RELIEF, FOR RIGHT OF WAY 136— IS EQUITY, RULE OF PROOF— NOT APPLIED TO DIVORCE 82— 47 EQUITY TRIAL LIST IN PHILA. Sec. 2, Rule 18 625— 14 EQUITY JURISDICTION. Adequate remedy at law 527 — 26 Adequate remedy at law Vol. i Johnson 4 — 12 Account generally, see "Account" Account by persons claiming to be tenants in common in mines 519 — 14 Account by tenants in common in mines 518 — 13 Apportionment of wharfage and dockage in Phila.. 519 — 15 Assignment, Equitable 532 — 34 Averment of demurrer or answer as to remedy at law 518 — II Bill of discovery, to obtain evidence 516 — 7 Bill to remove cloud upon title to land, quia timet. 525 — 23 Claims of right to chattels 530 — 28 "Clean hands" — will not aid inequity 531 — 31 Common Pleas, Law Side and Equity Side 513 — i Compensation, rescission, etc 523 — 22 Concurrent with Law, when 531 — 29 Constructive Notice, rule 535 — 39 Continuance, when once attached 531 — 30 Contracts concerning stocks and bonds 522 — 21 Contribution, doctrine of 534 — 36 Corporations — See "Corporations" Corporation mortgages 516 — 8 862 INDEX. EQUITY JURISDICTION— (Con«i»«ed) page par. Court in which corporate mortgages may be en- forced 517 — 9 Deserted wife may proceed in rem 535 — 41 Disputed titles to land, or "ejectment bills" 529 — 27 Dissolution of corporation for profit 536 — 42 Discovery in aid of execution 516 — 7 Vol. 2 Johnson 359 — Divorce — See "Divorce." Dower 362 — 10 Equity part of the law in Penna 513 — i Equity under the forms of law Vol. i Johnson 151 — Fraud, accident, mistake or account 515 — Fraud and mistake — -"Clean hands" 521 — " 19 Grade crossings 167 — 76 Grade crossings of railroads 677 — 39 Ground of 660 — 17 Injunctions, according to chancery 520 — 16 "Laches" abhorred by Equity 532 — 33 Marshalling assets 534 — 38 Mutuality of contract and mutuality of remedy . . . 521 — 18 Notice of assignment of chose in action 533 — 35 Offer to perform — effect 522 — 20 Partition 362 — 10 Perpetuation of testimony of lost records 515 — 6 Performance or restitution 523 — 21 Powers of Chancery 512 — i Powers of C. P. of Phila. extended to state by act of Feb. 14, i8S7. P- L. 39 514— 3 Proof of incorporation, when not necessary 536 — 43 Public works not to be enjoined in Phila 520 — 17 Railroads — See "Railroads" and "Injunction." Reformation of deeds etc 527 — - 25 Reformation of written instrument 526 — 24 Remedy of deserted wife at Law or in Equity .... 535 — 40 Remedy at law — appeal, assignments of error etc.. 518— 12 Remedy at law — question raised by answer or de- murrer 517 — loa Rule where one of two innocent persons must suffer 531 — 32 Settlement of partnership and other accounts .... 515 — 5 Specific performance of contract — inter vivos 520 — 18 Statutory and Chancery 513 — i Stock-holders of corporations, disputes by 517 — 10 Subjects cognizable in Equity 514 — 2 Subrogation by payor S34 — 37 INDEX. 863 PAGE PAK. EQUITY PLEADING. Admissions and waivers in Chancery 589 — 44 Admissions by, opinions of Lord Erskine and Ch. J. Wilmot 585— 40 Affidavits, by whom administered Sgi — 48 Amendment of bill after answer, before or after replication 598 — 63 Amendment of bill on demurrer 578 — 22 Amendments to answer, discretionary 601 — 67 Amendment in lieu of bill of revivor or supple- mental bill 601 — 70 Amendments, of course, before replication 601 — 69 Amendment as to parties 599 — 64 Amendment as to relief 599 — 65 Amendments, practice as to S79 — 23 Amendment, time of allowance 599 — 66 Answer to bill of discovery 594 — 58 Answer, when party may decline to 590 — 46 Answer, what it may contain 581 — 32 Answer after allowance of exception 592 — 51 Answer after over-ruling demurrer 579 — 25 Answer on information and belief 594 — 57 Answers and cross bills, bona fide purchasers 581 — 31 Answer not equivalent to evidence, when 586 — ■ 41 Answer, responsive, when 583 — 36 Answer, not responsive, when 583 — 37 Answer, sufficiency and effect 582 — 35 Averments, character and force 572 — 7 Cross-bill by defendant, when advisable 596 — 60 Cross-bills for discovery not allowed. Rule 40.... 590 — 47 Decree when defense not taken by answer or de- murrer 574 — 13 Decree pro confesso, force and effect 573 — 9 Defendant, when no answer required from 580 — 27 Defendant's right of inspection of documents 588 — 43 Deiinition of 570 — 2 Demurrer to bill 574 — 14 Demurrers and decrees pro confesso 572 — 8 Demurrer to bill of discovery 577 — 17 Demurrer — Affidavit that is not for delay 575 — 15 Demurrer, effect of over-ruling 579 — ■ 24 Demurrer, effect of sustaining 578 — 21 Demurrer, nature and effect of 576 — 16 Demurrer, when not to be over-ruled 578 — 20 Dismissal of bill, consent to 580 — 29 Documents in possession of defendant 587 — 42 Exceptions to answer 582 — 34 Vol. 4 Practice — 55 864 INDEX. EQUITY Pl,EADliG— (Continued) page par. Exceptions to answer 591 — 49> 50 Exception for inperspicuity or evasion 593 — 55 Exceptions for scandal and impertinence 570 — 3 Exceptions for scandal and impertinence ■■ • . 582 — 33 Expiration of time in Phila 574 — 12 Filing and service of copy of amendments 601 — 68 Form of exceptions for scandal etc 571 — 4 Form of interrogatories 595 — 59 Form and manner of statement S7l — 6 Hearing of cause on bill and answer 594 — 56 Interrogatories and answers, Rule 38 590 — 45 Interrogatories to defendant 592 — 52 Lord Redesdale, on defendant's answers 592 — 53 Materiality, test of, defined by Richards 592 — 54 Motions etc. which are not grantable, of course . . 574 — 10 Narrowed by rules 570 — i Opening decree pro confesso, with leave to answer 580— 30 Parties, want of, objection raised by answer 580 — 28 Printing exceptions to answers 591 — 50 Replications, practice concerning. Rule 46 597 — 61 Rule to answer or demur 572 — 8 Setting down cause for argument 577 — 19 Special replication, not permitted. Rule 47 597 — 62 Substance or necessary statements 571 — s Time to answer maybe enlarged 580 — 26 Time, extension of 574 — 1 1 Variance of relief, answer or demurrer 577 — 18 EQUITY PRACTICE PROPER, UNDER RULES OF SUPREME COURT 512 et seq. Affidavits and depositions must be in the first person 605 — 7 Alien amy and enemy — as parties 544 — 20 Amendments in lieu of bill of revivor 543 — 18 Assignees as parties 540 — 6 Awarding issue for jury trial 623 — g Bill where demand is joint and several 542 — ii Chancellor, framing issue for a jury 622 — 7, 8 Costs 638 — 24 Costs against plaintiff 610 — 17 Decree of dismissal 618 — 37 Depositions, suppression of 613 — 22 Docketing cause etc 560 — 26 Duty of prothonotary on bills 559 — 24, 25 Feigned issues, nature and practice 623 — 10 Form of certificate of issue on title to land, to the Law side 624 — 1 1 INDEX. 86s EQUITY PRACTICE, ETC.— (Continued) page par. Heirs at law, as parties 542 — 13 High Court of Chancery of England, now "The Supreme Court of Judicature," rules adopted in Penna 56&— 18 Interlocutory orders etc. at Chambers 625 — 15 Interrogatory, form of final 605 — 6 Intervention and substitution of parties 543 — 17 Motions etc. to be entered on Equity docket .... 625 — 16 Motions etc. which are of course 625 — 17 I Notice of filing reports or referees — Phila 626 — 18 Parties to a bill 537 — i Parties complainant in bill 540 — 7 Parties defendant in bill 540 — 8 Parties to bill for an account 538 — 4 Parties to bill concerning corporations 538 — 5 Parties under disability in Chancery 544 — 19 Parties under incapacity, guardians ad litem. 542 — 14 Parties, formal statement of in bill 538 — 2 Parties when not all need be brought in 541 — 9 Parties by representation 545 — 22 Procedure without prejudice to rights of absentees 541 — 10 Proof of exhibits before referee etc 610 — 16 Sale of property pendente lite 635 — 14 Sovereign as party to bill 544 — 21 Statement in bill as to infants, etc 543 — 15 Statement in bill as to persons without the juris- diction 543 — 16 Supreme court authorized to establish rules 538 — 3 Ttestimony to be taken by rule as at Law 606 — 9 Trial and argument lists 624 — 12 Trustees as parties, in bills concerning realty .... 542 — 12 Writ of assistance 638 — 23 ERSKINE, LORD, OPINION OF INTERROGA- TORIES 607— 12 ERSKINE, LORD, ON READING ANSWER TO BILL 585— 40 ESCROW, DEED HELD IN— PREFERENTIAL . . 52— n25 ESTATE. See assignment for creditors. Decedent, see Vol. 3 Johnson. Exemption of after-acquired 43 — 79 Non-resident weak-minded — guardian for 341 — 99, 102 866 INDEX. ESTATE — (Continued) page par. Passing by assignment S — 5 Quantity taken under eminent domain 232 — 40 Restoration to insolvent 44 — 80 ESTOPPEL, ASSIGNED ESTATE, BEFORE AUDITOR 41— 74 ESTOPPEL, OR LACHES AS BAR TO INJUNC- TION 649— 5 ESTREPEMENT, HOW. When and where to sue out this writ right. Vol. 2 Johnson 658 — EVASION OR INPERSPICUITY IN ANSWERS.. 593— 55 EVIDENCE. Aliunde, in eminent domain 240 — 5 Ancient map of canal 136— 14 Bill to perpetuate testimony 609 — 14 Damages from embankments etc 233 — 46 Divorce cases 91 — 61 Distinction between impertinence and immateri- ality 613 — 23 Equity, see "Equity" supra. Habeas corpus hearing 276— 21 Objection as impertinent and immaterial 613 — 23 Resulting trust 502 — 19 Rules of in Equity, same as at Law 604 — 3 Rule when answer in Equity is responsive 584 — 38, 39 Rule of in fraud 524 — 22 Secondary when alone admissible 613 — 24 Title, eminent domain 131 — 3 Trial in eminent domain 251 — $3 Witnesses in Chancery 606 — 1 1 EXAMINATION. Insolvent and witnesses 14 — 22 Witnesses, in open court, in Equity 606 — 8 Witness, viva voce, Ch. J. Wilmot, on 585 — 40 EXAMINER IN EQUITY. Only when statutory 606 — 9 EXAMINERS. Bills to perpetuate testimony etc 621 — 5 Duties of Vol. 3 Johnson 8g — INDEX. 867 PAGE PAR. EXCEPTIONS TO ANSWER IN EQUITY S9i— 49, 5o Answer to bill 582 — 34 Bill for receiver 470 — 1 1 EXCEPTION IN CHANCERY. For inperspicuity or evasion 593 — 55 Chancellors findings 617 — 34 Chancellors findings, when waived 617 — 35 Chancellor's findings, to be placed on argument list 617 — 35 EXCEPTIONS. Discharge of insolvent 42 — ^^ Report of bridge viewers 187 — 25 Report of viewers, county road 178 — 116 Report of turnpike viewers 190 — 36 Report of viewers 247 — zl Scandal or impertinence 57a — 3 Scandal and impertinence 582 — 33 EXCLUSIVE WATER SUPPLY. ENDED 198— 62 EXEMPTIONS. Bankrupt — when entitled 56 — 1 1 As to costs 642 — 38 Estate acquired after assignment 43 — 79 Lost by divorce a mensa 99 — 75 Right of insolvent assignor, to 11^- 17 From service of process Vol. i Johnson 400 — 15 Waiver effect of 12 — 17 EXEMPTIONS FROM CONDEMNATION FOR RAILROAD PURPOSES 134— 12 EXEMPTION, WATER WORKS BONDS, FROM TAXATION 195— 55 EXHIBITS, PROOF BEFORE REFEREE ETC. . . . 610— 16 EXHIBITS, PROOF VIVA VOCE, IN CHANCERY 601— 19 EXECUTION AGAINST CORPORATION, Vol. 2 Johnson 400 — EXECUTION AGAINST DELINQUENT AND ABSENT MARINER 262— 3 EXECUTION AGAINST LIFE ESTATE, Vol. 2 Johnson 392 — 868 INDEX. PAGE PAR. EXECUTIONS AGAINST PARTNERSHIP PROP- ERTY 410— 82 Vol. 2 Johnson 349 — EXECUTION, ATTACHMENT IN, Vol. 2 Johnson.. 415— EXECUTION, ATTACHMENT A6AINST PRI- VATE CORPORATION, Vol. 2 Johnson 407— EXECUTION, DISCOVERY IN AID OF— Vol. 2 Johnson 339 — EXECUTION. Divorce a mensa etc 95 — 67 Enforcing decree for alimony 96 — 69 Exemptions Vol. 2 Johnson 312 — Fi. fa. sale of personalty Vol. 2 Johnson 363 — Injunction against 654 — 12 Inquisition on land Vol. 2 Johnson 373 — Liberari facias Vol. 2 Johnson 383 — Lien and Levy, effect Vol. 2 Johnson 297 — Mandamus to municipalities Vol. 2 Johnson 354 — Mandamus, costs and damages 357 — 41 Nature, limitation, stay, etc Vol. 2 Johnson 275 — Particular cases Vol. 2 Johnson 349 — Process, under control of court, in receivership . . 485 — 33 Sheriff's interpleader, on Vol. 3 Johnson 334 — Status on assignment 18 — 30 Stay on asignment 32 — 51 Testatum writs Vol. 2 Johnson 330 — Vacation of on assignment 17 — 27 Without stay, eminent domain 253 — 58 EXECUTOR. Office and duties Vol. 3 Johnson 633 — Letters te&tamentary Vol. 3 Johnson 617 — EXECUTORY DEVISES Vol. 3 Johnson 760— EX PARTE PROCEEDINGS. Higher proofs necessary 82 — - 47 EXPERTS. Opinions of, eminent domain 228 — 24 EX RELATIONE, PARTY TO BILL S44— 21 INDEX. 869 PAGE PAR. FAILURE OF ISSUE Vol. 3 Johnson 802— FAIT ACCOMPLI. In illegal marriage cannot be enjoined 669 — 29 "FAITH AND CREDIT"— DIVORCES 64— 12 FALSE ARREST AND IMPRISONMENT. Action, distinction, when and how.. Vol. 2 Johnson 872 — FAMILY AGREEMENTS Vol. 3 Johnson 407— FARE PASSENGER. Act of 1907, emasculated 153 — ni2 FARM. Valuation in eminent domain 228 — 22 FARMERS. Compulsory insolvency 47 — 87 Earners of wages, alone subject to act of June 4, 1901 280 — I FEES. Commisioners, jurors, witnesses and sheriff, in lunacy proceedings 309 — 22 Examiner and accountant 640 — 34 Divorce, what are payable 98 — 72 Master and referee 641 — 35 Prothonotary, sheriff etc. See Vol. 2 Johnson FEIGNED ISSUES. Character and practice upon 623 — 10 Framing for trial 250 — 50 FEME SOLE TRADER. How to declare a married woman one 261 — i When husband is delinquent 263 — 5, 6 Decree divests husband's claim on her property . . 265 — 10 Effect of being so declared 263 — 6 Effect of being so declared 265 — 10 Form, of affidavit for attachment 263 — 4 Form of decree 265 — 9 Form of order fixing time of hearing 265 — 9 Form of petition 265 — 8 Procedure to obtain decree 264 — 7 870 INDEX. PAGE PAR. FENCE. Private lands, street railways 204 — ^7 Right of way by railroad company 229 — 30 FERRY. Measure of damages 223 — 9 FIDUCIARY RELATIONS. Bill for account 434 — 122 FIERI FACIAS. Sale of personalty Vol. 2 Johnson 363 — FILING PARTNER SHIP NAME IN PROTHONO- TARY'S OFFICE zj^— 2 FILTRATION PLANT. Condemnation for 199 — 68 FINAL PROCESS TO ENFORCE DECREE 636— 17 FINDINGS OF FACT BY CHANCELLOR. Conclusiveness 616 — 32 FINDINGS OF CHANCELLOR. Exceptions, ten days 617 — 34 Will not be reviewed, unless exceptions are filed... 680 — 40 FINDINGS OF LAW AND OF FACT, REQUESTS FOR 61S— 31 Commission in lunacy, return and review by court 307 — 18 Lunacy an adjudication in law 313 — 29 FIRE. Danger from, as element of damages 229 — 28 Loss by, certificate of magistrate 293 — 15 FIRE INSURANCE POLICY— SEE "INSURANCE POLICY." Certificate of magistrate to honesty of loss 293 — 15 FIRE. Fraud in proofs of loss 292 — 11 Notice and proof, by and to whom to be given... 292 — 12 Proof of and loss by 289 — 7 Time of giving notice and making proof of loss. . . 292 — 13 INDEX. 871 FIRE — (Continued) page par. 286— 6 Total loss, effect on bill of particulars 291— 10 Waiver of proof of loss 291 — 9 Waiver of proof and notice 294 — 16 FIRM, SEE "PARTNERSHIP" AND "LIMITED PARTNERSHIP" FIRM NAME. Partnership property 41 1 — 85 FIRM NAME AND SIGN OF LIMITED PART- NERSHIP 394— 31 FOREIGN ATTACHMENT. Commencement of action by Vol. i Johnson 652 — FOREIGN CORPORATIONS. Receivers for 489 — 40 Eminent domain not retroactive 117 — 36 FOREIGN RECEIVER. Standing in Pennsylvania 489 — 41 FORFEITURE. Penna. R. Co.'s Charter, manner of 154 — 32 FORM. Acceptance by assignee 10 — 13 Account of committee in lunacy 335 — 84 Account of receiver 492 — 45 Acknowledgment of deed of assignment 8 — 10 Affidavit for attachment to enforce decree 637 — 20 Affidavit for attachment by feme sole trader against mariner husband's property 263 — 4 Affidavit of claim on assigned fund 35 — 57 Affidavit that demurrer is not for delay 576 — 15 Affidavit of failure to agree with owner 216 — 26 Affidavit of general partner 396 — 38 Affidavit, libel for divorce 70 — 23 Affidavit of non-residence of defendant in Equity. . 565 — 9 Affidavit to petitioij to sell or mortgage real estate of lunatic 322 — 46 Affidavit of service of bill, prior to decree pro confesso 573 — 9 Affidavit of service of notice on lunatic's family. . . 323 — 51 872 INDEX. FORM — {Continued) page par. Affidavit of solicitor 7io — 12 Affidavit to suggestion for quo warranto 454 — 16 Affidavit of tender of bond, eminent domain 217 — 28 Affidavit of two persons, lunacy case 301 — 7 Affidavit of witnesses, sale of lunatic's timber .... 329 — 69 Affirmative finding of commission in lunacy 308 — 19 Negative finding of commission in lunacy 308 — 19 Agreement of creditors of assigned estate 34 — 56 Agreement of dissolution of partnership 427 — 109 Agreement of solicitors to state of facts 589— 44 Allotment and decree in partition.. .Vol. 3 Johnson Allowance of writ of quo warranto 455 — 17 Alternative writ of mandamus 349 — , 11 Annual expenses of lunatic's family 322 — 49 Answer to alternative mandamus 349 — 12 Answer to bill for account, discovery etc 736 — 20 Answer to bill for account of trustee etc 508 — 37 Answer to bill for cancellation of deed etc 74s — 22 Answer to bill for contribution 699 — 5 Answer to bill to declare a resulting trust 506 — 33 Answer to bill in partition 372 — 33 Answer to bill for partnership account 428 — no Answer to bill, restraining use of county bridge by corporation 721 — 17 Answer to bill to restrain use of firm name 711 — 13 Answer to bill for receiver 472 — 14 Answer in divorce, charge adultery yy — 40 Answer, divorce, intolerable conduct 78 — 42 Answer on quo warranto 452 — 22 Application for writ of assistance 477 — 23 Appointment of auditor on application to sell lunatic's reaS estate 324 — 55 Appointment of commission in lunacy 301 — 8 Articles of exception to credit of witness in Chancery 612 — 21 Articles of partnership 380— 4 Attachment Vol. 2 Johnson 409 — Attachment in mandamus 350 — 16 Bills, answers and pleadings, Ch.35 P.69S Bill for account, discovery and answers to inter- rogatories 702 — 7 Bill for account, discovery, cancellation and re- delivery of stock 728 — 19 Bill for an account of partnership 425 — 108 Bill to cancel an invalid deed and decree re-con- veyance 743 — 21 Bill for contribution 695 — 2 INDEX. 873 FORM — (Continued) page par. Bill to declare resulting trust 505 — 32 Bill for injunction to restrain a corporation from using a county bridge 714 — 15 Bill for injunction to restrain use of firm name . . 706 — 8 Bill in partition 369 — 25 Bill praying to reform description in deed 725 — 18 Bill for receiver after dissolution of partnership.. 471 — 13 Bill to settle trust account etc 507 — 36 Bond of assignee 10 — 15 Bond of committee in lunacy 314 — 32 Bond by committee, on sale or mortgaging of lunatic's estate 327 — 64 Bond for injunction Vol. 3 Johnson 498 — Bond for injunction in receivership 473 — 17 Bond by receiver 473 — 16 Bond for security to ovirner in eminent domain .... 216 — 25 Certificate of issue as to title to land to the Law Side 624 — 1 1 Certificate of limited partnership 394 — 33 Certificate of limited partnership 395 — 34 Certificate of partnership 387 — 14 Certificate to record 710 — 12 Certificate of solicitor, of no adequate remedy at law 706 — 7 Decree, annulment of marriage 71— 27 Decree cancelling deed, expunging from record and ordering conveyance 746 — 23 Decree confirming sale by master in partition .... 374 — 38 Decree of feme sole trader 265 — 9 Decree pro confesso 573 — 9 Decree pro confesso, q. p. f 371 — 32 Decree of support and counsel fees in divorce .... 88 — 55 Declaration of partnership 380 — 3 Deed of assignment 7 — 9 Demurrer to bill in Equity 575 — 15 Demurrer to bill 714 — 14 Demurrer to suggestion in quo warranto 452 — 24 Desertion, averment of, for divorce 70— 24 Dissolution of general partnership 409 — 79 Divorce, averment of fraud or coercion 71 — 26 Divorce, averment of intolerable conduct 70 — 25 Endorsement on answer to bill 702 — 6 Endorsement on front page of cover of bill 698 — 4 Exceptions for scandal and impertinence 571 — 4 Final decree on demurrer on ground of remedy at law 746 — 24 Final decree, resulting trust S07 — 35 874 , ■ INDEX. FORM — (Continued) page par. Final interrogatory in Equity 605 — 6 Injunction to enforce judgment of ouster 459 — 31 Interrogatories in Equity 595 — 59 Inventory of lunatic's estate 3^7 — 38 Judgment of ouster with costs, and injunction.. .. 459 — 28 Libel, divorce on ground of adultery 70 — 22 Libel, divorce, on ground of crime 71 — 28 Libel, ground of impotence or organic obstruc- tion 71 — 29 Limited registered partnership 403 — 67 Mandamus, order for alternative 349 — 10 Master's report in partition, against division 372 — 34 Motion for rule, equitable ejectment 257 — 5 Notice to alleged lunatic and next of kin 305 — 14 Notice to appear and answer in partition 370 — 26 370— 27 Notice of application to file bond 215 — Notice of application to sell lunatic's real estate . . 323 — 50 Notice by auditor, of meeting, lunatic's estate .... 324 — 56 Notice of change of partners 387 — I3 Notice of change of partners 387 — 15 Notice of demand for contribution 698 — 3 Notice, dissolution of general partnerhip 409 — 80 Notice of dissolution of limited partnership 401 — 59 Notice, dissolution of limited partnership 410 — 81 Notice of filing account by committee of lunatic. 336 — 85 Notice filing assignee's account 35 — 58 Notice of fire and loss 288 — 6 Notice of limited registered partnership 405 — 09 Notice of reference of account 36 — 62 Notice of tender of bond, in eminent domain .... 217 — 27 Oath of assignee 10 — 14 Oath of assignor in voluntary assignment 7 — 8 Oath of jurors in lunacy 305 — 15 Order allowing amendment 710 — 12 Order of allowance of habeas corpus 271 — 3 Order appointing a receiver etc 472 — 15 Order for attachment to enforce decree 638 — 21 Order for attachment in mandamus 350 — 15 Order of court allowing supersedeas of commis- sion and inquisition in lunacy 333 — 79 Order of court to sell lunatic's timber ,329 — 70 Order to mortgage real estate of lunatic 324 — 53 Order for preliminary injunction 709 — 10 Order for publication in Equity 566 — 13 Order for publication in partition 371 — 31 INDEX. 87s FORM — ^Continued) page pas. Order to and report of viewers, in Eminent Domain 218 — 30 Order, rule to show cause, insolvency 49 — 89 Order of sale to master in partition 373 — 36 Order to sell real estate of lunatic 323 — 52 Order for service of bill, in Equity, under rules . . . 745 — 21 Order for service of bill on non-resident 565— 10 Order for service beyond jurisdiction, in partition.. 371 — 29 Order, time of hearing feme sole trader 265 — 9 Order for writ of assistance 478 — 24 Writ of assistance 478 — 25 Partnership agreement between merchants 385 — 13 Partnership, articles 380 — 4 Partnership declaration 380 — 3 Peremptory writ of mandamvis 350 — 13 Petition for attachment, mandamus 350 — 14 Petition for attachment in receivership 474 — 18 Petition for commission de lunatic inquirendo. . . . 301 — 6 Petition of committee in lunacy to sell timebr . . . 328 — 68 Petition to be declared feme sole 265 — 8 Petition for discharge of insolvent under acts of 1814 and 1833 283— 5 Petition to file bond in Eminent Domain 214 — 23 Petition, habeas corpus in civil case 278 — 25 Petition for mandamus 348 — 9 Petition for receiver, act 1901 47 — 88 Petition by receiver to sell perishable goods 486 — 3s Petition to sell or mortgage lunatic's real estate.. 321 — 45 Petition for supersedeas of commission etc 333 — 78 Petition for support etc. — pending divorce suit. . . . 87 — 53 Petition for view to assess damages, eminent do- main 217 — 29 Petition for writ of habeas corpus 271 — 3 Prayer for amendment of bill 709 — 11 Prayer in Chancery for bill to perpetuate, testi- mony 609 — IS Praecipe to levy on partner's interest 410— 83 Praecipe for writ of quo warranto 4SS — 18 Proof of document as exhibit 610 — 16 Rejoiner in lunacy, traverse 312 — 26 Replication in lunacy, traverse 312 — 26 Release in triplicate to assignee 42 — 76 Replication and demand for jury 88— 56 Replication — resulting trust 507 — 34 Report of auditor in lunatic's estate 325 — 57 Report of viewers to assess damages 219 — 31 Resolutions of county commissioners 719 — 16 8-6 INDEX. FORM — ^Continued') page par. Return of sale by master 373 — 37 Return to order of sale of lunatic's estate 326 — 63 Return of sherifif of jurors in lunacy 305 — 14 Rule to accept or refuse, in partition 373 — 35 Rule for bill of particulars, divorce 76 — 37 Rule to demur or answer 575 — 15 Rule to pay counsel fees etc. divorce 88 — 54 Statement of lunatic's real and personal estate . . . 322 — 47, 48 Subpoena in divorce 71 — 30 Suggestion for quo warranto against usurper of office 455— 19 Suggestion for writ of quo warranto 454 — 15 Traverse of inquisition in lunacy 311 — 26 Venire for jurors in lunacy 304 — 14 Writ of habeas corpus 273 — 11 Writ ne exeat— U. S. Court 747 — 25 Write of quo warranto 450 — 7 FORMS OF WILLS Vol. 3 Johnson 806— FORMS OF PLEADINGS AS AIDS TO PRAC- TICE 695— I FORM AND ENTRY OF DECREE IN EQUITY. . . 629— 2 FORMER RECOVERY. See Lis pendens Vol. i Johnson 355 — FRACTIONS OF A DAY, ASSIGNMENT 18— 30 FRANCHISE. Corporate, compensation 140 — 29 Dispossession of any part is taking 130 — i FRANCHISES AND PRIVILEGES. Usurpation of, attorney general to act 449 — 5 Subject to Eminent domain 125 — 16 Taken by eminent domain 197 — 59 FRAUD. Allegation of in bill in Equity 549 — 5 Collusion — assigned estate 37 — 65 Force or coercion, causes of divorce 60 — 4 Form, averment of in divorce 71 — 26 Mistake, remedy in Equity 521 — 19 Partners liable for 399 — 53 Proofs of loss by fire 292 — 11 INDEX. , R-7 PAGE PAR. FRAUDULENT DEBTOR'S ATTACHMENT, COMMENCEMENT OF ACTION BY, Vol. i Johnson 726 — GAS COMPANIES. Damages under eminent domain 224 — 10 Damages for property taken by railroad co 226 — 18 Eminent domain 115 — 38 Remedy against 139 — 26 GAS WORKS, POWER TO PURCHASE 198— 64 GATES, STREET RAILWAYS 204— T7 GENERAL ASSEMBLY. Power over corporations 148 — 5 GENERAL PARTNER. Asignment or bequest by 401 — • 60 Duty to account 399^- 52 Limited partnership, powers 394 — ■ 32 GENERAL PARTNERSHIPS DEFINED zyy— 1 GIBSON, C. J., ON ORPHANS' COURT JURIS- DICTION Vol. 3 Johnson 2— 3 GLOSSARY OF FOREIGN WORDS AND PHRASES Vol. I Johnson xxxii GLOSSARY OF FOREIGN WORDS AND PHRASES Vol. 2 Johnson xxxvii GLOSSARY OF FOREIGN WORDS AND PHRASES Vol. 3 Johnson xxxix GOOD FAITH. Required among partners 412 — 87 GOOD WILL. Partnership asset .-. 411— 85 GOODS AND MERCHANDISE. In partnership, certificate of value 393— 3o 8-8 INDEX. PAGE PAR. GRABBING CONTROVERSIES AT LAW INTO CHANCERY 656— 14 GRADE, CHANGE OF, Damages for ' 141 — 33 GRADE CROSSINGS OF RAILROADS. Damages 141 — 30 Equity jurisdiction 167 — 76 Injunctions 677 — 39 Street railways 174 — 100 GRAVEL. Valuation, eminent domain 224 — 11 GROTIUS. On power of the state over property 105 — 4 GROUND RENT. Extinguishment of 120 — i Two estates 238 — 59 GUARDIAN AD LITEM. Absentees and persons under Usability 182 — 5 Parties under incapacity 542 — 14 Persons under disability 203 — 75 GUARDIAN. Application for weak-minded person 337 — 91 Non-resident, weak-minded person 341 — 99 Non-resident weak-minded, powers 341 — loi Weak-minded person, powers and duties 339 — 96 GUARDIAN AND WARD. Relation, rights and duties Vol. 3 Johnson 209 — HABEAS CORPUS. Ad testificandum, purpose of 275 — 17 Appeals, on 279 — 26 Civil cases, writ in 278 — 24 Discharge of prisoner 277— 23 Discharge of prisoner on bail 271 — 5 Duty of jailer — penalty for neglect 273 — 12 Form of petition for writ 271 — - 3 Form of petition in civil case 278 — 25 Form of writ 273 — 1 1 INDEX. 879 HABEAS CORPUS— (^Continued) page par. Hearing on criminal charge, no evidence for the defendant 276 — 21 Judgment and process 277 — 22 Jurisdiction of courts 268 — i Manner of complaint, service, hearing etc 269 — 2 Motion for writ in term time 271— 4 Notice of application for writ 273 — 9 Liberation on — not to be re-committed 274 — 14 Limitation 279 — 27 Penalty for not delivering copy of warrant 274 — 13 Penalty for refusal of writ 273 — 10 Pleading 279 — 28 Prisoner under civil process 272 — 7 Prisoner not removable except by 274 — 15 Prisoner from another state 272 — 6 Purposes of writ 27s — 16 Return in criminal matter 275 — 18 Time of application for writ, jurisdiction 272 — 8 Witnesses, subpoena for 276 — 19 Witnesses, costs and fees 276 — 20 HABERE FACIAS POSSESSIONEM. On proof of notice, in Eminent Domain 174 — 102 HABITUAL DRUNKARDS, SEE "LUNACY." HABITUAL USERS OF LIQUOR. And dope — habeas corpus for 271 — 3 HAND-WRITING EXPERTS. Simulation 78 — 40 HEARING, DIVORCE. By court 89— 58 By master 9° — 59 HEARING IN EQUITY 604— 2 Affidavits, character of 614 — 26 Allegations and proofs — variance 614 — 28 Answers to requests for findings of Law and of Fact 616— 32 Appeal, what will not be considered on 618 — 36 Conclusiveness of findings of fact 616— 32 Evidence of records of courts 610 — 18 Examination of records of courts 610— 18 Examination of witnesses in open court 606 — 8 Exceptions to chancellor's findings 617 — 34 \'oj.. 4 Practick— 56 88o INDEX. HEARING IN EQUITY— (Continued) page par. Exceptions to findings, placed on argument list . . 617 — 35 Exceptions waived if not filed in ten days 617 — 35 Findings of Law and of Fact, requests for 615 — - 31 Form of exceptions to credibility of witness 612 — 2T Hearing of cause on bill and answer 594 — 56 Hearing of exceptions to answers 591 — 50 Impeaching the credit of a witness 601 — - 20 Interrogatories to elicit testimony 607 — 12 Judicial notice — suo motu 614 — 27 Objection to evidence as impertinent 613 — 23 Proof of exhibits viva voce 601 — 19 Rehearing, in Chancellor's discretion 618 — 38 Return of commission, practice on — Rule SS 60s — S Rules of evidence 604 — 3 Secondary evidence when admissible 613 — 24 Setting down Equity cause for 603 — i Stenographers to take testimony 615 — 30 Stenographers to take testimony.. .Vol. i Johnson 176 et seq. Testimony on order de bene esse and by commis- sion 604 — 4 Trial, continuance, costs. Rule 61 615 — 29 Witnesses, competency of 614 — 25 Witnesses, competency of Vol. 3 Johnson 117 — 23, 24 HEARING, WEAK-MINDED PERSONS. Notice 338 — 92 Presence of 338 — 93 HEIRS AT LAW ASl PARTIES TO BILL IN EQUITY 542- 13 HIGH AND EXTRAORDINARY REMEDY— MAN- DAMUS 343— I (See also Eminent Domain, Injunction and Quo Warranto.) HIGHWAY, CALLS FOR, CARRY TO MIDDLE, WHEN 121— 4 HIGHWAYS. Obstructions on, injunction to remove 661 — 19 Paramount right over railroad rights 154 — 29 Public has prior right in 123 — 12 Public, lateral railroads 154 — 30 INDEX. 88i PAGE PAR. HOME. Excuses of wife for leaving 83 — 48 Leaving as desertion 82 — 47 Ofifer of by husband, in divorce 84 — 48 Offer of in good faith 83 — 47 Withdrawal from, when justified 80 — 45 HOSPITALS FOR INSANE, COMMITMENT TO . . 336— 89 HUNTINGDON & BROAD TOP R. CO. INCOR- PORATION 170— 88 HUSBAND. Cannot claim alimony or counsel fees when he sues for divorce 87 — 52 Corroberation of in divorce 84 — 48 Cruel and barbarous treatment, cause for divorce . . 79 — 44 Intemperate and recusant, see feme sole trader . . 265 — 10 Trustee for wife who is insane, powers 330 — 73 HUSBAND AND WIFE. Divorce, see "Divorce." IDIOCY A NATIVITATE 295^— i IMBECILITY NOT LUNACY 307— 18 "IMMEDIATE NOTICE" DEFINED 296— 20 IMMINENT DANGER. As a motive to injunction 650 — 7 IMMUNITY. Witness compelled to answer 14 — 22 IMPEACHING CREDIT OF WITNESS 601— 20 IMPERTINENCE AND IMMATERIALITY, OF EVIDENCE 613— 23 IMPERTNENT MATTER WILL BE EXPUNGED FROM BILL 547— 2 IMPLICATION, NECESSARY. In eminent domain 122 — 7 882 INDEX. PAGE PAR. IMPOTENCE. Cause for divorce 6i — 4 Cause of divorce, proof 84 — 49 Form libel on ground 71 — 29 IMPROVEMENTS. When not elements of damage or set off 230 — 33 INCEST. Marriage voidable for 60 — 3 INCLINED PLANE. Damages by, discharge of water from 143 — • 39 INCORPORATION. Power of Congress 103 — 6 Reference to acts, canal, coal, iron and other com- p^anies 172 — 94 Railroads, special acts 171 — 94 INFORMATION AND BELIEF. Answer upon 594 — 57 INDEX DOCKET FOR DIVORCE CASES ETC. 694— 15 INDIGNITIES. Divorce for wife, cause . 84 — 30 Particular, as causes of divorce 85 — Jo Wife to husband — divorce 61 — S INFANT. Guardian ad litem or trustee for 182 — - s INFANT TRUSTEE, JURISDICTION OF C. P.... 498— 7 INHERITANCE, THE LAW OF . . . .Vol. 3 Johnson 456— INJUNCTION, WHEN ISSUABLE. Adulteration of linseed oil 680 — 41 Contracts 680 — 42 Corporations and associations 673 — 34 Crimes and offences 684 — 46 Inquiry into "injurious acts" of corporations 675 — 35 Municipal contracts, covinous and larcenous 671 — 31 Municipalities 670 — 30 Nuisances 658 — 16 INDEX. 883 INJUNCTION WHEN ISSUABLE— (Co«/i>iM^d) page par. Preservation of the rights of individuals 672— 32 Pulic officers 668 — 29 Railroad discriminations 677 — yj Stries, boycotts etc 682 — 45 Trespass 656 — 14 Permanent or continuous trespass 657 — 15 Other cases at law 655 — 13 When law is void, providing for no compensation. . 243 — 16 Will not issue on doubtful right 651 — 8 Not to be issued without bond, Commonwealth etc. excepted 520 — 16 INJUNCTION, PRACTICE ON. Affidavits 687 — 3 Appeals 693 — 14 Bill for 686— 2 Bond for 689— 7, 8 Cautionary orders — security. Rule 82 688 — 5 "Citizens' bill" 687— 2 Copyright and publication 682 — 44 Costs upon 693 — 13 Cross-bill of defendant 688 — 6 Demanded when there is a remedy at law 645 — i Denial of plaintiff's title, effect of 691 — 10 Division and party walls 664 — 23 Doctrine of "balance of injury" 648 — 3 Easements of light, air, way etc 663 — 22' Effect of granting and enforcement 692 — 12 Effect of laches and estoppel 649 — 5 Enforced by writ of assistance 477 — 22 Enforcing judgment in quo warranto 459 — 30 Enforcing judgment in quo warranto, form 459 — 31 Form of order for, in appointing a receiver 472 — 15 Granting, continuing and dissolving 689 — 9 Granting, continuing and dissolving 690^- 9 Imminent danger, as an element 650 — 7 Index docket for 694 — 15 Irreparable injury, the basis of anticipative remedy 646 — - 2 Issuable according to Chancery 520 — 16 Mandatory to compel a positive act 651 — 9 Objects of preliminary writ 650 — 6 Obstructions on highways 661 — 19 Obstructions of streams and canals 662 — 20 Plaintiff's interest and status 648 — 4 Preliminary, clear case required to award 691 — 11 Preliminary, testimony to sustain 688 — 4 884 INDEX. INJUNCTION, PRACTICE ON— (Continued) page par. Preserving rights of partners 433 — 121 Private water co 125 — 15 Railroads engaged in mining or manufacturing. . . . 677 — 38 Railroads and street railway's agreements 676 — 36 Remedy by 644 — i Restraint of collection of taxes 667 — 27 Restraint of dangerous or offensive business 661 — 18 Restraint of foreclosure of mortgage 654 — 11 Restraint of illegal taking of land 242 — 13 Restraint of illegal use of trademark etc 681 — 43 Restraint of legal proceedings, by 652 — 10 Restraining municipalities from exceeding debt limit 673— 33 Restraint of waste 663 — 21 Right of way, preservation of 665 — 24 Rights of riparian owners to the waters 666 — 26 Staying execution 654 — 12 Stock-holders' bill 687— 2 Supreme court and Common Pleas, concurrent . . . 686 — i Unlawful working of mines 679 — 49 Water rights 665 — 25 INJUNCTIONAL ORDERS IN THE ORPHANS' COURT Vol. 3 Johnson 497— INPERSPICUITY OR EVASION. Exception for 593— SS INQUISITION IN LUNACY. See "Lunacy." By judges and regular jury 308 — 20 Form of traverse 311 — 26 Traverse of 310 — 24 INSANE, COMMITMENT TO HOSPITAL 310— 24 INSANITY, SEE LUNACY. Distinguished from weakness of mind 298 — i Interpolated in "weakminded" law 338— 93 Kinds and causes discussed 306 — 16 INSOLVENCY. Causes conferring jurisdiction 46 — 84 Form of order for rule to show cause 49 — 89 Form of Petition for receiver 47 — 88 Involuntary, how compelled 45 — 82 INDEX. 885 INSOLVENCY— (Confiiw^d) page pak. Form of Petition for receiver 47 — 88 Involuntary, how compelled 45 — 82 Law only applies to farmers and wage-earners 47 — 87 Partnership, transfer of property void 399 — 54 Petition by creditor 45 — 84 Preference as act of 15 24 Receiver, appointment 469 — 10 Receiver, when appointed 47 — 86 Rule, notice and order 46 — 85 INSOLVENT— WHO IS DEEMED 45— 83 Discharge of 43 — 77 Discharge from civil process 282 — 4 Discharge by county commissioners 281 — • 3 Duties and rights on assignment 11 — 16, 17 Examination as to estate 14 — 22 Prisoners, how discharged 280— 2 Restoration to 44 — 80 Status of laws, as to 280 — i INSTRUMENT IN WRITING. Reformation of 526 — 24 INSURANCE CO.— MUTUAL. Collection of assessments by receiver 481 — 29 Receivership 469 — 9 INSURANCE. Accident— notice 296 — 20 Fire, preliminary proof of loss 289 — 7 Life, notice of death 295 — 19 Policy a contract 285 — i INSURANCE POLICY. Cancellation of renewal 295 — 18 Copy to supply lost 287 — 3 Jurisdiction of C. P. to compel production of lost policy 287 — 4 Limitation of time of action 295 — 17 Necessity and sufficiency of proof of loss by fire.. 290 — 8 New York law as to form 286 — 2 Previous demand for copy 288 — 6 Proceedings prior to suit 285 — Time limit on proof of loss 286 — 2 886 INDEX. PAGE PAR. INTEREST. Allowance nunc pro tunc 236 — 52 Assigned estate 39 — yo Award of viewers 235 — 52 How estimated in assessing damages 235 — 51 Liability of assignee for 27 — • 39 Partnership accounts 431 — 117 Suspension, eminent domain 235 — 52 Witness, only affects credibility 606 — 11 INTERLOCUTORY ORDER OR DECREE 632— 8 INTERLOCUTORY ORDERS AT CHAMBERS . . . 625— 15 INTERPLEADER. Act March 1 1, 1836, P. L. 76 296 — 19 Bill of 557— 19 Law side of court Vol. i Johnson 588 — 45 Partition 361 — 6 INTERPLEADER, SHERIFF'S Vol. 2 Johnson 334— INTERPRETATION OF WILLS. .. .Vol. 3 Johnson 659— INTERROGATORIES TO ELICIT TESTIMONY. . 607— 12 May be filed separate from bill 590 — 45 To defendant in Chancery 592 — 52 When party may decline to answer 590 — 46 Form of final one in Equity 605 — • 6 INTERVENTION AND SUBSTITUTION IN EQUITY 543— i7 Parties interested in mandamus 353 — 23 INTOLERABLE CONDUCT. Form of answer to charge 78 — 42 INVENTORY. Assigned estate 14 — 22 Appraisement, on dissolution of partnership 430 — 113 Lunatic's estate, duty of committee 316 — 35 INVESTMENTS. Committee of lunatic 320 — 42 Trust funds Vol. 3 Johnson 854 — INDEX. 887 PAGE PAR. IRON ORE. Element of damages in eminent domain 227 — 25 IRON AND STEEL COMPANIES. Charter privileges and restrictions 204 — 79 ISSUE DEVISAVIT VEL NON Vol. 3 Johnson 602— ISSUE. Divorce, pleadings 89 — ■ 57 Fact in quo warranto to be certified to Common Pleas 452— 2S Fact or law in Mandamus 356 — 36 Trial by jury, in Equity 622 — 7, 8 623— g Investments Vol. 3 Johnson 892 — Venue and change of venue Vol. i Johnson 598 — JAILER. Duty when served with writ of habeas corpus.... 273 — - 12 Officer, duties when writ of habeas corpus is served 270— 2 JOINT AND SEVERAL DEMAND IN EQUITY. . . 542— 11 JOINT TENANTS. Damages in eminent domain 245 — 32 JUDGE. Duties in habeas corpus 270 — 2 Mandamus lies against, when 345 — 3 JUDGMENT. And appeal in mandamus 3 53 — 23 Assigned estate — rights of creditors 40 — 73 Character, effect and incidents Vol. 2 Johnson 212 — Confession by partner 382 — 7 Default, opening in quo warranto 460 — 33 Default in quo warranto 460 — 33 Entered against one partner 382 — S Form and effect, in eminent domain 252 — 56 Finality of, in eminent domain 252 — 57 Habeas corpus 277 — 22 Insolvents — four months 16 — 25 Ouster with costs in quo warranto 458 — 27 Ouster etc., form 459 — 28 888 INDEX. JVUGMENT— (Continued) page par. Partners — against 384 — 1 1 Plaintiff for, in peremptory mandamus 357 — 42 Pro confesso, entering in Equity docket 560 — 26 Quod partitio fiat, first 365 — 16 Quo warranto, enforced by injunction 459 — 30 Quo warranto, enforced by injunction, form 459 — ■ 31 Trespass, lien 253 — 64 Want of affidavit of defense Vol. i Johnson 545 — JUDICIAL NOTICE OF FACTS 571— 5 JUDICIAL NOTICE— Suo motu 614— 27 JURISDICTION. Assessment of damages 206 — 2 Assessment of damages local 241 — 6 Certifying cause from Equity to Law side 570 — i Challenged by answer, must first be settled 581 — 32 Challenged by demurrer 576 — 16 JURISDICTION OF COURTS. Habeas corpus 268 — i Common Pleas, partition in Equity 362 — 10 Common Pleas, of trusts 49S — x, 2 Common Pleas at Law Vol. i Johnson 14a — Common Pleas in Equity Vol. 4 Johnson Justices of the Peace etc. Vol. i Johnson 195 — Magistrates Vol. i Johnson 195 — Quarter Sessions (civil) Vol. i Johnson 191 — Superior Court of Penna. Vol. i Johnson 120 — Supreme Court of Penna Vol. i Johnson 86 — U. S. Supreme Court Vol. i Johnson 7 — U. S. District Court (formerly Circuit) Vol. i Johnson 33 — U. S. Circuit Court of Appeals. . ..Vol. i Johnson 22 — Orphans' Court Equitable Vol. 3 Johnson 2 — Orphans' Court Equitable Vol. 3 Johnson 14 — Concurrent, as to trusts 496 — 2 Divorce in Common Pleas Sg — i, 2 Equity, grade crossings 167 — 76 Estates of lunatics, how exercised 299 — 2 No extra-territorial, except by comity 567 — 17 Feme sole traders, see "feme sole traders." Habeas corpus, what court has 272 — 8 Local action, partition of lands 360 — 4 INDEX. 889 JURISDICTION OF COURTS— (Co«fim(^rf) page par. Mandamus 345— 3, 4, 5 Partnership — see "Partnership." Quarter Sessions, in Mandamus 346 — 6 Quo warranto 448 — 3, 4 Special appearance in Phila. to challenge 536 — 41 State courts, limited, in bankruptcy matters 50 — 2 Supreme Court in mandamus 34S— 3 Territorial, of committee in lunacy 315 — 33 JURORS. Inquiring into lunacy, number 304 — 13 Eminent domain 245 — 27, 28 ,29 30,31,32 Finding of, disputed title 243 — ig Form of demand, prior to act of 1911, divorce.. .. 88 — 56 Framing issue for in divorce 88 — 57 Petition for trial in divorce 65 — 14 Province, in eminent domain 230 — • 31 Province of in eminent domain 244 — 23 . 24, 25 View by, on trial for damages - 251 — 51 JURY TRIAL. Demandable formerly in answer in divorce 77 — 39 Act 191 1, in divorce cases 66 — 15 Equity, "in ease of conscience" 622 — 8 Preserved in eminent domain 166 — 71 Demand for, in case of weak-minded 339 — 94 KENYON, LORD. Against examining witness on interrogatories in a criminal case 589 — 44 On certificate of record in divorce 610 — • 18 KING, LD. CH. On answers to interrogatories S94 — SS LABOR TRUST. Injunction to restrain conspiracy by 683 — 45 LACHES. Abhorred by Equity 532 — 33 Assigned Estate, Audit 41 — 74 Estoppel as bar to injunction 649 — 5 /mputable to Commonwealth 532 — 33 LANCASTER CITY. Act 1836 P. L. 134 — Unrepealed 243 — 18 Sgo INDEX. PAGE PAR. LANDS. Condemned under eminent domain, procuring possession 174 — 101 Exempt from taking under eminent domain 174 — 103 Property of partnership 381 — 5 Quantity that may be taken under eminent do- main 128 — 25 Taken by eminent domain, valuation 220— 1 Taken by eminent domain, valuation 221 — 2 Taking by eminent domain, when right attaches.. 131 — 3 Title to, in dispute, must be settled at law 529 — 27 Trusts as to, not by parol, but in writing 501 — 17 LANDLORD. Claim for rent, on assignment 13 — 18 LAND OWNERS. P. R. R. Co. bound to keep up causeways for 160 — 49 LATERAL RAILROADS. Eminent domain and restrictions 162 — 58, 59 LAW AND EQUITY JURISDICTION. When concurrent S3i — 29 LAW OR EQUITY. Practice under act June 7, 1907 630 — 5 LAW REPORTERS. New copyright law for 682 — 44 LAW REMAINS. Though robbed of its sting 647 — 2 LAW VOID. Which provides for no compensation 243 — 16 LAWS IN PARI MATERIA 337— i LEADING QUESTIONS DEFINED BY PHILLIPS 607— 12 LEASE ETC. Railway property, effect on eminent domain 112 — 20 LEBANON VALLEY R. CO. Charter 161- 52 INDEX. 8gr PAGE PAR. LEGACES. Character, kinds, preference and ademption, Vol. 3 Johnson 672— LEGAL PROCEEDINGS. Restraint by injunctions 652 — 10 LEGISLATION. To affect a pending case, reprehensible 608 — 12 LEGISLATURE. Cannot divest the power of eminent domain 106 — 5 Judge of public use 108 — 10 Power to examine and forfeit Penna. R. Co.'s Charter 154 — 32 Power to limit proceedings to recover damages . . 240 — i Power to declare public uses 107 — 6 Taking of property by 131 — 2 LEHIGH VALLEY R. CO., INCORPORATION... 168— 83 LESSEE. Damages to, by eminent domain 223 — 5 Fixtures etc., eminent domain 212 — 15 LETTERS ROGATORY. In Equity — as at law 606 — 9 LIABILITY. Primary and secondary, assignment 37 — 64 LIBEL. Civil action for, when it lies etc. . . .Vol. 2 Johnson 885 — LIBEL IN DIVORCE. Amendment of 74 — 35 Adultery, form of 70 — 22 Causes must be clearly set forth 68 — • 20 Character in divorce 68 — 20 Requisites 64 — 13 Void marriage 67 — • 18 Filing for desertion, after six months 66 — 17 Lunatic wife, next friend, by 67 — ig LIBELLANT. Divorce, domicile of 68 — 20 892 INDEX. PAGE PAR. LIBERARI FACIAS Vol. 2 Johnson 383— LIBERATION ON HABEAS CORPUS 274— 14 LIENS. Contest of in bankruptcy 53 — 6 Effect of assignee's sale upon 30 — 48 Effect of bankruptcy upon 52— 5 How affected by receiver's sale 485 — 34 Damages, eminent domain 253 — 62 Decree for alimony, a mensa 9S — 67 Decree in Equity on real estate 634 — 12 Judgment in trespass 253 — 64 LIFE ESTATES Vol. 3 Johnson 783— LIFE ESTATE, OWNER, PARTY IN PARTITION 362— 9 LIFE INSURANCE POLICY. See "Insurance Policy." Notice of death 295 — 19 LIFE TENANTS. Damages to, in eminent domain 238 — 58 LIGHT, AIR ETC. Elements of compensation in eminent domain . . . 234 — 46 LIGHT COMPANIES. Eminent domain 1 14 — 27 LIMITATIONS. Corporations 148 — 4 Eminent domain 118— 39 Statute of not applicable to eminent domain 143 — 41 Inapplicable to proceedings for damages 144 — 42 Habeas corpus 279 — 27 Exercise of privilege of eminent domain 138 — 19 Time to sue on insurance policy 29s — 17 LIMITED REGISTERED PARTNERSHIP. Change of ownership, effect 407 — 74 Dissolution and liquidation — notice 408 — TJ Expiration and renewal 407 — 75 False statement, a misdemeanor 407 — 73 Form of articles 403 — 67 INDEX. 893 LIMITED PARTNERSHIP— (Con/M4« Lunatic's, requisites of application to sell 321 — ■ 43 Lunatic's, sale or mortgaging 320 — 42 Trust, parties to bill in Equity S42— 12 Weak-minded persons, sale etc 339 — 96 RE-ASSIGNMENT TO ASSIGNOR 44— 81 RECEIPTS. And account by receiver 479 — 27 RECEIVERS. Account, filing and passing 493 — - 46 Account — form 492 — 44, 45 Action by, to recover assets 480 — 28 Actions against, without leave of court 482 — 30 Appeal from appointment 475 — 20 ■ Appointed beyond the state, rights and relations . . 489 — 41 Appointed for partnership, when 390 — 23 Appointment for corporation. 466 — 5 Appointment in discretion of court 465 — 4 Assignment for creditors — in place of trustee .... 469 — S Attachment, practice on 474 — 18 Bill in Equity, for 470— II Bill against, when multifarious 483 — 30 Certificates — authorization of 487 — 38 Certificates, nature and purpose of 488 — 39 INDEX. 923 RECEIVERS— (Co«/t«M^rf) page par. Chancery jurisdiction 463 — i Compensation and expenses 490 — 42 Corporation, after judgment- of ouster 467 — s Corporation, after ouster 462— 39 Defined 464 — 2 Deposit after sale 34 — SS Discharge of 493 — 48 Duty to take receipts and account 479 — 27 Effect of receivership 483 — 32 Examination of books in his hands 487 — z^ Foreign corporations 489 — 40 Form of answer to bill for receiver \. . . . ^yz — 14 Form of application for writ of assistance 477 — 23 Form of bill for dissolution of partnership and appointment 471 — 13 Form of bond by 473 — 16 Form of bond for injunction 473 — 17 Form of order appointing etc 472 — 15 Form of order for writ of assistance 478 — 24 Form of writ of assistance 478 — 25 Form of petition for attachment 474 — 18 Form of petition for sale of perishable stock .... 486 — 35 Hand, not head of court 489 — 39 Infant, discharge of 494 — 48 Insolvency, when appointed 47 — 86 Insolvents, Act of 1901 469 — 10 Insurance Co. — right to collect assessments 481 — 29 Liabilities of 479 — 27 Liabilities and duties of 491 — 43 Limitation of action against 476 — 21 Limited partnership — for 469 — 7 Mutual insurance company 469 — 9 Notice of appointment, generally required 471 — 12 Object of appointment 464- 3 For oil-producing wells 465 — 4 Partnership 467 — 6 Payments by 487 — 36 Power to examine insolvent and witnesses 14 — - 22 Reasons which move a Chancellor to appoint .... 465 — 4 Removal of 493 — 47 Removal or discharge 49 — 91 Right of creditor to have execution . .■ 484 — 33 Right to have and collect assets 480 — 28 Right to have and collect rents 479 — 26 Right to possession of property — writ of assistance 476 — 22 Rights, duties and liabilities 475 — 21 924 INDEX. RECEIVERS— (Co»itiiM(rrf) page par. Sales by — effect on liens 485 — 34 Security by 474 — IP Service of process 483 — ■ 3i See Vol. I Johnson 394 — 5 RECEIVERSHIP, SEE "RECEIVERS." RECOGNIZANCE, APPEAL IN DIVORCE 97— 7o RECORDS OF COURTS. Proof of 610— 18 Divorce, conclusive of what 100 — 75 Lost, perpetuation of testimony of S'S — 6 Phila. when prothonotary may let them go out . . . 643 — 43 RECORDING. Assignment by non-resident 19 — 3i Certificate of limited partnership 39S — 36 Deed of assignment, eflfect 8 — 11 RECOVERY OF LEGACIES Vol. 3 Johnson 700— RECRIMINATION. Divorce for adultery 78 — 41 REDESDALE, LORD. On defendant's answers 592 — S3 REFEREE IN EQUITY. Distinguished from Master 365 — 15 Duties of, as illuminated by the Courts 620 — 3 Findings of, force 620 — 3 Powers, duties etc., Rule 69 619 — i Learned in the law Vol. 2 Johnson 68 — REFERENCE OF EQUITY CASE. To a referee 619 — i Trial, under special laws Vol. 2 Johnson 54 — REFORMATION OF DEEDS ETC 527— 25 Instrument in writing 526 — 24 REGISTER OF WILLS Vol. 3 Johnson 26— "REGISTERED." Addition to firm name under Act of 1899 403 — 67 Limited partnerships. Act of 1899 304 — n38 INDEX. 925 PAGE PAR. RE-HEARING. Of Equity cause, by Chancellor 618 — 38 Petition for — Rule 91 635 — 13 REJOINDER. Dispensed with in Equity 597 — 61 RELATOR. Party in mandamus 347 — 7 Private or public, in quo warranto 451 — 8 RELEASE. Damages, eminent domain 244 — 23 Effect of in eminent domain 236 — 53 Form — assignee 42 — 76 Persons secondarily liable, assignment 43 — 78 RELIEF. Alternative or substituted 633^ — 10 Amendment of bill, answer etc 577 — 18 REMAINDERMAN. Rights of in partition 361 — 6 REMAINDERS. Vested and contingent Vol. 3 Johnson 766 — REMEDIES, ELECTION 244— 26 REMEDY AT LAW. Appeal from decision as to 518 — 12 Averment in demurrer or answer — decision 518 — 11 Certificate of counsel 388 — 16, 17 Equity, or in particular and illustrative cases 528 — 26 Question decided in limine 529 — 27 Question raised by demurrer or answer 517 — loa Want of, omitted from bill 551 — n39 REMEDY DESERTED WIFE. Against her husband 535 — 40 Quo warranto against contending railroad com- panies 451 — 9 REQUISITES. Of a good bill in Equity 550 — 9 926 INDEX. PAGE PAR. REMOVAL. Assignee, for waste 27 — 40 Receiver 493 — 47 I RENEWAL. Insurance policy 295 — 18 Limited partnership, manner of 397— 43 RENTS. Assignment for creditors — liability 27 — 40 Right of receiver to collect 479 — 26 Share of co-tenants, in partition 367 — 19 REPEAL OF LAW. Effect on assessment of damages 243 — 17 REPLEVIN. Practice and forms complete, and not a mere critique academical Vol. 2 Johnson 674 — REPLICATIONS IN EQUITY. What put in issue by 597 — 61 Special, abolished by Rule 47 597 — 62 Traverse in lunacy 312 — 26 REPORT. Master in divorce, character of 90 — 59 Viewers, county road, exceptions etc 178 — 116 REQUESTS FOR FINDINGS 616— 32 RESCISSION OF PARTNERSHIP. What justifies 474 — 18 RESERVATION. Assignment for creditors 18 — 28 RESERVATION BY STATE. Power to annul railroad charters 165 — 69 Power to resume, Sunbury & Erie 162 — 57 Power to the state, in every charter . ^ 150 — 16 Sale of Public Works to Penna. R. Co 151 — 18 Sale of Public Works to Penna. R. Co 155 — ^y Sale of Public Works to Penna. R. Co 156 — 38 RESIDENCE. One year, to sue for divorce 64 — 12 INDEX. 927 PAGE PAR. RESPONDENT. Answer of in divorce 76 — 39 RESPONSIVE. Or non-responsive answer in Equity 583 — 36, yj RESTORATION. Cost of eminent domain 228 — 25 Lunatic — effect of order 334 — 80 Weak-minded person 340 — 97 RESULTING TRUST. Evidence of 502 — 19 How created 501 — 18 Married woman may sue lier husband 502 — 20 RESUMPTION. By state of Petma. R 154 — 31 RETIRING PARTNER 422— 104 RETROACTIVE LEGISLATION. In divorce 66 — 15 RETURN. Alternative writ of mandamus 355 — 32 Habeas corpus in criminal matter 275 — 18 Inquisition in lunacy, effect 313 — 29 Non est inventus, subpcEna in divorce 72 — 32 Mandamus, certainty required 3SS — 35 Mandamus, effect of demurrer 355 — 34 RETURN DAYS. Subpoena in divorce 65 — 13 See Phila. Practice. REVERSION. Abandonment of canal 122 — 5 Abandonment — school easement 137 — 17 After easement ceases 120 — 2 REVIEW. Report of commission in lunacy 307 — 18 REVOCATION. Charters of corporations 150 — 12,13 Charter by legislature 137 — 18 Charters, constitutional reservation 148 — 5 Vol. 4 Practice— 59 928 INDEX. PAGE PAR. REVOCATION AND RE-PUBLICATION OF WILLS Vol. 3 Johnson 578— REWARD— SECRETED PROPERTY 15— 23 RIGHT OF EMINENT DOMAIN. Shall not be abridged 1 13 — 25 RIGHT OF WAY. Easement 224 — 12 Eminent domain an easement 120 — 2 Injunction to preserve 665 — 24 RIPARIAN OWNER. Rights under eminent domain 127 — 21 Rights to waters 666 — 16 ROAD DAMAGES. Must be assessed within 6 years 240 — n2 ROADS. Re-location for water supply 192 — 44 ROMAN LAWS OF JUSTINIAN. .. .Vol. 3 Johnson 456, 7 et seq. RULES OF COURT. Costs in divorce 98 — 72 Denial of partnership 378 — i Divorce 91 — 60 Exceptions to viewers' report 176 — 108 Practice as to, notice of 578 — 20 RULES AT LAW. When applied to Equity 538 — 3 RULES OF EQUITY PRACTICE. Supreme Court authorized to establish 538 — 3 Power of courts to make 643 — 42 RULES UPON PARTIES. Accept or refuse in partition, form 373 — ■ 35 Alimony, to pay, service personal 95 — 68 Answer or demur, in Equity 572 — ■ 8 Bill of particulars, divorce 75 — 36 Bill of particulars in divorce, form 76 — 37 Plead — eminent domain 207 — 3 Show cause, in Allegheny County 574 — 10 INDEX. 929 RULES UPON PARTIES— (Continued) page par. Show cause why decree in divorce should not be entered 92 — 63 Show cause, insolvency, form 49 — • 89 Show cause why quo warranto should not issue .. 452 — 11 Show cause why a receiver should not be appointed 46 — 85 Take depositions, commissions and letters roga- tory Vol. I Johnson 632 — RULE AGAINST PERPETUITIES. .Vol. 3 Johnson 803— RULE IN SHELLEY'S CASE Vol. 3 Johnson 748— RURAL ROADS. Electric railways upon, damages 143 — 37 RULES OF PRACTICE IN COURTS. Courts of Common Pleas, at law.. Vol. i Johnson 140 et seq. Courts of Common Pleas, in Equity, Vol. 4 Johnson, Equity Pt. 2 Superior Court of Penna Vol. i Johnson 126 — et seq. Supreme Court of Penna Vol. i Johnson 96 — et seq. Orphans' Court Vol. 3 Johnson Removal of cause from Common Pleas to U. S. District Court Vol. i Johnson 58 — et seq. SAILORS' WIVES. Feme sole traders 261 — i SALES. Assignee by, alias order of 32 — 51 Assignee, caveat emptor 34 — 54 Assignee's — effect of 33 — 54 Assignee, may have leave to bid 31 — 49 Assignee's — title of purchaser 32 — 53 Assignment, on — public or private 30 — 47 Deposit after, by assignee 34 — 55 Effect of in eminent domain 236 — 53 Efifect on liens, by assignee 30 — 48 Form of return to order, by master in partition . . . 373 — 3^ Land, in partition, when it cannot be parted 367 — 21 Lunatic's estate, requisites of order 325 — 58 Lunatic's real estate situate in several counties . . 326 — 61 Lunatic's estate, return of 326 — 62 Master in partition, approval etc 368 — 23 SALE OR MORTGAGING. Of lunatic's real estate 320 — 42 Real estate of non-resident weak-minded person.. 341 — 102 930 INDEX. SALE OR MORTGAGING— (Continued) page par. Lunatic's real estate, application 321 — 43 Private, lunatic's estate, order for 325 — 59 Property pendente lite 635 — ■ 14 Public works, to Penna. R. Co. subject to existing laws 156 — 39 Real estate for the payment of decedent's debts Vol. 3 Johnson 132 — Real estate etc. by spouse of lunatic 329 — 71 Real estate on venditioni exponas. .Vol. 2 Johnson 459 — Real estate of decedent for distribution. Vol. 3 Johnson 303 — Receivers, effect on liens 485 — 34 Setting aside 33 — 54 Statement of attorney, mere opinion 32 — 50 Time and manner, by assignee 31— So Weak-minded person's real estate 339 — 96 SCANDAL AND IMPERTINENCE. In bill in Equity 570 — 3 Distinction in Equity 582 — 33 Expunged from bill 547 — 2 Suppression of 607 — 12 SCHEDULES. Assignment for creditors 6 — 7 SCHOOL DIRECTORS. Recusant, may be compelled to do their duty .... 528 — 26 SCHOOL DISTRICT. Condemnation of land, viewers I7S— 104 Privilege of eminent domain 174 — 103 SCIRE FACIAS. To bring in parties etc Vol. 2 Johnson 823 — Form of action, according to Ch. J. Gibson, Vol. 2 Johnson 690 — Mechanics' liens, law, practice, and reliable forms that will stick and not have to be cured by the legislature Vol. 2 Johnson 695 — Mortgage, practice and forms, so you will not have to begin over again Vol. 2 Johnson 742 — Municipal and tax claims, up-to-date, Vol. 2 Johnson 777 — Recognizances, how, when and where and in what form Vol. 2 Johnson 803 — INDEX. 931 SCIRE FACIAS— (Continued) page par. Supreme Court to forfeit the Penna. R. Co.'s 1846 Charter 154 — 32 Supreme Court to revoke B. & O. R. Co.'s privileges 169 — 86 SEAL. Limited registered partnership 406 — 71 Origin and utility Vol. i Johnson 240 — et seq. SECRETION OF PROPERTY. Discovery — reward iS — 23 SECURITY. Alimony, divorce a mensa etc 55 — 67 Committee of lunatic, sale of real estate 326 — 62 Costs, for, 641 — 37 Dismissal of trustee, or, 503 — 24 Required for injunctional orders 688 — 5 SEDUCTION. Action for, when and how to bring it Vol. 2 Johnson 979 — SELLING PRICE. As element, in valuing land etc 228 — 26 SEPARATION. Agreements, binding when 100 — 76 Mutual, not desertion 81 — 46 SEQUESTRATION. To enforce decree 635 — 16 Not execution in receivership 464 — 2, 3 Setting aside, on assignment 17 — 27 SERVICE. Beyond jurisdiction, in partition in Equity •. 370 — 29 Complaint in habeas corpus 269 — 2 Copies of interrogatories — answers 590 — 45, 46 Libel in divorce, by publication 73 — 32 Libel in divorce, by publication, form 73 — 33 Mandamus and quo warranto 353 — 22 Publication in partition 371 — 30 Quo warranto — Act of 191 1 452 — 12 Return day — alternative mandamus 352 — 22 Subpoena in divorce, personal 72 — 31 932 INDEX. PAGE PAR. SERVICE OF BILL IN EQUITY 562— 2 Corporation, on 562 — 4 Defendant who cannot be found 566 — 11 Gives standing as lis pendens 561 — i Husband and wife 562 — 2 Non-resident mortgagees and judgment creditors.. 562 — 6 Parties out of the jurisdiction 563 — 7 Partition as in action real 370 — 28 Publication 564 — 8 566 — 11,14 567— 15 SERVITUDE, DEFINITION 142— 35 SETTING ASIDE REPORT OF VIEWERS 246— 34, 35 SETTING DOWN EQUITY CAUSE FOR HEAR- ING 603— I SET-OFF. In partnership matters 415 — g6 SETTLEMENTS BY PARTNERS. Conclusiveness 432 — 120 SEWERS ETC., IN CITIES ETC 234— 47 "SHARES OF STOCK." Not known to limited partnership 438 — 4 SHERIFF'S SALES. See executions Vol. 2 Johnson Distribution of proceeds Vol. 2 Johnson 515 — SHERIFF'S DEED TO PURCHASER, Vol. 2 Johnson 483— SHERIFF'S INQUISITION. On land under execution Vol. 2 Johnson 373 — SHERIFF'S INTERPLEADER. On execution Vol. 2 Johnson 334 — SIDEWALKS. Abutting owners not entitled to damages 141 — 32 SIGN, LIMITED PARTNERSHIP 394— 31 INDEX. 933 PAGE PAR. SIMULATION. Hand-writing, testimony of experts, in divorce . . . 78 — 40 SINKING FUND. Redemption of municipal bonds for water works . . 195 — 55 SLANDER. Action for, cause, form and manner. Vol. 2 Johnson 885 — SLEEPER ON HIS RIGHTS. Loses his fruits in Equity 532 — 33 SMOKE ETC. As element of damages 229 — ■ 29 Noise etc. damages for 138 — ■ 22 SOLICITOR IN CHANCERY. Power to bind client 589 — 44 SOVEREIGN, PARTY TO BILL 544— 21 SPEAKING DEMURRER WILL BE DISMISSED.. 576^ 6 SPECIAL ALLOWANCE, ATTACHMENT 263— 4 SPECIAL PARTNER. Assignment by 401 — 61 Contribution of goods etc 393 — 30 Dead, executors may continue 402 — 64 Generally liable, when as penalty 400 — 56 Insolvency, does not dissolve firm 402 — 63 Liability, interest and profits 398 — 49 Limited registered, liability 406 — 70 Not to be a creditor of the firm in bankruptcy . . . 400 — 57 Powers of 399 — 51 Withdrawal 398 — 49 SPECIAL PARTNERSHHIP. When it becomes general 397 — 43 SPECIFIC PERFORMANCE OF CONTRACT 258— 6 Decedent Vol. 3 Johnson 187 — Inter vivos 520 — 18 SPENDTHRIFT TRUST. Not subject to attachment for alimony 96— 69 934 INDEX. PAGE PAR. SPRING. Eminent domain, taking by 127 — 20 STATE CANALS. Abandonment of, to remain public highways for- ever 22s— 13 STATE LOAN. Forced sale of public works 152 — 24 STATE OWNED RAILROADS. Bought by Penna. R. Co 152 — 24 STATE OWNERSHIP. Of public utilities 151 — I7 STATE PUBLIC WORKS. Abandonment of 225 — 14 Sale of to Penna. R. Co 155 — 37 Sale of to Penna. R. Co 156 — 38,39 40,41 STATE RAILROADS. Lines embraced in sale 156 — 38 Oflfer to sell 155— 37 Sale of 155— 36 STATE RESERVATION. As to manufacturing companies 204 — 78 STATEMENT OF PLAINTIFF. Filing, notice and copy Vol. I Johnson 436 — STATUTE OF FRAUDS. As bar to action Vol. i Johnson 342 — STATUTE OF LIMITATIONS. As bar to action Vol. i Johnson 321 — Applied to partnership 418 — 99 Applied to partnership accounts 408 — TJ Applied to receiver 476 — 2\ Pleaded in bar by demurrer 576 — 16 STAY OF EJECTMENT. Pending assessment of damages 242 — 10 STENOGRAPHERS IN EQUITY 615— 30 All courts Vol. I Johnson 176 — View to condemn tvirnpike 189 — 31 INDEX. 935 PAGE PAR. STEPS, SEWERS ETC. In cities and boroughs 234 — 47 STEWART, J. On functions of Chancery 615 — 29 STOCK-HOLDERS OF CORPORATIONS. Litigation in Equity by statute 517 — 10 STOCKS AND BONDS. Contracts concerning 522 — 21 STONE QUARRIES. Valuation, eminent domain 224 — II STREAM. Calls for, carry to middle, when 121 — 4 County lines, on condemnation of bridge 186 — 20 STREAMS, DAMAGES, FLOATING LOGS ON... 184— 11 Re-location of channel 193 — 47 Use of by coke and other companies 205 — 81 STREAMS AND CANALS. Obstructions may be injoined 662 — 20 STREETS. Compensation in the opening etc 139 — 24 Servitudes, compensation for 141 — 30 Subject to eminent domain 123 — 12 Unopened, damages to abutting owner 226 — 17 STREET RAILWAYS. See Eminent Domain. Abutters on 142 — 36 Consent of municipal authorities 173 — 99 Damages in cities and boros 141 — ng Grade crossings, obstructions 174 — 100 Measure of damages 223 — 7 Re-location of tracks 200 — 71 Re-location of tracks 201 — 72 Re-location of tracks 202- — 73 Companies, Eminent Domain 173 — 98, 99 Companies, Eminent Domain 174 — 100-1-2 STRIKES AND BOYCOTTS, INJUNCTIONS TO RESTRAIN 682- 45 936 INDEX. PAGE PAR. STRUCTURES ERECTED BY TAKER OF LAND. 240— 4 SUBJACENT SUPPORT— PIPE LINE 137— 16 SUBPOENA, ALIAS, IN DIVORCE 66— 16 Divorce, allowance of 69 — 21 Divorce, form of 71 — 30 Divorce, return days 65 — 13 Divorce, return, non est inventus yz — ■ 32 Divorce, personal service 72 — 31 Divorce, proof of publication 74 — 34 Divorce, service by publication 73 — 32 Divorce, service by publication, form y^ — ^^ Divorce, time of publication 74 — 33 Duces tecum in Equity 553 — 13 Vol. I Johnson 141 — 4 SUBPOENAING WITNESSES ETC., Vol. i Johnson 624 SUBROGATION— ASSIGNED ESTATE 40— 72 Contributing partner 414 — 94 Payor, when not volunteer 534 — 37 SUBSCRIPTION LIST BOOK. Of limited partnership association 437 — 4 SUBSTITUTION. Names of parties in quo warranto 460 — 3 5 Parties in Equity 543^ 17 SUBTERRANEAN WATERS, RIGHTS TO 666— 25 SUGGESTION FOR QUO WARRANTO. When to be verified 453 — 13 SUITS. Assignee for creditors 24 — 36 Assignee, practice in 25- 37 In forma pauperis, cannot be brought for divorce . . 86 — 52 Limited registered partnerships 408 — 78 SUMMING UP TO JURY. Trial for damages 251 — 53 SUMMONS. Commencement of action by, service etc., Vol. i Johnson 392 — INDEX. 937 PAGE PAR. SUNBURY & ERIE R. CO. Charter provisions i6i 53, 54. 55 Rates 162 — 56 SUPERIOR COURT. Appellate jurisdiction in divorce 97 — 70 Jurisdiction of divorce appeals 87 — 52 SUPERSEDEAS. Of lunacy commission etc., form 333 — 78 Peremptory writ of mandamus 357 — 44 Only by order of court 358 — 47 Vol. I Johnson, "Appeals" Act of 1897. SUPPORT. Form of petition for, in divorce 87 — 53 Form of rule for, in divorce 88 — 54 SUPPRESSION OF DEPOSITIONS 613— 22 SUPREME COURT. Authority to establish rules of Equity practice... 538 — 3 Equity rule does not repeal the law as to partition 367 — 18 Issues quo warranto when 448 — 3 Jurisdiction of injunctions 686 — i Jurisdiction of mandamus 345 — 3 Original jurisdiction of habeas corpus 268 — i rules applied to partition in Equity 365 — 16 SURETIES ON BOND IN EMINENT DOMAIN. . . 253— 63 Liability on assignees's bond 28 — 41 SURETY COMPANY, COMMISSION FOR BOND- ING 23— 35 SURVIVING PARTNERS. Rights and powers 419 — 102 SURVIVING TRUSTEE. May execute trust 504 — 29 TAKING BY EMINENT DOMAIN 130— i TAXATION. Exemption municipal water works bonds 195 — 55 Irregular, can only be reached by appeal 668 — 28 938 INDEX. PAGE FAR. TAX ASSESSMENT. Slight evidence of value 223 — 5 TAXES. Restraining collection by injunction 667 — 27 TAX QUESTIONS. Jurisdiction of C. P. of Dauphin County 449 — 4 TELEGRAPHS UNDER ACT OF CONGRESS 182— 6 TELEGRAPH COMPANIES. Assessment of damages by 183 — 8 Eminent domain 183 — 7 Municipal consent 183 — 9 TELEPHONE CO.'S. See "Eminent Domain." TENANT. Owner in eminent domain 212 — . 15 Right to appeal from award of viewers 248 — 40 TENANTS IN COMMON. Assessment of damages 228 — 23 Bill for partition 363 — 1 1 Distinguished from partners 377 — i Right to partition. See Partition. TENANCY BY CURTESY. Divested by feme sole trader decree 265 — 10 By curtesy Vol. 3 Johnson 652 — TENANT FOR YEARS. Entitled to damages, in eminent domain 237 — 57 TENDER OF BOND. In Eminent Domain 197 — 59 Notice of 132 — 4 TENDER. Equitable ejectment, how made 258 — 6 Must be kept good and brought into court 258 — 6 Must place party in in statvi quo 526 — 23 TENTERDEN, LORD. On privilege of counsel as to documents in his possession 588 — 42 INDEX. 939 PAGE PAR. TERMINATION, Trust in another State 20 — 31 TERRE TENANTS. When parties to bill in Equity 537 — i TESTAMENTARY GUARDIANS. . .Vol. 3 Johnson 860— TESTAMENTARY TRUSTS. Active and passive, separate use and spendthrift Vol. 3 Johnson 902 — TESTIMONY OF AGED, ETC., WITNESSES. Perpetuation 554— 14, 15 Hearing on weak-minded persons 338 — 93 Order de bene esse and by commission, taking. . . . 604 — 4 Supporting injunction bill 688 — 4 Taking of de bene esse 555 — 15 THOMPSON, C. J. On foundation of injunctional remedy 646 — 2 THREATS. Insufficient cause for divorce 80 — 44 TIMBER. On lunatic's land, sale of 328 — ■ &7 Right of taker in eminent domain 230 — 35 Trespass, double and treble damages, suits for, under Act of 191 1, re-enacting Act of 1824. Vol. 2 Johnson 860 — Valuation of in eminent domain 226 — 16 TIME. Action on insurance policy 295 — 17 Allowance of Amendments in Equity 599 — 66 Alternative writ of mandamus , 352 — 22 Appeal, viewers to assess damages 248 — 42 Application for extension in Equity 574 — 11 Assessment — presumption 240 — 5 Assignee's sale — manner 31 — 50 Chancery in, when witness deemed aged 556 — 15 Damages, when accrue in taking land 212 — 15 Divorce after two years, for desertion 66 — 17 Equitable proceedings to assess damages, when may be commenced 240 — ■ 2 Essence in ejectment for purchase money 256 — 3 940 INDEX. TIME — {Continued) page par. Estimating damages for taking property 231 — 39 Estimating damages for taking land, etc 234 — 49 Expiration of in Equity, in Phila S74 — 12 Fifteen days' notice of rule to take testimony, Rule S4 604 — 4 Filing deed of assignment 6 — 7 Fourteen days, to set aside decree pro confesso. Rule 30 S8i — 30 Fourteen days' notice to take testimany in Chancery 609 — 15 Issuance of peremptory mandamus 357 — 42 Judgments within four months preceding insol- vency 16 — 25 Lapse of, divorce 94 — 65 Libel for desertion in divorce 66 — 17 Limitation, privilege of eminent domain 138 — ■ 19 Notice of loss by fire 288 — 6 Notice and proof of fire 292 — 13 Preferences — bankruptcy 51 — 4 Presentation of claims to assignee 29 — 45 Publication of subpcena in divorce 74 — 33 Report of appraisers of water supply plant 194 — 51 Residence to sue for divorce 64 — 12 Return to mandamus 355 — 33 Service of subpoena in divorce 65 — 13 Statute of limitations not applicable in eminent domain 239 — i Traverse of inquisition in lunacy 311 — 25 Valuation of land, eminent domain 221 — 2 Valuation of lands taken by eminent domain 240 — 3 View under school code 175 — 104 Writ of habeas corpus, jurisdiction 272 — 8 TITLE. Acquired, how, by eminent domain 144 — 43 Disputes about, not favored in Equity 529 — 27 Dispute, duty of jury 243— 19 Divested, when, in eminent domain 240 — 2 Divestiture by giving bond 132 — 4 Evidence when taken under eminent domain 131— 3 Office, to, tested by quo warranto 447 — 2 Purchaser of assignee's sale takes 32 — 53 Question of, to be certified from Equity to Law side of Common Pleas 530— 27 Sheriff's vendee Vol. 2 Johnson 493 — State canals 137 — 17 INDEX. 941 TITLE — (^Continued) page par. Stating, in petition lor view 211 — 13 Taken under eminent domain 136 — 15 TYPEWRITTEN BILL IN EQUITY. Not a printed bill 559 — 23 TOLL BRIDGE, CONDEMNATION BY COUNTY 186— 21 TORTS AT THE COMMON LAW. Recognized in Penna Vol. 2 Johnson 833 — Liability of lunatic for 315 — 33 Unliquidated damages — bankruptcy 56 — II TOWNSHIP ROADS. Allowance for 133 — ■ 7 Eminent domain does not apply 150 — 14 TOWNSHIP AND BOROUGH DEBTS— MAN- DAMUS 346 — 6 TRADE-MARKS, ETC. Illegal use of, may be enjoined 681 — 43 Partnership asset 412 — 85 TRADESMAN. Bound by notice of husband, when 84 — a8 TRAVERSE. Inquisition in lunacy 310 — 24 Lunacy — extension of time 311 — 25 TREATIES WITH FOREIGN POWERS. Vol. 3 Johnson 884 — TREES.. Damage to by Electric, etc., companies 183 — 10 TRESPASS. Action against gas Co 140 — 26 Action ex delicto, in general Vol. 2 Johnson 843— Alienation, crim. con., etc Vol. 2 Johnson 856 — Conspiracy, with form of statement. Vol. 2 Johnson 850 — Deceit and fraud Vol. 2 Johnson 866 — Equity will enjoin 657 — 15 Exemplary damages for 232 — 41 False arrest and imprisonment Vol. 2 Johnson 872 Form of action for tortious taking 241 — 9 942 INDEX. TRESPASS— (^Continued) page pab. Injunctions against 656 — 14 Libel or slander Vol. 2 Johnson 885 — Malicious prosecution Vol. 2 Johnson 872 — Negligence, with forms showing how to conduct an action right Vol. 2 Johnson 911 — Nuisance Vol. 2 Johnson 941 — Q. c. f., etc., pleadings and damages. Vol. 2 Johnson 961 — Seduction Vol. 2 Johnson 979 — Special partner when absolved 399 — 51 Timber, Act of 1824, re-enacted 191 1, Vol. 2 Johnson 860 — TRICKETT, DR., ON WITNESSES 606— 11 TRIAL, BRINGING CAUSE ON.... Vol. i Johnson 607— Compulsory arbitration Vol. 2 Johnson 22 — Court without a jury Vol. 2 Johnson 64 — Court with a jury Vol. 2 Johnson 113 — Eminent domain 251 — 51, 52, 53 TRIAL IN EQUITY IN OPEN COURT 606— 8 Phila., Sec. i. Rule 18 624 — 13 Continuance, costs, etc 615 — 29 Issues of fact on lien of decree 634 — 12 Jury, in divorce, no longer by right! 65— 14 Jury, view of premises by 166 — 74 Lunacy, on traverse 3 12 — 27 Lunacy, precedence of 313 — 28 Preparation of cause for Vol. i Johnson 624 — ■ Referee learned in the law Vol. 2 Johnson 68 — Reference under special acts Vol. 2 Johnson 54 — Voluntary arbitration Vol. 2 Johnson i — TRIAL AND ARGUMENT LISTS IN EQUITY. . . . 624— 12 TROVER. Still a form of action before justices 383 — 8 TRUSTEE. Absentee or persons under disabilities 182 — 5 Actions by, in bankruptcy 55 — 9 Balance against, transcript and lien 504 — 28 Vol. 3 Johnson 392 — Cancellation of bond 503 — 31 Cases in which the C. P. may appoint 498 — 9 Charitable bequests for education 499 — 13 Church property — character and relations defined INDEX. 943 TRUSTEE— (.Continued) page par. by Justice Stewart S09— 38 Citation, return to special court 498 — 6 Citation for waste 503 — 23 Corporation after ouster of officers 461 — 37 Court may require security, or dismiss 503 — 24 Discharge on his application 504 — 27 Discharge, when trust is executed 503 — 26 Durante minoritate or absentia Vol. 3 Johnson 479 — 3 Equity power to appoint 479 — 3 Order concerning books, papers, moneys, etc., on dismissal Scg — 25 Parties to bills concerning real estate 542 — 12 Power to compel conveyance by 499— n Proper parties to a bill, when 539 — 5 Rights, duties and liabilities Vol. 3 Johnson 928 — Rights, etc., in bankruptcy 54 — 8 Surviving may execute trust 504 — 29 TRUST COMPANIES Vol. 3 Johnson 961— TRUST. Creation of, manner, clear intention 499 — 14 Definiteness of purpose, delivery, etc 500 — iS Equity jurisdiction of Common Pleas 49s — i Equity power to appoint trustees 497 — 3 Ex maleficio 502 — 21 Executors, which Equity will not enforce 500 — 15 Form of answer to bill to declare a resulting trust 506 — 33 Form of answer to bill for trustee's account 508 — 37 Form of bill to declare a resulting trust 505 — 32 Form of bill for settlement of trust account, etc. . . 507 — 36 Form of final decree 507 — 35 Form of replication 507 — 34 Infant trustee, jurisdiction of C. P. over 498 — 7 Jurisdictidn of Orphans' Court, exclusive as to testamentary 496 — 2 Kinds and nature of 502 — 22 Also Vol. 3 Johnson 903 — Land, in, must be in writing 501 — 17 Married woman's application for trustee 498 — 8 New Church Swedenborgian, Lancaster view 497 — n. loa Parol, equitable principles 256 — 2 Parol, how far recognized 501 — 17 Parties necessary to create Soo — 16 Petition for appointment of trustees, procedure. . . . 497 — 4 Vol. 4 Practice— 60 944 INDEX. TRUST — (Continued) page pak. Power of appointment, exercise of 499 — 10 Power to compel conveyance by trustees 499 — 11 Practice in Orphans' Court adopted 497 — s Private, jurisdiction of Common Pleas 495 — 2 Resulting, as enunciated by Chief Justice Gibson.. 501 — 18 Resulting, evidence of 502 — 19 Termination of SOS— 30 Termination in another State 20 — 31 TURPIKE COMPANIES, EMINENT DOMAIN.. .. 173— 97 TURNPIKES ACQUIRED, EASEMENT ONLY. . . . 240— 4 Condemnation of 188 — 29, 30 Condemnation of 188 — 30 See Eminent Domain i8g — 31, 32, 33 190— 34. 35, 36, 37 191— 38 Gains nothing by prescription 14S — 45 Measure of damages 222 — • 4 Public roads, etc. — eminent domain 150 — - 14 ULTRA VIRES. Contract, tested by quo warranto 447 — 2 Corporation 377 — i Corporation's acts, restraint of 675 — 35 Plea of, as to partnership association 441 — 76 UNINCORPORATED BODY. Mandamus against 352 — 21 U. S. DISTRICT COURT. Vested with jurisdiction of the Circuit Court 467 — n.50 UNITED STATES COURTS. Equity process, by subpoena 561 — i U. S. SUPREME COURT On State divorces 64 — 12 760 — n. U. S. EXERCISE OF EMINENT DOMAIN BY 181— i Property taken by military necessity 138 — 20 UNSEATED LANDS. Service of notice 257 — 4 USES OF LAND. Speculative, profits, etc 234 — 48 INDEX. 945 PAGE PAR. USUFRUCTUARY PARTIES IN MANDAMUS... 353— 23 USURPATION OF OFFICE. How challenged 447 — 2 VACATION. Executions, etc., on assignment 17 — 27 Part of old road by county 177 — 113 Proceedings, eminent domain 133 — 6 VALUATION. Coal, stone, gravel, etc ^24 — 1 1 Land taken by eminent domain 220 — i Land taken by eminent domain, time of 221 — • 2 Platted lands, eminent domain 222 — 3 VARIANCE OF RELIEF. By amendment to bill 577 — 18 VENDEE. Equitable ejectment by 258 — 6 VENDOR. Action of ejectment by 259 — 7 VEDITIONI EXPONAS. Against realty Vol. 2 Johnson 459 — Orphans' Court Vol. 3 Johnson 519 — VENIRE. And number of jurors in lunacy 304 — 13 Form, return, etc., in lunacy 304 — 14 VENUE. Action against Railroad Co 483 — 30 Change of Vol. i Johnson 598 — Change, condemnation of bridge 186 — 19 Eminent domain, change of 241 — 6 VERDICT, CONDITIONAL IN EJECTMENT 259— 8 Eminent domain 252 — 54 VESSELS. . . Attachment and lien upon Vol. 2 Johnson 573^ "VESTED RIGHTS." By contract, eminent domain 126 — 17 Corporations 103 — 4 946 , INDEX. PAGE PAR. VIEW TO ASSESS DAMAGES. Bridge condemnation i86 — 22 Change of location of bridge 168 — 80 Lumbering operations 184 — 13 Notice of time and place 213 — 18, 19 214 — 21 Petition for 207— 4 208 — S, 6 All owners to join 212 — 14 Owner, by 211 — 11 Taker, by 207— 4 Premises by trial jury on demand 166 — 74 Waiver of, rule to plead 207 — 3 VIEWERS TO ASSESS DAMAGES— ACT 1911... 165— 65 Affidavit for appeal from report 248 — 43 Appeal by tenant 248 — 40 Appointment on petition of school district 175 — 104 Apportionment to joint tenants 245 — 23 Award in money 245 — 30 Bridge, exceptions to report 187 — 25 Condemnation of turnpike 189 — 31, 32. 33 County board 213 — 17 County board of. Act 1911 139 — 24 County board chosen from 178 — 118 County condemnation, oath and duties 176 — 112 County roads, appointment, pay, etc 178 — 115 County road, exceptions to report 178 — no Disagreement of 245 — 29 Duties, school district condemnations 175 — 105 Effect of report 24s — 31 Fees and costs 249 — 46 Finality of award, when 248 — 39 Findings, when sufficient 246 — 33 Number fixed at three 171 — 93 Petition for appointment by county commissioners 176 — ill Proceedings by. Act 1874 196 — 57 Qualifications of 213 — 17 Relocation of street railways 202 — 73 Report, confirmation 247 — 38 Report, exceptions to 247— 37 Report, making toll bridge free 185 — 15 Report, referring back 247 — 36 School code, report 175 — 105 School code, appeal 175 — 106 Setting aside report 246 — 34, 35 INDEX. 947 VIEWERS TO ASSESS, ETC.— (Continued) pace par. Turnpike, adverse report 191 — 38 Turnpike, compensation fixed by court 190 — 34 Turnpike, what report must show 190 — 35 Water supply — notice of meeting 191 — 41 VOID MARRIAGE. Libel for divorce 67 — 18 VOIDABLE MARRIAGE. For incest 60 — 3 WADLINGER, J. On ground of Equity jurisdiction 660 — 17 WAGE-EARNERS. Compulsory insolvency 47 — 87 WAGES. . . . Assignment of, must be accepted by employer .... 533 — 34 WAGES CLAIMANTS. Must give notice at receiver's sale 485 — 34 WAIVER. Assessment of damages 166 — 73 Chancery pleadings, in 589 — 44 Filing of answer, by, in quo warranto 453 — 12 Irregularities, by appeal 249 — 44 Notice and proof of loss by fire 294 — 16 Proof of loss, by fire 289, 290 — 7 291— 9 Right of action 242— 13 View, rule to plead 207 — 3 WALKER, J. Called injunction a high exercise of power '647 — 3 WALLS, DIVISION AND PARTY. Injunction 664 — 23 WAR. Penna. R. Co. to transport troops, etc, at half price 154 — 30 WARRANT OF ARREST. In actions at law VoL i Johnson 407 — Copy, must be delivered when prisoner de- mands it 274 — 13 948 INDEX. PAGE PAB. WASHINGTON & PITTSBURG R. CO.. INCOR- PORATION 170— 92 WASTE, CITATION TO TRUSTEE FOR 503 23 Common law action of Vol. 2 Johnson 983 — WATERS. Diversion, measure of damages 128 — 23 Eminent domain, rule of relative rights 127 — 20 Exclusive privileges to supply, ended 198 — ■ 62 Pollution a misdemeanor 199 — 65 Railroad taking from stream 134 — 11 Riparian owner's rights 127 21 Riparian owner, compensation 143 — • 40 Rivers, creeks, etc., power to take 198 — 61 WATER COMPANIES. See Eminent Domain. Eminent domain 126 — 19 Exclusive privilege 1 16 — 29 Exercise of eminent domain iiS — 29 Furnishing electric power, with consent of mu- nicipality 199 — 67 May take a spring 127 — 20 Power of condemnation 199 — 68 Taking land in fee 199 — 65 WATER COURSES. Condemnable in eminent domain 126 — 1-9 Mill property, etc., damages to 226 — 16 WATER PLANT. Authority of municipality to buy 195 — 53 WATER RIGHTS. Assessment of damages for taking 127 — 22 Condemnation of 125 — 15 Compensation 128 — 24 Injunctional remedy 665 — 25 WATER SUPPLY SYSTEM. Acquisition, by cities, etc., appraisers, report, etc. 194 — 50, 51, 52 Exclusive contract with borough 197 — 60 Lands, to prevent contamination 192 — 45 INDEX. 949 WATER SUPPLY SYSTEM— (Continued) page par. Municipalities, condemnation 191 — 39, 40, 41 192— 42, 43, 44, 4S 193— 46, 47, 48 Municipalities — relocation of roads 192 — 44 Penna. R. Co. — ^eminent domain 155 — 35 WATER WORKS. Appraisement for purchase by municipality 195 — 56 Bonds, exemption from taxes, etc 195 — 55 Extension of plant 199 — 66 Power to purchase 198 — 63, 64 WEAK-MINDED PERSONS. A class and law unto themselves 337 — 90 Appeal 340 — 98 Bond of guardian, for non-resident's estate 341 — 100 Demand for jury trial 339 — 94 Guardian, powers and duties 339 — 96 Hearing, notice of 338 — 92 Jurisdiction of Common Pleas 298 — i Non-resident, guardian for 341 — 99 Non-resident, powers of guardian 341 — loi Non-resident, sale or mortgaging of real estate .... 341 — 102 Person must be present at hearing 338 — 93 Restoration to normal status 340 — 97 Who may apply for guardian 337 — 91 WHARFAGE, ETC., PHILA. Equity jurisdiction of by law S19 — 15 WHARTON, ON EVIDENCE IN PENNSYLVANIA 607— 1 1 WIDOW. Party to bill for partition 366 — 17 Protection of interests in partition 368 — 22 WIDOW'S ELECTION. For or against will Vol. 3 Johnson 644 — WIFE. Bill in Equity against husband S38 — i Competent to prove desertion 82 — 47 Cruel and barbarous treatment, cause for divorce . . 79 — 47 Cruelty and indignities to husband, by 61— 5 Deserted, may proceed in rem S3S — 4i Deserted, may file bill or have an action 535 — 40 950 INDEX. WIFE — (Continued) page pak. Excuses for leaving home — good and bad 83 — 48 Indignities to person, as cause of divorce 84 — 50 Insane husband or trustee 330 — 73 Lunatic, of powers over her own estate 331 — 74 Lunatic, of release of dower by 331 — 75 Turning out of doors 86— 51 WILLS. To charitable or religious uses.... Vol. 3 Johnson 570 — Nature, character and execution. . .Vol. 3 Johnson 529— Probate Vol. 3 Johnson 544 — WILMOT, CH. J. On oral examination of witness 585 — • 40 WITNESS. Aged at 70, in Chancery 556 — 15 Attesting, evidence of in Chancery 601 — 18 Competency of 614 — 25 Vol. 3 Johnson 117 — 23,24 Competency of before viewers 243 — 21 Evidence b}'. in Chancery 606 — 11 Examination by receiver or assignee 14 — 22 Fees IS — n. 5 Fees to be taxed as costs 243 — 20 Habeas corpus hearing 276 — 19, 20 Impeaching credit of 601 — 20 Information — immunity 14 — 22 Tender of fees and subpoena, requisite in Chancery to compel attendance 601 — 19 Wife made competent to prove desertion 82 — 47 WIVES OF MARINERS. Declared feme sole traders 261 — I WOMEN, MARRIED. See "Divorce," and also "feme sole trader. WRIT OF ASSISTANCE. Authorized, how obtained 476 — 22 Form of application for ^ 477 — 23 Form of order for 478 — 24 Form of writ 478 — 25 Origin in Chancery, and power to issue 477 — 22 INDEX. 9SI PAGE PAR. WRIT, HABEAS CORPUS. See "Habeas Corpus." WRIT OF INJUNCTION. See "Injunctional Remedy." WRIT OF MANDAMUS. See "Mandamus." Goes out when 351 — ■ 17 WRIT, QUO WARRANTO 446— i WRONGS REMEDIABLE AT LAW. Vol. I Johnson 297 —