30 March 1811 § 38. 5 Sm. 236. To examine the situation of the treasury, &c. Penalty on treas urer for refusal to exhibit his books, &c. 28 April 1840 § 23. P. L. 478. due the state. 9. At the annual election next ensuing after the death of such person, so elected to the office of auditor-general, *** the qualified voters of this commonwealth shall choose, by ballot, one person to fill such vacancy, who shall assume the duties of such office on the first day of December next ensuing after said election, and hold said office for the term of the person deceased, which he was elected to fill. 10. Whenever an election to fill such vacancy shall be held, it shall be the duty of the secretary of the commonwealth, on the first Tuesday of November next ensuing after such election, in the presence of the governor, attorney-general and auditor-general, and such other citizens as desire to be present, to open and count said returns; and the governor shall, by proclamation, declare the name of the person thus duly elected, which returns shall be presented to the two houses of the legislature, within ten days after the commencement of the next ensuing session of the general assembly. II. Duties of auditor-general. 11. The auditor-general shall annually examine the situation of the public treasury in relation to the moneys therein, and the deposits in the several banks; and also, if he deems it necessary, examine the accounts of the state treasurer with the several banks and their branches in which the public moneys are deposited; and the officers of the said banks, and their branches, shall permit the auditor-general so to do; and if the state treasurer shall refuse to exhibit to the auditor-general, his books, papers or documents, or the moneys reserved in his office to meet occasional demands, he shall, for any such refusal, forfeit and pay, for the use of the commonwealth, the sum of two thousand dollars, to be recovered as sums of equal amount are or shall be by law recoverable. 12. The auditor-general of this commonwealth is hereby authorized and required to take all such legal measures as may be by him deemed expedient, to recover all To recover moneys moneys due to the commonwealth, from any and every person or persons, or their sureties or legal representatives, as may be necessary, who shall or may appear, To employ counsel. upon a settlement of their accounts respectively, to be indebted to the commonwealth; and for this purpose, and to enable him the better to enforce the collection of all or any of such claims, he is hereby authorized to employ any attorney or counsel which he may deem necessary, who shall receive such compensation as may be reasonable and just, to be paid upon the settlement of the accounts of such attorney or counsel as in other cases. 9 May 1854 § 48. P. L. 698. Powers of auditorgeneral extended. May require affidavits. 27 March 1854 § 8. P. L. 216. Manufacturing nies to make an auditor-general. 13. The accounts of all expenditures for said (state lunatic) hospital shall be settled by the accounting officers in the usual manner, and not more than five thousand dollars shall be drawn from the state treasury at any time until the accounts for previous expenditures shall have been settled; and the auditorgeneral shall have power in all cases in settling said accounts, and the accounts for the contingent and other expenses of the legislature and other departments of the government, to inquire into the correctness and fairness of the prices charged; and it shall be his duty to disallow any excess over fair cash prices; and he may require the seller and any one procuring supplies for said hospital, or departments, to make affidavits as to the prices actually paid or agreed to be paid for the same, and procure affidavits from those in the trade, as to the just and fair value thereof for his information and government. 14. It shall be the duty of all companies incorporated by or under any general or special law of this commonwealth for any manufacturing or mining purposes whatsoever, or for the improvement of mining lands, in the month of December and mining compa- of each year, severally to make a report to the auditor-general, verified by the. nual reports to the oath or affirmation of the president, secretary or treasurer of the respective companies, stating explicitly and accurately the whole amount of capital stock authorized to be held, the amount of capital paid in, the total indebtedness, the number of acres of land held and where situate, the amount of goods, wares or articles of whatsoever nature manufactured or prepared for market during the past year, or the amount of coal or other minerals or metals mined during the same period, as the case may be, the rate per cent of the dividends declared, and any other items which may be requisite to exhibit a just and true account of the operations of the company for the preceding year; which year, for the purposes of such statement, shall be deemed to have terminated on the thirtieth day of November, and the capital paid in and indebtedness of the company, shall be given as they stood on that day: Provided, That the reports made in compliance with the provisions of this section shall be in place of, and supersede any reports to the auditor-general or the legislature, heretofore required from such companies by law; and it shall be the duty of the auditor-general to prepare a condensed statement, in tabular form, of such reports, and submit the same to the legislature on or before the first of FebruPenalty for neglect ary in each year; any company which shall neglect or refuse to comply with the provisions of this section, shall be liable to a penalty of one hundred dollars for each month of such neglect or refusal, which penalty shall be sued for and recovered by the auditor-general for the use of the commonwealth, in the manner provided by law for the bringing of suits against defaulting public officers. Duty of auditorgeneral. to report. 15. The auditor-general is hereby authorized to settle the account of the superintendent of public printing annually, for the necessary contingent expenses of said office, and draw his warrant upon the state treasurer for the amount found due. 16. All moneys for the public printing and binding shall be paid by the state treasurer on warrants drawn by the auditor-general, who is hereby invested with the same control over the accounts for the public printing as he is possessed of in regard to the accounts of any other officer of the commonwealth. 25 April 1854. P. L. 721. To settle accounts of superintendent of public printing. 9 April 1856 § 17. P. L. 267. And all accounts for printing and binding. 1855 § 14. Duties in relation 17. It shall be the duty of the auditor-general, whenever he shall have reason 26 April to believe that any property shall be defeasibly held, and liable upon office found P. L. 332. to accrue to the treasury, or that the income of any corporation or association, as aforesaid, shall exceed the limit allowed by law, to call upon any and all officers to property defeasor trustees thereof, to make within thirty days a true return and exhibit of all ibly held. their property, and the annual income thereof; and if no return be made within such time, or the same be unsatisfactory to him, it shall be further his duty to To file bill of discause to be filed a bill of discovery in the supreme court, or in any court of the covery. proper county having equity jurisdiction, against the officers or trustees of any such corporation or association, which the defendants therein shall answer under the compulsion usual in such cases, and their answers shall be used in any proceeding to assert the rights of the commonwealth. 18. The auditor-general is hereby authorized and required to have printed, 9 April 1870 § 1. annually, fifteen hundred copies of the report on finances, fifteen hundred copies P. L. 62. of the report on railroads, canals and telegraph companies, (n) and two hundred To print annual and fifty copies of the report on state banks and savings institutions, including the reports. reports for the year 1869. AUDITORS. 1. Judges not to appoint their relatives. 2. Except on the nomination of parties. 3. Powers of auditors. P. L. 682. appoint their relatives. P. L. 843. 1. It shall not be lawful for the judges of the several courts of this common- 24 Jan. 1849 § 16. wealth, or any one of the said judges, to appoint as auditor, master of chancery, examiner, commissioner or appraiser, any person related or connected with said Judges not to judges, or any one or more of them, by ties of consanguinity or marriage.(0) 2. The provisions of the 16th section of the act of the 24th of January 1849, 29 March 1860 § 1. authorizing the commissioners of the incorporated districts of the Northern Liberties and Kensington to open a street to be called Delaware Avenue, and for other Except on the purposes, shall be so construed as not to apply to cases where the counsel inter- nomination of ested, or the parties, nominate the auditor, master in chancery, examiner, commissioner or appraiser: And provided, That the provisions of this act shall not In Allegheny apply to the county of Allegheny. 3. (n) See Const., art. XVII., § 11. (0) Power is given to the orphans' court to appoint auditors in the following cases: 1. Before the discharge of a guardian; act 29 March 1832, § 11; title "Decedents' Estates." 2. To settle and adjust, in solvent estates, the accounts of executors, administrators, guardians and trustees, when excepted to; act 29 March 1832, § 16; act 14 April 1835, § 1; act 13 April 1840, § 1; title "Decedents' Estates." Where such accounts have been confirmed, to report distribution; Ibid. 4. To settle and adjust, in insolvent estates, the rates and proportions, and to report distribution; act 29 March 1832, § 19; act 14 April 1885, § 1; act 13 April 1840, § 1; title "Decedents' Estates. 5. To report on the expediency of granting an order for the sale or mortgage of the real estate of a decedent; act 29 March 1832, § 34; act 14 April 1835, §1; act 23 April 1840, § 1; title "Decedents' Estates." 6. In proceedings in partition, to report as to the existence of liens or incumbrances affecting the interests of the parties; act 29 March 1832, § 49; title "Decedents' Estates." 7. Where a petition has been taken pro confesso, to take proof of the facts, and report thereon, and, if necessary, to report an account against the defendant; act 29 March 1832, § 57, art. 9-10; title "Orphans' Court." The supreme court, on appeals from the orphans' courts, may refer the matters to auditors; act 14 April 1835, §4; title "Orphans' Courts." The court of common pleas may appoint auditors. 1. To examine the accounts and dockets of the pro parties. county. thonotary, register, recorder and clerks of the several courts; act 21 April 1846, § 40; title "Taxes." 2. To investigate the affairs of a bank, in case of insolvency; act 16 April 1850, § 43; title “ Banks." 3. To report as to the payment or satisfaction of a judgment; act 14 April 1851, § 4; title "Judgments.' This last act refers to all the courts of Philadelphia county. 4. To report as to the distribution of the proceeds of a forfeited recognizance; act 30 July 1842, § 26. Title "Fines and Recognizances." It is also customary to refer to auditors the distribution of the proceeds of a sheriff's sale, and numerous other matters not specially provided for by any act of assembly. · As to the course of proceeding before auditors, and the practice with regard to their reports, see Mengas's Appeal, 19 P. S. 221. Logue's Appeal, 22 Ibid. 50. Loomis's Appeal, Ibid. 312. Quain's Appeal, Ibid. 510. Whiteside's Appeal, 23 Ibid. 114. Harding's Estate, 24 Ibid. 189. Bull's Appeal, Ibid. 286. Burroughs's Appeal, 26 Ibid. 264. McLellan's Appeal, Ibid. 463. Curcier's Estate, 28 Ibid. 261. Miller's Appeal, 30 Ibid. 478. Mellon's Appeal, 32 Ibid. 121. Landis v. Scott, Ibid. 495. White's Appeal, 36 Ibid. 134. Robinett's Appeal, Ibid. 174. Thompson's Appeal, 57 Ibid. 175. Edwards's Appeal, 66 Ibid. 89. Borland's Appeal, Ibid. 470. Malone's Appeal, 79 Ibid. 481. Kendig's Appeal, 82 Ibid. 68. Price's Appeal, 84 Ibid. 141. Bank of Titusville's Appeal, 85 Ibid. 528; s. c. 96 Ibid. 460. McGettrick's Appeal, 98 Ibid. 9. Schroeder's Appeal, 14 W. N. C. 537. 11 April 1848 § 4. 3. Any auditor or auditors appointed by any court of record within this comP. L. 507. monwealth, in the due performance of any of the duties committed to them by said Powers of auditors, courts, shall have power to issue subpoenas to witnesses to appear before them; and if any person who shall have been duly subpoenaed to attend as aforesaid, shall neglect or refuse to attend, the auditor, or a majority of them, when more than one, shall have power to issue an attachment against such person according to the practice of the courts, directed to the sheriff, or any constable of the proper county, for execution. auditors. 4 June 1879 § 1. 4. The compensation of auditors appointed by court to audit the accounts of P. L. 84. administrators, executors and trustees, and of commissioners appointed to make Compensation of distribution of the proceeds of sheriffs', assignees' and other judicial sales, shall not exceed ten dollars for each day necessarily engaged in a case, unless the court for special cause shown allow a higher rate of compensation, not exceeding fifteen dollars per day: Provided, That where the estate, or the proceeds of the sale or sales, do not exceed one thousand dollars, the rate of compensation shall not exceed five dollars per day.(p) AUTHENTICATION OF RECORDS. See APPENDIX; DECEDENTS' ESTATES. BABY FARMING. See INFANTS. BACKING WARRANTS. See CRIMINAL PROCEDURE. BAGGAGE SMASHING. See CRIMES. BAIL. See CRIMINAL PROCEDURE; MAGISTRATES' COURTS; QUARTER SESSIONS AND OYER AND TERMINER. (p) In the absence of any statutory regulation, auditors are entitled to a reasonable compensation for their services. Fitzsimmons's Appeal, 4 P. S. 248. Dietterich v. Heft, 5 Ibid. 90. Porter's Appeal, 30 Ibid. 498. The costs of an audit are generally to be paid by the losing party, whose action rendered it necessary, unless he show probable cause for the contest. Larimer's Appeal, 22 P. S. 41, 43. See Funk's Estate, 1 C. C. 430. Wiest v. Koons, 2 C. C. 317. negotiable. 1. Warehouse receipts given for any goods, wares, merchandise, grain, flour, 24 Sept. 1866 § 1. produce, petroleum or other commodities, stored or deposited with any warehouse- P. L. 1363. man, wharfinger or other person in this state, or bills of lading, or receipts for the Warehouse same, when in transit by cars or vessels to any such warehouseman, wharfinger or receipts and bills other person, shall be negotiable, and may be transferred by indorsement and of lading to be delivery of said receipt or bill of lading; (9) and any person to whom the said receipt or bill of lading may be so transferred, shall be deemed and taken to be How transferrible. the owner of the goods, wares and merchandise therein specified, so as to give Lien of holder. security and validity to any lien created on the same, subject to the payment of freight and charges thereon; (r) and no property on which such lien may have ceipt, &c. been created, shall be delivered by said warehouseman, wharfinger or other person, Property not to be except on the surrender and the cancellation of said original receipt or bill of lad- delivered except ing; or, in case of partial sale or release of the said merchandise, by the written on surrender of reassent of the holder of said receipt or bill of lading, indorsed thereon: Provided, That all warehouse receipts or bills of lading, which shall have the words, "not Exception. negotiable," plainly written or stamped on the face thereof, shall be exempt from the provisions of this act. Ibid. § 2. actually received. 2. No warehouseman, wharfinger or other person, shall issue any receipt or voucher for any goods, wares, merchandise, petroleum, grain, flour or other pro- No receipt to be duce or commodity, to any person or persons, purporting to be the owner or owners given, unless the thereof, unless such goods, wares, merchandise, petroleum, grain, flour or other goods have been produce or commodity, shall have been actually received into store, or upon the premises of such warehouseman, wharfinger or other person, and shall be in store, or on the premises aforesaid, and under his control, at the time of issuing such receipt. Ibid. § 3. 3. No warehouseman, wharfinger or other person, shall issue any second or duplicate receipt for any goods, wares, merchandise, petroleum, grain, flour or other Duplicate receipts produce or commodity, while any former receipt for any such goods, wares, mer- to be so indorsed. chandise, petroleum, grain, flour or other produce or commodity as aforesaid, or any part thereof, shall be outstanding and uncalled, without writing across the face of the same," duplicate." Ibid. § 4. Property not to be 4. No warehouseman, wharfinger or other person shall sell or incumber, ship, transfer, or in any manner remove beyond his immediate control, any goods, wares, merchandise, petroleum, grain, flour or other produce or commodity, for which a disposed of, withreceipt shall have been given by him as aforesaid, whether received for storage, out return of reshipping, grinding, manufacturing or other purposes, without the return of such ceipt. receipt. (s) Ibid. § 5. 5. Any warehouseman, wharfinger or other person, who shall violate any of the foregoing provisions of this act, shall be deemed guilty of fraud; and upon indictment and conviction, shall be fined in any sum not exceeding one thousand dol- penalty for violalars, or imprisoned in one of the state prisons of this state, not exceeding five (r) The receipt must be issued by the person in possession of the goods, in his own right; a mere serVant or agent cannot issue such receipt. People's Bank v. Gayley, 92 P. S. 518. People's Bank v. Troutman, 9 W. N. C. 54. See Brooks v. Bank, 16 W. N. C. 298; Bank v. Etting, 108 P. S. 258. (s) A bailee for storage cannot, by a sale to a third person, pass a good title as against the real owner. Mann v. English, 7 C. C. 637. In an action for the loss of the goods by fire, the statement must set forth tion. a bailment for hire and gross negligence, or a contract to insure. Heaton v. Knowles, 14 W. N. C. 74. See Steamship Co. v. Smart, 107 P. S. 492. In an action for damages to the goods by water, the defendant may show that the building was impervious to rain. Doyle v. Mays, 7 Atlan. 747. In an action for the loss of eggs under a contract for cold storage, the burden is on the plaintiff to show that the eggs were in a fit condition to be kept at the temperature of defendant's warehouse, and that they were injured by defendant's act alone. Boswell v. Collins, 8 Atlan. 845. A wharfinger is liable in damages for delay in unloading caused by his attempting to enforce an unreasonable rule that no steam-engines except his own should be put upon the wharf. Lincoln v. Warehousing Co., 8 C. C. 195. P. L. 1363. 24 Sept. 1866 § 5. years, or both; and all and every person or persons aggrieved by the violation of any of the provisions of this act, may have and maintain an action at law against the person or persons violating any of the foregoing provisions of this act, to recover all damages which he or they may have sustained by reason of any such violation as aforesaid, before any court of competent jurisdiction, whether such person shall have been convicted of fraud as aforesaid, under this act, or not.(t) Ibid. § 7. To extend to grain stored in elevators, and to petroleum. 13 June 1874 § 1. P. L. 255. 6. The provisions of the foregoing act shall apply to grain stored in grain elevators, and to petroleum in barrels, stored or kept in places designated by law; and the owners or lessees of any of said elevators or places designated as aforesaid, shall have the rights and powers, and be subject to the obligations and penalties as therein provided, in regard to warehousemen, wharfingers or other persons. (u) 7. Whenever any goods, wares or merchandise shall have been, or shall hereafter be attached, by writ of foreign or other attachment, in the hands, possession or custody of any warehouseman, wharfinger or other person, who shall have issued goods in the hands for the same, any warehouse receipt or voucher, or any bill of lading or other Attachments of of bailees regulated. Holder of receipt to be deemed garnishee. Dissolution of attachment. Ibid. § 2. Bailees not to be liable, when the property is taken process. receipt, when in transit by car or vessel, which warehouse receipt, voucher, bill of lading or other receipt, shall have been negotiated and transferred by indorsement or delivery, as provided in the act to which this is a supplement, the holder of any such warehouse receipt, voucher, bill of lading or other receipt, to whom the same shall have been transferred or delivered as aforesaid, although not named or summoned in, or served with such writ of attachment, shall nevertheless be deemed and taken to all intents to be a garnishee of the said goods, wares or merchandise attached in the said writ, as if the same were in his hands or possession; and the name of the holder of such warehouse receipt, voucher, bill of lading or other receipt shall, upon application to the court wherefrom such writ was issued, be added to the record of the action as a garnishee of the said goods, wares or merchandise; and thereupon the said court shall, upon the motion of the said garnishee, grant a rule upon the plaintiff in such attachment, to appear before the court at the time and place in such rule named, and there show cause why the attachment of such goods, wares or merchandise should not be dissolved, or the proceeds thereof, if the same shall have been sold by the order of the said court, paid to the holder of such warehouse receipt, voucher, bill of lading or other receipt, upon his giving security as such garnishee, by recognizance and sufficient sureties to be approved by the court, or by one of the judges thereof in vacation, with condition that so much of the said goods, wares or merchandise, or of the proceeds thereof, after the sale of the whole or any part thereof, as shall remain after the settlement or payment thereout, of the amount of any lien upon the said goods, wares or merchandise created by the advance of money or credit by the said holder of such warehouse receipt, voucher, bill of lading or other receipt, transferred or delivered as aforesaid, and also of all prior liens for storage, freight and other charges, shall be retained in the hands of the said garnishee, to answer, if the plaintiff shall have execution of any judgment of the effects of the defendant in the action attached as aforesaid, or to abide the further order of the said court. 8. Where goods, wares or merchandise shall be taken from the possession of any warehouseman, wharfinger, carrier or other bailee, by writ of attachment, replevin or other legal process, such warehouseman, wharfinger, carrier or other bailee shall not be liable therefor to the owner of such goods, wares or merchandise, or to the from them by legal holder of any receipt, voucher or bill of lading given for the same; saving and reversing, however, to such owner or holder, all legal remedies for the recovery of the said goods, wares or merchandise from any person unlawfully detaining the same, or for the recovery of damages against any person unlawfully taking the same. 9. Any carrier or other bailee of property, who has parted with its possession by mistake, to any person not entitled to the possession, may, after demand, maintain an action of replevin for the same, or if the property cannot be found, an action of erty delivered by assumpsit, or trover and conversion, against the party converting or removing it. In the case of replevin, if there was no fraud in obtaining such possession, the plaintiff shall first tender to the defendant the freight or other proper charges which have accrued, at the time of the demand of possession. 8 June 1881 § 1. P. L. 86. Actions for prop mistake. 10. Where any receipt given or issued by any warehouseman, warehousing company, storage or deposit company, or wharfinger, has become lost, mislaid or destroyed, it shall be lawful for the person claiming to be the owner of such receipt to present to the court of common pleas of the county wherein said warehouseman, warehousing company, storage or deposit company, or wharfinger, issuing such receipt shall have his, their or its principal office, or place of business, a petition verified by the oath or affirmation of the petitioner, setting forth all the material facts, including the date of the receipt as accurately as the same can be ascertained, a description of the goods, wares, merchandise, petroleum, grain, flour or other produce, commodity or property for which the receipt was given, and a statement of the value thereof, the name of the person or party to whom the receipt was given, the manner in which the petitioner obtained title to such receipt, the date (t) See Bucher v. Commonwealth, 103 P. S. 528. (u) The 6th section of this act was repealed, by act 28 March 1870, P. L. 41. |