Gambar halaman
PDF
ePub

the court in which the same is or shall be pending, to either appoint auditors and 18 Oct. 1840 Ş 18. proceed according to the practices and usages of the common law,(r) or direct a P. L. 7. jury to be impanelled to settle the accounts of the parties, and find the balance

Auditors to be apdue the plaintiff or defendant. And on the application of either of the parties, pointed. and interrogatories filed, it shall be lawful for the court to require the adverse party to disclose, on oath, his knowledge of such facts, as shall, in the opinion of Or juryo to settle said court, be necessary for a just and equitable adjustment of the controversy ; and on the party being so called on, and refusing to answer, on the requisition of Parties to answer the court, the fact stated by the adverse party, in his interrogatory, shall be taken as admitted; and the parties shall have power to compel the production of such Parties may be books, papers and documents, either in court or before the auditors, as may be nec- Luce books and essary for a just and equitable settlement of the controversy, according to the papers. provisions of the 1st section of the act of the 27 February 1798, entitled “ An act extending the powers of the supreme court and courts of common pleas.”(s)

in account.

cate to be filed.

P. L. 671.

II. In equity. 5. The supreme court, the several district courts and courts of common pleas 18 Oct. 1840 $ 19. within this commonwealth, shall have all the powers and jurisdiction of courts of P. L. 7. chancery in settling partnership accounts,(t) and such other accounts and claims, Courts to have as by the common law and usages of this commonwealth, have heretofore been set- equity jurisdiction tled by the action of account-render;(u) and it shall be in the power of the party desirous to commence such action, to proceed either by bill in chancery, or at Parties may procommon law, but no bill in chancery shall be entertained, unless the counsel filing ceed in equity or the same shall certify that, in his opinion, the case is of such a nature that no adequate remedy can be obtained at law, or that the remedy at law will be at- Solicitor's certifitended with great additional trouble, inconvenience or delay.(v)

6. The equity jurisdiction of the supreme court, within the city and county of 18 June 1840 $ 39. Philadelphia, and of the court of common pleas for said county, shall be extended to all cases arising in said city and county, over which courts of chancery entertain jurisdiction on the grounds of fraud, accident, mistake or account.(w)

7. In all cases in which any coal or iron-ore mines or minerals have been or 28 April 1950 $ 24. shall be held by two or more persons, as tenants in common, and coal, iron-ore or other mineral, has been or shall be taken from the same, by any one or more of Tenants in comsaid tenants respectively, it shall be lawful for any one of said tenants in common mon of mines may to apply by bill or petition in equity, to the court of common pleas of the county wawit account in

equity in which the lands lie, praying that an account may be decreed and taken of all coal, iron-ore or other mineral, taken by said tenants respectively; and the said court shall thereupon proceed upon such bill or petition, agreeably to the course of a court of chancery, and shall have full power and authority to make all orders, appointments and decrees, interlocutory and final, that may appertain to justice and equity in the premises, and may cause to be ascertained the quantity and value of the coal, iron-ore or other mineral, so taken respectively by the respective parties, and the sum that may be justly and equitably due, by and from, and to them respectively therefor, according to the respective proportions and interests to which they may be respectively entitled in the lands: Provided, That all the All the tenants in tenants in common shall be made parties to such bill or petition, and that if any

made parties. of them reside out of the county in which such lands lie, or out of this common

P. L. 573.

common to be

(r) The auditors are mere clerks to take and state v. Willing, 3 Binn. 317. Irvine v. Hanlin, 10 S. & R. the accounts between the parties. They have no 220. Guardian and ward. Shollenberger's Appeal, 21 power to decide any matter of dispute, either in point P. S. 340. Bowman v. Herr, 1 P. & W. 282. Trustee of fact or law. If the matters offered by either and cestui que trust. Bredin v. Duen, 2 W. 95. Denparty be disputed by the other, he may either demur, nison v. Goehring, 7 P. S. 175. McLean v. Wade, 53 or take issue before the auditors. If there be more Ibid. 146. Principal and factor. Shriver v. Nimick, points of dispute than one, there may be a demurrer 41 Ibid. 91. And generally, wherever one person has or an issue on each, which are to be certified by the received money as the agent of another. Bredin v. auditors to the court; and then the matter of law Kingland, 4 W. 420. Long v. Fitzimmons, 1 W. & S. will be decided by the court, and the issues of fact by 530. To support the action, a contract, express or a jury; after which, the account will be finally set- implied, must be shown. Peter v. Steel, 3 Y. 251. tled by the auditors according to the result of the Conklin v. Bush, 8 P. S. 516. And therefore, tenants trials. Abrams v. Hunt, 2 T. & H. Pr. $ 1701. Brad- in common cannot maintain a joint action of accountley v. Hughes, Ibid. § 1702. Crousillat v. McCall, render, against one liable to account to them, for the 5 Binn. 433. The court has no power to reform the proceeds of their land, upon an implied contract. auditors' report, unless an issue of fact or of law be McCreary v. Ross, 7 W. 484. demanded before them. Little v. Stanton, 32 P. S. (v) The certificate of counsel is essential to confer 299. They may, however, refer it back to the auditor jurisdiction of a bill for an account, under this act. to correct an error of calculation; but the auditor Everhart v. Everhart, 3 Luz. L. Reg. 59. But the himself has no power to grant the parties a rehearing. omission of it is not ground of demurrer. Everhart Stevart v. Bowen, 49 P. S. 245.

v. Everhart, Ibid. 55. It may be subsequently added, (8) See “Evidence," 1.

if omitted by inadvertence. Thomas v. Hall, 2 Pears. (t) See Bevan v. Cullen, 7 P. S. 283.

61. A bill for the settlement of a partnership account (u) Shriver v. Nimick, 41 P. S. 80. Persch v. does not require such certificate. Bachman v. EinQuiggle, 57 Ibid. 247. Account-render lies between horn, 5 W. N. C. 250. partners. Griffith v. Willing, 3 Binn. 317. Whelen v. (w) See Ferris v. Henderson, 12 P. S. 49. By subWatmough, 15 S. & R. 156. Tutton v. Addams, 45 sequent acts, the like jurisdiction is conferred on all P. S. 69. Between client and attorney. Bredin v: the courts of common pleas. Kingland, 4 W. 420. Tenants in common. Griffith

25 April 1850 S 24 wealth, the court may make such order for serving process or notice upon

P. L. 578. by publication or otherwise, as the said court shall deem fit and proper, and How process to be take the bill or petition pro confesso, and proceed to final decree, or proce served out of the attachment and sequestration, against such of them as shall fail to appear county.

upon, or shall neglect or refuse to stand to, obey and abide by the orders ar

crees of said court.(x) Ibid. $ 25.

8. Any party may appeal to the supreme court from any final decree ma Parties may appeal any court of common pleas under this act: Provided, That such appeal be to supreme court. within one year after the rendering of such final decree, and that the par

pealing, before taking his appeal, shall file and make affidavit that the sa not intended for delay, and shall give such security to prosecute his appea effect, as shall be required by the said court of common pleas or the su court.

(2) See Coleman v. Coleman, 19 P. S. 100, 112; s.c. 62 Ibid. 252.

Alden's Appeal, 93 Ibid. 182.

ACCUMULATION.

See REAL ESTATE.

ACKNOWLEDGMENTS.
See ATTORNEYS IN FACT; DEEDS AND MORTGAGES; EVIDENCE; REAL ESTATE.

ACTIONS PERSONAL.

See Bonds; ConvictS; PRACTICE.

I. OF THE COMMENCEMENT OF ACTIONS BY

SUMMONS. (1.) OF THE SUMMONS AND SERVICE. 1. Actions to be commenced by summons. Form of summons.

2. How summons to be executed.

3. How process served on non-residents, in trespass and nuisance.

4. Cause of action, how to be stated.

5. Service in actions in the nature of waste, by mortgagees.

6. Service of process on stage-companies and unincorporated joint-stock companies.

7. How process may be served on a person doing business in another county than the one in which he resides.

8-9. Service on non-resident defendants. 10. Service of process in another county. 11. How return to summons to be made.

38. To be paid in satisfaction of the judgment against defendant.

39. Deposit may be made after return of writ. Effect thereof. 40. Deposit to be deemed an appearance.

(4.) OF THE SPECIAL CAPIAS. 41. When capias may be issued after summons. Form of special capias.

42. Proceedings thereon.

43. Proceedings where bail becomes insolvent, or removes from the state.

44. Affidavit to be made and notice given to defend. ant.

(5.) OF THE INDORSEMENT OF BAIL AND RULE TO

SHOW CAUSE OF ACTION.
45. Amount of bail to be indorsed on writ.
46. Powers of courts on writs of capias.

ARREST.

(2.) OF THE TESTE AND RETURN OF WRITS. (6.) OF THE PRIVILEGE AND EXEMPTION FROM 12. Teste and return-day of writs. 13. When issued within ten days of term.

47. Freeholders to be privileged from arrest. Excep14. In Philadelphia and Allegheny counties.

tions. 15. Courts may provide for return of process.

48. In what cases freeholders may be arrested.

49. Penalty for arresting privileged freeholder. (3.) OF PROCEEDINGS IN DEFAULT OF APPEARANCE. 50. Officers to be fined for disregarding the direc

tions of the act. 16. When judgment may be taken for default of

51. Females exempted from arrest for debt. appearance.

52. Imprisonment for debt abolished. Exceptions. 17. In case summons be not served ten days before return-day.

(7.) OF THE WARRANT OF ARREST. (4.) OF THE SERVICE OF WRITS OF SCIRE FACIAS. 53. When warrant of arrest may issue.

54. Requisites of plaintiff's affidavit. 18. How scire facias to be served. Proceedings

55. Form of warrant. thereon.

56. How executed. (5.) OF AMICABLE ACTIONS.

(8.) OF THE PROCEEDINGS AFTER SERVICE OF THE 19. Duty of prothonotary. Judgment to be entered

WARRANT. on confession in writing. Fees. Satisfaction to be entered on request of plaintiff.

57. Hearing before the judge. Bond for defendant's 20. Actions may be entered by agreement. Effect appearance at adjourned meeting. thereof.

58. Judge may issue subpenas.

59. Commitment to be granted in certain cases. II. OF THE COMMENCEMENT OF ACTIONS BY

60. Unless defendant pay or secure the debt.

61. Or give bond not to remove or assign his propARREST.

erty. (1.) OF THE CAPIAS AD RESPONDENDUM.

62. Or to take the benefit of the insolvent laws.

63. Effect of commitment. How defendant may bo 21. When actions may be commenced by capias. discharged. Form of capias.

22. When capias may issue against unknown de- (9.) OF THE PROCEEDINGS SUBSEQUENT TO THE fendant. To be executed at plaintiff's risk.

COMMITMENT. 23. Duty of officer.

64. Defendant committed, may petition for leave

to make assignment. (2.) OF THE BAIL-BOND AND BAIL-PIECE.

65. What such petition must set forth. Proceed24. Sheriff to let defendant to bail.

ings thereon. 25. Form and condition of bail-bond.

66. Proceedings on the hearing of such petition. 26. Bail-piece and form thereof.

67. Powers of trustees. 27. Of the return of the capias.

68. Defendant not to dispose of his property, except 28. Sheriff to give notice of the names, &c., of for support of his family. bail, to plaintiff.

69. What may be recovered on forfeited bond. 29. Exception to bail. Bail may justify, or new bail be substituted.

(10.) OF THE COSTS AND OF WITNESSES. 30. Courts to make rules in regard to bail.

Fees 31. Sheriff's liability for bail.

70. Liabilities of parties for fees and costs. of witnesses.

71. No person to be excused from answering bill of (3.) OF THE ARREST AND DEPOSIT IN LIEU OF BAIL.

discovery, or testifying as a witness. 32. Return, when defendant remains in custody. 33. Sheriff's liability to produce the body of de

III. OF THE COMMENCEMENT OF ACTIONS fendant.

BY ATTACHMENT. 34. Service of capias on prisoner. Effect thereof.

(1.) OF THE WRIT OF ATTACHMENT. 35. Defendant committed, may enter special bail. 36. Deposit may be made in lieu of bail.

72. In what cases, suits may be commenced by 37. Deposit to be paid into court.

attachment. Oath. Bond.

73. Actions for personal torts may be commenced by attachment in certain cases.

74. Restricted to Philadelphia.

(3.) OF THE SUBSEQUENT PROCEEDINGS.
78. Proceedings on return of attachment. Where
there is no personal service.

79. Priority of attachments.
80. Counsel fees on discontinuance.
81. Garnishee to be deemed a party.

(2.) OF THE SERVICE AND RETURN. 75. Service and return of attachment. 76. Seizure under attachment.

Defendant may give bond.

77. Sheriff may have an interpleader, on claim of property in a third person.

(4.) OF THE DISSOLUTION OF THE ATTACHMENT. 82. Dissolution of attachments. Exemption.

P. L. 572.

Actions to be

summons.

on the

I. Of the commencement of actions by summons.

(1.) of the summons and service. 13 June 1836 $ 1. 1. Personal actions, except in cases where other process shall be especially pro

vided, shall be commenced by a writ of summons, which shall be in the following

form, to wit : coinmenced by

[L. S.] The Commonwealth of Pennsylvania : county : ss. To the sheriff of Form of summons, said county, greeting: We command you, that you summon

so that he be and appear before our court of

to be holden at

in and for said county, day of next, there to answer

of a plea (setting forth briefly the cause of action(y) or complaint] and have you then and there this writ; Witness , president (or as the case may be] judge of our said court, the day of

Prothonotary. Ibid. & 2. 2. A writ of summons shall be executed(z) by reading the same in the hearing

of the defendant; or by giving him notice of its contents, and by giving him a true and attested copy thereof; or, if the defendant cannot conveniently be found, by leaving such copy at his dwelling-house, in the presence of one or more of the adult members of his family; or if the defendant resides in the family of another,

with one of the adult members of the family in which he resides. Ibid. $ 37. 3. In cases where a trespass or nuisance has been or may be committed on real

estate, by non-residents of the county wherein such real estate is situated, it shall

be lawful for the sheriff to go beyond his bailiwick, into an adjoining county,(a) residents, in tres- for the purpose of serving any process which may be issued out of the court of the pass and nuisance.

proper county, in suits instituted for the recovery of damages,(6) or abatement of the nuisance; and such service shall be as good and valid as if the same had been

made by the sheriff within his bailiwick. 4 April 1537 $ 3. 4. In all writs of summons issued by virtue of the act relating to the commence

ment of actions, passed the 13th June 1836, the blank left for the cause of action, Cause of action,

in the form prescribed in the 1st section of that act, shall be filed as directed for how to be stated. the corresponding part of writs of capias ad respondendum, in the 3d section of the 14 April 1851 $ 1. said act.

5. The remedy provided by the 37th section of the act passed the 13th day of Service in actions June 1836, entitled “ An act relating to the commencement of actions,” be and

the same is hereby extended to actions by mortgages for injuries in the nature of waste, by mort

waste, that have been or may hereafter be committed to the mortgaged premises ;

How summons to be executed.

How process served on non

P. L. 378.

P. L. 612.

in the nature of

gagees.

(y) This blank to be filled as in capias; see County of Lehigh, 6 Wh. 66. So, a return of “served infra 4.

on defendant by reading and copy,” is good. Wilson (z) This section prescribes four modes of serving v. Hayes, 18 P. S. 354. And a return of service on a writ of summons. 1. By reading the writ in the the defendant, “ by leaving a copy at his boarding, hearing of the defendant. 2. By giving the defend- house, in the presence of one of the adult members of ant notice of the contents of the writ, and by giv- the family, and by leaving a copy at the store of the ing him a true and attested copy of the writ. 3. By defendant, in the presence of his clerk, and by leavleaving a true and attested copy at the defendant's ing a copy at the dwelling-house of the defendant's dwelling-house, in the presence of one of the adult father, in the presence of adult members of the fammembers of his family. 4. If the defendant reside ily," was held sufficient, although it appeared that in the family of another, by leaving a true and the defendant, a few days before the service of the attested copy at the house in which he resides, with summons, had left the county, and gone on a tempoone of the adult members of the family in which he rary visit to Europe. Farnum v. Walton, 1 T. & H. resides. Weaver v. Springer, 2 M. 42. And the Pr. § 248. And see Bujac v. Morgan, 3 Y. 258. A sheriff must state in his return, not only the time, defective service will be set aside by the court, on but the mode of service. Ibid. Therefore, a return motion, leaving the writ to stand. Winrow v. Rayof “summoned by leaving a copy at place of resi- mond, 4 P. S. 501. See Austin v. Brown, 1 T. & H. dence," is insufficient. Ibid. And it must appear that Pr. $ 210. An appearance, after an ineffectual motion the copy served was attested” by the officer. Bank to quash, will cure a defective service. Smith v. v. Perdriaux, Bright. 67. And that the copy was left Hewson, 1 Am. L. R. 441. with an adult member of the family in which the (a) The power of the sheriff, under this act, to defendant resided. Hiester v. Muhlenburg, 1 Leg. serve process out of his bailiwick, is limited to the Chron. 61. So, a service" by leaving a true and adjoining county. Gaynor v. Wilde, 38. P. S. 300. attested copy at the counting-room of defendant, (b) In such action, the defendant will be answerwith his agent or clerk," was set aside, on motion. able, not only for the injury to the real estate, but Winrow v. Raymond, 4 P. S. 501. But if the officer also for injury done to personal property in the same read the writ, in the hearing of the defendant, it is trespass. Gutfey v. Free, 19 P. S. 384. sufficient, without leaving a copy. Kleckner V.

P. L. 612.

P. L. 574.

county.

P. L. 219.

and the sheriff of the proper county or his deputy, shall be authorized to serve the 14 April 1851 $ 1. process in any other, although such other shall not be adjoining to the county wherein such real estate is situated. 6. The provisions of the 3d section of the act of assembly approved the 21st 15 April 1851 $ 24.

. day of March 1849, (c) entitled - An act to facilitate the collection of debts against corporations,” shall be and the same are hereby extended to stage-com- On stage compapanies, and all joint-stock companies, not incorporated, when the members of said nies and unincorcompanies do not reside within this commonwealth: Provided, That service upon companies. an agent shall be upon the principal agent having charge of the business of said company in the county where any office may be located.

7. Where any person or persons being residents of this commonwealth shall en- 4 May 1852 8 1. gage in business(d) in any other county than the one in which he, she or they shall reside, and not being in the county at the time of the issuing of such writ or On persons doing process, it shall be lawful for the officer charged with the service thereof to serve business in another any writ of summons, or any other mesne process, upon the agent or clerk of any such defendant, at the usual place of business or residence of such agent or clerk, and to have the same effect as if served upon the principal personally.(e)

8. Where any person or persons, not being residents of this commonwealth, shall 2 April 1856 $ 1. engage in business in any county within this commonwealth, and not being in the county at the time of the issuing of any writ or process against such person or Service of process persons, it shall be lawful for the officer charged with the service thereof, to serve on non-residents. any writ of summons, or any other mesne process, in like manner as summons are served, upon the agent or clerk of such defendant or defendants, at the usual place of business or residence of such agent or clerk, with the same effect as if served upon the principal or principals personally: Provided, That before final judgment Actual notice to be is entered in any case under this act, actual notice in writing shall be given to the given. party defendant, of such action and the nature thereof; proof of which notice shall be made by the production of a copy of such notice, and the oath or affirmation of the plaintiff or other person, to the service thereof, to the magistrate or court before which such action may be pending:(9)

9. When any person or persons not being residents of this commonwealth, (h) 21 April 1838 $ 1. shall engage in business in any county of this commonwealth, it shall and may be lawful for the officer charged with the execution of any writ or process issued out Service of process

On non-residents. of any of the courts of this commonwealth, to serve the same upon any clerk or agent of such person or persons, at the usual place of business or residence of such agent or clerk, with like effect as though such writ or process was served personally upon the principal.

10. That the words, “ into an adjoining county," in the 37th section of the act 4 March 1962 $ 1. of the 13th June, Anno Domini 1836, entitled " An act relating to the commencement of actions,” be and the same are hereby repealed; and the remedy provided Service of process by the said section, be and the same is hereby extended, so as to authorize the in another county. sheriff of the proper county, or his deputy, to serve the process in any other county, although such other county may not be adjoining to the county in which the lands lie: Provided, however, That the said recited section of the act of 13 June 1836, shall not be construed to extend to any other than local actions.

11. The sheriff or other officer serving any writ of summons, shall in all cases 18 June 1936 $ 38. state in his return the time and manner in which the service thereof was made.(i)

P. L. 103.

P. L. 79.

L. 579.

(c) This section provides, that "process may be of pig-metal or iron, or in mining, in that county; served upon any officer, agent or engineer of such makes it the duty of such clerk or agent to notify his corporations, either personally or by copy, or by leav- principal thereof, within thirty days thereafter, under ing a certified copy at the office, depot or usual place a penalty of three times the amount of damages susof business of said corporation.” See P. L. 216; and tained by reason of his neglect; and provides for the title, “Corporations."

opening of the judgment obtained, upon an aftidavit (d) This means engaged in merchandising, manu- of merits and want of notice. These provisions were facturing, or the pursuit of the mechanic arts; it does extended to the service of process on railroad and not include one who merely offers for sale, through an canal companies, doing business in the said county, agent, town-lots situate in the county in which the suit by act 17 April 1861, P. L. 329; to the counties of is brought. Van Kirk v. Wetherill, 1 Leg. Gaz. 131. Armstrong, Indiana, Somerset, Bedford, Clinton and

(e) It seems, that under this act, the sheriff should Cambria, by act 22 March 1850, P. L. 257; to Lawset forth in his return, that the defendant is not a resi- rence county, by act 25 March 1850, P. L. 279; and to dent of, but is engaged in business in, his bailiwick. Clarion county, by act 10 May 1850, P. L. 1018. The Van Kirk v. Wetherill, 1 Leg. Gaz. 131. And see Gil- act 6 May 1814, § 7, provides, that it shall be lawful baugh v. Keller, 3 W. N. C. 78. Veitch v. Peterson, 2 to serve any summons, rule or notice, issuing out of Leg. Chron. 269. Tyack v. Groves, 1 Wood. 99. Ser- any of the courts of the counties of Erie or Warren, vice upon an agent can only be made at his usual place upon any person or persons found, at any time, in of business or residence. Lehigh Valley Ins. Co. v. said counties, being a sident or citizen of the state Fuller, 81 P. S. 398. Culligan v. Russell, 2 W. N. C. of New York. P. L. 565. 410. A return of service under this act must show (h) To authorize a service upon an agent, under that the defendant was not present in the county when this act, the defendant must be a permanent nonthe writ was issued, and that the service was made resident. Lanahan v. Collins, 6 W. N. C. 253. And upon his agent at the agent's residence or place of see Wheelan v. Stedman, 7 Ibid. 17. business. Taylor v. Brown, 13 C. C. 655.

(i) The sheriff may amend his return of " seryed” (9) See act 21 April 1858, infra 9; and act 10 April by altering it to“ nihil habet." Anspach v. Carr, 1 T. 1849, P. L. 600, relative to the service of process in & H. Pr. $ 261. But every amendment must be on attiMercer county. This act provides, that process may davit. Lowry v. Coulter, 9 P. S. 353. Scott v. Seiler, be served upon any clerk, agent or manager of any 5 W. 235. And if judgment have been entered by individual or company, engaged in the manufacture default, on a false return of “ served," the court,

« SebelumnyaLanjutkan »