8 June 1874 § 1. P. L. 280. 25 May 1887 § 1. P. L. 267. Appropriation of without limits for Attempt to agree. Ibid. Viewers. Appeal and jury trial. 15 June 1871 § 1. P. L. 391. same can by them be reasonably ascertained, and shall report the same to the said court, and their award shall be subject to appeal, further proceedings, and confirmation; and upon confirmation of the report and payment of the sums of money so awarded to the parties severally entitled thereto, who shall have executed conveyances to the United States of their respective interests in the lands so taken, or in case of the disability, neglect or refusal of any person or persons interested to make such conveyance, then, upon payment into court of the sums of money awarded such person or persons respectively, the title to the lands and estates or other interests therein, thus paid for, shall become vested in fee in the United States, of which the conveyances from the said parties, or an exemplification of the record of the said court in the premises, shall be the proper and sufficient evidence: Provided, That where the lands proposed to be taken by the United States as aforesaid are situate within any town or city having more than ten thousand inhabitants, the viewers contemplated by this act shall be residents of such town or city. 2. Any city or borough desiring to erect water-works, or to improve its water supply, may for such purpose appropriate streams known as rivers or creeks, lands, easements and rights of way, whether within its territorial limits or not, and for the purpose 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. 3. 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 cannot 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 appropriated, 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. 4. Upon petition of either the property owner or the city or borough, at any time thereafter, the said court shall appoint five 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. 5. In all cases of the appropriation of land for public use, other than for roads, streets or highways, it shall not be lawful to assess, apportion or charge the whole Damages not to be or any portion of the damage done to or value of the land so appropriated, to, ing owners, except among or against the other property adjoining or in the vicinity of the land so appropriated, nor the owners thereof.(w) assessed on adjoin in case of roads, &c. 13 June 1874 § 1. P. L. 283. Appeals allowed, in all cases of assessment of damages. Ibid. § 2. How appeals to be taken. Ibid. § 3. To include prior proceedings. 2 June 1891. P. L. 172. 6. In all cases of damages assessed against any municipal or other corporation, or individual or individuals, invested with the privilege of taking private prop erty for public use, for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, whether such assessment shall have been made by viewers, or otherwise than upon a trial in court, and an appeal is not provided for or regulated by existing laws, an appeal may be taken by either party to the court of common pleas of the proper county, within thirty days from the ascertainment of the damages, or the filing a report thereof in court, pursuant to any general or special act, and not afterwards.(x) 7. 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 appellant, or of his 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. 8. Any party entitled to an appeal under the eighth section of the sixteenth article of the constitution, or who would be entitled to an appeal in any future case, under this act, under the same circumstances, shall have the right to take an appeal from any assessment of damages, or re-assessment or ascertainment thereof as aforesaid, made or filed on or after the first day of January of the present year, and before the passage of this act; but such appeal shall be taken within thirty days after the passage of this act, and in conformity with the second section thereof. 9. When no appeal is taken in accordance with the provisions of the act of thirteenth June, one thousand eight hundred and seventy-four, and judgment (w) See Devine's Case, 9 Phila. 553. Root's Case, 77 P. S. 276. (x) See Towanda Bridge Co., 91 P. S. 216. East Walnut Street, 10 L. Bar 209. An appeal lies to the common pleas from an award of damages for the vacation of a street in Philadelphia. Hare v. Brice, 142 P. S. 608. A municipality may appeal from the award of a jury appointed to assess damages for open Under ing a street. Gardner v. Chester, 13 C. C. 4. 2 June 1891. P. L. 172. is entered in accordance with law, and the party to whom has been awarded damages declines and refuses to accept payment of said award or judgment, then it shall be lawful for such municipal or other corporation, individual or If no appeal be individuals, against whom such damages have been assessed, upon proper petition taken, damages to the court of common pleas of the proper county in which said award or judg- may be paid into ment is entered, after notice by rule or publication ordered by said court, to pay the amount of said award and cost into said court, and the court upon such payment, to order and direct the satisfaction of said award or judgment by the proper officer. court. ENLISTMENT. See CRIMES; NATIONAL GUARD. EQUITABLE PLAINTIFFS. 1. Equitable assignees may sue in their own names, in certain cases. Equitable plaintiffs may prosecute their actions, after the death of their assignors. 2. To be liable for costs. Proviso, where equitable plaintiffs are not named in the record. 3. Surety of constable paying judgment, to be substituted as equitable plaintiff. their own names, 1. In all cases of equitable transfer or assignment of judgments, bonds, special- 23 April 1829 § 1. ties and other contracts, where the assignor or assignors or original holder shall 10 Sm. 455. die(y) before suit brought, and no letters of administration shall be taken out Equitable assignupon the estate of said assignor or assignors, within three months after his, her ces may sue in or their decease, or where such assignor or alienor shall leave the state or cannot in certain cases. be found, it shall and may be lawful for the person or persons to whom such equitable assignment or transfer is or shall be made, to proceed by execution on said judgment, and to prosecute his, her or their actions at law, for the recovery of the money mentioned in such bonds, specialties or contracts, or so much as shall appear to be due at the time of such assignment or transfer, in his, her or their own name: Provided, That in all cases where such equitable assignor, assignors or Equitable plaintiffs alienor shall die after suit brought, it shall and may be lawful for the person or may prosecute persons to whose use such suit shall have been brought, to prosecute his, her the death of their or their suit as aforesaid to judgment, and to have execution thereon in like man- assignors. ner and with the same effect as if the assignor, assignors or alienor was or were still living. their actions, after Ibid. § 2. To be liable for costs. Ibid. § 3. 2. The equitable plaintiff or person for whose use or benefit, and at whose instance any action has been or may be prosecuted, whether named on the record or not, shall be liable to execution on judgment against the legal plaintiff or plaintiffs:(z) Provided, That where such equitable plaintiff or plaintiffs were not named on the record previous to judgment, his name shall be suggested on the record, supported by affidavit of his interest in the cause, before execution shall issue. (a) 3. In all cases where any constable has been or shall be entrusted with the execution of any process for the collection of money, and by neglect of duty has failed or shall fail to collect the same, by means whereof the bail or security for paying judgment, such constable shall be compelled to pay the amount of any judgment or judg- to be substituted ments; such payment shall vest in the person or persons paying as aforesaid the as equitable plainequitable interest in such judgment or judgments, and the amount due upon any such judgment or judgments, may be collected in the name of the plaintiff or plaintiffs, for the use of such person or persons. (y) This act is not retrospective in its operation. Hurst v. Fisher, 1 W. & S. 440. Prior to its passage, the death of a plaintiff, before suit brought, might be taken advantage of by a plea in abatement, or in bar; or if judgment had been inadvertently rendered, it might be reversed on a writ of error coram nobis; Hurst v. Fisher, 1 W. & S. 438; and such writ is properly sued in the name of the administrator. Devereux v. Roper, 1 Phila. 182. (z) This act does not relieve the legal plaintiff, by whom the suit was brought, from his liability for costs. Kinly v. Donnelly, 6 Phila. 120. (a) See Canby v. Ridgway, 1 Binn. 496. Steele v. Pheniz Insurance Co., 3 Ibid. 312. Commonwealth v. County Commissioners, 8 S. & R. 153. Gallagher Surety of constable tiff. Or v. Milligan, 3 P. & W. 177. Lyon v. Allison, 1 W. 162. Brewer v. Hayes, 2 Ibid. 12. Armstrong v. Lancaster, 5 Ibid. 68. Hoak v. Hoak, Ibid. 80. phans' Court v. Woodburn, 7 W. & S. 165. Utt v. Long, 6 Ibid. 174. Presbyterian Congregation v. Carlisle Bank, 5 P. S. 350. Tomb's Appeal, 9 Ibid. 66. Hamilton v. Brown, 18 Ibid. 87. Commonwealth v. Shuman's Administrators, Ibid. 346. Miller's Execu tors v. Lint, 36 Ibid. 447. Wistar v. Walker, 2 Bro. 171. Bowne v. Arbuncle, Pet. C. C. 233. Where a pending action is assigned, the assignee is liable for all the costs, from the commencement of the suit. Gambers v. Robinson, 1 Pears. 67. See Ritter v. Gundrum, 3 Am. L. J. 63. EQUITY. I. EQUITY JURISDICTION OF THE COURTS. 1. General equity powers of the courts. 2. Equity powers of the common pleas in Philadelphia. 3. Equity powers of the common pleas in Philadelphia extended to all cases of fraud, accident, mistake or account. 4. All the courts to have equity powers in account. Certificate of counsel to be annexed to bill. 5. Whether fraud be actual or constructive. 6. The common pleas, in Philadelphia, to have full chancery powers in cases in discovery. 7. Testimony of lost records may be perpetuated. 8. Equity jurisdiction extended throughout the state. Appeal. XI. PROCEEDINGS IN COURTS OF EQUITY. (1.) SERVICE OF PROCESS. 47. How chancery powers to be exercised. 48. No process issued in Philadelphia to be executed beyond the limits of the county. 49. How process on bill to perpetuate testimony, to be served, where the state is a party. 50. Service of process on non-resident mortgagees and judgment-creditors. 51. When and how process may be served on parties out of the jurisdiction of the court. Special return-day to be fixed. Service to be accompanied with copy of order and bill, &c. Proof of service, how made. 52. Service by publication, when defendants cannot be found. 53. No process of contempt to issue against parties so served. Plaintiffs not to be compelled to bring in such parties. 54. Service of process, in certain cases. 67. Appeals regulated in Philadelphia. Conditions of supersedeas. 68. In case of decree for payment of money, security to be given. 69. Provision where decree is for the assignment or delivery of securities, &c. 70. Where execution of a conveyance is decreed. 71. Or the sale or delivery of the possession of real estate. 72. On perfecting appeal, proceedings to be stayed. Court may proceed upon any other matter in the bill, not affected by the decree. Perishable property may be sold, notwithstanding appeal. 73. Appeals regulated in other courts. I. Equity jurisdiction of the courts. 1. The * several courts of common pleas, shall have the jurisdiction (b) and 16 June 1886 § 13. powers of a court of chancery, (c) so far as relates to: I. The perpetuation of testimony:(d) 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 appointment of trustees, and the settlement of their accounts :(e) V. The supervision and control of all corporations (g) other than those of a municipal character, (h) and unincorporated societies or associations, (i) and partnerships: VI. The care of trust-moneys and property, and other moneys and property made liable to the control of the said courts.(k) And in such other cases as the said courts have heretofore possessed such jurisdiction and powers, under the constitution and laws of this commonwealth.(1) P. L. 789. General equity powers of the courts. 2. The *** court of common pleas for the said city and county (of Philadel- Equity powers of phia), shall, besides the powers and jurisdiction aforesaid, have the power and the common pleas in Philadelphia jurisdiction of courts of chancery, so far as relates to :(m) county. I. The supervision and control of partnerships, (n) and corporations other than municipal corporations :(0) II. The care of trust-moneys and property, and other moneys and property made liable to the control of the said courts:(p) III. The discovery of facts(q) material(r) to a just determination of issues, (s) and other questions arising or depending in the said courts: (b) The jurisdiction hereby conferred is not an universal, nor even a general one. Gilder v. Merwin, 6 Wh. 540. Cassel v. Jones, 6 W. & S. 553. The equitable jurisdiction of the courts of Pennsylvania, by bill, is exclusively the creation of statute. Dohnert's Appeal, 64 P. S. 311. Bakewell v. Keller, 11 W. N. C. 300. Mylin v. Mylin, 10 L. Bar 129. (c) Whether a case may be brought in the chancery form, is only a question of form and not of jurisdiction, and the objection is waived, if not made in due season. Neel v. Neel, 1 T. & H. Pr. § 91. It must be taken advantage of by demurrer, and not by an objection to the jurisdiction of the court. Adams v. Beach, 1 Phila. 99. (d) See Me Williams v. Hopkins, 1 Wh. 278. v. Chambers, Ibid. 278. Blaine (e) To compel infant trustees to convey: see tit. "Trustees." The proceeding must be by bill and answer. Er parte Hussey, 2 Wh. 330. See Selfridge's Appeal, 9 W. & S. 56. (g) The equity powers conferred by this act are circumscribed within narrow limits as to individuals; but over corporations they are general and unlimited, and to be exercised in the ordinary mode of a court of chancery. Commonwealth v. Bank of Pennsylvania, 3 W. & S. 184. Baptist Congregation v. Scannel, 3 Gr. 48. See Bank v. Adams, 1 Pars. 546. Langolf v. Sieberlitch, 2 Ibid. 64. Sarver's Appeal, 32 Sm. 183. Stang's Appeal, 10 W. N. C. 40. The constitution of 1874 has not affected this jurisdiction. McGeorge v. Hancock Steel and Iron Co., 11 Phila. 602. (h) They have jurisdiction over municipal corporations, when abusing their privileges, and will, in a proper case, interfere by way of injunction. Hill v. Kensington, 1 Pars. 501. A school district is not within this exception. Wharton v. Cass Township, 42 P. S. 358. Under this act a court of equity will control and supervise the election of directors of a corporation where it has been shown, that by reason of fraud, violence or unlawful conduct, an honest election could not be held. Gowen's Appeal, 10 W. N. C. 85; Tunis v. Railway Co., 149 P. S. 70. Where, however, the question is, as to the validity of the election, no fraud being alleged, the proper remedy is by quo warranto nuder the act 14 June 1836, P. L. 621. Updegraff v. Crans, 47 P. S. 103. Jenkins v. Baxter, 34 W. N. C. 114. See tit. "Quo Warranto." (i) Equity takes jurisdiction over bequests or gifts to an unincorporated fire-engine, or hose company, as a charity. And they will restore a member unjustly expelled. Thomas v. Ellmaker, 1 Pars. 98. And see Foley v. Tovey, 54 P. S. 190. Bauer's Appeal, 5 W. N. C. 485. Morey v. Philadelphia Stock Exchange, 9 Ibid. 441. Where a claim against an unincorporated association necessarily involves the adjustment of complicated accounts, and one of the alleged debtors denies that he was a member of the association, the controversy is within the proper jurisdiction of a court of equity. Christy's Appeal, 92 P. S. 157. (k) See Lewis v. Lewis, 13 P. S. 79. Equity has jurisdiction to protect the trustees of an unincorporated religious society in the enjoyment of its property. Henry v. Deitrich, 84 P. S. 286. It will not decree the abrogation of a trust created by a married woman, for her separate use, without power of revocation. Twining's Appeal, 97 P. S. 36. (1) The constitution of 1874 provides, that the "several courts of common pleas, besides the power 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." Art. v. § 20. The fact that similar cases are remedied through common-law forms, is no bar to the equitable jurisdiction of the courts. Wesley Church v. Moore, 10 P. S. 273. Yard v. Patton, 13 Ibid. 282. It is not sufficient to oust the jurisdiction of a court of equity, that the complainant has a remedy at law, unless that remedy be complete and adequate. Bank of Kentucky v. Schuylkill Bank, 1 Pars. 191, 220. Bank v. Adams, Ibid. 541. Kirkpatrick v. MeDonald, 11 P. S. 393. Skilton v. Webster, Bright. 203. Weir v. Mundell, 3 Brewst. 594. (m) See supra, note (1). (n) The jurisdiction hereby conferred is ample to warrant the appointment of a receiver of partnership property, and the issuing of an injunction against one of the partners to prevent his interfering with it. Sloan v. Moore, 37 P. S. 217. Thus, where one partner, holding notes for the benefit of the firm, attempts to pledge them for his own private debts, the court will restrain him by injunction. Stockdale v. Ullery, 37 P. S. 486. And where a partnership is closed, and the parties disagree as to the disposition of the partnership property, especially where the contract makes no provision in regard to it, a receiver will be appointed. So, also, where a distribution is intended, and there is any breach of duty, or of the contract of partnership, by either party. Sloan v. Moore, 37 P. Ŝ. 218. (0) See supra 1, note (g). (p) See Lewis v. Lewis, 13 P. S. 79. A trustee may apply for advice and direction. Girard Trust, 2 Brewst. 462. (4) A bill of discovery does not lie against one who may be examined as a witness. Twells v. Costen, 1 Pars. 378. The proceeding to obtain discovery should be part of the principal action, and not a separate suit. Peebles v. Boggs, 1 Phila. 151. The party, if there be a cause pending, should be notified by rule, and not by subpœna. Ibid. But the practice is differ 16 June 1836 § 13. P. L. 789. 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 :(t) V. The prevention or restraint of the commission or continuance of acts contrary to law,(u) and prejudicial to the interests of the community, (v) or the rights of individuals (w) VI. The affording specific relief, (x) when a recovery in damages would be an inadequate remedy.(y) ent in Philadelphia, where it is held, that the proper practice is to proceed by subpoena. Tilden v. Frank lin, 1 T. & H. Pr. § 123. It is sufficient, if the bill be signed by the complainant's solicitor, and it need not be sworn to. McCanles v. Coolbaugh, 1 T. & H. Pr. § 122. A bill of discovery does not lie for matter of which the plaintiff has knowledge and means of proof, or of matter whereof he has the same means of information as the defendant -as from public records. Baker v. Biddle, 1 Bald. 394. But see Peebles v. Boggs, 1 Phila. 151. (r) It cannot be used to impeach the credibility of witnesses. Allen v. Kyle, 1 T. & H. Pr. § 124. And see Shaffer v. Kinkelin, 1 Phila. 465. (s) The allegation of the pendency of a civil action lays sufficient foundation for a bill of discovery. Peebles v. Boggs, 1 Phila. 151. An averment, however, that the discovery is sought in aid of some judicial proceeding, commenced or contemplated, is indispensable. Collom v. Francis, 1 Pars. 533. Peebles v. Boggs, 1 Phila. 151. It must appear distinctly why and for what purpose the discovery is sought. Waldron v. Bayard, 1 Phila. 484. It will not lie to compel a discovery of deeds and papers, unless material to the determination of an issue pending. Mange v. Guenat, 6 Wh. 141. Nor is it necessary to answer interrogatories that are either impertinent or irrelevant. Waldron v. Bayard, 1 Phila. 484. Benkert v. Benkert, 35 L. I. 16. Or which relate solely to the case of the defendant. Werne v. Berners, 1 Phila. 482. But a party is entitled to a discovery of all that is material to his case, without showing that it is necessary. Peebles v. Boggs, 1 Phila. 151. And where the court has jurisdiction for discovery, they may proceed to grant relief. Bank of the United States v. Biddle, 2 Pars. 31. The plaintiff, however, must establish his right to the subjectmatter of the suit, before he is entitled to discovery. Portuondo v. Faunce, 9 W. N. C. 539. The defendant may confess and avoid the allegations in the bill. Waldron v. Bayard, 1 Phila. 484. And he may, by his answer, deny the principal fact upon which the equity of the plaintiff's bill is founded, and decline making any discovery consequent upon the equity so denied. Whenever a plea will protect him from discovery, the answer will have the same effect. Perry v. Kinley, 1 Phila. 505. The defendant, however, must make discovery as to all matters tending to prove the plaintiff's case in the issue at law. Bains v. Goldey, 35 P. S. 51. An answer which contains facts not responsive to the allegations in the bill, is not evidence for the defendant, in a suit in equity, but the facts must be established by him, if material, by independent proof; it is otherwise, where the answer is responsive to the bill, for in such case, it is evidence for the defendant, and the plaintiff must overcome it by counter-evidence. Eberly v. Groff, 21 P. S. 251. If, however, the answer be produced in a court of law, the whole of it is evidence. Parkhurst v. Devine, 1 Phila. 486. (t) On the subject of interpleader, see tit. "Interpleader," and notes. See also McMunn v. Carothers, 4 Clark 354. 1 T. & H. Pr. § 494-8. Where there are several persons claiming rent in the hands of the assignee of a term, the controversy may be settled by a bill in equity. Adams v. Beach, 1 Phila. 99. But a bill of interpleader lies only where the party applying claims no interest in the subject-matter. Dohnert's Appeal, 64 P. S. 311. Where several independent and conflicting claims are made the basis of attachmentexecutions against a single garnishee, his remedy is by bill of interpleader. Wilbraham v. Horrocks, 8 W. N. C. 285. So also, where a joint deposit in bank is made, and each of the depositors claims the fund. Harrisburg Bank v. Hiester, 2 Pears. 255. But a bill of interpleader will not lie, where the holder of the fund may be discharged from liability by payment to one of the claimants. Philadelphia Savings Fund Society v. Clark, 11 W. N. C. 118. (u) The jurisdiction extends to the prevention of acts contrary to equity. Stockdale v. Ullery, 37 P. S. 486. An injunction may be issued to restrain a partner from exercising a control over partnership property, where the interests of a deceased partner require it, Holden's Administrators v. McMakin, 1 Pars. 284; to stay waste by a tenant for years, Jones v. Whitehead, 1 Pars. 304; Waln v. O'Connor, 1 Phila. 353; Denny v. Brunson, 29 P. S. 382; Raydure v. Smith, 19 Pitts. L. J. 121; to restrain a person from prosecuting his business in a certain place, contrary to his agreement not, to do so, Palmer v. Graham, 1 Pars. 476; Eckart v. Gerlach, 12 Phila. 530; to restrain a defendant from using the party-wall of another, before payment of a moiety of the cost, Sutcliff v. Isaacs, 1 Pars. 494; Cox v. Willetts, 2 Am. L. J. 327; or to restrain the erection of a building which encroaches on the line of a public street, Moyamensing v. Long, 1 Pars. 150. And see Commonwealth v. Bank of Pennsylvania, 3 W. & S. 184. Bevans v. Dingman's Choice Turnpike, 10 P. S. 176. Big Mountain Improvement Co.'s Appeal, 54 Ibid. 361. Times Publishing Co. v. Ladomus, 3 W. N. C. 557. Commonwealth v. Harris, 10 Ibid. 10. Commonwealth v. Reimer, 39 L. I. 108. But the court will not restrain an act which is prejudicial merely to the interests of the community, except at the instance of the attorneygeneral. Sparhawk v. Union Passenger Railway Co., 54 P. S. 401. Cox's Appeal, 11 W. N. C. 571. A mandatory injunction, as a general rule, will only be granted on final hearing. Mocanaqua Coal Co. v. Northern Central Railway Co., 4 Brewst. 158. Audenried v. Philadelphia and Reading Railroad Co., 68 P. S. 370. Loughlin v. Railroad Co., 11 W. N. C. 463. Scott v. McCleister, 12 Ibid. 236. Equity will not, generally, interfere by injunction, except where it would have original jurisdiction for the purpose of relief. Pittinger v. Kennedy, 3 Leg. Gaz. 277. (v) Equity will interfere by injunction to restrain the erection of a public nuisance. Commonwealth v. Rush, 14 P. S. 186. Moyamensing v. Long, 1 Pars. 143. Smith v. Cummings, 2 Ibid. 102. Attorney-General v. Sheffield Gas Consumers' Co., 19 Eng. L. & Eq. 639. And the complainant must have a clear legal right and an immediate and urgent danger of irreparable injury. Biddle v. Ash, 2 Ash. 221. Bunnell's Appeal, 69 P. S. 59. Where the plaintiff's title is doubtful, or the court is not satisfied that the case is one of nuisance, equity will not interfere. Мочаmensing v. Long, 1 Pars. 146. An individual may be enjoined from the use of a slaughter-house, in a city, contiguous to valuable dwellings. Smith v. Cummings, 2 Pars. 92. And a court of equity may not only restrain the erection of a nuisance, but direct its abatement, and give compensation in damages. Morris v. Remington, 1 Pars. 395. See Dilworth's Appeal, 91 P. S. 247, as to when the erection of a powder magazine will be enjoined. (w) Courts of equity will not usually exercise jurisdiction in cases of private nuisance, or disturbance of easements, where the right of the complainant is disputed, until he has established his claim at law. Rhea v. Forsyth, 37 P. S. 503. (x) To entitle a party to a decree for specific performance, the right must be mutual. Bodine v. Glading, 21 P. S. 50. And the complainant must be prompt in tendering performance on his part. Rogers v. Williams, 8 Phila. 123. Jones v. Jones, 11 Ibid. 559. The specific performance of a contract, in equity, is not of absolute right, in the party asking it, but of sound discretion in the court. Pennock v. Freeman, 1 W. 408. Hence, it requires a much less strength of case on the part of a defendant to resist a bill to perform a contract, than it does on the part of a plaintiff to maintain a bill to enforce a specific performance. |