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3. The equity jurisdiction *** of the court of common pleas for said county 13 June 1840 § 39. (of Philadelphia) shall be extended to all cases arising in said city and county, P. L. 671. over which courts of chancery entertain jurisdiction on the grounds of fraud,(z) Fraud, accident, accident, mistake or account.(a)

mistake and account.

4. The *** several *** courts of common pleas, within this commonwealth, 13 Oct. 1840 § 19. shall have all the powers and jurisdiction of courts of chancery in settling partner- P. L. 7. ship accounts, (b) and such other accounts and claims as, by the common law and All the courts to usages of this commonwealth, have heretofore been settled by the action of account- have equity render; (c) and it shall be in the power of the party desirous to commence such powers in account. action, to proceed either by bill in chancery or at common law. But no bill in chancery shall be entertained, unless the counsel filing the same shall certify that, sel to be annexed in his opinion, the case is of such a nature that no adequate remedy can be obtained to bill. at law, or that the remedy at law will be attended with great additional trouble, inconvenience or delay. (d)

Certificate of coun

5. Section 39 of the act entitled "An act regulating election districts, and for 16 April 1845 § 3. other purposes," shall be construed to give jurisdiction to the court of common P. L. 542. pleas for the county of Philadelphia, * * in all cases where chancery entertains Whether fraud be jurisdiction under either of the heads of fraud, accident, mistake and account, actual or construcwhether such fraud (accident, mistake or account) be actual or constructive.

tive.

P. L. 449.

6. The court of common pleas in the city and county of Philadelphia shall 10 April 1848 § 4. have the same jurisdiction and power in all suits now pending or hereafter to be brought, for the discovery of facts, that are now possessed by courts of chancery.(e) Discovery. 7. All the powers and authorities conferred upon *** the several courts of 25 April 1850 § 26. common pleas, by the 13th section of the act relative to the jurisdiction and P. L. 573. powers of the courts, passed the 16th day of June 1836, relating to the "per- Testimony of lost petuation of testimony," shall be and the same is hereby extended and made records may be applicable to the perpetuation of testimony in cases of lost or destroyed records perpetuated. of any of the courts of record in this commonwealth, whether such records were lost or destroyed before or after the passing of this act; and the same proceedings, orders, decree 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.(g)

P. L. 39.

8. The courts of common pleas of the several counties of this commonwealth, 14 Feb. 1857 § 1. in addition to the powers and jurisdictions heretofore possessed and exercised, shall have the same chancery powers and jurisdictions which are now by law vested in Equity jurisdiction the court of common pleas of the city and county of Philadelphia. And in all cases extended throughan appeal may be taken to the supreme court from the final decrees of the said out the state. Appeals. courts respectively, in suits and proceedings in equity, in the same manner and on the same terms and conditions as are provided in cases of appeal from the decrees of the court of common pleas of the city and county of Philadelphia.

II. Supreme court.

9. The jurisdiction of the supreme court shall extend over the state, and the Const. art. v. § 3. judges thereof *** shall have original jurisdiction in cases of injunction, where Injunction bills. a corporation is a party defendant; but shall not exercise any other original

jurisdiction.(h)

P. L. 292.

10. The said court, when in session in any district, shall exercise original juris- 8 April 1852 § 1. diction in the cases enumerated, * throughout the state; and if not decided before the close of its session in said district, shall cause the same, with all pro- Hearing. ceedings thereon, to be certified to and filed for action, with the prothonotary of the supreme court, in the district within which said court shall be next in session, and so to be certified from district to district until finally decided upon.

Dalzell v. Crawford, 1 Pars. 37. Farley v. Stokes, Ibid. 429. The contract admitted by the answer, must not essentially vary from that set forth in the bill; unless they correspond, specific performance will not be decreed. Parrish v. Koons, 1 Pars. 97. See also Insurance Co. v. Union Canal Co., Bright. 48. Wetherell v. Mecke, Ibid. 135. McFarson's Appeal, 11 P. S. 503. Tiernan v. Roland, 15 Ibid. 429. Hammer v. McEldowney, 46 Ibid. 334. Pyrke v. Waddingham, 10 Hare 1.

(y) Though a court of equity will not, in general, decree specific performance of contracts in regard to personal property, this rule is limited to cases where compensation in damages furnishes a complete and satisfactory remedy. Palmer v. Graham, 1 Pars. 476. McGowin v. Remington, 12 P. S. 56. Beasley v. Allyn, 12 W. N. C. 91.

(z) See Ferris v. Henderson, 12 P. S. 49. Schet

tiger v. Hopple, 3 Gr. 54. Bartle v. Vosbury, Ibid. 277. Equity has plenary jurisdiction in cases of fraud, though there may be a remedy at law. Ressler v. Witmer, 1 Pears. 174. Gandolfo v. Hood, Ibid. 269, (a) See Dick's Appeal, 106 P. S. 589.

(b) A bill may be entertained, between partners, for an account, though no dissolution be prayed. Hudson v. Barrett, 1 Pars. 418. Van Tagen v. Roberts, 2 Pears. 137.

(c) See Shriver v. Nimick, 41 P. S. 91. Persch v. Quiggle, 57 Ibid. 247. And ante page 57, note u. (d) See ante page 57, note r.

(e) See ante page 775, notes p, q and r,

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(g) See act 1 April 1863, as to lost records of the orphans' court; tit. 'Orphans' Court." And act 30 April 1850, as to lost dockets of justices; tit. "Justices of the Peace."

(h) See ante page 38, note p.

16 June 1836 § 9. P. L. 763.

III. Discovery in aid of an execution.

11. It shall be lawful for the plaintiff, in any judgment for the recovery of money obtained in any court of this commonwealth, to have a bill for the disa bill of discovery. Covery of the real (i) and personal(k) estate of the defendant in such judgment.

Plaintiff may have

Ibid. § 10. Parties to such bill.

Where the same to be filed.

Ibid. § 11.

Contents to such bill.

Ibid. § 12.

Oath to be made by complainant.

Ibid. § 13. Of the interrogatories.

Ibid. § 14. Scire facias to be awarded.

Ibid. § 15. Copy of bill and

interrogatories to be served.

Ibid. § 16.

When clause of capias may be inserted.

Ibid. § 17.

Effect of service of scire facias.

12. Such bill may be filed against the defendant in the judgment, and against any person having possession of such real or personal estate, or who may owe, or be accountable for the same, or may have knowledge of the same; and shall be filed in the court of common pleas of the county in which such judgment may be, or if the person of whom discovery may be sought, shall reside out of such county, such bill may be filed in the court of common pleas of the county where such person shall reside.

13. Every such bill shall set forth:

I. The recovery of a judgment, as aforesaid, and the amount actually due thereon.

II. That there is reason to believe that the defendant in such judgment has real or personal estate, wherewith the same may be satisfied.

III. That such real estate has been conveyed, transferred or incumbered, or that such personal estate has been removed, transferred or concealed; or that by reason of concealment or fraudulent transfer, or incumbrance thereof, the complainant is prevented from having execution of his judgment.

IV. If such bill shall be filed against any person other than the defendant in such judgment, it shall set forth also that such person has possession or knowledge of such real or personal estate, or that he can make discovery of such facts as will enable the plaintiff to have satisfaction of his judgment.

14. But no such bill shall be filed, unless the complainant therein shall make oath or affirmation, to be filed therewith, that he verily believes the facts set forth therein to be true. (1)

15. The complainant in such bill may also, either in the said bill, or by interrogatories to be filed therewith, propound to the defendants therein named, such questions touching the subject-matter thereof, as may be necessary or proper for the purposes thereof, and as may be according to the rules and practices of the courts of equity.

16. Upon the filing of such bill, it shall be lawful for the court, or any judge thereof in vacation, to award a writ of scire facias to the sheriff, requiring him to make known to the defendants therein named, that they be and appear, at a certain time to be appointed by the said court, to answer the said bill, and all such interrogatories as shall be propounded to them, or show cause why they should not, and abide the judgment of the court in the premises.(m)

17. But no defendant shall be compelled to answer such bill or interrogatories, at the time so appointed, unless a copy of such bill and interrogatories shall have been served (n) upon him, at least ten days previously thereto.(0)

18. It shall be lawful for the court or judge, at the time of answering (awarding) such writ of scire facias, to order that a clause of capias be inserted in such writ, against the defendants, or any one or more of them, under the rules and regulations provided on (in) the case of a garnishee in a foreign attachment.

19. From the time of the service of any scire facias as aforesaid, upon any person other than the defendant in the judgment, the personal property of the defendant in the hands of such person, shall be bound thereby,(p) and shall be liable to

(i) Discovery of a defendant's real estate may be compelled without a previous execution. Rose v. Lloyd, 1 Clark 333. Page v. Heath, 56 P. S. 215, 223. Such a bill will be sustained, where the knowledge of the real estate is contained in the mind alone of the defendant; but where his title is spread upon the public records, the court will not compel him to exhibit the same in his answer. Rose v. Lloyd, 1 Clark 333. Baker v. Biddle, 1 Bald. 394. Such bill must comply with all the provisions of the act, and show a failure of the remedy at law. Commonwealth v. Baker, 14 W. N. C. 70.

(k) It is not the practice to compel a discovery of the defendant's personal property, in aid of an execution at law, until a fi. fa. has been issued and returned nulla bona. Siter v. Waldron, 1 T. & H. Pr. § 120. Page v. Heath, 56 P. S. 223. A plaintiff is entitled to the bill, although he has made a levy on goods alleged to belong to the defendant, if the sheriff has been prevented from proceeding, by an allegation that the property has been transferred to another. Large v. Bristol Transportation Co., 2 Ash. 394; and it lies as well to discover money and choses in action of the defendant, as real and personal property. Bevans v. Dingman's Choice Turnpike, 10 P. S. 174. It may be filed against an insolvent corporation. Large v. Bristol Transportation Co., 2 Ash. 394. only by a sequestrator. Bevans v. Dingman's Choice

But

Turnpike, 10 P. S. 174. Wesley Church v. Moore,
Ibid. 281.

(1) An affidavit that the facts set forth in the bill are true, to the best of the complainant's knowledge, is a sufficient compliance with the statute. Mills v. Dillon, 2 W. N. C. 198.

(m) The proceedings on the scire facias are substantially the same as in foreign attachment, and, therefore, where the defendant and garnishee have waived their privilege of trial by jury, by omitting to plead to the sci. fa., and have submitted their case upon answers to the interrogatories, the court may render a joint judgment against them for the amount of the plaintiff's debt. Shaffer v. Watkins, 7 W. & S.

219.

(n) Leaving a copy of the bill and interrogatories at the defendant's dwelling-house, in the presence of one or more of the adult members of his family, is a sufficient service. Gouldey v. Gillespie, 2 Clark 311.

(0) The defendant is bound to answer the bill, although ten days did not intervene between the service and return of the sci. fa.; but not until after ten days from the service of a copy of the bill and interrogatories. Large v. Bristol Transportation Co.,

2 Ash. 394.

(p) It binds the person of the garnishee, but is not a lien on the goods, in preference to a subsequent fi. fa. Bennett's Appeal, 22 P. S. 476.

P. L. 763.

be taken in execution, at the instance of the plaintiff in such judgment, in like 16 June 1836 § 17. manner as goods or effects in the hands of the garnishee in a foreign attachment; and if such person shall transfer such personal property to any other person, after such service, he shall be liable to pay the value thereof to the complainant, out of his own proper goods and chattels.

Ibid. § 18.

20. The costs of all proceedings as aforesaid, shall be within the discretion of the court in which said bill shall be filed, who shall have power to direct payment of the costs. of the same, by either of the parties to such bill, according to the rules of equity and justice.

21. The oath required by the 12th section of the said act may be made by the agent, attorney or any disinterested person on behalf of the complainant in any bill of discovery.

IV. Dower and partition.

24 April 1844 § 2. P. L. 512. By whom oath may be made.

7 July 1885 § 1. P. L. 257. Jurisdiction of dower and partition.

22. The several courts of common pleas of this commonwealth shall each have all the power and jurisdiction of a court of equity, in all cases of dower(q) and parti- common pleas in tion, within their respective counties.(r)

Ibid. § 2.

Cause in partition be referred to

may

a master.

23. 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 commissioner,(s) to decide and partition the lands and tenements into purparts, 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. (1) And the said master, His duties. 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 and 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.

Ibid. § 3.

24. It shall be the duty of the court, upon the report(u) of the said master or master and commissioners 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 Duty of court upon filing report. 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(v) to the purparts in the parties to whom the same shall be allotted.

25. 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 respectively and in severalty, to whom such purparts shall have been or shall be allotted.

Ibid. § 4.

Effect of decree.

Ibid. § 5.

26. Whenever a bill shall hereafter be filed in any court having equitable jurisdiction in cases of partition, and the master or the master and commissioners, to When partition whom the proceedings have been or may be referred, have reported or shall here- cannot be made, after report that the lands or tenements cannot be divided without prejudice to or sale to be ordered. spoiling the whole, and the parties have refused or shall hereafter refuse to take the same at the valuation, then it shall be the duty of the said court to order the

master to make sale thereof at public auction, giving the like notice that is required Notice of sale. in sales under proceedings in partition in the common-law courts.

(q) This act is a re-enactment of the acts 17 March 1845, P. L. 160, and 22 April 1863, P. L. 519, which related only to Philadelphia county, and extends those acts to all the counties of the state. In a bill for dower, it is improper to join the executor as a party with the heir. Drum v. Wartman, 6 Phila. 45. The court has jurisdiction to decree an annual sum in lieu of dower, and to charge it upon particular real estate of the deceased husband. Borland v. Murphy, 4 W. N. C. 472. Where a widow has elected not to accept a testamentary provision in lieu of dower, her personal representatives may maintain a bill for an account of the rents and profits of the real estate, though dower was not assigned in her lifetime. Paul v. Paul, 36 P. S. 270.

(r) See Kennedy v. Kennedy, 43 P. S. 413; and Brown's Appeal, 84 Ibid. 457, as to the jurisdiction in partition. And see act 13 April 1859, as to Allegheny County. P. L. 605. The common pleas have jurisdiétion in partition in equity in all cases where the plaintiff's title is clear. Sheridan v. Sheridan, 26 W. N. C. 254.

(8) The original act of 14 March 1857, P. L. 97, reads "master and commissioners," in the plural.

(t) By the act 22 April 1856, section 10, P. L. 434 (see tit. "Partition"), the purparts must be allotted to the parties offering the highest price above the valuation; each party has the right to present one bid in writing for each separate purpart, and no bid should be announced or disclosed until all present have an opportunity to bid; the bids should then be opened and purparts awarded to the highest bidder over the valuation. Eyerman v. Detwiler, 26 W. N. C. 390.

(u) The master must complete the whole proceedings, valuation, allotment, owelty, and manner of security, before he reports. Honnett v. Thompson, 37 P. L. J. 103.

() No conveyances are necessary for carrying the decree into effect, where the partition is between parties who have the legal title. Griffith v. Phillips, 3 Gr. 381. But where the parties have but an equitable title, the court will decree a conveyance of the legal title. Gratz v. Lex, 6 Phila. 183; s. c. 4 Brewst. 292. The act 18 April 1853, § 2, authorizes the courts to decree a sale, "whenever on proceedings on partition, in equity, it shall appear that real estate cannot be divided without prejudice to the interests of the owners;" see tit. "Real Estate."

7 July 1885 § 6. P. L. 257.

Master to make deed.

To give bond.

Distribution.

Ibid. § 7. Proceedings confirmed.

15 April 1858 § 1. P. L. 267.

Jurisdiction in cases of disputed boundaries, in Philadelphia.

5 April 1859 § 1. P. L. 359.

Jurisdiction in relation to disputed

boundaries extended.

Ibid. § 2.

Courts may decree partition on a bill to adjust boundaries.

4 May 1893. P. L. 29.

Jurisdiction ex

tended to all litiga

tions between stockholders and

parties claiming to

be such, and between creditors

and stockholders

and creditors and corporations. Service.

19 June 1871 § 1. P. L. 1361.

Franchises of corporations may be inquired into.

Injunctions.

Ibid. § 2.

Equitable jurisdiction as to railroad crossings.

27. 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 purchasemoney 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 aforesaid.

28. All partition proceedings in equity heretofore instituted in which final decree has been entered, be and the same are hereby confirmed.

V. Boundaries.

29. The * court of common pleas of Philadelphia * * * (w) shall have all and singular the jurisdictions and powers of a court of chancery, in all cases of disputed boundaries between adjoining and neighboring lands within the said county, whether the parties owning the same, hold or claim to hold under the same or different titles. (x)

30. The jurisdiction and powers given by the act to which this act is a supplement, to the courts therein named, shall extend to and embrace the ascertainment and adjustment of disputed boundaries between adjoining and neighboring lands in the county of Philadelphia, where such boundaries are or shall have become confused or rendered uncertain, either by lapse of time, by natural causes, or by the act, neglect or default of any present or former owner or occupant thereof.

31. If, upon bill filed in any such case, it shall appear that the whole or any part of the lands mentioned in such bill, have or has never been actually parted or divided, the court shall, without dismissing the bill, proceed thereupon to decree partition of such undivided land between the parties to the suit, according to their just rights and the law and practice of courts of equity of this commonwealth : Provided, That before any such decree of partition shall be made, all persons who shall appear to have title to the land shall be made parties to the suit.

VI. Corporation litigation.

32. 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 sixth, one thousand eight hundred and fifty-nine, relating to equity, jurisdiction and proceedings.

33. In all proceedings in courts of law or equity of this commonwealth, in which it is alleged that the private rights of individuals, or the rights of franchises of other corporations, are injured or invaded 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 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.(y) 34. When such legal proceedings relate to crossings of lines of railroads 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 practicable 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 practicable to avoid a grade crossing, they shall by their process prevent a crossing at grade.(z)

(w) Extended to the common pleas of Allegheny, by act 15 April 1863. P. L. 499.

(2) These acts confer no jurisdiction to determine merely legal rights; to confer jurisdiction there must be some equity superinduced by the acts of the parties. Norris's Appeal, 64 P. S. 275. Tillmes v. Marsh, 67 Ibid. 508. Clark v. Johnson, 1 W. N. C.

183.

(y) See Pittsburgh and Connellsville Railroad Co. v. Southwest Pennsylvania Railway Co., 77 P. S. 173. (z) See Buck Mountain Coal Co. v. Lehigh Coal and Navigation Co., 8 Leg. Gaz. 70. Northern Central Railway Co.'s Appeal, 32 Pitts. L. J. 48. So much of this act as gives courts of equity a discretionary power to prevent one railroad from crossing another at grade is repealed by the act 14 May 1889,

VII. Corporation mortgages.

5 May 1876 § 1. P. L. 123.

35. Each of the several courts of common pleas of this commonwealth shall have and exercise all the powers of a court of chancery, in all cases of, or for enforcing rights under mortgages of the property or franchises of any railroad, Equity jurisdiction canal or navigation corporation, where such property or franchises, or any part of railroad mortthereof, shall be situate or exercisable, within the limits of this commonwealth, gages, &c. and belonging to or be exercisable by any domestic corporation, or any foreign corporation, under permission granted by the laws of this commonwealth.

Ibid. § 2.

36. 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 pending shall have jurisdiction of the what cotto have jurisdiction. subject-matter, irrespective of the local situation in this state of the mortgaged premises; and its process 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.

Ibid. § 3.

37. The provisions of this act shall apply to all proceedings now pending in any court of common pleas of this commonwealth; and such proceedings shall be as valid as if instituted or taken after the passage of this act, and are hereby rati- ing cases.

fied and confirmed.

To apply in pend

P. L. 32.

38. Each of the several courts of common pleas of this commonwealth shall 23 March 1877 § 1. have and exercise all the powers of a court of chancery in all cases of or for enforcing rights under mortgages of the property or franchises of any coal, iron, steel, Jurisdiction of lumber or oil, or any mining, manufacturing or transportation corporation, where corporation mortsuch property or franchises, or any part thereof, shall be situate or exercisable within the limits of this commonwealth, and belong to or be exercisable by any domestic corporation, or any foreign corporation under permission granted by the laws of this commonwealth.

gages.

Ibid. § 2.

jurisdiction.

39. 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 pending shall have jurisdiction of the What courts have subject-matter, irrespective of the local situation in this state of the mortgaged premises; and its process to enforce any interlocutory or final order or decree Service of process. 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 mortgage shall have been given by a corporation having a corporate existence in this state only, the proceedings upon the said mortgage shall be had either in the county within which the principal office of the said company is located, or in the county in which all or part of the mortgaged premises is situated. (a)

VIII. Mines.

account.

Proceedings in

such cases.

40. In all cases in which any coal or iron-ore mines or minerals have been or 25 April 1850 § 24. shall be held by two or more persons, as tenants in common, and coal, iron-ore P. L. 578. or mineral, has been or shall be taken from the same, by any one or more of said Tenants in comtenants respectively, it shall be lawful for any one of said tenants in common to mon of mines may apply by bill or petition in equity, to the court of common pleas of the county in proceed in equity 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 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 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

P. L. 217: they still have the power, however, to impose such regulations as look to the safety of the public. Pennsylvania R. R. Co. v. Braddock Electrie Railway Co., 11 C. C. 163. See Delaware, L. & W. R. R. Co. v. Wilkesbarre and W. S. Railway Co., Ibid. 165. A grade crossing should be prevented wher

ever reasonably practicable. Altoona and Phillipsburg Connecting R. R. Co. v. Tyrone and Clearfield R. R. Co., 34 W. N. C. 174.

(a) This proviso is so amended by the act 24 June 1885. P. L. 151.

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