P. L. 573. 25 April 1850 § 24. attachment and sequestration against such of them as shall fail to appear thereupon, or shall neglect or refuse to stand to, obey and abide by the orders and decrees of said court. (b) Ibid. § 25. 41. Any party may appeal to the supreme court from any final decree made by Appeals regulated. any court of common pleas under this act: Provided, That such appeal be taken within one year after the rendering of such final decree, and that the party appealing, before taking his appeal, shall file and make affidavit that the same is not intended for delay, and shall give such security to prosecute his appeal with effect, as shall be required by the said court of common pleas or the supreme court. 22 April 1856 § 1. 42. In addition to the rights granted to persons holding coal or iron-ore mines P. L. 502. or minerals, as tenants in common, by the 24th section of the act of 25th April Parties claiming to 1850, it is hereby further enacted, that any person or persons claiming to be be tenants in com- tenants in common, joint-tenants, or otherwise interested in any coal or iron mines or other minerals, and which said tenancy, claim or right shall be denied or resisted by any other person or persons claiming the same, it shall be lawful for such tenant in common, joint-tenant or other party in interest, to apply by bill or petition in equity, to the court of common pleas of the county in which the lands lie, setting forth the right or interest which such claimant has or claims to have in said iron-ore, coal mine or other mineral, and that the use, exercise or existence of said right is denied by the persons claiming the same; whereupon the said court shall proceed to examine, adjudicate and determine the rights of the several parties, in the manner prescribed in the above-cited section; and all parties in interest shall be made parties to such proceeding.(c) mon of mines may sue in equity. Ibid. § 2. Appeals regulated. 8 April 1851 § 5. P. L. 354. How wharfage and dockage to be apportioned in Philadelphia. 24 April 1854 § 1. P. L. 485. 43. In all cases arising under this act, an appeal may be taken to the supreme court from the final decree of any of said courts of common pleas, within one year from the date of said final decree, and in all other respects upon the same terms and conditions as are provided in cases of appeal from the decrees of the court of common pleas for the city and county of Philadelphia. IX. Wharves and docks. 44. In all cases when the owner or owners of adjoining wharves, docks, landings, or river-front, or any part or portion thereof, in the port of Philadelphia, shall disagree as to the proper apportionment of the wharfage or dockage payable to them in accordance with their titles, by persons making use of the same, or by vessels lying in front thereof, it shall be the duty of the master-warden and board of wardens of said port, upon the written application of one or more of such owners, and the said wardens are hereby authorized and required, after notice to the parties interested, and in accordance with the established custom and usages of the port, or where there is no such usage, then as justice and equity may require, to determine the relative proportions of such wharfage and dockage belonging to the several proprietors of said adjoining wharves, docks, landings or river-front, or any parts thereof: Provided, That nothing herein contained shall be construed to authorize the said wardens to take cognizance of any questions involving the title to such property; but such jurisdiction, and the power to enforce the rights of the owners of said wharves, docks, landings or river-front, to wharfage and dockage, from persons or vessels heretofore or hereafter using or lying opposite to the same, shall exist and remain in the proper courts of law. 45. An owner or owners of adjoining wharves, docks, landings or river-front, as referred to in section five of the act to which this is a supplement, is hereby Appeal to the court authorized to enter an appeal from a decision of the board of wardens (d) to the court of common pleas of Philadelphia, sitting in equity; whereupon the said court shall have power and authority to hear and determine all matters in relation thereto.(e) in equity. 14 April 1863 § 1. P. L. 374. Jurisdiction extended to cases X. Plank roads. 46. It shall and may be lawful for the several courts of common pleas of Pennsylvania to take and exercise jurisdiction in equity, by bill or otherwise, according to the course of practice in said courts, in all cases arising under the general plankroad law, and its supplements, of this commonwealth; and it shall be the duty of under the plank said court to exercise such jurisdiction, in all cases where the plaintiff or complainant shall make oath or affirmation that his remedy at law is inadequate; and either party to such proceedings in equity may take a writ of error or appeal to the supreme court, in any district in which the same shall then be sitting. road law. Oath. Appeal. (b) See Coleman's Appeal, 62 P. S. 252; s. c. 1 Pears. 170; 2 Ibid. 495, 503, 511, 516. Alden's Appeal, 93 P. S. 182. Grubb v. Grubb, 12 L. Bar 198. Grubb's Appeal, 90 P. S. 228. (c) This act does not give jurisdiction in equity for the determination of a legal right; it only applies to equitable rights not enforceable at law. A co-tenant of a mining right must establish his title at law, before he can obtain the aid of a court of equity. North Pennsylvania Coal Co. v. Snowden, 42 P. S. 488. Where judgments were liens prior to the execution of an oil lease, and the lessee has bought such judgment, he has a right to issue execution on such judgments and sell the property subject to his leasehold estate; he also has an equity to have the estate of the defendant sold in the inverse order of the conveyances made by him, and the court under this act has authority to make an order enforcing such equity. Porter v. Vanderlin, 158 P. S. 146. (d) See Tatham v. Wardens of Philadelphia, 2 Phila. 246. (e) See tit. "Supreme Court." XI. Proceedings in courts of equity. (1.) Service of process. 47. In every case in which any court as aforesaid, shall exercise any of the 16 June 1886 § 13. powers of a court of chancery, the same shall be exercised according to the practice P. L. 789. ercised. in equity, prescribed or adopted by the supreme court of the United States, unless How chancery it be otherwise provided by act of assembly, or the same shall be altered by the powers to be exsupreme court of this commonwealth, by general rules and regulations, made and published as is hereinbefore provided.(g) 48. No process issued by the said courts of the city and county of Philadelphia, No process issued * under the chancery powers here in specially granted, excepting such as have be executed beyond in Philadelphia to heretofore been exercised, shall at any time be executed beyond the limits of the the county. city and county aforesaid. 49. When any bill in equity shall be filed in any of the courts of this common- 6 April 1844 § 1. wealth, to perpetuate the evidence of title to lands, tenements and hereditaments, P. L. 213. in which bill the commonwealth is a necessary party, the process may and shall How process on be served on the attorney-general, or his deputy for the county where such lands, bill to perpetuate tenements or hereditaments may lie, whose duty it shall be to attend to the interests of the commonwealth in the premises. testimony to be served, where the P. L. 214. resident mortga 50. In all cases where mortgagees and plaintiffs in judgments shall not reside within the county where mortgages are recorded and judgments entered, and bills in equity shall be filed by the mortgagors or defendants in judgments against the Service of equity mortgagees or plaintiffs in judgments, or against their assignees or legal repre- process on nonsentatives, for the entry of satisfaction on the said mortgages and judgments, or gees and judgment to open the said judgments for the purpose of defence, subpoenas or other process creditors. may be served, by the proper officers of said counties or their deputies, on said mortgagees or plaintiffs in said judgments, their assignees or legal representatives, beyond the bounds of said counties, as if they resided therein, or upon any agent or attorney of record of said mortgagees or plaintiffs in said judgments, within the counties where the said mortgages may be recorded or the judgments may be entered. out of the jurisdic 51. It shall be lawful for any court of this commonwealth having equity juris- 6 April 1859 § 1. diction, upon special motion of the plaintiff or plaintiffs, in any suit in equity P. L. 887. which has been or shall be instituted therein, concerning goods, chattels, lands, When and how tenements or hereditaments, or for the perpetuating of testimony concerning any process may be lands, tenements, and so forth, situate or being within the jurisdiction of such served on parties court, or concerning any charge, lien, judgment, mortgage or incumbrance thereon, tion of the court. or where the court have acquired jurisdiction of the subject-matter in controversy, by the service of its process on one or more of the principal defendants, (h) to order and direct that any subpoena, subpoenas or other process to be had in such suit, be served upon any defendant or defendants therein, then residing or being out of the jurisdiction of such court, wherever he, she or they may reside or be found; and upon affidavit of such service had to proceed as fully and effectually as if the same had been made within the jurisdiction of such court:(i) Provided, That it shall appear to such court, by affidavit, affidavits or other documents applicable for the purpose, before making such order, in what place or county such defendant or defendants reside, or are, or probably may be found, and if such place be without the United States, whether there are any officers of the United States residing thereat, or near thereto, and by what means such service may be authenticated: And provided, That such order limit a time, depending on the place where such process is to be served, after the service thereof, within which compliance with the requirements thereof must be made by such defendant or defendants; such process to be Special return-day returnable at such time after the service thereof, as such court shall, by special to be fixed. order, direct: And further provided, That when such process shall be served, such defendant or defendants shall also be served with a copy of the order authorizing service to be acthe service thereof, and a copy of the bill or petition, if such process be a subpoena companied with thereon, but if not, a statement of the substance and object of the proceeding copy of order and bill, &c. whereon the same is founded: And provided also, That the affidavit of such service Proof of service, of process and copies, or statements aforesaid, if such service be had within the how made. United States, may be made and taken before any officer of the United States, or of any of the states or territories thereof, authorized to administer an oath; and if such service be had without the United States, the same shall be authenticated as such court shall by special order direct. 52. Whenever it shall appear to the satisfaction of such court, by affidavit, affi (g) See Simpson v. Neill, 89 P. S. 183. Easby v. Patterson, 6 Ŵ. N. C. 318; s. c. 7 Ibid. 219. Such decision is not reviewable by the supreme court. Virden's Appeal, 37 L. I. 325. (h) To authorize a service on non-resident defendants, under this act, the subject-matter must either be itself within the jurisdiction, or it must be brought within the jurisdiction by service of process on one or Ibid. § 2. more of the principal defendants. Eby v. Cowan, 70 P. S. 311. And see Hirst v. Lehigh and Delaware Water-Gap Railroad Co., 6 Phila. 93. Coleman's Appeal, 75 P. S. 441. Martin's Appeal, 13 W. N. C. 167. Huntzinger v. Philadelphia Coal Co., 11 Phila. 609. (i) This act, so far as it provides for service beyond the limits of this state, is unconstitutional. Building Association v. Mayer, 45 L. I. 346. P. L. 387. ant cannot be found. 6 April 1859 § 2. davits or other documents applicable for the purpose, that any defendant or defendants in any such suit as is hereinbefore mentioned, cannot, by diligent inquiry, be Service by publica- found, so as to be personally served with any process to be had therein, it shall be tion, when defend- lawful for such court, upon special motion, to make an order upon such defendant or, defendants similar to the requirements of such process, specifying the time when compliance therewith must be made, and upon the expiration of such specified time, to proceed as fully and effectually as if such process had been duly served within the jurisdiction of such court: Provided, That a statement of the substance and object of the bill, petition or other proceeding whereon such order is founded, and a copy of such order, be published in such one or more newspapers, and at such times, as such court shall, by special order, direct. Ibid. § 3. tempt to issue 53. No order or process of contempt shall be made or issued under this act; and No process of con- nothing herein shall make it compulsory on the plaintiff or plaintiffs in any such suit as hereinbefore mentioned, to serve with process, or bring before such court, or proceed against any party or parties, person or persons, further or otherwise than such plaintiff or plaintiffs are now by law or the practice of such court required against defendant so served. 5 April 1862 § 1. P. L. 26S. in certain cases. to do. 54. In all cases where bills in equity shall be filed by alienees of mortgagors, or their heirs or assigns, or by parties claiming an interest in lands, by virtue of Service of process sales under judgments, service of subpoenas or other process, may be made as provided in the 2d section of an act, entitled "An act relative to bringing suits by creditors and others, against executors, administrators, assignees and other trustees in certain cases, and serving notices, and for satisfaction of mortgages, and opening judgments in certain cases," approved the 24th day of March, Anno Domini 1854.(k) 8 April 1846 § 1. P. L. 272. Injunction not to (2.) Injunctions. 55. No courts within the city and county of Philadelphia shall exercise the powers of a court of chancery, in granting or continuing injunctions against the erection or use of any public works (1) of any kind, erected, or in progress of erection, under the authority of an act of the legislature, (m) until the questions of title public works, until and damages shall be submitted, and finally decided by a common-law court; and in such cases the court shall have authority to issue a venire for the summoning of a jury, to the sheriff of an adjoining county. issue to restrain the erection of the question has been tried at law. 6 May 1844 § 1. P. L. 564. 56. No injunctions(n) shall be issued by any court or judge, until the party applying for the same(o) shall have given bond with sufficient sureties, to be be issued without approved by said court or judge, conditioned to indemnify the other party for all damages that may be sustained by reason of such injunction.(p) Injunctions not to security. 17 March 1853 § 1. P. L. 208, 685. the commonwealth. 57. The 1st section of the act, entitled "An act further to regulate proceedings in courts of justices, and for other purposes," approved the 6th day of May 1844, Except in favor of shall not apply, nor be held or construed to apply, to any bill or proceeding in equity, whether now pending or hereafter to be instituted, wherein the commonwealth is plaintiff or complainant: Provided, however, That in all such cases, it shall be the duty of the court in which the same may be depending, as far as practicable, to expedite the final hearing and determination thereof, by such order or orders as they may deem expedient or advisable for that purpose. 6 Nov. 1856 § 1. P. L. 797. Act of 1844 not to apply to the commonwealth or to cities or counties. 14 Feb. 1866 § 1. P. L. 29. Appeals from interlocutory decrees granting special injunctions. (k) Supra 50. 58. The 1st section of the said act shall not be held or construed to apply to any bill or proceedings in equity now pending, or which may be hereafter instituted, wherein the commonwealth, or any city or county of this commonwealth, is libellant, plaintiff or complainant; nor shall any city or county be required to give security on appeal to the supreme court in any proceeding in equity: Provided, however, That in all such cases, it shall be the duty of the court in which the same may be pending, as far as practicable, to expedite the hearing and final determination thereof, by such rules, order or orders, not inconsistent with the laws of this commonwealth, as justice and equity may require. 59. In all cases in equity in which a special injunction has been or shall be granted by any court of common pleas, *** an appeal to the supreme court for the proper district shall be allowed, without affidavit or security, but the pendency of such appeal shall not suspend the operation of such special injunction or the proceedings in the original suit. And all such appeals shall be heard by the supreme court in any district in which it may be in session, as is provided in cases in equity originating in the supreme court. (1) See Wolbert v. Philadelphia, 48 P. S. 439. Philadelphia and Reading Railroad Co. v. Philadel phia, 8 Phila. 284. Flanagan v. Philadelphia, Ibid. 110. Windrim v. Philadelphia, Ibid. 361. City Sewage Utilization Co. v. Davis, Ibid. 625. Ridge Avenue Passenger Railway Co. v. Philadelphia, 10 Ibid. 37. West Philadelphia Passenger Railway Co. v. Philadelphia, Ibid. 70. (m) An injunction will not be granted against public officers, acting under the authority of the state, to restrain them from taking private property for a public improvement, until suitable compensa- (0) See Commonwealth v. Franklin Canal Co., 21 P. S. 117. And infra 57-8. (p) The amount of bail is in the discretion of the court or judge. Gulick v. Heermans, 6 Luz. L. Reg. 227. 60. In all cases in equity, in which a special or preliminary injunction has 12 June 1879 § 1. been refused by any court of common pleas, an appeal to the supreme court for P. L. 177. the proper district shall be allowed, but the pendency of such appeal shall not or refusing such suspend proceedings in the original suit; and all such appeals shall be heard by injunctions. the supreme court in any district in which it may be in session, as is provided in cases in equity originating in the supreme court. Ibid. § 2. 61. In all appeals under this act, only such bills, answers and affidavits as shall be certified by the judge or judges of the lower court, as having been before said Hearing. court at the hearing for injunction, shall be considered by the supreme court; and all cases shall be heard and determined, as though said court had original jurisdiction in the premises, and the application for injunction had been made to said court. (3.) Amendments. 4 May 1864 § 2. P. L. 775. 62. In all proceedings in equity, according to equity forms, the several * * * courts of common pleas in this commonwealth, may permit, at their discretion, and when in their opinion the same will effect the merits of the matter in controversy, Amendments and expedite justice, amendments to be made in bills, answers, pleas, or other regulated. matters, in the same manner as now obtains in common-law cases and practice; proper notice to be given to the adverse party, whose rights shall be protected by continuance, if desired.(g) (4.) Equity fee bill. 63. It shall be the duty of the judges of the several district courts and courts of common pleas in this commonwealth, to make and establish for their respective courts, a tariff of fees and costs in equity proceedings and cases.(r) (5.) Of the decree. 4 May 1864 § 1. P. L. 775. Tariff of fees. P. L. 289. be a lien: 64. Decrees in equity, for the payment of money, shall be and constitute a lien 29 March 1859 § 1. on the real estate of the defendants or debtors named in the said decree, in the manner for the like period, and with the same force and effect, as the lien of Decree for payjudgments rendered by and in the common-law courts of this commonwealth, and ment of money to shall be entered in like manner in the judgment or lien-docket of the proper county;(s) and the complainant or plaintiff in such decree shall have the like Revival by scire remedy, by writ of scire facias or otherwise, for the revival and continuance of facias. the said lien, as is prescribed by existing laws for the continuance of the lien of such judgments; and the proceedings under such writ of scire facias, or other process, and the entry of a decree of revival may be regulated, so far as is necessary, by rules ordained by the proper court. 65. Should any issue of fact arise in the course of such proceeding of revival, the same shall be proceeded in and determined, by an issue, directed in the manner now practised in courts of equity. Ibid. § 2. Trial of issues of fact. 5 June 1885. P. L. 78. Orders and decrees 66. All definitive orders and decrees for the payment of money hereafter to be rendered in any suit or proceeding instituted after the passage of this act, by the court of common pleas of any county of this commonwealth, sitting as a court of equity, or by any orphans' court, shall be transferrible to the corre- may be transferred sponding court of any other county, in like manner as judgments at law may now to other counties. be transferred, and with the same effect with respect to lien and execution. (6.) Appeals. P. L. 158. 67. Any person or persons, body or bodies politic or corporate, parties to any 17 March 1845 § 1. suit in equity now pending, or hereafter to be instituted in the court of common pleas of the county of Philadelphia, who may be affected by any interlocutory() Appeals regulated or final order or decree in such suit in equity, hereafter to be made by the said in Philadelphia. court of common pleas, shall be entitled to appeal therefrom to the supreme court in and for the eastern district of Pennsylvania, upon the same terms, and with the same regulations as are provided by the existing laws, in regard to appeals from any definitive sentence or decree of an orphans' court:(u) Provided always, (q) See tit. "Amendment." Where the bill shows a substantial ground of relief, an amendment in form will be allowed, even after a hearing and appeal. Darlington's Appeal, 86 P. S. 512. Miller v. McDonald, 8 W. N. C. 302. A bill may be amended, as of course, at any time before answer filed. Hays v. Dicken, 28 Pitts. L. J. 180. But an amendment will not be allowed to a sworn bill, by striking out a statement of a material fact, which is destructive of the plaintiffs' title, and about which there is no dispute. Fricke v. Magee, 10 W. N. C. 50. And see O'Malley v. O'Malley, 11 Ibid. 39. (r) Payment of costs may be enforced by attachment. Beidler v. Howell, 8 Phila. 273. But see Cochran v. Gowen, 9 Ibid. 299. (8) See Groves's Appeal, 68 P. S. 143. (t) Repealed as to interlocutory orders and decrees, by act 16 April 1845, § 4. P. L. 543. Except as to decrees granting or refusing special injunctions. See supra 59, 60. (u) The act 29 March 1832, § 59, provides, that in order to perfect an appeal from the decree of the orphans' court, the party appealing shall give security, by recognizance, with sufficient surety, in the court below, or before one of the judges thereof, conditioned to prosecute such appeal with effect, and to pay all costs that may be adjudged against him; and shall make oath or affirmation that such appeal is not intended for delay. See tit. " 'Orphans' Court." The court will enforce an agreement that a master's report shall be without exception or appeal. Lewis's Appeal, 91 P. S. 359. P. L. 158. 17 March 1845 § 1. That in addition to a compliance with the foregoing terms and regulations, it shall be necessary for the party appellant, in order to secure to himself the advantage of a stay or supersedeas of execution, to comply with the following further terms and conditions :(v) Conditions of supersedeas. In case of decree for payment of money, security to be given. 68. I. If an appeal be made from any order or decree of the said court of common pleas in equity, directing the payment of money, such appeal shall not stay the issuing of execution or other process to enforce the decree, or any proceedings thereon, unless a bond be given by or on behalf of the appellant, to the adverse party, in a penalty at least double the sum decreed to be paid, with two sufficient sureties, to be approved by the said court of common pleas, or one of the judges thereof, conditioned, that if the appellant shall fail to prosecute his appeal, or if the same be dismissed or discontinued, or if the decree appealed from, or any part thereof, be affirmed, then that such appellant will pay and satisfy the amount directed to be paid by such decree, or the part of such amount as to which such decree shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant by the said supreme court upon such appeal. 69. II. If the decree appealed from direct the assignment or delivery of any securities, evidences of debt, documents, chattels or things in action, the issuing livery of securities, and execution of process to enforce such decree, shall not be stayed by such appeal, unless the article required to be assigned or delivered be brought into court, or placed in the custody of such officers or receivers as the said court of common pleas shall appoint, or unless a bond in a penalty, at least double the value of the articles so directed to be delivered or assigned, be given to the adverse party, with two sufficient sureties, to be approved as hereinbefore directed; conditioned, that the appellant will abide and obey the order of the said supreme court, made upon the subject of such appeal. Provision where decree is for the assignment or de &c. Where execution of a conveyance is decreed. Or the sale or de of real 70. III. If the decree appealed from, direct the execution of any conveyance or other instrument by any party, the issuing and execution of process to enforce such decree, shall not be stayed by such appeal, until the appellant shall have executed. the conveyance or instrument directed, and deposited the same with such officers or receivers, as shall be designated by the said court of common pleas. 71. IV. If the decree or order appealed from direct the sale or delivery of the livery of the pos- possession of any real property, the issuing and execution of process to enforce the same shall not be stayed, until a bond be given with sureties as herein before directed, in such penalty as the court of common pleas shall deem sufficient, conditioned, that during the possession of such real property by such appellant, he will not commit or suffer any waste to be committed thereon; and in case such appeal be dismissed or discontinued, or such order or decree be affirmed, such appellant will pay the value of the use and occupation of such property, from the time of such appeal, until the delivery of the possession thereof pursuant to such estate. On perfecting to be stayed. Court may proceed upon any other matter in the bill order or decree. 72. V. Whenever in the foregoing cases, an appeal shall be perfected by bringappeal, proceedings ing into court, or depositing, pursuant to its order, any articles required to be so deposited, or any instruments required to be executed, or by giving a bond as herein prescribed, such appeal shall stay all further proceedings in the said court of common pleas upon the order or decree appealed from, and upon the subjectmatter embraced in such order or decree; but shall not prevent the said court of common pleas from proceeding upon any other matter included in the bill and not affected by said order or decree: Provided, however, That whenever the order or decree appealed from directs the sale of perishable property, notwithstanding any such appeal, and the compliance with the foregoing directions, such property may be sold by final order of the said court of common pleas, after the making of such appeal; and the proceeds of such sale shall be brought into the said court to abide the final order and decree of the said supreme court. not affected by the decree. Perishable prop erty may be sold. 21 April 1846 § 3. P. L. 433. Appeals regulated in other courts. 73. Any person or body corporate aggrieved by any final order or decree in equity, under the general or special equity powers conferred upon the several district courts, and courts of common pleas of this commonwealth, other than those of the city and county of Philadelphia, in any suit or proceedings now pending, or which may hereafter be instituted, shall be entitled to an appeal to the supreme court, in the same manner, and upon the same terms, as appeals are allowed from the orphans' court. (w) EQUITY RULES. See SUPREME COURT. (v) A perfected appeal operates as a supersedeas of a fi. fa. which has been executed by a levy on personal property. Chillas v. Brett, 5 Clark 325. “Nixon's Estate, 8 W. N. C. 390. (w) See supra 67, note u. Also, act 14 February 1857, supra 8, which appears to repeal this act, as to appeals from decrees of courts of common pleas. And Hedge's Appeal, 63 P. S. 273. An appeal lies, under this act, from any final order of the common pleas, touching the estate of a lunatic, or the fact of lunacy but the dismissal of the committee is not such "final order or decree in equity," and no appeal lies. Black's Case, 18 P. S. 434-9. |