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MALICIOUS MISCHIEF.

See CRIMES.

MALICIOUS TRESPASS.

See CRIMES.

MANDAMUS.

See SUPREME COURT.

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19. Court may give or refuse costs.
20. Execution for damages and costs.

21. How plaintiff's damages to be ascertained.
22. Peremptory mandamus and judgment for plain-
tiff.

23. Writ sought by public officer not to abate by expiration of term.

24. Writ sought by executor or trustee not to abate by death or removal.

25. Death or removal of defendants not to abate writ.

26. Defects in substance in alternative writ. Amendments.

27. Peremptory writ. Service and return.

28. Peremptory writ may be superseded or quashed but not amended.

29. Appeal to supreme court. Supersedeas.
30. Appeal to supersede peremptory writ issued
within twenty days.

31. Supreme court to hear and decide appeal.
32. Supreme court to exercise original jurisdic-

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trates and corpo

1. The several courts of common pleas(p) shall, within their respective counties, 8 June 1893 § 1. have the power to issue writs of mandamus(9) to all officers and magistrates elected P. L. 345. or appointed in or for the respective county, or in or for any township,(r) district or Common pleas to place within such county, and to all corporations(s) being or having their chief issue mandamus place of business within such county;(t) and the court of common pleas of the to officers, magiscounty in which the seat of government is or may be located shall have the power, rations. and it shall be required, to issue the writ of mandamus to the lieutenant-governor, Court at seat of secretary of the commonwealth, attorney-general, secretary of internal affairs, super-sue writs to cergovernment to intendent of public instruction, state treasurer, auditor-general, insurance commis- tain state officers. sioner, and commissioners of the sinking fund.

2. Any person desiring to obtain a writ of mandamus shall present his petition therefor, verified by affidavit, to the judge or judges of the proper court, either in session or at chambers, setting forth the facts upon which he relies for the relief

(p) This act supplies the acts 14 June 1836, P. L. 626, and 24 June 1885, P. L. 150.

(7) As a matter of general practice, an alternative mandamus should be preceded by a rule to show cause, but the court may, in its discretion, issue the writ, upon petition, and without rule; upon the return of a rule to show cause, the only question is, whether the petition discloses sufficient ground for the allowance of the writ. Commonwealth v. Young Men's Hibernia Beneficial Society, 2 Brewst. 441. And see Devereux Street, 13 Phila. 103. If the writ be issued without a previous rule to show cause, the party may show cause against the allowance of a peremptory mandamus, on the return to the alternative writ. Keasy v. Bricker, 60 P. S. 9. The questions of law arising upon the petition may be raised by motion to quash, or by demurrer, plea or answer. Commonwealth v. Young Men's Hibernia Beneficial Society, 2 Brewst. 441. The writ should be served by delivering the original to the defendant; or where more than

Ibid. § 2.

Petition.

one person is to be served, copies should be given to each; at the same time showing them the original writ, and leaving the original with one of the defendants. It does not seem to be necessary, that the writ should be served by the sheriff. Commonwealth v. Brady, 6 Phila. 121. For forms of mandamus, see 2 Johns. Cas. 217-81.

(r) This includes overseers of the poor. Porter v. Jersey Shore, 82 P. S. 275.

(8) The common pleas cannot issue a mandamus to an unincorporated association. Wolf_v. Commonwealth, 64 P. S. 252. Wolf v. United Daughters of America, 1 Phila. 374.

(t) The court of common pleas has no power to issue a mandamus to a railroad company, whose office and chief place of business is not in the county, although their road may pass through the same. Whitemarsh Township v. Philadelphia, Germantown and Norristown Railroad Co., 8 W. & S. 365.

P. L. 345.

8 June 1893 § 2. sought, the act or duty whose performance he seeks, his interest in the result, the name of the person or body at whose hands performance is sought, demand or refusal to perform the act or duty, and that the petitioner is without other adequate and specific remedy at law. If such petition presents the substance of a case for mandamus, the court shall direct that such writ issue in the alternative form: When peremptory Provided, however, That if the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be awarded in the first instance and directed to issue forthwith.

mandamus to be awarded.

Ibid. § 3. Who may make application.

Ibid. § 4.

Proceedings on re

lation of attorneygeneral.

3. The writ of mandamus may issue upon the application of any person beneficially interested.

4. When the writ is sought to procure the enforcement of a public duty, the proceeding shall be prosecuted in the name of the commonwealth on the relation of the attorney-general: Provided, however, That said proceeding in proper cases shall be on the relation of the district-attorney of the proper county: Provided further, That when said proceeding is sought to enforce a duty affecting a particular public interest of the state it shall be on the relation of the officer entrusted with the management of such interest. In all other cases the party procuring the alternative writ shall be plaintiff, the party to whom said writ is directed shall be defendParties in all other ant, and the action shall be docketed as in ordinary cases, namely: * * *, plaintiff,

Of district attorney.

When proceeding affects particular interest of the

state.

cases.

Ibid. § 5. Alternative writs.

Ibid. § 6.

versus

***

defendant.

5. All writs in the alternative form shall be in force for three months from their date and may be served by the plaintiff, or any one by him authorized, or by any sheriff or deputy sheriff in any county of the commonwealth in which the defendant may be, by giving the defendant personally a copy thereof, attested by the prothonotary of the court awarding the writ. They shall be returnable at such time, not less than five days after the service thereof, as the court may direct.

6. When the writ is sought against a municipal corporation, the alternative writ shall be directed to such of the corporate authorities in their official capacity as are Writ against a municipal corporation. concerned in the execution of the thing required, and service thereof upon any of such officers shall be sufficient.

Ibid. § 7.

Writ against a pri

7. When the writ is sought against a private corporation, domestic or foreign, the alternative writ shall be directed against the corporation by name, and also vate corporation. against any particular person or body of persons connected therewith whom it may be sought to coerce, and service thereof upon any officer or agent of the corporation and upon such particular person or chief officer of such body of persons shall be sufficient. The peremptory writ may be directed to the said corporation, or to the person or body of persons who have the power and whose duty it is to do the act required, or to such superior officer as would be expected to execute the order.

Ibid. § 8. Writ against a board or body other than a corporation.

Ibid. § 9. Court may order who shall frame return and conduct proceedings at his own expense.

Judgment.

8. When the writ is sought against a board or body other than a corporation, it shall be directed to such board or body in their official capacity, and service shall be made upon a majority of the members thereof, unless the board or body was created by law and has a chairman or other presiding officer appointed pursuant to law, in which case service upon him shall be sufficient. (u)

9. It shall be lawful for the court, when applied to for the writ, or upon and after the issuing of the first writ on the petition of any person having or claiming a right or interest in the subject-matter, other than the person to whom the writ is prayed to be or has issued, setting forth his right or interest in or to the subjectmatter of the controversy, to authorize in proper cases such person, even though he could not have been made original defendant, to frame the return and conduct the subsequent proceedings at his own expense, or to take such part therein and on such terms as to the court may seem just; and in such cases, if judgment is given for

(u) Although a mandamus is a prerogative writ, and demandable of common right, yet it will only be granted in extraordinary cases, where there would otherwise be a failure of justice. Commonwealth v. Canal Commissioners, 2 P. & W. 518. Reading v. Commonwealth, 11 P. S. 196. James v. Bucks County, 13 Ibid. 75. The applicant must, in all cases, establish a specific legal right, as well as the want of a specific legal remedy. Commonwealth v. Rosseter, 2 Binn. 362. James v. Bucks County, 13 P. S. 75. Commonwealth v. Clark, 6 Phila. 498. Commonwealth v. Guardians of the Poor, 13 W. N. C. 61. And the right or privilege claimed must be independent of that which he holds in common with the public at large. Heffner v. Commonwealth, 28 P. S. 10s. The existence of an equitable remedy is no ground for refusing the writ. Commonwealth v. Allegheny County, 32 P. S. 218. But it will not be granted, where it would not be an effectual remedy, or where a full and adequate remedy exists, through a different proceeding. Commonwealth v. Colley Township, 29 P. S. 121. It will not be granted, to compel a corporation to permit a transfer of its stock. Commonwealth

v. New Orleans Canal and Navigation Co., Com. Pleas, Phila., 20 May 1854. MS. Where a ministerial act is to be done, and there is no other specific remedy, a mandamus will be granted to do the act required; but where the complaint is against a person who acts in a judicial or deliberative capacity, although he may be ordered by mandamus to proceed to do his duty, by deciding and acting according to the best of his judgment, the court will not direct him in what manner to decide. Respublica v. Clarkson, 1 Y. 46. Commonwealth v. Judges, 3 Binn. 275. Commonwealth v. Cochran, 5 Ibid. 87, 103; s. c. 1 S. & R. 473. Drexel v. Man, 5 W. & S. 386, 397. Commonwealth v. Hultz, 6 P. S. 469. And see Commonwealth v. Johnson, 2 Binn. 275. Commonwealth v. Philadelphia County, 1 Wh. 1. Commonwealth v. Perkins, 7 P. S. 44. Reading v. Commonwealth, 11 Ibid. 196. Ex parte School Directors of Manheim Township, 5 Clark 400. Lawrence v. Tree, 1 Brewst. 79. Kame v. Commonwealth, 101 P. S. 490. Campbell v. Grooms, Ibid. 481. Labette County v. United States, 112 U. S. 217.

or against the party suing the writ, such judgment shall be given against or for the party to whom the writ shall have been directed, but the court may authorize the person permitted as aforesaid to frame the return and conduct the subsequent proceedings to use the name of the party to whom such writ shall have been directed for the recovery of costs, and the enforcing of the judgment, and also for the purpose of an appeal to the supreme court, with like force and effect as though the party to whom such writ shall have been directed had sought to recover costs and to enforce the judgment or to appeal to the supreme court: Provided, however, That when, in such cases, judgment is given in favor of the plaintiff, the court may order that damages and costs, or either, adjudged in favor of such party, shall be paid in whole or in part by the person permitted as aforesaid to conduct the proceedings.

10. The court may direct what notice shall be given of all papers filed in the proceeding subsequent to the granting of the alternative writ.

8 June 1893 § 9. P. L. 345.

Ibid. § 10.

Notice.

Ibid. § 11.

11. Appearance de bene esse shall enable the defendant to take advantage of defective service of the alternative writ. The defendant may move to supersede Appearance de or quash said writ; if he fails he shall be permitted to file his return as in this act bene esse. mentioned, and to proceed if such motion had not been made. Ibid. § 12.

tive writ.

12. The defendant shall file in the office of the prothonotary of the court award- Defendant may file ing the alternative writ, a return thereto, verified by affidavit, (v) within the time return to alternaspecified in the writ, and in default thereof, judgment shall be given against him Judgment in dewith the same effect as if he had filed a return and such return had been adjudged fault of return. insufficient. Ibid. § 18.

13. In such return, certainty to a certain intent in general, and no more, shall Certainty required be required. If the return is uncertain, vague or evasive or informal in any re- in return. spect, such opportunity may be afforded for the correction thereof as to the court Ibid. § 14. shall seem just and reasonable.

Court to allow

make return and

14. The court applied to for the writ shall allow the plaintiff and defendant parties time to respectively, such convenient time to make return, plead, reply, rejoin or demur as plead. shall be just and reasonable.

Ibid. § 15.

Ibid. § 16. Recovery of dam

15. The plaintiff may demur to the return or he may plead to or traverse all or Pleading. any of the material facts therein contained; the defendant shall reply, take issue or demur and like proceedings shall be had as in other actions at law. (w) 16. If a verdict is found for the plaintiff and judgment is entered thereon, or a judgment is given for him upon a demurrer or by nihil dicit or for want of an answer by non sum informatus or other pleading, he shall recover his damages and

costs.

if

ages and costs if judgment is entered for plaintiff. Ibid. § 17. Costs of defendant. Ibid. § 18.

17. If judgment is given for the defendant he shall recover his costs. 18. If damages are recovered against any person making return as aforesaid, such When action for recovery shall debar every other action for making such return.

19. The costs of the application for a writ of mandamus, whether such writ is granted or not, also the costs of the writ if issued and obeyed or not prosecuted to judgment as aforesaid, may be given or refused according to the discretion of the

court.

20. Damages and costs may be levied by execution as in other cases. 21. Damages sustained by the plaintiff shall be ascertained by the jury trying any issue in fact; if no such issue is tried they shall be ascertained by the court in such manner as may be deemed just and reasonable.

making return is barred.

Ibid. § 19.

Court may give or refuse costs.

Ibid. § 20. Execution for damages and costs. Ibid. § 21. Damages sustained by plaintiff, how

ascertained.

Ibid. § 22.

22. Whenever, in accordance with act, judgment is given for the plaintiff, the court may award that a peremptory mandamus shall issue in that behalf(x) and shall also enter judgment for damages (y) and costs, and thereupon such peremp- Peremptory mandamus and judg tory writ of mandamus may be issued accordingly at any time after twenty days ment for plaintiff. from the signing of the judgment, and not before, unless the exigence of the case, in the discretion of the court, requires it, in which event the court may direct that said writ shall issue forthwith.

Ibid. § 28.

Writ sought by public officer not to abate by expiration of term.

23. When the writ is sought by a public officer in his official capacity for the public benefit, the action shall not abate by the termination of his office but may Ibid. § 24. be prosecuted by his successor.

24. When the writ is sought by an executor, administrator or trustee, the death of the plaintiff or his removal from position by resignation or otherwise shall not abate the writ, but the action may be continued by his successor. 25. The death, resignation or removal from office by lapse of time or otherwise,

(v) See Lamb v. Lynd, 44 P. S. 336-40.

(2) If the return be insufficient, the proper course is to demur to it; not to move for a peremptory writ. Commonwealth v. Allegheny County, 32 P. S. 218. And see Commonwealth v. German Society, 15 Ibid. 251. Commonwealth v. Allegheny County, 37 Ibid. 277. A demurrer to the return admits the truth of the facts therein stated. Commonwealth v. Dickinson, 83 P. S. 458. In case of a traverse, the facts relied upon must be set forth, not argumentatively, evasively or inferentially, but clearly, sufficiently and certainly. Commonwealth v. Allegheny County, 37

Death or removal

of plaintiff not to sought by executor

abate writ when

or trustee.
Ibid. § 25.

P. S. 277. See Smith v. Commonwealth, 41 Ibid. 335.
See Commonwealth v. County Commissioners, 6 Wh.
477-8. Commonwealth v. Pike Beneficial Society, 8
W. & S. 247. Commonwealth v. German Society, 15
P. S. 251.

(x) See Commonwealth v. Taylor, 36 P. S. 263.

(y) The relator is entitled to damages to the extent of the injury sustained by the illegal act of the defendant. Washington Beneficial Society v. Bacher, 20 P. S. 426-7. Marion Beneficial Society v. Commonwealth, 31 Ibid. 82.

P. L. 345.

Death or removal

8 June 1893 § 25. of any defendant, shall not have the effect to abate the suit, but his successor may be made a party thereto and any peremptory writ shall be directed against him. 26. Defects in substance in the alternative writ may be taken advantage of at any stage of the proceeding. Amendments may be allowed as in other civil actions save as hereinafter mentioned.

of defendant not to abate suit.

Ibid. § 26. Defects in sub

stance in alterna

tive writ. Amendments.

Ibid. § 27. Peremptory writ, to whom directed. Service and return. Ibid. § 28. Peremptory writ may be superseded or quashed, but not amended.

27. The peremptory writ shall be directed to the same person as the alternative writ save as herein authorized; it shall be served in the same manner as the alternative writ and it shall be made returnable at such time as to the court awarding it may seem just and reasonable.

28. The peremptory writ, though issued, may be superseded or quashed for such cause as to the court may seem just, but no amendment thereto shall be allowed. 29. The party aggrieved by the proceedings had in any court of common pleas upon any writ of mandamus may remove the same at any time within twenty days after final judgment, order, decree, or in cases where the granting of said writ is required by the first section of this act, at any time within twenty days after refusal to grant said writ, into the supreme court by appeal as in other actions at Appeal to supreme law, and such appeal shall supersede any peremptory writ awarded by the court and also any execution for damages or costs, upon bail to be given as in other civil cases.(*)

Ibid. § 29.

court.

Appeal to supersede peremptory writ and execution for costs, &c.

Ibid. $ 30.

30. Such appeal shall also supersede any peremptory writ issued within twenty days after final judgment, order or decree: Provided, however, That the certiorari in consequence of such appeal be lodged in the office of the prothonotary of the To supersede per- court awarding the writ before the mandate thereof shall have been fully complied with: Provided further, That said appeal shall be made returnable forthwith.

emptory writ

issued within

twenty days.

Return of appeal.

Ibid. § 31.

Supreme court to hear and decide appeal.

Ibid. § 82.

Supreme court to exercise original jurisdiction.

Ibid. § 33.

Duties and powers

31. Every such appeal may be made returnable forthwith, and, if thus made returnable, it shall be heard and decided by the supreme court in any district in which it may be in session, as in this act provided in cases originating in said court, and if not thus returnable it shall be heard and decided by said court when in session in the proper district at the term to which it shall have been made

returnable.

32. The supreme court in any district shall exercise, throughout the state, original jurisdiction in the cases authorized by the organic law of the state, and if not decided before the close of its session in said district shall cause the same to be certified to and filed for action with the prothonotary of said court in the district within which it shall be next in session, and so to be certified from district to district until finally decided.

33. The supreme court in such cases shall dispose of all issues of fact arising therein in such manner as may be deemed just and reasonable, and shall enter such of supreme court. judgments, orders or decrees and in such manner and on such terms as to it may seem proper, and to that end may make all necessary rules and regulations. Damages and costs allowed by this act and awarded by the supreme court shall be recovered in the manner said court may direct.

Damages and costs.

Ibid. § 34. Repeal.

34. All acts or parts of acts inconsistent herewith be and the same are hereby repealed.

MANSLAUGHTER.

See CRIMES.

(z) See Easton v. Lehigh Water Co., 97 P. S. 554.

MANUFACTURING COMPANIES.

See Co-OPERATIVE ASSOCIATIONS; CORPORATIONS; TAXES.

1. Government of manufacturing Capital stock. General and special stock. 2. Assessments, how enforced.

companies.

3. Certificate of payment of capital to be recorded. 4. Withdrawal of capital.

5. When directors to be individually liable. 6. Restriction of liabilities.

Directors to be liable for excess. Liability for false certificate, &c. 7. Power to hold real and personal property. 8. Annual statements to be filed.

9. Officers not to be liable, after filing statement. 10. Service of process. Dissolution. Liability of general stockholders.

11. Individual liability to laborers, &c.

12. Power to acquire and dispose of real estate. 13. Restriction of powers.

14. Powers for winding up, on expiration of charter.

15. Treasurers to keep separate bank accounts. Penalty for neglect.

1. Companies incorporated under the provisions of this act for the carrying on of 29 April 1874 § 39. any mechanical, mining, quarrying, manufacturing or other business, (a) as provided P. L. 101. in clause eighteen of the second class, in section two hereof, when not otherwise Government of provided in this act, shall, from the date of the letters-patent creating the same, manufacturing have the powers, and be governed, managed and controlled as follows:(b)

companies.

I. Every such corporation may have a capital stock not exceeding five million Capital stock. dollars, and may, by a vote of three-fourths of the general stockholders, at a meet

ing duly called for the purpose, issue two kinds of stock, namely, general stock General and speand special stock. The special stock shall at no time exceed two-fifths of the actual cial stock. capital of the corporation, and shall be subject to redemption at par, after a fixed time to be stated in the certificates; holders of such special stock shall be entitled to receive, and the corporation shall be bound to pay thereon, a fixed or half-yearly sum or dividend, to be expressed in the certificates, not exceeding four per centum; and they shall in no event be liable for the debts of the corporation beyond their stock.(c)

2. II. If the proprietor of any share neglect to pay a sum duly assessed thereon, Assessments, how for the space of thirty days after the time appointed for payment, the treasurer of enforced. the company may sell, by public auction, a sufficient number of the shares to pay all assessments then due, with necessary and incidental charges thereon; (d) the treasurer shall give notice of the time and place appointed for such sale, and of the sum on each share, by advertising the same three weeks successively before the sale, in some newspaper published in said county; and a deed of the share so sold made by the treasurer, and acknowledged before a justice of the peace, and recorded by the clerk, [who] shall transfer said shares to the purchaser, who shall be entitled to a certificate therefor.

be recorded.

3. III. The president and directors, with the treasurer and clerk of such com- Certificate of paypanies, shall, after the payment of the last instalment of the capital stock, make a ment of capital to certificate stating the amount of the capital so fixed and paid in, which certificate shall be signed and sworn to by the president, treasurer, clerk, and a majority of the directors, and they shall cause the same to be recorded in the office of the recorder of deeds for said county.(e)

(a) See tit. "Corporations." The act 7 April 1849, P. L. 563, provides for the incorporation of companies for the purpose of carrying on the manufacture of woollen, cotton, flax or silk goods, and of iron, paper, lumber or salt in this commonwealth. It was extended to the manufacture of glass, except in Philadelphia, by act 26 April 1850, § 4, P. L. 627; of articles made from salt, except in Philadelphia, by act 12 April 1851, § 19, P. L. 516; to printing and publishing, by act 14 April 1851, § 19, P. L. 576, as amended by act 27 March 1854, § 3, P. L. 215; to the manufacture of enamelled and vitrified iron, and articles made of cast or wrought iron, coated with glass or enamel, within the county of Allegheny, by act of 15 April 1852, § 9, P. L. 361: of oil and other products of rosin, by act 1 May 1852, § 9, P. L. 496; to the mining and manufacturing of mineral paints and artificial slates, and other articles made by the use of said painting materials, except in Philadelphia, by act 6 May 1852, § 7, P. L. 624; of artificial manures; and of articles made out of iron and other metals, or out of wood, iron and other metals, by act 1 April 1853, § 2, P. L. 269; to quarrying marble and building-stone, &c., by act 18 April 1853, § 11, P. L. 518; to mining coal, &c., and manufacturing of lumber, by act 20 April 1853, P. L. 637: to the manufacturing of flour, in Philadelphia and Beaver counties, by act 11 May 1853, § 7, P. L. 673; to common carriers, without the capacity to hold real estate, by act 27 March 1854,

§ 4, P. L. 215; to the manufacturing of leather, in certain counties, by acts 31 March 1859, § 1, P. L. 327, and 8 February 1860, § 1, P. L. 39; to the manufacturing of oils, hydro-carbon fluids, and all other products resulting from subjecting coal of any kind to the action of heat, or the process of distillation, by act 30 January 1856, § 1, P. L. 7; to the manufacturing of oil from mineral coal, in Beaver county, by act 2 April 1859, § 1, P. L. 347; to the mining, manufacturing and refining of carbon oil, by act 29 March 1860, § 1, P. L. 343; to the manufacturing of fuel, by act 3 April 1860, § 1, P. L. 629; to the manufacture and preparation of lubricating oil and material out of and from mineral oils, and other oils or fatty substances, whether mineral, animal or vegetable, by act 1 April 1863, P. L. 191; and to the manufacture of leather, in the county of Elk, by act 22 March 1865, P. L. 540. See note (b) infra.

(b) This act appears to have supplied the previous statutes on the subject of manufacturing companies. The 46th section of this act repeals inter alia the act of 7 April 1849, P. L. 563, so far as it provides for the creation of corporations for any of the purposes mentioned in this act, and so far as it is inconsistent with this act.

(c) See Allibone v. Hager, 46 P. S. 48.

(d) See Dairymen's Association v. Ryan, 16 W. N. C. 383. (e) In an action against the stockholders to make

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