P. L. 152. 11. The said agent of the said board, the said dairy and food commissioner, is 26 May 1893 § 8. hereby authorized and empowered, subject to the approval of the said state board of agriculture, to appoint and fix the compensation of such assistants, agents, Assistants, &c. experts, chemists, detectives and counsel, as may be deemed by him necessary for the proper discharge of the duties of his office, and for the discovery and prosecution of violations of the said laws: Provided, That the entire expenses of the said agent and of all his assistants, agents, experts, chemists, detectives and counsel (salaries included), shall not exceed the sum appropriated for the purposes of this act. Ibid. § 4. 12. The said agent of the state board of agriculture and such assistants, agents, experts, chemists, detectives and counsel, as he shall duly authorize for the pur- Powers of commispose, shall have full access, egress and ingress, to all places of business, factories, sioner and his asfarms, buildings, carriages, cars, vessels and cans, used in the manufacture, trans- sistants. portation and sale of any dairy products, or of any adulteration or imitation thereof. They shall also have power and authority to open any package, can or vessel, containing dairy products, or any adulteration or imitation thereof, which may be manufactured, sold or exposed for sale, in violation of any of the provisions of any act now enacted or which may be hereafter enacted in relation to dairy products, or the adulteration or imitation thereof, and they shall also have power to take from such package, can or vessel samples for analysis. Ibid. § 5. 13. All penalties and costs received by the said state board of agriculture for violations of the said act of May twenty-one, Anno Domino one thousand eight Penalties and costs hundred and eighty-five, and of other acts now enacted or hereafter to be enacted, to be appropriated prohibiting or regulating the adulteration or imitation of butter, cheese or other to payment of exdairy products, shall be appropriated by the said board to the payment only of the penses. necessary expenses incurred by the said dairy and food commissioner and his assistants and agents in the investigation, discovery and prosecution of violations of the said act. Ibid. § 6. and expenses. Ibid. § 7. 14. All charges, accounts and expenses of the said commissioner, and of all the assistants, agents, experts, chemists, detectives and counsel employed by him, shall be paid by the treasurer of the state in the same manner as other accounts and Charges, accounts expenses of the said state board of agriculture are now paid as provided by law. 15. The said commissioner shall make annual reports of his work and proceedings and shall report in detail the number, and names of the assistants, agents, Commissioner to experts, chemists, detectives and counsel employed by him, with their expenses and make annual redisbursements, the number of prosecutions, the number of convictions and the pen- ports. alties recovered in each case, which report shall be presented to the said state board of agriculture at its annual meeting. OMNIBUSES. See STAGECOACHES. 1. Councils to regulate and license omnibuses in Philadelphia. 1. The select and common councils of the city of Philadelphia, and the commis- 15 April 1850 § 12. sioners of the incorporated districts in the county of Philadelphia, shall severally 469. have authority (by ordinance or ordinances) to provide for the proper regulation Councils to reguof omnibuses or vehicles in the nature thereof; and to this end it shall be lawful late and license in for the said councils and commissioners as aforesaid to pass ordinances, from time Philadelphia. to time, to provide for the issuing of licenses to such and so many persons as may apply to keep and use omnibuses or vehicles in the nature thereof, and to charge a reasonable annual or other sum therefor; and to provide for the punishment of the owners and drivers of the same, by fine, for any violation of the provisions of the ordinances to be enacted by virtue hereof.(g) OPENING JUDGMENT. See JUDGMENT; PAYMENT INTO Court. (g) Under this act, an ordinance is invalid which changes the route of an existing line, and changes or regulates the character, weight and capacity of the omnibuses; a license fee of one hundred dollars is not unreasonable. Commonwealth v. Wagner, 9 C. C. 625. 1624 OPERA-HOUSE COMPANIES. — OPINIONS AND CHARGES. 29 April 1874 § 36. P. L. 95. Power of opera OPERA-HOUSE COMPANIES. 1. Powers of opera-house companies. 1. Companies incorporated under the provisions of this act, or similar companies already incorporated and accepting the same, for holding, leasing and selling real estate, or for the establishment and maintenance of a hotel or boarding-house, house companies. or opera and market-house, hotel and drove-yard, or both, any or either, shall have the right and power to take, receive, hold and enjoy, either by conveyance, (in) fee-simple or for any less estate, or upon ground-rent, or for both, all the buildings, lots of lands, premises (and) appurtenances necessary to the successful maintenance and carrying on of such business; shall have the power to execute the necessary and proper covenant for securing the payment of ground-rent on any of such lands and premises; shall have power to sell and convey, let or lease, all or any parts of said lots, or the tenements and buildings thereon erected, either for cash or on ground-rent, or partly for cash and partly on ground-rent, and shall have power to hold or erect such buildings, fixtures and appurtenances, and procure such furniture and equipments, as may be necessary for the success of its business. And the said corporation may borrow money, in the manner provided in section thirteen of this act, to an amount equal to the capital stock of the company paid up, and secure the same by mortgage upon the said lots, buildings and fixtures and appurtenances.(h) OPINIONS AND CHARGES. See STENOGRAPHERS. 1. Judges to file their opinions in writing. 2. Charges to be reduced to writing at the time of delivery. 24 Feb. 1806 § 25. 4 Sm. 276. Judges to file their opinions in writ ing. 15 April 1856 § 1. P. L. 337. 3. Answers to points to be reduced to writing and read to the jury. To be filed of record. 4. Error may be assigned thereon. 1. In all cases (in) which the judge or judges holding the supreme court, [court of nisi prius, circuit court,] or presidents of the courts of common pleas(i) shall deliver the opinion of the court, if either party, by himself or counsel, require it,() it shall be the duty of the said judges, respectively, to reduce the opinion so given, with their reasons therefor, to writing, and file the same of record in the cause.(1) 2. The president judges of the several courts of common pleas of this commonwealth, shall, in every case tried before them, respectively, upon request of any Judges to reduce party or attorney concerned therein, reduce the whole opinion and charge of the court, as delivered to the jury, to writing, at the time of the delivery of the same, and shall forthwith file the same of record.(m) their charges to writing, at the time of delivery. 24 March 1877 § 1. Answers to points Ibid. § 2. Error may be assigned thereon. 3. Whenever, in the trial of a cause before any of the judges of the several courts of common pleas, within this commonwealth, if any of the parties or their counsel shall request the court to charge the jury on particular points of law drawn up in writing and handed to the court before the close of the argument to the jury, the judge who charges the jury, shall reduce the answers to the points to writing, and read them to the jury, before they retire from the bar to consider the verdict; and the said points and answers thereto shall be filed immediately by the court or judge, and become part of the records of the case for the purposes of error. 4. The charge and answers of the court to points in all cases, where filed, shall be part of the record for the purpose of assignment of errors.(n) (h) So amended by act 17 April 1876, P. L. 36. (i) It does not extend to the president of the quarter sessions. Spring Garden Street, 4 R. 192. See Simpson v. Wray, 7 S. & R. 336-8. Richardson v. Stewart, 2 Ibid. 84, as to the opinions of associate judges. (k) It must appear by the record, that the opinion was filed at the request of one of the parties or his counsel. Lancaster v. De Normandie, 1 Wh. 49. Bratton v. Mitchell, 5 W. 71. But if so filed, it is the subject of revision, no matter which party requested it. Brown v. Caldwell, 10 S. & R. 114-15. (1) The judge should place on record such facts as are necessary to explain his opinion. Downing v. Baldwin, 1 S. & R. 302. Munderbach v. Lutz, 14 Ibid. 125. An exception to the charge must be taken at the trial, or it will be considered waived. Bratton v. Mitchell, 5 W. 69-72. It is not error that the judge did not reduce to writing, and file the reasons for his opinion. Morberger v. Hackenberg, 13 S. & R. 26. Kennedy v. Daily, 6 W. 274. Koons v. Steele, 19 P. S. 204. It does not require a judge to file his reasons for rejecting evidence. Morrison v. Moreland, 15 S. & R. 61, 64. It makes no alteration as to those matters which are the subject of revision in a court of error. Burd v. Dansdale, 2 Binn. 80. Wright v. Small, Ibid. 93. Where the opinion of the court below is filed, no bill of exceptions is required. Downing v. Baldwin, 1 S. & R. 298. See Bassler v. Niesly, Ibid. 431. Munderbach v. Lutz, 14 Ibid. 125. McCandless v. McWha, 22 P. S. 261. Wheeler v. Winn, 53 Ibid. 122. (m) See Patterson v. Kountz, 63 P. S. 246. (n) Under this act error may be assigned to any part of the charge which has been filed, with or with out request, and whether excepted to in the court below or not. Grugan v. Philadelphia, 158 P. S. 337. Janney v. Howard, 150 Ibid. 339. OPIUM JOINTS. See CRIMES. ORNITHOLOGY. See AGRICUlture. ORPHANS' COURT. See CONTRACTS OF DECEDENTS; COUNTY OFFICERS; DECEDENTS' ESTATES; TRUSTS AND TRUSTEES. 53. Like proceedings to be had on final decree. 54. Proceedings on return of writ. 55. When sequestered property may be sold. Complainant to give security. 56. When defendant may be admitted to make defence, after decree pro confesso. 57. When such decree to become final. 58. When process may issue to another county. 59. Writs of vend. ex. and test. fi. fa. may be awarded. 60. Attachments-execution may issue to enforce decrees for the payment of money.. 61. Court may award issue. 62. Party to make affidavit. 63. Fund may be invested in the meantime. 64. Parties may be examined on oath. Power to compel production of books and papers. 65. When petition of review may be presented. Proceedings thereon. 66. Parties may appeal. Proceedings to obtain appeal. Effect thereof. Reversal not to affect interests acquired by strangers, under decree. 67. When a supersedeas. 68. Supreme court may appoint auditors. 70. Fees of sheriffs. I. Jurisdiction and powers of the orphans' court. 1. In every county of this commonwealth, there shall be organized and holden, 19 May 1874 § 1. on and after the first Monday of January 1875, a court of record, the name and style whereof shall be "The Orphans' Court of (the respective) county." P. L. 206. Orphans' courts established. 19 May 1874 § 2. P. L. 206. How composed. 29 March 1832 § 2. P. L. 190. To be a court of record. 19 May 1874 § 3. P. L. 206. In Philadelphia, 2. The orphans' court of each county, except in the counties of Philadelphia, Allegheny and Luzerne, (o) shall be composed of the judge or judges, when there are more than one, of the court of common pleas thereof; but any one judge learned in the law shall have power to hold the court, and hear and determine all matters and things therein cognizable. 3. The orphans' court is hereby declared to be a court of record, with all the qualities and incidents of a court of record at common law ;(p) its proceedings and decrees, in all matters within its jurisdiction, shall not be reversed or avoided collaterally in any other court;(q) but they shall be liable to reversal, or modification, or alteration, on appeal to the supreme court, as hereinafter directed.(r) 4. In the counties of Philadelphia, Allegheny and Luzerne, the orphans' court shall be a separate court of record, which shall consist, in the county of Philadel phia, of three judges learned in the law, either of whom may hold the said court, and in the counties of Luzerne and Allegheny, each, of one judge learned in the law ;(s) and the said judges shall be elected at the next general election of this commonwealth, and be commissioned for the same term and in the same manner as the judges of the courts of common pleas of the respective counties wherein such orphans' courts shall be established. In the counties where separate orphans' courts are established, the annual salaries of said judges shall be the same as are Salaries of judges. paid to the judges of the courts of common pleas, in the respective counties where such separate orphans' courts are established, to be paid in the same manner as the salaries of said judges of the courts of common pleas are now, or may be by law, payable.(t) 28 April 1887 § 1. P. L. 72. Additional judge authorized in 24 May 1878 § 1. P. L. 181. 5. It shall be the duty of the governor to appoint a competent person learned in the law to be associate judge of the separate orphans' court of the county of Philadelphia, in addition to the judges now composing said court, who shall hold his office until the first Monday of January, next following his appointment, and who shall have the same powers, authority and jurisdiction as the other judges of said court. 6. At the next general election to be held in November and thereafter at such time and times as may be prescribed by the constitution and laws of this commonwealth, the qualified electors of the county of Philadelphia shall elect a competent person learned in the law to serve as associate judge, who shall be commissioned and hold his office for the term as now provided by law, and shall have the same powers, authority and jurisdiction, and receive the same compensation as the other judges of the said court are now paid. 7. In all counties in this commonwealth, in which there is or hereafter may be established a separate orphans' court, the governor shall issue a commission as President judge to president of said court, to the judge of said court, who shall be oldest in commisbe commissioned. sion and continuous service; and if there shall be two or more judges of any of said courts, whose commissions are of the same date, and whose term of service commenced at the same time, they shall draw lots for a commission as president of said court, and certify the result to the governor, who shall issue a commission as president of said court to the judge who shall draw the right to receive the Ibid. § 2. Ibid. § 3. Re-election. Ibid. § 4. same. 8. In all separate orphans' courts, composed of only one judge, he shall be styled the president judge of said court, and be commissioned as such. 9. When the president judge of any said courts shall be re-elected, he shall be again commissioned, and continue to be the president judge of said court; and when the said president judge shall go out of office, the judge of said court who shall be oldest in commission and continuous service shall be commissioned and be the president judge thereof. 10. Whenever, at any general election, two or more judges of any of said courts are elected who shall not have been commissioned and served as judges of said When presidency court immediately before the commencement of the terms for which they were elected, they shall draw lots for priority of commission, and certify the result to the governor, who shall issue the commissions of said judges on different days, giving the priority of commission to the judge drawing the right to receive the to be by lot. same. 14 April 1834 § 57. 11. The orphans' courts of the city and county of Philadelphia shall be held P. L. 352. during every term of the court of common pleas of the said city and county, at Terms of orphans' such times and as often as the judges thereof shall think necessary or proper; and the orphans' court of every other county of this commonwealth shall be held courts. (0) The act 13 June 1883, provides for the establishment of a separate orphans' court in Berks county. P. L. 97. This act was not repealed, so far as it relates to Luzerne county, by the act 13 April 1887. Reid v. Smoulter, 128 P. S. 324. (p) Yet its decrees are not to be regarded as judg ments upon which an action of debt will lie. Eichelberger v. Smyser, 8 W. 181. (q) The decrees of the orphans' court cannot be questioned in a collateral suit, unless for fraud, or want of jurisdiction apparent on the record. Painter during the first week of each term of the court of common pleas of the respective 14 April 1834 § 57. county, and at such other times as the judges thereof shall think necessary or P. L. 352. proper. 12. The said orphans' courts, except in the counties of Philadelphia, Allegheny 19 May 1874 § 4. and Luzerne, shall be held when and as now provided by law; and in the counties P. L. 207. of Philadelphia, Allegheny and Luzerne, during every term of the courts of com- When courts to be mon pleas of said counties, and at such other times and as often as the judge or holden. judges thereof shall think necessary or proper. 13. Every orphans' court shall have a seal for the use of the said court, having 14 April 1884 § 55. engraved thereon such words and devices as are inscribed on the seal now in use P. L. 351. in the respective court; and such seal may be renewed, under the direction of such To have a seal. court, as often as occasion shall require. 14. A clerk shall be commissioned for each of the said courts: he shall have the Ibid. § 56. custody of the records and of the seal of the respective court, and keep the same And a clerk. at the place of holding such court, and in the apartments provided by law for that purpose: he shall faithfully perform, under the direction of the court, all the duties appertaining to his office. 18 April 1887. P. L. 22. 15. The register of wills of each and every county containing over one hundred and fifty thousand inhabitants, in which a separate orphans' court is or may be hereafter established, shall be clerk of such orphans' court, and subject to its Register of wills to directions in all matters pertaining to his office;(u) and he may appoint assistant be clerk. clerks, but only with the consent and approval of said court, who shall receive Assistant clerks. annual salaries, payable monthly by the treasurer of said respective counties as follows, to wit: The first assistant, two thousand dollars; the second assistant, eighteen hundred dollars; and third assistant, twelve hundred dollars; and all Salaries. other assistants, one thousand dollars; which salaries shall be paid out of the fees of said office paid into the treasury of the county, upon bills attested by said register and countersigned by a judge of said court. (v) 25 April 1889. P. L. 52. counties having 16. The register of wills of each and every county containing less than one hundred and fifty thousand inhabitants, in which a separate orphans' court is now Register of wills in established, shall be clerk of such orphans' court, and subject to its directions in less than 150,000 all matters pertaining to his office; and he may appoint an assistant clerk, but only inhabitants, and a with the consent and approval of said court, who shall receive an annual salary of separate orphans' two thousand dollars, payable monthly by the treasurer of said respective counties, of such court. which salary shall be paid upon bills attested by said register and countersigned May appoint an by a judge of said court. court, to be clerk assistant clerk. Salary. P. L. 207. 17. The commissioners of the several counties aforesaid, shall provide proper and suitable apartments, in which the business of said orphans' courts shall be 19 May 1874 § 10. held and conducted, and in which the records thereof shall be safely and securely Court-rooms. kept. 18. The jurisdiction (w) of the several orphans' courts shall extend to and 16 June 1836 § 19. embrace : P. L. 792. I. The appointment, control, removal and discharge of the guardians of minors, Jurisdiction. and the settlement of their accounts:(x) II. The removal and discharge of executors and administrators, deriving their authority from the register of the respective county, and the settlement of their accounts:(y) III. The distribution of the assets and surplusage of the estates of decedents after such settlement, among creditors and others interested:(z) IV. The sale of real estates of decedents :(a) (u) Nevertheless, in his official character as register, he has independent duties to perform, in which he is not subject to the direction of the orphans' court, except by virtue of its appellate jurisdiction. Taylor V. Commonwealth, 103 P. S. 96. (v) This is an amendment of the act of 19 May 1874, § 5, P. L. 207. It is not unconstitutional. Reid v. Smoulter, 128 P. S. 324. (c) The orphans' court has not the general jurisdiction of a court of equity. Brinker v. Brinker, 7 P. S. 55. Ake's Appeal, 74 Ibid. 116. Brown's Appeal, 89 Ibid. 139. Kidder's Estate, 1 Kulp 412. But, within the limited sphere of its jurisdiction, it is essentially such, in its proceedings and decrees. Commonwealth v. Judges, 4 P. S. 303. It cannot, however, having acquired jurisdiction of a cause, proceed to make a final end of the controversy. Ake's Appeal, 74 P. S. 116. It applies equity rules and principles to make its jurisdiction effective. Ibid. See Aimey's Appeal, 2 Penny. 192. Williams's Estate, 23 Pitts. L. J. 118. Brown's Appeal, 89 P. S. 139. It is not, however, bound by the rigid rules of equity practice, or the elaborate forms of equity pleading. Johnson's Appeal, 9 P. S. 419. George's Appeal, 12 Ibid. 261. Persons are amenable to the jurisdiction of the orphans' court, either because they are parties having an interest in the subject-matter of a proceeding pending in it, or because they are under official obligations to it, or because they are sureties or parties to bonds or recognizances. Hopkins's Estate, 11 Phila. 42. (x) Claims against an executor in his individual capacity are not within the jurisdiction. Robinson's Estate, 12 Phila. 170. The court has no jurisdiction over the estate located in another county, whence the letters issued. Holt's Estate, 11 Phila. 13. (y) See Peebles's Appeal, 15 S. & R. 41. Pennypacker's Appeal, 14 P. S. 430. Freeman's Appeal, 68 Ibid. 151. (2) This gives power to marshal the assets between legatees and devisees. Loomis's Appeal, 10 P. S. 390–1. The jurisdiction is not exclusive, in every case which may incidentally bear upon the settlement of a decedent's estate. Van Dyke's Appeal, 60 P. S. 481. See Wickersham's Appeal, 64 Ibid. 67. Linsenbigler v. Gourley, 56 Ibid. 166. Grigg's Estate, 11 Phila. 23. Schenck's Estate, 4 W. N. C. 511. The court has undoubted jurisdiction to decide upon the claims of creditors. McMurray's Appeal, 101 P. S. 421. And of all questions standing directly in the way of distribution. Dundas's Appeal, 73 P. S. 474. Grove's Appeal, 103 Ibid. 562. McGettrick's Appeal, 98 Ibid. 9. Fitler's Estate, 14 W. N. C. 62. (a) See Leslie's Appeal, 63 P. S. 355. Dundas's Appeal, 64 Ibid. 325. Dailey's Appeal, 87 Ibid. 487. |