20 May 1891 § 1. ciations, shall be guilty of a misdemeanor, and upon conviction shall be sentenced to pay a fine not to exceed two hundred dollars.(e) P. L. 96. Penalty. valid. Obligations of act not to be waived. Ibid. § 3. 28. No assignment of future wages payable semi-monthly, under the provisions of this act, shall be valid, nor shall any agreement be valid that relieves the said firms, individuals, corporations or associations from the obligation to pay semimonthly, and in the lawful money of the United States. 29. It is hereby made the duty of the factory inspector and his deputies to bring actions in the name of the commonwealth, against every individual, firm, Factory inspector corporation and association violating the provisions of this law, upon the request to bring action. of any citizen of this commonwealth. Upon his failure to do so, any citizen of this commonwealth is hereby authorized to do so in the name of the commonwealth. 30. All laws or parts of laws inconsistent with the provisions of this act be and Repealing clause. the same are hereby repealed. Citizen may sue. WAITER GIRLS. See AMUSEMENTS; INNS AND TAVERNS. WAREHOUSE RECEIPTS. See BAILEES. WARRANTS. See CRIMINAL PROCEDURE; TAXES. WARRANTY. See SALE OF CHATTELS. (e) This is an amendment of the act 23 May 1887, P. L. 180. This act applies only to those engaged in the business of mining or manufacturing. Commonwealth v. Marsh, 14 C. C. 369. WASTE.. See ACTIONS REAL; TIMBER. 1. Estrepement to issue pending ejectment. Affidavit to be filed. 2. Quarrying and mining to be deemed waste. When estrepement may issue in such cases. How dissolved. 3. Estrepement may issue in favor of purchaser at sheriff's sale. Mortgage or judgment-creditor. 4. May be dissolved, on motion. 5. President judges may dissolve estrepements. 6. Persons having contingent interests may sue for waste. Receiver. Bond. 7. Estrepement may issue in favor of remainderman. Notice to be given. Effect of writ. 8. In favor of mortgagee. Effect thereof. 9. In favor of creditor of decedent. How dissolved. 10. Trees cut down, not to be removed after service of writ. Timber may be replevied. 11. Writ may be dissolved, on motion, in all cases. 12. Plaintiff in foreign attachment may have estrepement to stay waste. 13. Estrepement not to issue without security. 14. Not to apply to ejectments to enforce specific performance. 15. Estrepement may issue, pending writ of error. 16. How writ to be sued out. When to be dissolved. 17. Tenants in common not to cut timber. 19. Estrepement may issue. 20. Estrepement may issue in proceedings on mortgage of leasehold. 21. Waste in taking petroleum may be restrained. 22. Affidavit and bond. 23. Dissolution. 24. Receiver for producing wells. 25. Estrepement to prevent waste in lands sold for taxes. How dissolved. 26. When county commissioners may sue out a writ of estrepement to prevent the cutting of timber. 1. When any ejectment shall be depending in the supreme court, [circuit court] 2 April 1808 § 2. or court of common pleas, it shall and may be lawful for the prothonotary or clerk 4 Sm. 89. of the court in which such ejectment is or shall be depending, upon affidavit of Estrepement to the plaintiff, or other person knowing the fact, filed in his office, that the tenant issue pending or defendant in such ejectment has committed or is committing waste and destruc- ejectment. tion of or in the premises, (g) to issue a writ of estrepement to prevent the same, Affidavit to be of course, without motion to the court, and in vacation: which affidavit shall be filed. sworn before one of the judges of the supreme court or common pleas, and shall be considered regular, though the judge before whom it shall be taken may not be a judge of the court in which such ejectment shall or may be depending.(h) P. L. 99. deemed waste. 2. Quarrying and mining, and all such other acts as will do lasting injury to 27 March 1833 § 8. the premises, shall be considered as waste, under the provisions of the second section of the act, entitled “A supplement to the act, entitled 'An act to enable the Quarrying and justices of the supreme court to hold circuit courts within this commonwealth,' ,,, mining to be passed the 2d day of April 1803: Provided, That no writ of estrepement shall be When estrepement issued to prevent waste or injury by the working of quarries or mines, which may issue in such were opened previous to the institution of the suit for recovering possession cases. thereof, until the term next succeeding that to which the writ of ejectment was returnable, or until the plaintiff shall have filed in the office of the prothonotary of the proper court, an affidavit that the title or right of possession to the premises, or some part thereof, is vested in him, and until the attorney for the plaintiff shall have certified his opinion that the title or right of possession is vested in the plaintiff as aforesaid: And provided further, That the court in which the action How dissolved. is pending shall have authority to dissolve the writ of estrepement, on the defendant giving security to indemnify the plaintiff against any damage or loss by the further working of the quarries or mines, or on such other terms and conditions, as the court may consider equitable and just.(i) sheriff's 3. It shall and may be lawful for any owner or owners of any lands or tene- 29 March 1822 § 1. ments, leased or let for years or at will, at any time during the continuance(k) or 7 Sm. 520. after the expiration of such demise, and due notice given to the tenant or tenants Estrepement may to leave the same, according to the provisions of the act of assembly in such case issue in favor of made and provided; or for any purchaser or purchasers at sheriff's or coroner's purchaser at sale of lands or tenements, after he or they have been declared the highest bidder by the sheriff or coroner; or for any mortgagee or judgment-creditor or creditors, Mortgage or judgafter the lands bound by such judgment or mortgages shall have been condemned ment-creditor. by inquisition, or which may be subject to be sold by a writ of venditioni exponas or levari facias; to apply to the court of common pleas or district court of the proper county, while in session, or to any judge thereof, in vacation, by petition and affidavit made by him, her or them, or some other credible person, setting (g) Cutting down timber to the injury of the inheritance, is waste. Smith's Appeal, 69 P. S. 474. Eckert v. Ferst, 30 L. I. 352. But harvesting the annual crops is not waste. Snyder v. Depew, 1 Lack. L. Rec. 477. (h) See Schoonmaker v. Gillett, 3 Johns. Ch. 311. (i) See Brown v. O'Brien, 3 Clark 93. Neel v. Neel, 4 Ibid. 520; s. c. 19 P. S. 323. Westmoreland Coal Company's Appeal, 85 Ibid. 344. Griffin v. Fellows, 32 Sm. 114. The common pleas has power to dissolve a writ of estrepement upon conditions. Hensal v. Wright, 10 C. C. 416. (k) An application for a writ of estrepement may be made during the continuance of the lease, without previous notice to quit. Heil v. Strong, 44 P. S. 264. 7 Sm. 520. 29 March 1822 § 1. forth such of the facts before mentioned as may be necessary to bring him, her or them within the provisions of this act, and that the tenant or person in possession has committed waste() to the freehold (or allows it to be done by others), or threatens to do the same, and that such owner, mortgagee or plaintiff, or some other person for him or them, verily apprehends, in consequence of such threat, that such waste will be committed, unless the same be restrained by law, it shall and may be lawful for such court or judge, as the case may be, in their discretion, (m) to order the prothonotary of such court to issue a writ of estrepement to stay waste; which said writ shall have the same effect, to all intents and purposes, as if the same had been issued after action of ejectment brought, in cases where such action is the proper remedy.(n) Ibid. § 2. May be dissolved, on motion. 18 Feb. 1873 § 1. P. L. 35. 4. It shall and may be lawful for the tenant or other person in possession, to apply to the court from which the said writ may have been issued, at any time after the issuing thereof, whenever such court may be in session; and the said court shall hear the parties in a summary manner, and may dissolve the said writ, or make such further order therein as to them may seem just and right.(0) 5. The president judges of the several courts of common pleas of this commonwealth, shall and may exercise in vacation all the powers and authority of disPresident judges solving writs of estrepement that could be exercised by the courts over which they preside when in session: Provided, That notice shall be first given to the opposite party. may dissolve estrepements. 8 June 1991. P. L. 208. Persons having contingent interest may sue for waste. Receiver. Bond. 10 April 1848 § 1. P. L. 472 Estrepement may issue in favor of remainder-man. 6. From and after the passage of this act, it shall be lawful for any person or persons having a contingent interest in any real estate in this commonwealth, and not being in possession of the same, to commence and prosecute any suit or suits at law or in equity to prevent the commission of waste to such real estate, or to recover damages for waste committed or injury done to such real estate, in the same manner and form as they might or could do was such interest vested and the person or persons having such interest, in actual possession of the same: Provided, That before any suit at law or equity is commenced, the said person or persons having such contingent interest, shall apply to the court of common pleas of the county where such land or part of the same is situated, for the appointment of some suitable person to take and receive any and all moneys that may be so received in any suit or suits, which person shall, after recovery of judgment and before any money or property passes, give such bond with such sureties as may be approved by said court, and shall hold any and all such money received as aforesaid, subject to the orders of said court. Such receiver shall receive such compensation for his services as the court may allow. 7. The provisions of an act of assembly, passed the 29th day of March, Anno Domini 1832, entitled “An act to prevent waste in certain cases within this commonwealth," be and the same are hereby extended, so as to embrace and be applicable to estates and tenants for life ;(p) and upon the application of any person interested in any estate in remainder, his or her agent or attorney, made according to the terms and requirements of said act, a writ of estrepement shall be issued to prevent waste, as is directed in other cases therein specified: Provided, That at Notice to be given. least five days' notice shall be first given to the tenant or tenants in possession, notifying him, her or them not to commit or desist from the commission of any waste, as the case may be: And provided also, That no tenant or tenants for life shall hereby be restrained from the reasonable and necessary use and enjoyment of the land and premises in his, her or their possession; and that the court of common pleas shall have power to inquire into and determine the nature and extent of said use and enjoyment, upon any motion to dissolve said writ.(q) Effect of writ. 22 April 1850 § 1. P. L. 549. In favor of mortgagee. 8. A writ of estrepement to stay waste may be issued, agreeably to the provisions of the act to which this is a supplement, in all cases after judgment obtained on a scire facias on mortgage, or after proceedings instituted to collect a debt secured by mortgage, upon the proper affidavit being made as required by said act; the court out of which said writs shall issue, shall have power and authority to dis (7) It is waste, for an out-going tenant to remove the manure made on the premises. Lewis v. Jones, 17 P. S. 262. Jones v. Whitehead, 1 Pars. 304. Waln v. Connor, 5 Clark 164. A tenant is bound to farm the demised premises in a husbandlike manner, according to the custom of the country where the land is situate; and if he attempt to divert the land from the usual course of husbandry it is waste. Jones v. Whitehead, 1 Pars. 304. See McCullough v. Irvine's Executors, 13 P. S. 440. (m) The writ of estrepement does not issue of course; it must be founded on affidavit. Dickinson v. Nicholson, 2 Y. 281. It may be dissolved, with or without security, as the case may seem to require. Byrne v. Boyle, 37 P. S. 260. (n) See Hastings v. Crunkleton, 3 Y. 261. Kane v. Vanderburgh, 1 Johns. Ch. 11. Stevens v. Beekman, Ibid. 318. Douglass v. Wiggins, Ibid. 435. Brumley v. Fanning, Ibid. 501. Hawley v. Clowes, 2 lbid. 122. Brady v. Waldon, Ibid. 448. Schoonmaker v. Gillett, 3 Ibid. 311. Watson v. Hunter, 5 Ibid. 169. Livingston v. Livingston, 6 Ibid. 497. People v. Davidson, 4 Barb. 109. (0) See Heil v. Strong, 44 P. S. 264. (p) The statutes in relation to waste forbid to tenants for life such acts as, at common law, constitute waste, except they be such as, in the judgment of the court, are requisite for "the reasonable and necessary use and enjoyment" of the estate. It is settled, that the working of open mines by a tenant for life is not waste. Irwin v. Covode, 24 P. S. 162. Griffin v. Fellows, 32 Sm. 114. Shoemaker's Appeal, 106 P. S. 392. Sayers v. Haskinson, 33 Pitts. L. J. 141. (q) After the issuing of a writ of estrepement, the court will make an order for the inspection of the premises, to ascertain whether waste has been committed since the service of the writ. Lutz v. Winkler, 4 W. N. C. 442. solve, modify or restrict said writs, and to make such order in the premises as to 22 April 1850 § 1. them (shall) seem equitable, and to enforce such orders by attachment, if necessary: P. L. 549. Provided, That no mortgagor shall be thereby restrained from the reasonable and Effect thereof. necessary enjoyment of the land and premises, in his, her or their possession; and that the court shall have power to inquire into and determine the nature and extent of such use and enjoyment, upon any motion to dissolve said writ. Ibid. § 2. 9. It shall and may be lawful for any creditor of any decedent, who has heretofore died seised or possessed of any real estate in this commonwealth, or who In favor of creditor may hereafter die so seised or possessed, to apply to the court of common pleas of of decedent. the proper county while in session, or to any judge thereof, in vacation, by petition and affidavit made by such creditor, or the agent of such creditor, setting forth that such decedent was, at the time of his decease, indebted to such creditor, and also setting forth the amount and character of such indebtedness, and that the personal estate of such decedent is not sufficient to pay his just debts, and that the tenant or person in possession of such decedent's real estate has committed waste to the freehold, or allows it to be done by others, and that in consequence of such waste, the claims of his or her ereditors will be endangered, and their collection defeated in whole or in part; and thereupon said court or judge, as the case may be, shall order the prothonotary of said court to issue a writ of estrepement to stay waste, which writ shall have the same effect as if issued after action of ejectment brought, in cases where such action is the proper remedy: Provided, How dissolved. That the court from which said estrepement issues, shall have power to dissolve the same, upon receiving from the person or persons in possession of such real estate, security to indemnify the creditors of said decedent against any damages or loss which may be occasioned by the commission of waste on said decedent's premises as aforesaid, or on such other terms and conditions as the court may consider equitable and just. Ibid. § 3. 10. It shall not be lawful for any tenant or other person in possession of any lands within this commonwealth, after the service of a writ of estrepement to pre- Trees cut down not vent waste on the lands of which he or she is possessed, to remove therefrom any to be removed after timber trees, although cut down before the issuing of said writ; and all timber service of writ. removed from said lands after the service of such writ, may be replevied by the party on whose behalf it issued, who shall be entitled to recover and hold the same: Timber may be reProvided, The removal thereof shall prove to be injurious to him or her, either as plevied. owner of the premises, or as a creditor of the owner, or otherwise. 4 May 1852 § 2. 11. The 2d section of the act entitled "An act to prevent waste in certain cases within this commonwealth," passed on the 29th day of March 1822, is hereby ex- P. L. 584. tended so as to apply to all cases where the writ of estrepement has issued or may Writ may be dishereafter issue; and the several courts of common pleas in this commonwealth solved on motion, shall, in all cases of estrepement, have power to hear the parties in a summary in all cases. manner, and dissolve said writ, or make such further order therein as may seem just and right. 8 May 1855 § 4. P. L. 533. 12. After the execution of any writ of foreign attachment upon the lands and tenements of the defendant, or upon lands held by the lien of any judgment or mortgage owned by the defendant, as provided in the third section of this act, it plaintiff in foreign shall be lawful for any court, if in session, or any judge, in vacation, upon petition attachment may and affidavit, in the usual form, of the plaintiff, or some one in his behalf, to have estrepement award and allow a writ of estrepement to stay waste upon all such lands and tenements, as in other cases. 13. The provisions of the first section of an act entitled "An act further to regulate proceedings in courts of justice, and for other purposes," approved the 6th day of May, Anno Domini 1844, relating to security upon injunctions, shall hereafter apply to all writs of estrepement. to stay waste. 11 April 1862 § 1. Estrepement not P. L. 430. to issue without security. 2 April 1868 § 1. P. L. 250. Not to apply to ejectments to enforce specific performance. 14. The provisions of the act entitled "A supplement to an act further to regulate proceedings in courts of justice and for other purposes," approved the 11th day of April, Anno Domini 1862, be and the same are hereby repealed, so far as relates to writ of estrepement, issued or to be issued in any action of ejectment brought to compel specific performance of a contract for the sale and conveyance of land. 15. On all real actions in dower, partition, waste and ejectment, and all other 20 April 1869 § 1. pleas of land, where, after verdict and judgment in favor of the plaintiff or plain- P. L. 76. tiffs, and against the defendant or defendants therein, [and] a writ or writs of Estrepement may error are sued out by the defendant or defendants, whereby execution is delayed issue pending writ on the judgment, pending such writs of error, the plaintiffs shall, notwithstanding the writ of error and the removal of the record from the court in which the judgment was rendered, have a writ of estrepement to stay waste committed by the defendant or defendants, or his or their agents or tenants, by the cutting of timber, extracting coal, stone, gravel, sand, oil, peat, slate, plumbago, clay, iron and other ores and minerals. of error. Ibid. § 2. 16. The plaintiff or plaintiffs shall, after filing an affidavit stating the waste complained of, and a bond for the estimated amount of said waste, with good and How writ to be sufficient sureties, justified before a judge of the county court, in the clerk's office sued out. of the court in which the action was commenced, have a writ or writs of estrepe P. L. 76. When to be dissolved. 20 April 1869 § 2. ment, issued by the clerk or prothonotary of said court, as of course, without motion and in vacation, to stay and prevent such waste, to be executed by the sheriff as writs in such cases are now executed; and the court from which such writ issues shall have authority to dissolve said writ, upon the defendant or defendants giving security, by a bond, to be filed in 'said court, in the same amount given by the plaintiff, with good and sufficient sureties, to be approved by said court, or a judge thereof, in vacation, to indemnify the plaintiff or plaintiffs against any damage or loss from the actions or waste or removal of the aforesaid products from the land by the defendant or defendants, his or their agents and tenants, in case the judgment shall be affirmed by the supreme court on the writ of error, or the same be non prossed or abandoned. 4 May 1869 § 1. P. L. 1251. Ibid. § 2. Sales of timber by to pass no title. 17. It shall be unlawful for any owner or owners of any undivided interest in timber-land within this commonwealth, to cut or to remove, or to cause to be cut or removed, from the said land, any timber trees, without first obtaining the written consent of all co-tenants in said premises. (r) 18. No sale of any timber cut or removed from such undivided lands, before or without such consent, shall pass any title thereto; and the parties injured shall tenants in common have every remedy in law and equity for the recovery of the said timber trees, and of all square timber, boards, lumber, ties, shingles and other articles whatsoever manufactured therefrom; and also for the recovery of damages for the cutting or removing of the same, which they now have against an entire stranger to the Ibid. § 3. Estrepement may issue. 8 June 1871 § 1. P. L. 290. Estrepement may issue in proceed inge on mortgage of 5 June 1883 § 1. P. L. 79. Waste in taking title. 19. Upon the violation of the provisions of the first section of this act, it shall be lawful for any of the parties in interest to sue out a writ of estrepement, to prevent any further cutting thereon, or the removal of any timber then already cut, or both; which said writ shall be of force until the interests of the parties shall be set out in severalty, or the writs dissolved by the court, or the action of partition in reference to said land finally ended; and the said writ of estrepement shall be obtained by affidavit, and allowed in the same manner and with like proceedings as to its service and dissolution, as are now by law allowed and authorized in cases of estrepement issued pending actions of ejectment for real estate. 20. A writ of estrepement to stay waste may be issued, agreeably to the provisions of the act to which this is a further supplement, in all cases after judgment obtained on scire facias on mortgage, or after proceedings instituted to collect a debt secured by mortgage upon any leasehold estate or estates, for a term of years, upon the proper affidavit being made as required by said act; the court out of which said writs shall issue shall have power and authority to dissolve, modify or restrict said writs, to require security, and to make such order in the premises as to them shall seem equitable and just and to enforce such orders by attachment if necessary. 21. Whenever petroleum shall be produced from land in controversy in any action of ejectment hereafter commenced, the court in which said action is pending, or a law judge thereof at chambers, upon the application of the plaintiff or petroleum may be plaintiffs therein, may direct a writ of estrepement to issue against the defendant or defendants, and all parties claiming or acting under them, to prevent the further production of petroleum from the said land. restrained. Ibid. § 2. 22. Before an order directing the issuing of a writ of estrepement shall be made, Affidavit and bond. under the first section of this act, the plaintiff or plaintiffs, or some one in his or their behalf, shall present, along with the application for said writ, an affidavit setting forth the facts upon which the application is based, and also a bond with sufficient sureties, to be approved by said court or judge, conditioned to indemnify the defendant or defendants for all damages that may be sustained by reason of said writ of estrepement. Ibid. § 3. Dissolution. Ibid. § 4. Receiver for producing wells. 18 June 1883 § 1. P. L. 89. Estrepement to prevent waste in unseated lands sold for taxes. 23. Upon the application of any party interested, the said writ of estrepement may be dissolved by the said court or law judge, upon such terms and conditions as may be deemed proper in the discretion of said court or law judge. 24. In case there shall be, upon the land in controversy, an open well or wells producing petroleum, at the time when said writ of estrepement shall be applied (for), or at any time subsequent thereto, the court, or law judge thereof at chambers, may, unless the defendant or defendants shall give bond with sufficient sureties, and in a sum to the satisfaction of the court or law judge, conditioned to indemnify the plaintiff or plaintiffs, in addition to awarding said writ, on the application of any party interested, appoint a proper person to take charge of the said well or wells and of the petroleum produced therefrom, pending said action of ejectment, to have like power and authority upon like conditions and accountability as receivers under the equity practice of this commonwealth. 25. When any unseated lands shall have been sold for arrearages of taxes, by the county treasurer of any county in this commonwealth, as is now or may be provided by law, it shall be lawful for the purchaser or purchasers of said unseated lands, to apply to any court of common pleas of the county in which said unseated lands are situated, during the session of the said courts, or to any judge of such courts in vacation, and on presentation of petition and affidavit made by him, her (r) See Wheeler v. Carpenter, 107 P. S. 271. |