Sch. Sect. 28.

Sch. Sect. 24.

Aldermen.

Sch. Sect. 25. Magistrates in Philadelphia.

Sch. Sect. 26. Present officers.

Sch. Sect. 27.

Oath of office.

Sch. Sect. 28. County commissioners and auditors.

Sch. Sect. 29.

the year 1875, and the present prothonotary of the district court in said county shall be the prothonotary of the said court of common pleas until said date, when his commission shall expire, and the present clerk of the court of oyer and terminer and quarter sessions of the peace in Philadelphia shall be the clerk of such court, until the expiration of his present commission on the first Monday of December in the year 1875.

235. In cities containing over fifty thousand inhabitants, except Philadelphia, all aldermen in office at the time of the adoption of this constitution shall continue in office until the expiration of their commissions; and at the election for city and ward officers in the year 1875, one alderman shall be elected in each ward, as provided in this constitution.

236. In Philadelphia, magistrates, in lieu of aldermen, shall be chosen, as required in this constitution, at the election in said city for city and ward officers, in the year 1875; their term of office shall commence on the first Monday of April succeeding their election. The terms of office of aldermen in said city, holding, or entitled to, commissions at the time of the adoption of this constitution, shall not be affected thereby.

237. All persons in office in this commonwealth at the time of the adoption of this constitution, and at the first election under it, shall hold their respective offices until the term for which they have been elected or appointed shall expire, and until their successors shall be duly qualified, unless otherwise provided in this constitution.(0)

238. The seventh article of this constitution prescribing an oath of office, shall take effect on and after the first day of January, 1875.

239. The terms of office of county commissioners and county auditors, chosen prior to the year 1875, which shall not have expired before the first Monday of January in the year 1876, shall expire on that day.

240. All state, county, city, ward, borough and township officers, in office at the time of the adoption of this constitution, whose compensation is not provided for Compensation of by salaries alone, shall continue to receive the compensation allowed them by law, until the expiration of their respective terms of office.

present officers.

Sch. Sect. 30.

When officers to be sworn.

Sch. Sect. 31.

Proper laws to be passed at the first

session.

Sch. Sect. 32.

241. All state and judicial officers heretofore elected, sworn, affirmed, or in office when this constitution shall take effect, shall severally, within one month after such adoption, take and subscribe an oath or affirmation to support this constitution.

242. The general assembly, at its first session, or as soon as may be after the adoption of this constitution, shall pass such laws as may be necessary to carry the

same into full force and effect.

243. The ordinance passed by this convention entitled "An ordinance for submitting the amended constitution of Pennsylvania to a vote of the electors thereof," Ordinance for sub- shall be held to be valid, for all the purposes thereof.

mitting the con

stitution.

244. The words "county commissioners," wherever used in this constitution and in any ordinance accompanying the same, shall be held to include the commissionCommissioners of ers for the city of Philadelphia.

Sch. Sect. 33.

Philadelphia.
Attestation.

245. Adopted at Philadelphia, on the third day of November, in the year of our Lord one thousand eight hundred and seventy-three.

A DIGEST

OF THE

LAWS OF PENNSYLVANIA.

ABANDONMENT.

SEE CORPORATIONS; INFANTS; LIMITATION OF ACTIONS; MINING RIGHTS; ROADS, HIGHWAYS AND BRIDGES; TURNPIKES AND PLANK-ROADS.

ABATEMENT.

SEE MANDAMUS; NEGLIGENCE.

1. No writ of ejectment shall abate by reason of the death of any plaintiff or 18 April 1807 $4. defendant, but the person or persons next(a) in interest may be substituted in the 4 Sm. 477. place of the plaintiff or defendant who shall have died, pending the writ.()

2. No plea in abatement shall be admitted or received in any suit for parti- 7 April 1807 $ 4. tion, (c) nor shall the same be abated by reason of the death of any defendant.(d)

24 March 1818 § 7. 7 Sm. 132.

abate by death or removal.

3. No suit or action now commenced, or hereafter to be commenced, in any of the courts of this commonwealth, by [executors or administrators,] (e) trustees or Actions by trustees assignees, shall abate, or the judgment which may be entered therein reversed or or assignees, not to set aside, for or by reason of any or all of such [executors, administrators,] trustees or assignees being dead, either at the time of such suit brought, or during the pendency thereof, or by reason of all or any of them being superseded or removed, Lor the letters testamentary or of administration being repealed or annulled,] but the same may be proceeded in to final judgment by the legal representatives, upon making the proper suggestions upon the record which the case may require; nor to shall any suit or action abate, or the judgment therein be reversed or set aside, by the omission to name on the record any one of the party or parties, but in such case, the names of the persons so omitted may upon application to the court, be added to the record, (g) and the cause shall thereupon be proceeded in to trial and final judgment, with the same effect as if such names had been originally inserted the record.

Nor by omission

name all of them as parties.

24 Feb. 1884 § 26. P. L. 77.

Executors, &c., may become parties to actions pending.

Ibid. § 32.
Actions, by or

against executors,
not to abate by
or removal.

upon

4. The executors or administrators of any person who, at the time of his decease, was a party, plaintiff, petitioner or defendant in any action or legal proceeding, depending in any court of this commonwealth, shall have full power, if the cause of action doth by law survive (h) to them, to become party thereto, (i) and prosecute or defend such suit or proceeding to final judgment or decree, as fully as such decedent might have done if he had lived; and if such plaintiff or petitioner die after judgment or decree in his favor, his executors or administrators may proceed to execution thereupon, as such plaintiff or petitioner might have done if he had lived.(k)

5. No action or other legal proceedings, commenced by or against executors or administrators, shall be abated or otherwise defeated, by reason of the death, dismissal, resignation or renunciation of any one or more of them, nor by reason of the annulling or revoking of the letters or powers granted to them, or any of them; death, resignation but such suit or proceeding may be prosecuted to final judgment or decree, by or against such other person or persons as may have been joined with them in the administration, or by or against such person or persons as may be their successors therein, in all cases, in like manner as if no such change had occurred or act been done; and in all cases of the vacancy of the administration as aforesaid, the successors therein shall be made party to such action or proceeding, in a manner provided by the 26th and 27th sections of this act.

16 June 1836 § 22. P. L. 735.

9 April 1849 § 18. P. L. 527.

Actions by executors or trustees under a will, not

resignation or

6. No action or other legal proceedings instituted by any such [insolvent] debtor, and pending at the time of the appointment of a trustee or trustees, as aforesaid, shall abate thereby, but the same shall be continued by and inure to the benefit of such trustee or trustees.

7. In all actions now pending in any of the courts of this commonwealth, or which hereafter may be brought, in which executors or trustees, appointed by or under the authority of any last will and testament, with power over the real or personal estate of the testator, are plaintiffs, and any one or more of such plaintiffs shall have died, or resigned, or been removed, or shall die, resign or be removed, to abate by death, such action shall not thereby abate, but it shall be the duty of the court in which such action is or shall be pending, to substitute upon the record, in place of the executor or executors, trustee or trustees, whose death, resignation or removal shall have caused the vacancy, any executor or executors, trustee or trustees, who shall have been or shall be legally appointed to supply the same, and the suit or action shall be proceeded in to trial, judgment and execution, in the same manner as if the plaintiffs had been originally entitled to maintain the action.

removal.

12 April 1845 § 1. P. L. 386.

8. No suit or other legal proceeding in any court of this commonwealth, brought by a feme sole, now or hereafter pending, shall abate by the marriage of the plaintiff or petitioner, contracted after the commencement of the same; but the husband of such plaintiff or petitioner shall have the power to become a party thereto, and prosecute the same to final judgment or decree.

ment quod partitio fiat, does not abate the writ. Frohock v. Gustine, 8 W. 121.

(e) This section is supplied so far as respects executors and administrators by act 24 February 1834, § 32, infra 4; and act 4 May 1852, § 2. P. L. 574.

(g) This section only extends to actions brought in a representative capacity. Wilson v. Wallace, 8 S. & R. 56. See Means v. Presbyterian Church, 3 P. S. 98. But names of omitted parties may now be added in other cases, by act 4 May 1852. P. L. 574.

(h) Since the passage of this act, all personal actions survive, except actions for slander, libel, or wrongs done to the person. Miller v. Wilson, 24 P. S. 122. And therefore, the action of trover survives, Schott v. Sage, 4 Phila. 87; and replevin, Reist v. Heilbrenner, 11 S. & R. 131; Keite v. Boyd, 16 Ibid. 300; and trespass quare clausum fregit, McCallion v. Gregan, 9 Phila. 240; and case for conspiracy to defraud a creditor, Penrod v. Morrison, 2 P. &. W. 126; and in equity, the personal representatives of a widow

entitled to dower in her deceased husband's lands, may have an account of the rents and profits, although dower was not assigned in her lifetime, and no proceedings were instituted for that purpose. Paul's Executors v. Paul, 36 P. S. 270.

(i) The executor may be substituted without sci. fa., by suggesting the death upon the record. Gemmil v. Butler, 4 P. S. 232. Deiser v. Sterling, 10 S. & R. 119. Fritz v. Evans, 13 Ibid. 16. Reist v. Heilbrenner, 11 Ibid. 132. And an administrator de bonis non may be substituted as plaintiff in a judgment obtained by the administrator whom he succeeds. Lea v. Hopkins, 7 P. S. 385. And the substitution may be made at any time. Reist v. Heilbrenner, 11 S. & R. 131. If no declaration has been filed in the plaintiff's lifetime, it must nevertheless be filed in the name of the original party, and not in the name of the executor. Clow v. Brown, 1 Y. 324.

(k) An execution, after plaintiff's death, is not void. Day v. Sharpe, 4 Wh. 339.

P. L. 591.

9. When the title of a plaintiff in ejectment to lands may have been changed, 21 April 1850 § 4. by sale or assignment, after action brought, the suit shall not be affected thereby; but the purchaser or assignee may prosecute said action; and the verdict and judg- Ejectment. ment in said action shall inure to him, in the same manner that they would have inured to said plaintiff if no sale or assignment had taken place; and the purchaser of the real estate in controversy may be substituted on record, by a motion in open court.

P. L. 674.

10. No action hereafter brought to recover damages for injuries to the person 15 April 1851 § 18. by negligence or default, shall abate by reason of the death of the plaintiff; but the personal representatives of the deceased may be substituted as plaintiff, and prosecute the suit to final judgment and satisfaction.

P. L. 570.

11. In suits now pending or hereafter to be brought in the courts of this state, 5 May 1854 § 1. if the plaintiff be dead, or shall die during the pendency thereof, and no letters of administration or testamentary have been or shall be taken out in this state, within when actions to one year after the suggestion of the death of said party upon the record, it shall abate by death of not be the duty of the defendant to raise an administrator, for the purpose of plaintiff. prosecuting the same, but the said suits shall abate, and the prothonotary of the proper court shall make an entry accordingly: Provided, That the court shall direct a notice to be served on the executors or next of kin of the decedent entitled to administration, one month before such entry shall be made, of which notice affidavit shall be made and filed.

12. In no case now pending, or that hereafter may be brought, on any joint con- 22 March 1861 § 1. tract, note, debt or obligation, whether the same has been or may be commenced

P. L. 186.

by the death of one

by summons, scire facias or otherwise, shall the courts of this commonwealth Suits on joint conentertain any plea or defence upon part of any heir or heirs, executor or executors, tracts not to abate administrator or administrators, that one or more of said joint obligors, contractors, of the joint debtdebtors or promissors has deceased since the commencement of, or pending suit; ors. but the same shall be proceeded in to judgment and execution against the estate of said decedent, as though the said suit or suits had been commenced against their decedent or decedents alone. (1)

tiff.

P. L. 345.

13. No action of dower unde nihil habet, hereafter brought or now pending and 14 March 1865 § 1. undetermined in the courts of this commonwealth, shall abate by reason of the death of the plaintiff therein, but the same may be prosecuted by the executors or Dower not to abate administrators of said plaintiff, who shall be substituted as plaintiffs therein on the by death of plainrecord, on suggestion of the death of the plaintiff, to recover the annual value of the said plaintiff's estate in dower, or the rents, issues and profits thereof, from the time of the decease of the husband, until the date of the death of the original plaintiff in such action.

14. No action or right of action for mesne profits, or for trespass against prop- 12 April 1869 § 1. erty real or personal, shall abate by reason of the death of the person liable therefor, P. L. 27. but suit may be brought and recovery had against the personal representatives of Actions of trespass such deceased person; and if such death occur after suit brought, the personal not to abate by representatives may be substituted for the decedent, and said suit prosecuted to judgment, and the estate of such deceased person shall be liable to the same extent as if he were living.

ABDUCTION.

See INFANTS.

death.

30 March 1821 § 1. 7 Sm. 429.

Account-render

II. IN EQUITY.

5. Courts to have equity jurisdiction in account. Parties may proceed in equity, or at law. Solicitor's certificate to be filed.

6. Jurisdiction enlarged.

7. Tenants in common of mines may have account in equity. All the tenants in common to be made parties. How process to be served out of the county. 8. Parties may appeal to the supreme court.

I. At common law.

1. The act, entitled "An act regulating arbitrations," passed the 20th of March 1810,(m) and the several supplements thereto, shall be deemed to extend to actions of account-render; and the arbitrators appointed by virtue thereof, shall hear, and may be arbitrated. a majority of them determine on the whole merits of the cause, and report the balance due by either party to the other (n) and shall also make and annex to their report, from the account of the parties, their allegations and proofs, such an account between them as they shall think just; which account shall result in the balance reported in their award.(0)

2. In all actions of account-render, now pending or to be brought, the jury before whom the same shall be tried, shall have full power to settle the accounts of the parties, and find in favor of the plaintiff, or one or more of the defendants, such sum or sums as shall appear to be due :(p) and the court in which said action is pending, or any judge thereof, may make such orders upon any of the parties, in relation to books, documents or papers, as may appear to be necessary, for a full and equitable adjustment of the controversy.

3. It shall be lawful for any person to whom any bequest of money, or other goods or chattels, may be made by last will or testament, to commence and prosecute an action of debt, detinue, account-render, or an action on the case for the recovery thereof, after it becomes due, against the executors of such will, having in their hands sufficient assets to pay all the just debts of the testator, and the legacies by him bequeathed.

4. In all actions of account-render, now pending or which may hereafter be brought, after it shall have been found, or admitted by the pleadings, that the defendant is liable to account to the plaintiff, (q) it shall be in the discretion of

(m) Supplied by act 16 June 1836. See "Arbitration."

(n) The action of account, at common law, would only lie between two merchants; it was unavailable where the partnership consisted of a larger number. Appleby v. Brown, 24 N. Y. 143. If a balance be not struck between partners, account-render is the remedy, unless the partnership be a single transaction. Knerr v. Hoffman, 65 P. S. 126. And see Griffith v. Willing, 3 Binn. 317. Irvine v. Hanlin, 10 S. & R. 221. Tutton v. Addams, 45 P. S. 69–70.

(0) The arbitrators must anner to their report an account between the parties resulting in the balance awarded. Wright v. Guy, 10 S. & R. 227. Montgomery v. Burge, 13 Ibid. 112. An account left at the prothonotary's office, on the day after the filing of the award, will not satisfy the statute. Clement v. Rohrabach, 15 P. S. 116.

(p) See McFadden v. Erwin, 2 Wh. 40, 41. (9) A formal judgment quod computet is not necessary. McLean v. Wade, 53 P. S. 146.