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P. L. 7.

Auditors to be ap

the accounts.

the court in which the same is or shall be pending, to either appoint auditors and 18 Oct. 1840 § 18. proceed according to the practices and usages of the common law, (r) or direct a jury to be impanelled to settle the accounts of the parties, and find the balance due the plaintiff or defendant. And on the application of either of the parties, pointed. and interrogatories filed, it shall be lawful for the court to require the adverse party to disclose, on oath, his knowledge of such facts, as shall, in the opinion of Or jury to settle said court, be necessary for a just and equitable adjustment of the controversy; and on the party being so called on, and refusing to answer, on the requisition of Parties to answer the court, the fact stated by the adverse party, in his interrogatory, shall be taken as admitted; and the parties shall have power to compel the production of such Parties may be books, papers and documents, either in court or before the auditors, as may be nec- duce books and compelled to proessary for a just and equitable settlement of the controversy, according to the papers. provisions of the 1st section of the act of the 27 February 1798, entitled "An act extending the powers of the supreme court and courts of common pleas."(s)

II. In equity.

interrogatories.

P. L. 7.

in account.

5. The supreme court, the several district courts and courts of common pleas 18 Oct. 1840 § 19. within this commonwealth, shall have all the powers and jurisdiction of courts of chancery in settling partnership accounts, (t) and such other accounts and claims, Courts to have as by the common law and usages of this commonwealth, have heretofore been set- equity jurisdiction tled by the action of account-render; (u) and it shall be in the power of the party desirous to commence such action, to proceed either by bill in chancery, or at Parties may procommon law, but no bill in chancery shall be entertained, unless the counsel filing ceed in equity or the same shall certify that, in his opinion, the case is of such a nature that no adequate remedy can be obtained at law, or that the remedy at law will be at- Solicitor's certifitended with great additional trouble, inconvenience or delay. (v)

at law.

cate to be filed.

P. L. 671.

6. The equity jurisdiction of the supreme court, within the city and county of 18 June 1840 § 39. Philadelphia, and of the court of common pleas for said county, shall be extended to all cases arising in said city and county, over which courts of chancery entertain jurisdiction on the grounds of fraud, accident, mistake or account.(w)

7. In all cases in which any coal or iron-ore mines or minerals have been or 25 April 1850 § 24. shall be held by two or more persons, as tenants in common, and coal, iron-ore or P. L. 573. other mineral, has been or shall be taken from the same, by any one or more of Tenants in comsaid tenants respectively, it shall be lawful for any one of said tenants in common mon of mines may to apply by bill or petition in equity, to the court of common pleas of the county have account in equity. in which the lands lie, praying that an account may be decreed and taken of all coal, iron-ore or other mineral, taken by said tenants respectively; and the said court shall thereupon proceed upon such bill or petition, agreeably to the course of a court of chancery, and shall have full power and authority to make all orders, appointments and decrees, interlocutory and final, that may appertain to justice and equity in the premises, and may cause to be ascertained the quantity and value of the coal, iron-ore or other mineral, so taken respectively by the respective parties, and the sum that may be justly and equitably due, by and from, and to them respectively therefor, according to the respective proportions and interests to which they may be respectively entitled in the lands: Provided, That all the All the tenants in tenants in common shall be made parties to such bill or petition, and that if any made parties. of them reside out of the county in which such lands lie, or out of this common

(r) The auditors are mere clerks to take and state the accounts between the parties. They have no power to decide any matter of dispute, either in point of fact or law. If the matters offered by either party be disputed by the other, he may either demur, or take issue before the auditors. If there be more points of dispute than one, there may be a demurrer or an issue on each, which are to be certified by the auditors to the court; and then the matter of law will be decided by the court, and the issues of fact by a jury; after which, the account will be finally settled by the auditors according to the result of the trials. Abrams v. Hunt, 2 T. & H. Pr. § 1701. Bradley v. Hughes, Ibid. § 1702. Crousillat v. McCall, 5 Binn. 433. The court has no power to reform the auditors' report, unless an issue of fact or of law be demanded before them. Little v. Stanton, 32 P. S. 299. They may, however, refer it back to the auditor to correct an error of calculation; but the auditor himself has no power to grant the parties a rehearing. Stewart v. Bowen, 49 P. S. 245.

(8) See "Evidence," 1.

(1) See Beran v. Cullen, 7 P. S. 283. (u) Shriver v. Nimick, 41 P. S. 80. Persch v. Quiggle, 57 Ibid. 247. Account-render lies between partners. Griffith v. Willing, 3 Binn. 317. Whelen v. Watmough, 15 S. & R. 156. Tutton v. Addams, 45 P. S. 69. Between client and attorney. Bredin v. Kingland, 4 W. 420. Tenants in common. Griffith

common to be

v. Willing, 3 Binn. 317. Irvine v. Hanlin, 10 S. & R. 220. Guardian and ward. Shollenberger's Appeal, 21 P. S. 340. Bowman v. Herr, 1 P. & W. 282. Trustee and cestui que trust. Bredin v. Dwen, 2 W. 95. Dennison v. Goehring, 7 P. S. 175. McLean v. Wade, 53 Ibid. 146. Principal and factor. Shriver v. Nimick, 41 Ibid. 91. And generally, wherever one person has received money as the agent of another. Bredin v. Kingland, 4 W. 420. Long v. Fitzimmons, 1 W. & S. 530. To support the action, a contract, express or implied, must be shown. Peter v. Steel, 3 Y. 251. Conklin v. Bush, 8 P. S. 516. And therefore, tenants in common cannot maintain a joint action of accountrender, against one liable to account to them, for the proceeds of their land, upon an implied contract. McCreary v. Ross, 7 W. 484.

(v) The certificate of counsel is essential to confer jurisdiction of a bill for an account, under this act. Everhart v. Everhart, 3 Luz. L. Reg. 59. But the omission of it is not ground of demurrer. Everhart v. Everhart, Ibid. 55. It may be subsequently added, if omitted by inadvertence. Thomas v. Hall, 2 Pears. 64. A bill for the settlement of a partnership account does not require such certificate. Bachman v. Einhorn, 5 W. N. C. 250.

(w) See Ferris v. Henderson, 12 P. S. 49. By subsequent acts, the like jurisdiction is conferred on all the courts of common pleas.

P. L. 573.

25 April 1850 § 24 Wealth, the court may make such order for serving process or notice upon them, by publication or otherwise, as the said court shall deem fit and proper, and may take the bill or petition pro confesso, and proceed to final decree, or proceed by attachment and sequestration, against such of them as shall fail to appear thereupon, or shall neglect or refuse to stand to, obey and abide by the orders and decrees of said court. (x)

How process to be served out of the

county.

Ibid. § 25.

8. Any party may appeal to the supreme court from any final decree made by Parties may appeal any court of common pleas under this act: Provided, That such appeal be taken to supreme court. within one year after the rendering of such final decree, and that the party appealing, before taking his appeal, shall file and make affidavit that the same is not intended for delay, and shall give such security to prosecute his appeal with effect, as shall be required by the said court of common pleas or the supreme court.

(x) See Coleman v. Coleman, 19 P. S. 100, 112; s. c. 62 Ibid. 252. Alden's Appeal, 93 Ibid. 182.

ACCUMULATION.

See REAL ESTATE.

ACKNOWLEDGMENTS.

See ATTORNEYS IN FACT; DEEDS AND MORTGAGES; EVIDENCE; REAL ESTATE.

ACTIONS PERSONAL.

See BONDS; CONVICTS; PRACTICE.

I. OF THE COMMENCEMENT OF ACTIONS BY

SUMMONS.

(1.) OF THE SUMMONS AND service.

1. Actions to be commenced by summons.

of summons.

2. How summons to be executed.

Form

3. How process served on non-residents, in trespass and nuisance.

4. Cause of action, how to be stated.

5. Service in actions in the nature of waste, by mortgagees.

6. Service of process on stage-companies and unincorporated joint-stock companies.

7. How process may be served on a person doing business in another county than the one in which he resides.

8-9. Service on non-resident defendants. 10. Service of process in another county. 11. How return to summons to be made.

(2.) OF THE TESTE AND RETURN OF WRITS.

12. Teste and return-day of writs.

13. When issued within ten days of term.
14. In Philadelphia and Allegheny counties.
15. Courts may provide for return of process.

(3.) OF PROCeedings in deFAULT OF APPEARANCE. 16. When judgment may be taken for default of appearance.

17. In case summons be not served ten days before return-day.

(4.) OF THE SERVICE OF WRITS OF SCIRE FACIAS. 18. How scire facias to be served. Proceedings thereon.

(5.) OF AMICABLE ACTIONS.

19. Duty of prothonotary. Judgment to be entered on confession in writing. Fees. Satisfaction to be entered on request of plaintiff.

20. Actions may be entered by agreement. Effect thereof.

II. OF THE COMMENCEMENT OF ACTIONS BY ARREST.

(1.) OF THE CAPIAS AD RESPONDENDUM. 21. When actions may be commenced by capias. Form of capias.

22. When capias may issue against unknown defendant. To be executed at plaintiff's risk. 23. Duty of officer.

(2.) OF THE BAIL-BOND AND BAIL-PIECE.

24. Sheriff to let defendant to bail.

25. Form and condition of bail-bond.

26. Bail-piece and form thereof.

27. Of the return of the capias.

28. Sheriff to give notice of the names, &c., of bail, to plaintiff.

29. Exception to bail. Bail may justify, or new bail be substituted.

30. Courts to make rules in regard to bail. 31. Sheriff's liability for bail.

(3.) of the arREST AND DEPOSIT IN LIEU OF BAIL. 32. Return, when defendant remains in custody. 33. Sheriff's liability to produce the body of defendant.

34. Service of capias on prisoner. Effect thereof. 35. Defendant committed, may enter special bail. 36. Deposit may be made in lieu of bail. 37. Deposit to be paid into court.

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73. Actions for personal torts may be commenced by attachment in certain cases.

74. Restricted to Philadelphia.

(2.) OF THE SERVICE AND return.

75. Service and return of attachment.

76. Seizure under attachment. Defendant may give bond.

77. Sheriff may have an interpleader, on claim of property in a third person.

18 June 1836 § 1. P. L. 572.

Actions to be commenced by

summons.

(3.) of the subsequent PROCEEDINGS.

78. Proceedings on return of attachment. Where there is no personal service.

79. Priority of attachments.

80. Counsel fees on discontinuance.
81. Garnishee to be deemed a party.

(4.) OF THE DISSOLUTION OF THE ATTACHMENT.
82. Dissolution of attachments. Exemption.

I. Of the commencement of actions by summons.

(1.) Of the summons and service.

1. Personal actions, except in cases where other process shall be especially provided, shall be commenced by a writ of summons, which shall be in the following form, to wit:

[L. S.] The Commonwealth of Pennsylvania:

county: ss.

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To the sheriff of so that he be and in and for said county,

Form of summons. said county, greeting: We command you, that you summon appear before our court of

Ibid. § 2.

How summons to be executed.

Ibid. § 37. How process served on non

residents, in tres

pass and nuisance.

4 April 1887 § 3. P. L. 378.

Cause of action,

how to be stated. 14 April 1851 § 1. P. L. 612.

Service in actions

in the nature of waste, by mortgagees.

day of

to be holden at next, there to answer

on the
of a plea [setting forth
briefly the cause of action (y) or complaint] and have you then and there this writ;
Witness
president [or as the case may be] judge of our said court, the
day of

, Prothonotary.

2. A writ of summons shall be executed(z) by reading the same in the hearing of the defendant; or by giving him notice of its contents, and by giving him a true and attested copy thereof; or, if the defendant cannot conveniently be found, by leaving such copy at his dwelling-house, in the presence of one or more of the adult members of his family; or if the defendant resides in the family of another, with one of the adult members of the family in which he resides.

3. In cases where a trespass or nuisance has been or may be committed on real estate, by non-residents of the county wherein such real estate is situated, it shall be lawful for the sheriff to go beyond his bailiwick, into an adjoining county, (a) for the purpose of serving any process which may be issued out of the court of the proper county, in suits instituted for the recovery of damages, (b) or abatement of the nuisance; and such service shall be as good and valid as if the same had been made by the sheriff within his bailiwick.

4. In all writs of summons issued by virtue of the act relating to the commencement of actions, passed the 13th June 1836, the blank left for the cause of action, in the form prescribed in the 1st section of that act, shall be filed as directed for the corresponding part of writs of capias ad respondendum, in the 3d section of the said act.

5. The remedy provided by the 37th section of the act passed the 13th day of June 1836, entitled "An act relating to the commencement of actions," be and the same is hereby extended to actions by mortgage for injuries in the nature of waste, that have been or may hereafter be committed to the mortgaged premises;

(y) This blank to be filled as in capias; see infra 4.

(z) This section prescribes four modes of serving a writ of summons. 1. By reading the writ in the hearing of the defendant. 2. By giving the defendant notice of the contents of the writ, and by giving him a true and attested copy of the writ. 3. By leaving a true and attested copy at the defendant's dwelling-house, in the presence of one of the adult members of his family. 4. If the defendant reside in the family of another, by leaving a true and attested copy at the house in which he resides, with one of the adult members of the family in which he resides. Weaver v. Springer, 2 M. 42. And the sheriff must state in his return, not only the time, but the mode of service. Ibid. Therefore, a return of " summoned by leaving a copy at place of residence," is insufficient. Ibid. And it must appear that the copy served was "attested" by the officer. Bank v. Perdriaux, Bright. 67. And that the copy was left with an adult member of the family in which the defendant resided. Hiester v. Muhlenburg, 1 Leg. Chron. 61. So, a service "by leaving a true and attested copy at the counting-room of defendant, with his agent or clerk," was set aside, on motion. Winrow v. Raymond, 4 P. S. 501. But if the officer read the writ, in the hearing of the defendant, it is sufficient, without leaving a copy. Kleckner V.

County of Lehigh, 6 Wh. 66. So, a return of "served on defendant by reading and copy," is good. Wilson v. Hayes, 18 P. S. 354. And a return of service on the defendant, "by leaving a copy at his boardinghouse, in the presence of one of the adult members of the family, and by leaving a copy at the store of the defendant, in the presence of his clerk, and by leaving a copy at the dwelling-house of the defendant's father, in the presence of adult members of the family," was held sufficient, although it appeared that the defendant, a few days before the service of the summons, had left the county, and gone on a temporary visit to Europe. Farnum v. Walton, 1 T. & H. Pr. § 248. And see Bujac v. Morgan, 3 Y. 258. A defective service will be set aside by the court, on motion, leaving the writ to stand. Winrow v. Raymond, 4 P. S. 501. See Austin v. Brown, 1 T. & H. Pr. § 240. An appearance, after an ineffectual motion to quash, will cure a defective service. Smith v. Hewson, 1 Am. L. R. 441.

(a) The power of the sheriff, under this act, to serve process out of his bailiwick, is limited to the adjoining county. Gaynor v. Wilde, 38. P. S. 300.

(b) In such action, the defendant will be answerable, not only for the injury to the real estate, but also for injury done to personal property in the same trespass. Guffey v. Free, 19 P. S. 384.

P. L. 612.

and the sheriff of the proper county or his deputy, shall be authorized to serve the 14 April 1851 § 1. process in any other, although such other shall not be adjoining to the county wherein such real estate is situated.

P. L. 675.

6. The provisions of the 3d section of the act of assembly approved the 21st 15 April 1851 § 24. day of March 1849, (c) entitled "An act to facilitate the collection of debts against corporations," shall be and the same are hereby extended to stage-com- On stage compapanies, and all joint-stock companies, not incorporated, when the members of said nies and unincorporated joint-stock companies do not reside within this commonwealth: Provided, That service upon companies. an agent shall be upon the principal agent having charge of the business of said company in the county where any office may be located.

P. L. 574.

7. Where any person or persons being residents of this commonwealth shall en- 4 May 1852 § 1. gage in business(d) in any other county than the one in which he, she or they shall reside, and not being in the county at the time of the issuing of such writ or On persons doing process, it shall be lawful for the officer charged with the service thereof to serve business in another any writ of summons, or any other mesne process, upon the agent or clerk of any such defendant, at the usual place of business or residence of such agent or clerk, and to have the same effect as if served upon the principal personally.(e)

county.

P. L. 219.

8. Where any person or persons, not being residents of this commonwealth, shall 2 April 1856 § 1. engage in business in any county within this commonwealth, and not being in the county at the time of the issuing of any writ or process against such person or Service of process persons, it shall be lawful for the officer charged with the service thereof, to serve on non-residents. any writ of summons, or any other mesne process, in like manner as summons are served, upon the agent or clerk of such defendant or defendants, at the usual place of business or residence of such agent or clerk, with the same effect as if served

upon the principal or principals personally: Provided, That before final judgment Actual notice to be is entered in any case under this act, actual notice in writing shall be given to the given. party defendant, of such action and the nature thereof; proof of which notice shall be made by the production of a copy of such notice, and the oath or affirmation of the plaintiff or other person, to the service thereof, to the magistrate or court before which such action may be pending.(g)

P. L. 403.

on non-residents.

9. When any person or persons not being residents of this commonwealth, (h) 21 April 1858 § 1. shall engage in business in any county of this commonwealth, it shall and may be lawful for the officer charged with the execution of any writ or process issued out Service of process of any of the courts of this commonwealth, to serve the same upon any clerk or agent of such person or persons, at the usual place of business or residence of such agent or clerk, with like effect as though such writ or process was served personally upon the principal.

P. L. 79.

10. That the words, “into an adjoining county," in the 37th section of the act 4 March 1962 § 1. of the 13th June, Anno Domini 1836, entitled "An act relating to the commencement of actions," be and the same are hereby repealed; and the remedy provided Service of process by the said section, be and the same is hereby extended, so as to authorize the in another county. sheriff of the proper county, or his deputy, to serve the process in any other county, although such other county may not be adjoining to the county in which the lands lie: Provided, however, That the said recited section of the act of 13 June 1836, shall not be construed to extend to any other than local actions.

P. L. 579.

11. The sheriff or other officer serving any writ of summons, shall in all cases 18 June 1836 § 38. state in his return the time and manner in which the service thereof was made.(i)

(c) This section provides, that " process may be served upon any officer, agent or engineer of such corporations, either personally or by copy, or by leaving a certified copy at the office, depot or usual place of business of said corporation." See P. L. 216; and title, "Corporations."

(d) This means engaged in merchandising, manufacturing, or the pursuit of the mechanic arts; it does not include one who merely offers for sale, through an agent, town-lots situate in the county in which the suit is brought. Van Kirk v. Wetherill, 1 Leg. Gaz. 131.

(e) It seems, that under this act, the sheriff should set forth in his return, that the defendant is not a resident of, but is engaged in business in, his bailiwick. Van Kirk v. Wetherill, 1 Leg. Gaz. 131. And see Gilbaugh v. Keller, 3 W. N. C. 78. Veitch v. Peterson, 2 Leg. Chron. 269. Tyack v. Groves, 1 Wood. 99. Service upon an agent can only be made at his usual place of business or residence. Lehigh Valley Ins. Co. v. Fuller, 81 P. S. 398. Culligan v. Russell, 2 W. N. C. 440. A return of service under this act must show that the defendant was not present in the county when the writ was issued, and that the service was made upon his agent at the agent's residence or place of business. Taylor v. Brown, 13 C. C. 655.

(g) See act 21 April 1858, infra 9; and act 10 April 1849, P. L. 600, relative to the service of process in Mercer county. This act provides, that process may be served upon any clerk, agent or manager of any individual or company, engaged in the manufacture

of pig-metal or iron, or in mining, in that county; makes it the duty of such clerk or agent to notify his principal thereof, within thirty days thereafter, under

a

penalty of three times the amount of damages sustained by reason of his neglect; and provides for the opening of the judgment obtained, upon an affidavit of merits and want of notice. These provisions were extended to the service of process on railroad and canal companies, doing business in the said county, by act 17 April 1861, P. L. 329; to the counties of Armstrong, Indiana, Somerset, Bedford, Clinton and Cambria, by act 22 March 1850, P. L. 257; to Lawrence county, by act 25 March 1850, P. L. 279; and to Clarion county, by act 10 May 1850, P. L. 1048. The act 6 May 1844, § 7, provides, that it shall be lawful to serve any summons, rule or notice, issuing out of any of the courts of the counties of Erie or Warren, upon any person or persons found, at any time, in said counties, being a resident or citizen of the state of New York. P. L. 565.

(h) To authorize a service upon an agent, under this act, the defendant must be a permanent nonresident. Lanahan v. Collins, 6 W. N. C. 253. And see Wheelan v. Stedman, 7 Ibid. 17.

(i) The sheriff may amend his return of "served" by altering it to " nihil habet." Anspach v. Carr, 1 T. & H. Pr. § 261. But every amendment must be on affidavit. Lowry v. Coulter, 9 P. S. 353. Scott v. Seiler, 5 W. 235. And if judgment have been entered by default, on a false return of "served," the court,

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