Sidor som bilder

17 March 1869 § 2. within the county, and if not found, then by leaving a copy of the same at his,

P. L. 9.

Ibid. § 3. Seizure under attachment.

Defendant may give bond.

30 Jan. 1871 § 1. P. L. 12. Sheriff may have an interpleader on

in a third person.

her or their residence, with some adult member of the family where he, she or they reside;(g) or if said party defendant do not reside in the county and cannot be found, then by leaving a copy of said attachment and inventory with the person in whose possession or care said property may be, or in whose hands it may be attached; and in case such money, rights in action, interest in public or corporate stock, evidences of debt or other property shall be found in the hands or possession of any person, persons or corporation other than the party defendant, such person, persons or corporation shall be summoned as a garnishee."

76. It shall be the duty of the officer serving such attachment to take the property attached into his possession, when the same is capable of manual seizure, and when not, the same shall be bound by such attachment in the hands or possession of such party from whom it is due or owing, or whose duty it is to account for the same(h) unless the party defendant, or some one for him, her or them, shall enter into a bond, with sufficient surety, to be approved by the court from which said attachment shall issue, on the prothonotary thereof, in double the amount of the debt or demand claimed, conditioned that in the event of the plaintiff or plaintiffs recovering judgment in said attachment, that he, she or they will pay the debt and costs at the expiration of the stay of execution on sums of like amount given to freeholders, or that he, she or they will surrender up the said property in as good condition as when attached, to any officer having an execution against said party defendant on any judgment rendered in said attachment in favor of the plaintiff.

77. That section nine of an act, entitled "An act extending the chancery powers of and to the jurisdiction and proceedings in certain courts," approved the 10th day of April Anno Domini 1848, (i) and also section 1st of an act, entitled "An act extending the sheriff's interpleader act of Philadelphia city and county claim of property to the several counties of this commonwealth," approved the 10th day of March Anno Domini 1858, (k) be extended and applied to any claim which has been or shall be made by any person or persons, not being the parties against whom process has issued, to any goods or chattels taken or entitled to be taken, by or under attachment issued under the act, entitled “ An act relative to fraudulent debtors,” approved the 17th day of March Anno Domini 1869:(1) Provided, That when the proper court shall not be in session, any law judge thereof shall have power, at chambers, to hear and determine any rule to show cause, and to make such order as shall appear to be proper and just, under the circumstances of the case.

17 March 1869 § 4. P. L. 10.

Proceedings on return of attachments.

(3.) Of the subsequent proceedings.

78. In case of a personal service of said attachment upon the party defendant, or if he, she or they shall be residents of the county at the time the attachment was issued, or shall appear to the action, the court shall proceed in the case in like manner as in a case of summons for debt regularly issued and duly served; (m) and in case there shall not be a personal service, residence or appearance as aforesaid, the plaintiff or plaintiffs may at any time after the first day of the second Where there is no term after issuing said attachment, proceed in like manner against the party defendant and against the garnishee or garnishees, by rules, interrogatories or otherwise, as is now practised in cases of foreign attachment and attachment-execution;(n) and the said court shall have like powers to decree the sale of perishable property as they now have in cases of foreign attachment.(o)

personal service.

Ibid. § 5.

Priority of attach


29 April 1891 § 1. P. L. 35.

Garnishee entitled to counsel fees on

discontinuance before answer.

79. In case two or more attachments are issued against the same party defendant, the one first in the hands of the proper officer for service shall have the prior lien,(p) and so on as to other writs issued in pursuance of this act, in the order of time in which they are issued to said officer.(q)

80. Where, in any attachment, attachment-execution, foreign attachment or scire facias or foreign attachment, issued out of any court of record in this state, an appearance by attorney shall be, or shall have been entered by any garnishee or garnishees therein, each said garnishee so appearing shall be entitled to recover from the plaintiff, in addition to the costs already allowed by law upon any discontinuance or other final disposition thereof, prior to answers filed, a counsel fee of at least ten dollars, to be taxed as part of the costs, and to be determined in case of dispute by the court.

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liable in trespass. Rothermell v. Marr, 10 W. N. C.


(m) See Artman v. Adams, 11 W. N. C. 339. (n) Klett v. Craig, 1 W. N. C. 129. Yerkes v. Craig, Ibid. 157.

(0) See Martin v. Mulford, 1 W. N. C. 82. (p) The priority of lien acquired by the first attaching creditor, is not impaired by a subsequent voluntary assignment for the benefit of the defendant's creditors. Conway v. Butcher, 8 Phila. 272.

(q) See Duffee v. Records, 12 W. N. C. 287.

81. Each said garnishee so appearing, shall thereupon be deemed and taken to 29 April 1891 § 1. be a party to the cause, and shall be entitled to all process of the court looking to speeding the cause and securing final disposition thereof.

(4.) Of the dissolution of the attachment.

P. L. 35. Garnishee to be deemed a party to the cause.

82. In all cases in which a writ of attachment shall have issued pursuant to 17 March 1869 § 6. the foregoing provisions, it shall be lawful for the defendant to apply to the court P. L. 10. of common pleas of the proper county, when in session, or to a judge thereof in Dissolution of vacation, to dissolve said attachment;(r) and upon the hearing of such application, attachments. the said court, or judge thereof, in vacation, shall have power to hear evidence or determine the truth of the allegations contained in the affidavit upon which said writ issued, and to dissolve or continue the time [lien] of such attachment, according as he shall find the allegation of such affidavit sustained or otherwise :(s) Pro- Exemption. vided, That nothing contained in this act shall interfere with the rights of exemption of property under the existing laws of this commonwealth.(t)

(r) It is too late to move to dissolve the attachment, after filing an affidavit of defence to the merits of the plaintiff's claim. Loewenstein v. Sheetz, 7 Phila. 361. Or after the entry of a rule of reference. Raub v. Morton, 1 Law Times (N. S.) 271; s. c. 2 Ibid. 9.

(s) See Gaulbert v. Atwater, 2 W. N. C. 644. State Bank v. Shaw, 7 Ibid. 146. A dissolution of the attachment does not operate as a discontinuance of the action. Bayersdorfer v. Hart, Ibid. 487. Biddle v. Black, 12 Ibid. 219. An order dissolving the attachment can only be reviewed by certiorari. Wetherald

v. Sharp, 16 W. N. C. 502. The damages resulting from a dissolved attachment cannot be recouped from

the plaintiff's claim on a subsequent trial. Gunnis v. Clapp, 17 W. N. C. 203. An attachment will be dissolved where the misrepresentations were not made by the defendants or communicated by their authority, or with their knowledge, not with the intention of influencing or inducing the plaintiffs to part with their property. Lodge v. Rose Valley Mills, 11 C. C. 667. Where the defendant takes a rule to dissolve the attachment, the court will order him, on the plaintiff's motion, to produce his books and papers, and testify as upon cross-examination. Schwartz v. Atkin, 12 C. C. 373.

(t) Washburn v. Baldwin, 10 Phila. 472. Hilbron ner v. Sternberger, 4 W. N. C. 186.


1. WHERE REAL ACTIONS TO BE COMMENCED. 1. Real actions to be brought in the proper county. 2. Where lands are situate in more than one county.

3. In such case, no other action to be brought for the same cause.

4. By whom such writ to be served.

13 June 1836 § 79. P. L. 557.


5. Real actions to be commenced by summons. 6. How served on infant defendant. Guardian ad litem to be appointed.

7. Responsibility of such guardian.

8. How return to be made.


9. When bail may be required.

10. Of judgment by default.

I. Where real actions to be commenced.

1. Actions of dower,(u) partition, waste, ejectment, nuisance and all other pleas of land, may be commenced in any court of the county wherein the lands or teneReal actions to be ments in question are situate, having original jurisdiction thereof, either by agreement of the parties, in the manner and with the effect provided in the case of personal actions, or by writ.

brought in the

proper county.

Ibid. § 80. Where lands are situate in more than one county.

Ibid. § 81.

Ibid. § 88. By whom such

2. In cases where the subject of controversy shall be a tract of land, or any other single tenement, situate in different counties, it shall be lawful to commence an action as aforesaid, in either of the counties, (v) and in such case the sheriff of the county in which such writ shall issue, shall have the power to execute the same, and all other processes, whether original or final, which may be issued in such action, in like manner, and with like effect as if the said counties were within his proper bailiwick.(w)

3. Whenever any action shall, in such case, be commenced in any such county, no other action between the same parties for the same cause, shall be instituted during the pendency thereof, in any other county.

4. Whenever it shall be lawful to cause service of any writ as aforesaid, to be made upon any defendant out of the county in which the action may be comwrit to be served. menced, the sheriff of the county in which such defendant may reside or be found, shall, by virtue of his office, have within his county, the power of a deputy to the sheriff of the county in which writ shall have issued, for the purpose of executing such writ, without any special deputation for the purpose.(x)

13 June 1836 § 82. P. L. 587.

II. Of the writ and service.

5. The writ which shall be used for the commencement of any such action, shall be, in all cases, unless otherwise especially provided, a writ of summons, Real actions to be which shall be directed to the sheriff of the county in which the action is commenced, and shall be made returnable in the manner, and according to the rules provided in the case of personal actions.

commenced by


Ibid. § 83.

How served on

6. If any defendant in any real action as aforesaid, shall be a minor, service of the writ shall be as follows:(y)

I. If any such defendant have a guardian of his estate, service thereof shall be infant department. made upon such guardian in the manner directed by law.

Guardian ad litem to be appointed.

II. If any such defendant be above the age of fourteen years, service thereof shall also be made upon him, in the same manner as is directed by law in the case of adults.

III. If any such defendant be under the age of fourteen years, and have no guardian as aforesaid, service thereof shall be made upon the next of kin of such defendant, residing in the county wherein such defendant shall reside, in the manner aforesaid.

But in every case in which any such defendant shall not have a guardian as aforesaid, it shall be the duty of the plaintiff, upon or after the day on which he might take judgment by default, against such minor, if he were of full age, and before any plea pleaded, or rule ever taken in the action, to make application to the court in which such action shall be brought, for the appointment of a guardian of such minor in that cause, if such minor shall not have appeared by his guardian

(u) Dower is strictly a real action, originating in, and proceeding upon the principles, and according to the forms of the common law. Jones v. Patterson, 12 P. S. 154. It cannot be maintained, where the husband dies seised, and in possession; in such case, the orphans' court alone has jurisdiction. Thomas v. Simpson, 3 P. S. 60, 68. Taylor v. Birmingham, 29 Ibid. 306. Gourley v. Kinley, 66 Ibid. 270. But dower will lie, where the widow elects not to take under the will of her husband. Bradford v. Kent, 43 P. S. 474.

(v) See Finney v. Somerville, 80 P. S. 59.
(w) See title "Partition."

(2) This provision refers to cases embraced in § 80, (supra 2); and does not authorize the commencement of an action of ejectment, by service of the writ, in a county within which no part of the land lies. Bellas v. Houtz, 8 W. 373.

(y) This refers to a personal service, which can be made within the county. Girard Life Insurance Co. v. Farmers' and Mechanics' Bank, 57 P. S. 388.

as aforesaid, and such appointment being made, he shall give notice thereof to the 18 June 1836 § 83. person appointed. (2)

P. L. 587.

Ibid. § 84.

such guardian.

7. The court which shall appoint a guardian ad litem of a minor defendant in any cause, shall have power to require security of such guardians for the faithful execution of the trust, and in all cases, whether such security shall be given or Responsibility of not, such guardians shall be responsible to their wards, in like manner as guardians appointed by the orphans' court, and they shall also be entitled to a reasonable compensation for their services.

Ibid. § 86.

8. The officer serving any such writ shall, in all cases, state in his return the time and manner in which the service thereof was made, and in case the publica- How return to be tion of the writ, or of the substance thereof, shall be required by law, or by any made. order of the court, compliance therewith shall be shown by affidavit, or otherwise, to the satisfaction of the court.

III. Of bail, and judgment by default.

9. If damages shall be recoverable(a) and shall be demanded, in any such 18 June 1836 § 85. action, it shall be lawful for the plaintiff, by a rule, to require the defendant, if

P. L. 588.

he would be liable to arrest in a personal action, to enter bail, or to give security, When bail may be in such sum as shall be sufficient, in the judgment of the court, to satisfy the required. damages and costs to which such plaintiff may be entitled, and the proceedings for

that purpose, shall be conducted in such manner as the court in which such action

may be depending, by their rules shall direct.

10. After the service of any such writ, or notice thereof, given as aforesaid, if

Ibid. § 87.

the defendant shall not appear, it shall be lawful for the plaintiff, without other Of judgment by process, to file his declaration or statement, as by law shall be required or allowed; default. and at such time and manner as may be allowed by law, have judgment thereon for such default of appearance, and no essoin or saver-default, in any such case, shall be received or allowed.

(z) This section applies to real actions only; it does not apply to the service of a scire facias sur mortgage. Kennedy v. Baker, 33 W. N. C. 498.

(a) Damages are recoverable in dower, when the husband dies seised. Winder v. Little, 1 Y. 154. Bar

nett v. Barnett, 16 S. & R. 51. Benner v. Evans, 3 P. & W. 454. Shirtz v. Shirtz, 5 W. 255. Seaton v. Jamison, 7 W. 533. Sandback v. Quigley, 8 W. 464. This section does not include a defendant in ejectment. Young v. Cooper, 12 Phila. 332.




1. Acts of assembly were abrogated by the revolution.

2. Revival thereof. And of the common and statute law of England.

3. Exceptions.

4. Fines to be paid into the state treasury.


5. Acts of assembly to be strictly pursued.


(1.) DISTRIBUTION OF THE LAWS TO PUBLIC OFFICERS. 6. How distributed by the secretary.

7. District judges and district attorneys to receive the laws.

8. Prothonotaries to furnish statement of number of copies required in their counties.

9. And to give public notice of the receipt thereof. 10. How distributed by the prothonotaries. Officers to receipt for the same.

11. Public general laws to be separately published.
12. How distributed.

13. State printer may sell additional copies.
14. Copies to be transmitted to prothonotaries.
15. To be kept on file.

(2.) OF SUBSCRIPTIONS FOR THE LAWS BY CITIZENS. 16. County treasurers to advertise for subscriptions to the laws.

17. Citizens may subscribe. Treasurers to transmit subscription-lists to the secretary. And the requisite number to be forwarded to them.

28 Jan. 1777 § 1. 1 Sm. 429.

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I. Of the statute and common law.
(1.) Of acts before the revolution.

1. Whereas, by the unconstitutional power claimed by the British king and parliament over the American colonies, and the cruel and oppressive measures which the said king and parliament have pursued to establish that power, it became were abrogated by necessary for the colonies to declare themselves free and independent states, which

Acts of Assembly

the revolution.

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was accordingly done, pursuant to a resolve of the continental congress: whereupon all authority being in any person under the said king consequently ceased, and the laws enacted by his representatives here became of no force or effect, (b) although the same were for the most part suited to the circumstances of the people; whereas, it is absolutely necessary for the well-governing of every state, that laws properly adapted to the circumstances of the inhabitants be at all times in force, Be it enacted,

2. That each and every one of the laws or acts of general assembly, that were in force and binding on the inhabitants of the said province on the 14th day of May last, shall be in force and binding on the inhabitants of this state, from and after the 10th day of February next, as fully and effectually, to all intents and purposes, as if the said laws, and each of them, had been made or enacted by this general assembly and all and every person and persons whomsoever are hereby enjoined and required to yield obedience to the said laws, as the case may require, until the said laws or acts of general assembly, respectively, shall be repealed or altered, or until they expire by their own limitation: and the common law (c) and such of the statute laws of England, as have heretofore been in force in the said province, except as hereafter excepted. (d)

3. Provided always, That so much of every law or act of general assembly of the province aforesaid, as orders the taking or subscribing any oath, affirmation or declaration of allegiance or fidelity to the king of Great Britain, or his successors, or oath of office; and so much of every law or act of general assembly aforesaid, as acknowledges any authority in the heirs or devisees of William Penn, Esq., de

(b) This was intended merely to declare that those laws which were originally enacted under the authority of the British parliament, ceased any longer to derive their virtue and validity from that source. Respublica v. Chapman, 1 Dall. 58.

(c) The decisions of the British courts prior to the revolution, are evidence of the common law in our courts. Clayton v. Clayton, 3 Binn. 490-1.

(d) For a list of the English statutes in force in Pennsylvania, see 3 Binn. 599. 1 Sm. 432. Rob. Dig.

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