P. L. 208. instituted in such court, respecting any matter in dispute in such proceedings; 29 March 1832 § 56. and the said court shall have power to compel the production of any books, papers or other documents, necessary to a just decision of the question before them, or before auditors. Parties may be examined on oath. Books and papers. P. L. 1. thereon. 65. The judges of the orphans' court (courts) of the commonwealth of Pennsyl- 18 Oct. 1841 § 1. vania, within five years(i) after the final decree, (k) confirming the original or supplementary account of an executor, administrator or guardian, which has or may when petition of be hereafter passed as aforesaid,(1) upon petition of review being presented by such review may be executor, administrator or guardian, or their legal representatives, or by any per- presented. son interested therein, (m) alleging errors in such account, which errors shall be specifically(n) set forth in said petition of review, and said petition and errors Proceedings being verified by oath or affirmation; said orphans' court shall grant a rehearing of so much of said account as is alleged to be error in said petition of review, and give such relief as equity and justice may require, (o) by reference to auditors, or otherwise; with like right of appeal(p) to the supreme court as in other cases, except that the appeal shall be taken, under the provisions of this act, within one year after the decree made on the petition of review: Provided, That this act shall not extend to any cause when the balance found due shall have been actually paid and discharged by any executor, administrator or guardian:(q) 66. Any person aggrieved(r) by a definite sentence or decree(s) of the orphans' 29 March 1882 § 59. court, may appeal from the same to the supreme court: Provided, That the party P. L. 248. appealing shall give security by recognizance, with sufficient surety, in the orphans' Parties may court, or before one of the judges thereof,(t) conditioned to prosecute such appeal Proceedings to with effect, and to pay all costs that may be adjudged against him, (u) and shall obtain an appeal. 180. The act of 1869, allowing parties to testify, does not apply. to an audit of an administration account; parties can only be examined, in such case, under the act of 1832. Hyneman's Estate, 2 W. N. C. 571. (i) The power of reviewing its decrees had been previously exercised by the orphans' court; this act limits the period within which a review may be had, in certain cases, to five years, but leaves untouched the pre-existing practice, in all other instances. George's Appeal, 12 P. S. 262. See Downing's Estate, 5 W. 90. Briggs's Appeal, Ibid. 91. Clauser's Estate, 1 W. & S. 215. Stoever's Appeal, 3 Ibid. 154. Bunting's Appeal, 4 Ibid. 469. Pennypacker's Appeal, 14 P. S. 430. Young's Appeal, 99 P. S. 83. Bucknor's Estate, 7 W. N. C. 470. Its purpose was, to make a bill of review a matter of right, and at the same time, to prescribe a limit to its exercise. Kinter's Appeal, 62 P. S. 318. Meckel's Appeal, 112 P. S. 554. Culp's Estate, 1 Northam. 327. To justify a bill of review, there must be error apparent on the face of the account, or new facts arising since the decree, or newly-discovered evidence. Hildebeitel's Appeal, 3 L. Bar, 7 October 1871. A review can only be claimed, as a matter of right, for error of law, apparent on the face of the record; or for new matter which has arisen since the decree; it may be granted as a matter of grace, for newlydiscovered evidence. Riddle's Estate, 19 P. S. 431. Hartman's Appeal, 36 Ibid. 70. Green's Appeal, 59 Ibid. 235. Cramp's Appeal, 81 Ibid. 90. Fidelity Insurance Co. v. Gould, 12 W. N. C. 63. Given's Estate, 6 Ibid. 434. Cremer's Estate, 7 Ibid. 544. Given's Estate, 3 Ibid. 160. It is never allowed to stand on strict law and against equity. Yeager's Appeal, 34 P. S. 173. Russell's Administrator's Appeal, Ibid. 258. Stevenson's Executor's Appeal, 32 Ibid. 318. The orphans' court may entertain a bill of review, notwithstanding a decree of affirmance by the supreme court. Parker's Appeal, 61 P. S. 478. See Nevins's Estate, 7 Phila. 506. Curry's Estate, 1 Leg. Gaz. R. 484. Pennypacker's Appeal, Ibid. 485. (k) See Chambers's Appeal, 11 P. S. 436. Eckfeldt's Appeal, 13 Ibid. 171-2. (1) The statute has no application, where there has been a voluntary distribution and payment by the accountant, before filing his account. Whelen's Appeal, 70 P. S. 410. (m) The sureties of an administrator who has charged himself with the proceeds of real estate, may have a bill of review. Žinn's Appeal, 10 P. S. 469. Hartz's Appeal, 2 Gr. 83. (a) If this be not done, the original decree will not be opened. Kachlein's Appeal, 5 P. S. 95. A general allegation of error in the decree, is not sufficient. Russell's Administrator's Appeal, 34 P. S. 258. Frey's Estate, 12 Phila. 15. It will be deemed correct, except in so far as errors are specifically pointed out and proved. Yeager's Appeal, 34 P. S. 173. See McFarland's Estate, 4 L. 1. 101. A petition for review is appeal. sufficient if it follow the act. Masterson's Estate, 1 Northam. 245. Kuntz's Estate, Ibid. 252 and note. Where a petitioner sets up simply a question of fact, which could as well have been taken when the account was filed, he is not entitled to a review where there is no error of law upon the face of the record. Priestley's Appeal, 127 P. S. 420. Simpson's Appeal, 18 W. N. C. 175. (0) See Riddle's Estate, 19 P. S. 433. (p) An application to refer an auditor's report back to the same or another auditor, is in the discretion of the orphans' court, and not the subject of an appeal. Patterson's Appeal, Sup. Court, 4 April 1853. MS. See Rhoads's Appeal, 39 P. S. 186. (9) Whenever the object is to surcharge the accountant, and not to disturb an appropriation already made, this proviso is no bar. Kinter's Appeal, 62 P. S. 318. See Conner v. Burd, 1 Leg. Chron. 17. Young's Estate, 34 W. N. C. 165. (r) The administrator, not being a party aggrieved, cannot appeal from a decree distributing the fund in his hands. Stineman's Appeal, 34 P. S. 394. Mellon's Appeal, 32 Ibid. 121. Sharp's Appeal, 3 Gr. 260. Chew's Appeal, Ibid. 308. See Koch's Estate, 4 R. 268. But his sureties may appeal. Garber v. Commonwealth, 7 P. S. 265. See Berryhill v. Dowding, 8 W. 313. And see Everman's Appeal, 67 P. S. 335. (s) A decree to account is not final. Eckfeldt's Appeal, 13 P. S. 171. Nor one which does not distribute the whole fund. Stulzfoos's Appeal, 3 P. & W. 265. Nor an order for the sale of real estate. Robinson v. Glancy, 69 P. S. 89. See Hess's Appeal, 1 W. 255. Robinson's Appeal, 62 P. S. 213. Gesell's Appeal, 84 Ibid. 238. Snodgrass's Appeal, 96 Ibid. 420. Christy's Appeal, 110 Ibid. 538. But any decree confirming an account of an executor, &c., whether final, or otherwise, is a definitive decree from which an appeal will lie. Rhoads's Appeal, 39 P. S. 186. And an appointment of a guardian is a final decision, which may be appealed from. Senseman's Appeal, 21 P. S. 331. The supreme court will not review the action of the orphans' court in setting aside a sale, except the wrong be great and manifest; nor will an appeal, in such case, be entertained, without a special allocatur. Haslage's Appeal, 37 P. S. 440. (t) The supreme court have no power to take such recognizance. Chew's Case, 8 W. & S. 375. The amount of security is in the discretion of the orphans' court. Commonwealth v. The Judges, 10 P. S. 37. Koch's Estate, 4 R. 268. And they may increase the amount, while the record remains with them. Chew's Appeal, 9 W. & S. 151. The recognizance may be signed in blank, and filled up afterwards. Costen's Appeal, 13 P. S. 292. (u) By act 8 June 1881, P. L. 80, security for costs is to be given in all cases; see tit. "Errors and Appeals." But this act does not appeal or abrogate 29 March 1832 § 59. make oath or affirmation that the appeal is not intended for delay; which appeal, P. L. 243. Effect thereof. Reversal not to thenceforth, shall stay all proceedings(v) in the orphans' court, until the same be determined in the supreme court, and the record be remitted to the orphans' court. No appeal shall be allowed, unless the same be entered and security given, within three years after the final decree of the orphans' court:(w) And provided, That no affect the interests reversal or modification of any decree or proceedings of the orphans' court, for the acquired by stran- sale of real estate, shall have the effect of divesting any estate or interest acquired gers under decree. under such decree or proceedings, by persons not party thereto, where the orphans' court had jurisdiction of the case. 19 May 1874 § 8. P. L. 207. 14 April 1835 § 4. P. L. 276. Supreme court may appoint auditors. 16 June 1836 § 2. P. L. 688. To determine appeal on the merits. 29 March 1832 § 60. P. L. 213. Fees of sheriffs. 1 April 1863 § 1. P. L. 205. petuate lost records in the orphans' court. 67. No appeal shall stay the execution of a final decree, unless notice of such appeal and security be given, within twenty days after the time that such decree has been made. 68. The supreme court of this commonwealth shall, in all cases of appeal from the definitive sentence or decree of the orphans' court, hear and determine the same, as to right and justice may belong; and refer the same to auditors, when, in their discretion, they may think proper. (x) 69. It shall be the duty of the supreme court of this commonwealth, in all cases of appeals now made, or that may hereafter be taken from the decrees of the several orphans' courts, to hear, try and determine the merits of such cases, and to decree according to the justice and equity thereof.(y) 70. The fees to be taken by the sheriffs of each county for the services enjoined by this act, shall be the same as those already allowed for like services; and for executing a writ of sequestration the same fees shall be allowed as upon a writ of foreign attachment, together with reasonable costs and expenses, according to the discretion of the court; on all writs and process sent from another county, no mileage shall be allowed, except for the distance actually travelled, but an allowance shall be made for the transmission of such writs and process, to the clerk of the court from which they may have issued, at the common rates of postage. 71. The orphans' courts of the several counties of this commonwealth shall have the jurisdiction and powers of a court of chancery, so far as relates to the Proceedings to per- perpetuation of testimony, in cases of lost or destroyed records of the orphans' court of any county in this commonwealth, whether such records were lost or destroyed before or after the passage of this act, and the same proceedings, orders, decrees and judgments shall be had therein, mutatis mutandis, as in cases now authorized by law, and with the like effect; and when proved, such record shall have the same legal operation as the original record would have had: Provided, That in all cases the application to perpetuate testimony shall be made in the same court in which the record may be lost or destroyed: Provided also, Where minors are interested, that notice of said proceedings shall be served upon said minors and their guardian. 17 May 1866 § 1. P. L. 1096. Powers in refer lands. 72. In all cases in which (under) a proceeding in the orphans' court of any county, any money has been charged upon real estate, payable at a future period, it shall be lawful for any person claiming an interest therein, when the same shall ence to charges on have become payable, to apply, by bill or petition, to the said orphans' court, for the payment of the same; whereupon, such court having caused due notice to be given to the owner of such real estate, and to such other persons as may be interested, shall proceed, according to equity, to make such decree or order for the payment of the said charge out of such real estate, as shall be just and proper.(z) Ibid. § 2. Owners may pay 73. It shall be lawful for the owner of such real estate, so charged, when the same shall become payable, to pay the amount of such charge into the said money into court. orphans' court; which payment shall operate as a complete discharge thereof; and the said orphans' court may, thereupon, appoint a suitable person as auditor, to distribute the same among those legally entitled thereto, and shall make such decree or order thereon as shall be just and proper. 14 April 1868 § 1. P. L. 97. Jurisdiction to regulate curtilage appurtenant to dwelling-house, &c. 74. Whenever, under and by the provisions of any last will and testament, or by reservation or limitation in any deed or deeds of conveyance, or by reservation in any partition between tenants in common or coparceners, any dwelling-house or other building is devised, bequeathed, reserved or limited to any person or persons, for life, or other period of time, without defining the boundaries of the curtilage or lot appurtenant to such dwelling-house or other buildings and necessary for the use and enjoyment of the same, it shall be lawful for any of the parties interested to apply, by petition in writing, to the orphans' court of the county in which 65. Irwin's Appeal, 5 Wh. 577. Kittera's Estate, 17 P. S. 416. They may also award an issue to try disputed facts. Walker's Estate, 3 R. 243. (y) On an appeal from a final decree, the whole proceedings may be re-examined, including the trial of a feigned issue, to which no writ of error was taken. Finney's Appeal, 37 P. S. 323. After affirmance on appeal, the record is returned to the orphans' court for execution only, Robinson's Appeal, 62 P. S. 213. (2) See Neel's Appeal, 6 W. N. C. 365. P. L. 97. said lands or buildings are situate, for the appointment of commissioners to desig- 14 April 1868 § 1. nate the boundaries of the curtilage or lot appurtenant to such dwelling-house or other building, and necessary for the convenient use of the same, for the purposes for which it was intended. Ibid. § 2. Commissioners to 75. It shall be the duty of the said court, on presentation of such petition, to appoint three competent and skilful persons, as they shall think proper, for the purposes aforesaid, who shall receive the sum of one dollar per day, for the time be appointed. spent in the performance of their duties as said commissioners. Ibid. § 3. sioners. 76. It shall be the duty of the commissioners so appointed, to give reasonable notice to all parties interested, of the time at which they will examine said dwelling-house or other buildings, for the purposes aforesaid, and to make report to the Duties of commiscourt in pursuance of the order to them directed; and in such report they shall sufficiently designate and describe, by metes and bounds, with their courses and distances, and by draft, if necessary, the limits and extent of ground necessary for the convenient use of such dwelling-house or other building, for the purpose for which it is designed; and such report shall, if approved by the court, be entered of record, and be conclusive on all persons concerned; and the ground thus set apart shall be exclusive property of the occupant of such dwelling-house or other building, during the full term for which it was devised, reserved or limited. 77. The costs of these proceedings shall be equally divided between all parties interested. Costs. Ibid. § 4. OUTLAWRY. 1. Failure to appear to answer certain indictments. Escape before trial. Certiorari. Capias. 2. Alias capias. Proclamation. 3. Advertisement. 4. Attainder. Accessories. Sentence. Effect of outlawry. 5. How execution to be awarded. When outlawry may be reversed. 6. Costs. ments. 1. If any person who hath been, or shall be legally indicted in any court of 31 March 1860 § 78. criminal jurisdiction within this commonwealth, of treason, felony of death, rob- P. L. 445. bery, burglary, sodomy or buggery, or as accessories before the fact to any of the Failure to appear same offences, did not or will not appear to answer to such indictment, or having to certain indictappeared, shall escape before trial, the same indictment, record and proceedings shall be removed by writ of certiorari into the supreme court of this common- Escape before trial. wealth, and it shall and may be lawful for the same court to award a writ of capias, directed to the sheriff of the county where the fact shall be charged to have been Certiorari. committed; and if the party indicted shall be supposed, by the indictment, to inhabit or be conversant in any other county, then also to the sheriff of such Capias. county, which writ or writs shall be delivered to the said sheriff or sheriffs, at least two months before the day of the return thereof, commanding the said sheriff or sheriffs to take the person so indicted as aforesaid, if he may be found in his or their bailiwicks, and him safely keep, so that he may have his body before the justices of the said supreme court, at the next supreme court to be holden for the said commonwealth, to answer to the said indictment, or prosecute his traverse thereupon, as the case may be, and to be further dealt with as the law shall direct. Ibid. Alias capias. 2. And if the same sheriff or sheriffs shall make return to the same writ or writs of capias, that the person indicted as aforesaid, cannot be found in his bailiwick, then, after such return, a second writ of capias may issue out of the said supreme court, and be delivered, at least three months(a) before the return-day thereof, to the sheriff of the county where the facts shall be charged to have been committed; and in case the party shall be supposed, by the indictment, to inhabit or be conversant in any other county, then another writ of capias shall also issue, and be delivered, at least three months before the return-day thereof, to the sheriff of such county; which writ or writs of capias, shall be returnable before the justices of the same court, (b) on the first day of the second term next after the teste of the said second writ of capias, so that a term shall intervene between the teste of the return-days of the same writ or writs, whereby the said sheriff or sheriffs shall be commanded to take the said person so indicted as aforesaid, if he may be found in his or their bailiwicks, and him safely keep, so that he may have his body before the justices of the said supreme court at the day of the return thereof, to answer or prosecute his traverse as aforesaid; but if he cannot be found in his or Proclamation. their bailiwicks, then to cause public proclamation to be made, on three several days.(b) in one of the courts of quarter sessions of the peace to be held for the said counties respectively, between the teste and return-days of the same writ or writs, (a) See Respublica v. Doan, 1 Dall. 88, 92. (b) Respublica v. Steele, 2 Dall. 92. P. L. 445. 31 March 1860 § 78. that the party so indicted shall appear before the said justices of the said supreme court, at a supreme court to be holden at the time and place contained in the same writs, to answer such indictment or prosecute his traverse thereof, as the case may be, or through default thereof, he will, at the return of the same writ or writs, be outlawed and attainted of the crime whereof he was indicted as aforesaid. Ibid. Advertisement. Ibid. Attainder. Accessories. 3. And the said second writ of capias, directed to the sheriff of the county where the crime hath been, or shall be charged to have been committed, shall contain a further clause commanding the said sheriff, in case the person indicted as aforesaid cannot be found in his bailiwick, to cause public advertisement to be made in one or more of the public newspapers of this state, once a week, in six succeeding weeks, between the teste and return of the said second writ of capias, specifying therein the coming of the said second writ of capias to his hands, with the teste thereof, and the time and place of return to be made thereof, naming the person indicted as aforesaid, with his addition of degree, mystery(c) and place of abode,(d) as contained in the writ, stating the nature of the offence charged against him, and commanding him to appear before the justices of the said supreme court, at the day and place directed by the said second writ of capias, to answer to the said indictment, or prosecute his traverse thereof, as the case may be, or through default thereof at the return of the said second writ of capias, he will be outlawed and attainted of the crime whereof he shall have been indicted as aforesaid. 4. And if upon the return of the same writ or writs last mentioned, by the said sheriff or sheriffs, that the directions of the said writ or writs had been fully complied with and pursued, and the person indicted as aforesaid shall not yield himself to one of the said sheriffs, so that he may have his body before the justices of the said supreme court at the day and place as directed by the said writ or writs, or having surrendered himself, shall escape from his custody, or having been bailed on his surrender or caption, shall not appear, so that through want of his appearance at the time and place the said supreme court shall appoint for his trial, no trial of his offence can be had, the justices of the said supreme court shall, in either of these cases, pronounce and declare the said person indicted as aforesaid, and not appearing at the time and place appointed for his trial as aforesaid, to be outlawed and attainted of the crime whereof he shall have been indicted as aforesaid; the said supreme court to pronounce the judgment of outlawry against the principal offender, previously to the declaration of outlawry against the accessory, against whom, in all other respects, it shall be lawful to carry on the proceedings together, and at the same time, the said supreme court shall declare the legal punishment for the same crime; and wherever imprisonment shall be a part of the sentence for any of the said offences, the term thereof shall commence from the time the person outlawed shall, subsequent to his outlawry, actually be in the custody of the sheriff of the county where the offence was or shall be committed, which sentence shall be fully and particularly entered upon the records of the said Effect of outlawry. supreme court. And the said sentence of outlawry shall have the legal effect of a judgment upon verdict or confession, against the person so outlawed, for the offence whereupon he shall have been outlawed, unless and until the same outlawry shall be afterwards avoided by the judgment of the same court, on plea pleaded in the nature of a writ of error. Sentence. Ibid. be awarded. 5. When any person outlawed as aforesaid, shall be taken either by capias utlaHow execution to gatum, or otherwise, or being in the sheriff's custody, shall be brought to the bar of the supreme court, the court shall, upon the suggestion and prayer of the attorney-general, award execution(d) to be done upon him, unless the prisoner shall plead either ore tenus, or in writing, as his counsel shall advise, that he was not the person who was outlawed, or shall assign errors, in fact or in law, sufficient to prevent the award of execution; in which case the court shall proceed to determine the same, either by an inquest, or by their own judgment, agreeably to law; and the prisoner shall by such plea have all the benefit and advantage of all legal matters in his favor, as if he or she had brought a writ of error and had assigned the several matters pleaded as errors: Provided, If any person outlawed may be reversed. shall, within the space of one year next after the outlawry pronounced against him, yield him to one of the justices of the supreme court, and offer to traverse the indictment whereon the said outlawry shall be pronounced as aforesaid, that then he shall be received to the same traverse; and being thereupon found not guilty, by the verdict of a jury, of the offence for which he shall have been outlawed as aforesaid, he shall be clearly acquitted and discharged of the said outlawry, and of all penalties and forfeitures by reason of the same, as fully as if no such outlawry had been had, anything hereinbefore contained to the contrary thereof notwithstanding. When outlawry Costs. Ibid. 6. All the costs and charges of the said proceedings to outlawry shall be borne and paid by the county where the crime is laid to have been committed: Provided always, That if the person or persons so outlawed shall have real or personal estate, the same or so much thereof as shall be necessary, shall be sold in the (c) Respublica v. Steele, 2 Dall. 92. Respublica v. Buffington, 1 Dall. 60. manner provided by the seventy-second section of this act, and the net proceeds 31 March 1860 § 78. of such sales shall be applied to the payment of the said costs and charters, or so P. L. 445. far as the same shall extend, in exoneration of the county.(e) OVERSEERS. See ALMSHOUSES; POOR; TOWNSHIP OFFICERS. OYER AND TERMINER. See CRIMINAL PROCEDURE; QUARTER SESSIONS AND OYER AND TERMINer. OYSTERS. See CRIMES. 1. Councils in Philadelphia to regulate oyster cellars and the sale of oysters. 1. It shall and may be lawful for the select and common councils of the city of 8 March 1823 § 1. Philadelphia, the commissioners of the Northern Liberties, of Spring Garden, of P. L. 62. Kensington district, of the district of Southwark and of Moyamensing, to pass such Councils in Philalaws and ordinances as they may, from time to time, deem necessary for the good delphia to regulate government and control of all persons who may keep oyster-cellars, or sell oysters the sale of oysters. within the city, district or townships, over which said council or commissioners may or have been elected to superintend: Provided, That such laws or ordinances shall not be contrary to the constitution or laws of the United States or of this state. oyster cellars and PAMPHLET LAWS. See ACTS OF ASSEMBLY. PARADING. See NATIONal Guard. 1. Political parades after dark in Philadelphia forbidden within ten days preceding election. 1. It shall not be lawful for any political organization to parade through the 10 April 1867 § 1. streets of the city of Philadelphia after dark, within ten days next preceding any general election.' 2. Any person violating the provisions of this act, shall be liable to a penalty not exceeding fifty dollars, and an imprisonment not exceeding sixty days. P. L. 1129. Political parades. Ibid. § 2. Penalty. PARTIES. See COUNTIES AND TOWNSHIPS; DISCONTINUANCE; EQUITABLE PLAINTIFFS; MUNICIPAL CORPORATIONS. (e) This section is taken from the 1st, 2d and 3d sections of the act of 23 September 1791, 3 Sm. 37, and is nearly a transcript thereof. They form in themselves as good a system of outlawry as can now be suggested, and are so skilfully and ably drawn, as to require no amendment of importance. Although proceedings in outlawry have been rarely resorted to in our state, yet they are indispensably necessary in every complete system of criminal jurisprudence. Report on the Penal Code 54. |