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GARMAN, J.—The plaintiff brought suit published, that the account be republished against the defendant before Thomas A. at the expiration of one year from the first Buckley, Justice of the Peace. As stated in publication of the letters, unless distributees the transcript the claim was "for the sum will give refunding bonds. of $30; being a balance due on an agreement entered into March 20, 1915, whereby

0. C. of

Lancaster Co. the defendant agreed to pay the sum of $5 per month to the plaintiff for a right of

Hahn Estate, way over the land of the plaintiff until sueh Lise Estate with Power to SellNote for time as all the marketable timber shall be Money Borrowed. cut and hauled away." The judgment of Where a decedent left by his will all of his the Justice of the Peace was appealed from property to his widow for life with power to use by the defendant and the transcript of ap- if necessary for her maintenance, a promissory peal filed to the above number and term. note given by her for money borrowed will not The plaintiff then filed a statement and

be paid out of his estate after her death. the defendant moved to strike off the plead- Adjudication. ing, setting forth to sustain his motion, Coyle £ Keller for accountant. among others, the following specification: D. McMullen for claimant.

2. The plaintiff's statement is not di- June 14, 1917. Smith, P. J.-Philip vided into paragraphs numbered consecu- Hahn died testate January 14, 1894. The tively as required by law.

important paragraph of his will is as follows: This exception is sustained; the others "Item. I give, devise and beq ueath to are dismissed. The statement filed is my wife, Sabena Hahn, all my estate, real, stricken from the record.

personal and mixed, for and during the The plaintiff is permitted to file within term of her natural life, or so long as she thirty days a new statement complying with remains my widow, with full power and the Act of Assembly of May 14, 1915, P. authority, however, to use, during her

widowhood, not only the income thereof but also of the principal, and to sell any or

all of my real estate, either at public or priORPHANS' COURT

vate sale, or borrow money thereon by

mortgages or judgments, in case she finds it 0. C. of

Allegheny Co. necessary to so use of the principal of my Daerr's Estate,

estate, sell or incumber my real estate in

order to maintain herself comfortably; of Practice, 0.0.-Failure to Advertise Notice which necessity. she alone shall be the

of Letters Testamentary--Suspension of judge." Distribution until Publication.

"Whatever may be left” after the death

of testator's widow he gave to his children, Notice by publication of the grant of letters Philip, Peter, George, Wilhelm, Mary and testamentary 10 given as required by law, the court ordered that Annie. George died in 1910, before the distribution be suspended, notice of the letters be widow, leaving a widow, Emma P. Hahn, immediately published and the account be repub-l and two children Edith and John. The lished at the expiration of one year from the first fund distributing is the proceeds of sale of publication of the letters, unless the distributees

real estate. Whether or not the widow should give refunding bonds. Suspension of distribution until publica and to do so sold real estate does not ap

found it necessary to use of the principal tion.

pear, nor is there any evidence that she enWilliam M. Ewing for Accountant.

cumbered the real estate; therefore, the

balance after deducting additional credits Scott & Purdy for Exceptant.

amounting to $37.65 is distributable November 2, 1916. Per Curiam.- ' amongst testator's living children and It appearing to the court that notice George's children. As there was no seisin by publication of the letters issued to the in George during coverture his widow can executor was not given as required by law, not participate. it is ordered that distribution be suspended, Cirus Hollinger asks to be awarded that notice of the letters be immediately $635.66 for money lent Sabena Hahn, of

L. 483.



which $609.01 is evidenced by notes given The foregoing is a new provision and by her. The proofs clearly establish her vests the court with a discretion in minors' indebtedness, but no reason has been ad-Jestates of this amount. In view of the fact vonced why it should be paid out of the that the mother in this case, who is the testator's estate. If it had been necessary natural guardian, is keeping her children for her to draw on the corpus of the life together and is maintaining them and seems estate for her comfortable suppori, she had to be an entirely fit person, it is a proper the power to encumber the real estate which exercise of the discretion conferred to direct she did not do. An ordinary debt con- the legacies to be paid to her, the same to be tracted by her or a note given did not en- expended by her for the benefit of the cumber the testator's real estate. If it had minors as in her judgment may seem to, been the intention so to do, it would have their best interests. been easily accomplished by her executing a mortgage or a judgment. No doubt the

QUARTER SESSIONS claim is a just one and there is nothing to prevent Hollinger from presenting it for

Com. v. Degen. payment out of the estate of Sabena Hahn, Summary Conviction--Sunday Sales--Cigars deceased.

and Tobacco. Mary Hahn, a daughter, asks to be paid $324.00 for nursing and serving her mother On an appeal from a summary conviction for but she was unable to prove that there had violation of the Act of April 22, 1794, 3 Sm. Laws. been a contract, and, therefore, the claim 177, where the record shows no fatal defect of

procedure, and the sale of cigars on Sunday will not be entertained.

clearly proven, the judgment of the Alderman Distribution was made accordingly. must be affirmed.

Appeal from summary conviction.
O. C. of

Allegheny Co. R. P. Sherwood for appellant.
Dailey's Estate.

J. Edgar Small for appellee.
Guardian Minor's Estates Legacies

December 17, 1917. WANNER, P. J.-Mother--Act of June 7, 1917, P.L. 447. under the Act of April 22nd, 1794, 3 Smith

This was a conviction of the defendant The Fiducinries Act of June 7, 1917, P. L. 447, Laws 177, which forbids all wordly emvests the Orphans' Court with a new discretion in ployment on the Sabbath day except only minors' estates, so that where the legacy of four minor children amounted to $50 each, the court

certain works of necessity therein specified, direct that these legacies be paid direct to the which may be performed within certain mother without the appointment of a guardian. hours of said day. It is conceded by deSur audit.

fendant's counsel that said Act is in full

force and effect in this commonwealth, and Langfitt & McIntosh for accountant.

that the record of this case discloses no fatal September 28, 1917. Miller, J.-Tes- error of procedure therein. The only retator gave to each of his children a legacy of maining question, therefore, seems to be fifty dollars; four of them are under age. whether or not the sale of tobacco, cigars Their mother, who is the residuary legatee and candy were works of necessity or charand administratrix, has placed their shares ity, or otherwise, within the exceptions in bank to their credit. The children are specified in the Act. living with her and so far as the record goes It has repeatedly been held that sales of she is providing for them. No guardian has tobacco and cigars on Sunday are a violabeen appointed.

tion of the statute in question; Com. v. Sub-division b, section 59, of the Fidu- Hoover, 25 Pa. Super. Ct. 133; Com. v. ciaries Act of June 7, 1917, P. L. 447, pro- Moses, 8 York Leg. Rec. 60: Baker v. vides: “That where an estate of a minor Com., 5 Pa. C. C. R. 10. shall be of the value of one hundred dollars It is unnecessary, therefore, to determine or less, the court may in its discretion whether or not the sale of candy was authorize payment or delivery thereof to the violation of the statute, as the sale of the natural guardian of the minor or the person cigars is sufficient to sustain the conviction. by whom the minor is maintained, without The judgment of the Alderman is affirmthe appointment of a guardian by the court ed, and the costs of the appeal directed to or the entry of security."

be paid by the defendant.


a Vol. XXXI

No 34.

Practice Act of 1915, P. L. 483, for formal Work Legal Record

defects therein, and without filing an answer

thereto, as is required by Section 15 of said THURSDAY, JANUARY 3, 1918.

Act, the plaintiff filed this motion for judg

ment for its entire claim, for want of COMMON PLEAS

sufficient affidavit of defense.

The formal sufficiency of the affidavit of Sturtevant Company v. York Card defense, and the truth of its material allegaand Paper Company.

tions of fact, must therefore be taken as

admitted, and cannot be questioned in this Practice Aci of 1915 Affidavit of Defense proceeding; Phila. Co. v. Sheehan, 26 Dist, -Counter Claim-Consegential Dam- Rep. 463; Pa. Forge Co. v. Del. R. Trans.

Co., 24 Dist. Rep. 1017.
The affidavit of defense to a suit to recover bal-

On this state of the pleadings where the
ance due on a contract set forth a counter claim defendant's counter claim, as in this case, is
for damages resulting from a stoppage of de- greater in amount than the plaintiff's entire
fendant's mill in order to repair constructive de demand, it has repeatedly been held, since
fects in plaintiff's work. Plaintiff moved for the passage of the Practice Act, 1915, P. L.
judgment for want of a sufficient affidavit of de-
fence. Held, that the morion must be refused. 483, that a motion for judgment ior want

Under the Prac:ice Act of 1915, a counter claim of a sufficient affidavit of defense is not in the affidavit of defense must be met by an proper practice, and must be refused for answer

, raising either a question of law or of that reason, and also because a judgment for fact.

A motion for judgmrnt for want of a sufficient plaintiff would be manifestly unjust in the affidavit of defense cannot be used as a substitute face of such an undenied counter claim; for an answer.

Farmers' &c. Co. v. Elliott, 26 Dist. Rep. When the statement, affidavit of defense, or any other pleading is formaliy defective and not

436; Pa. R. R. Co. v. Gibbs Milling Co., in conformity with the provisions of the Practice 18 Luz. Leg. Reg. 467; Pa. Forge Co. v. Act of 1915, the Court should be moved to strike Del. R. Trans. Co., 24 Dist. Rep. 1017. it off.

The requirement of Sec. 16 of the PracThe contract in suit contained a clause provid- tice Act, 1915, that the plaintiff shall in ing that plaintiff shall not be held liable "in any event for any special, indirect or consequen- every case file an answer to the defendant's tial damages whatsoever." HELD, that such affidavit of set-off or counter claim is clearly clause would not relieve from liability for loss by mandatory. It lays down and establishes a reason of wages of idle employees, and similar expenses, during the necessary stoppage of a mill new course of procedure, and a motion for for repairs to defective machinery.

judgment for want of a sufficient affidavit of A proper amount of "overhead expenses” has defense, cannot be used as a substitute for been held recoverable during the necessary stop- such an answer. page of work for repairs. An item of loss in reduced product, indicating

If permitted it would defeat, or at least, a loss of profits, is not necessarily excluded as postpone the exercise of the defendant's sp cial and indirect under the clause of this con- right to move the court for judgment for tracı relied upon by the plaintiff.

want of an answer, or for want of a suffiNo. 68, August Term, 1917.

cient answer, to the affidavit of defense ; Pa. Motion for judgment for want of a suffi- R. R. Co. v. Gibbs Milling Co., 19 Luz. cient affidavit of defense.

Leg. Reg. 467.
Niles & Neff for motion.

A motion for judgment for want of a
Stewart & Gerber, contra.

suficient affidavit of defense is only proper

under the Practice Act of 1915, where such December 17, 1917.

WANNER, P. J.- affidavit contains no set-off ur counter claim. The plaintiff's claim of $2045 00 for a bal- The answer of the plaintiff to defendant's ance due on the installation of a drying counter claim may raise either a question of system in the defendant's paper mill, was law for the decision of the court, or it may met in the affidavit of defense, with a counter traverse the material facts of the affidavit claim or set-off of $1414.33, for damages for trial by jury. This results from ibe resulting from the stoppage of said mill to provisions of Sec. 15 of the Practice Act, repair constructive defects in plaintiff's

1915, declaring that the coun:er claim shall work.

be treated as the defendant's statment of Without moving to strike off said affi- ! claim against the plaintiff, and the answer davit of defense under Section 21 of the thereto as an affidavit of defense. Buth are

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thus made subject to the same rules of prac-nected with the breach of the contract comtice as to form, contents and precedure plained of; Bunring v. Hogsert, 139 Pa. thereon, as apply to original statements and 363; Township v. Watson, 116 Pa. 347. affidavits of defense.

Under these general rules it has been held When the statement, affidavit of defense, that the wages of idie employees, and simior any other pleading is formally defective lar expenses, during the necessary stoppage and not in conformity with the provisions of of a mill for repairs to defective machinery, the Practice Act 1915, the court should be are recoverable as direct damages for a moved to strike it off. Motions for bills of breach of contract to furnish proper maparticulars, for more specific pleadings, &c., chinery; Revett v. Globe Nav. Co., 123 are no longer proper practice; Cowan v. Pas. 459; Kenyon v. Goodall & Co. 3 Cal. Blair, 65 Pitts. Leg. J. 702; Ehrenstrom 257; Singe: Vig. Co. v. Christian, 2u Pa. v. Hess, 26 Dist. Rep. 992; Whelan v. Ap- 573; Kester v. Miiler, 26 N. E. 115; Opplesby, 26 Dist. Rep. 379; Barto v Shaff- tenberg v. Skelion, 8; N. W. 356; Wade ner, 26 Diss. Rep. 957; Sturtevant & Co. v. Haycock, 25 Pa. 392. v. Regan & Hornell, 26 Dist. Rep. 169; A proper amount of Overhead expenses' Keiser v. Berks Co., 26 Dist. Rep. 839. has been held recoverable in such cases, in Wilkesbarre F. & C. Co. v. Brennan, 26 addition to the wages actually paid to emDist. Rep. 940 (as to defendant's counter ployees during the necessary sioppage of claim).

work for repairs; Allen & Co. v. Prov. I. No motion to strike it off having been & S. Co., 63 Pa. Super. Ct. 459. made in this case, we are of the opinion that The item of loss in reduced production the proper procedure is to simply overrule of paper is less definire than the others and and refuse the plaintiff's motion for judg. would seem to indicate loss of profits as an ment, leaving the parties to such further element of the damages claimed. But if so, pleadings as are provided for by the Prac- it is not necessarily excluded as special and tice Act of 1915.

indirect under the clause of this contract At the hearing of this motion the argu- relied upon by the plain:ift. ment was not upon the effect of the Practice In different jurisdictions profits lost as Act of 1915, but upon the question whether the direct result of a breach of contract, if or not the defendant's counter claim is definitely fixed in amount, and not merely barred by a clause in the contract in suit speculative in character, are held recoverable which provides that plaintiff shall not be as direct damages; Wade v. Haycock, 25 held liable for losses resulting from fires, Pa. 382; Hunt v. Or. & Pac. R. R. Co., strikes, or other causes beyond its reasonable 36 Fed. Rep. +81; Clyde Coal Co., v. Ry. control, “nor in any event for any special, Co., 226 Pa. 399; Gore v. Melsby, 35 S. indirect, or consequential damages whatso- E. 315; Wilson v. Wernwag, 217 Pa. 82; ever."

Coal & Coke Co., v. Pa. R. R. Co., 229 Pa. Under this stipulation of the contract, 68; Ellsworth v. O'Keefe, 26 Dis:. Rep. direct damages only would be recoverable 277. by the defendant for any breach of it that From these and similar authorities we might occur.

reach the conclusion that the items of deThe general rule of law is that only such fendant's counter claim, or set off, are not of losses and expenses are recoverable as direct the "special, indirect or consequential" class damages for the breach of a contract as are of damages for which the plaintiff is not to the natural and proximate, or immediate re- be held liable under the above quoted clause sults of such breach; Jones, &c., Steel Co. of the contract in suit. v. Wood & Co., 249 Pa. 433; Rakestraw

Even if the items for loss on production v. Woodward, 25 Pa. Super. Cr. 169; of paper, should be excluded, as speculative, Southern Ry. Co. v. Coleman, 4 So. Rep. the other two exceed in amount the entire 837.

demand of the plaintiff. They are described as such as would We therefore find no sufficient ground in probably be within the contemplation of the this view of the case on which to sustain a parties, as naturally following a breach of judgment for plaintiff for want of a the contract, and must be capable of adjust- sufficient affidavit of defense. ment by some recognized legal standard. The plaintiff's motion for judgment for They must not be results contingent upon want of a sufficient affidavit of defense is other intervening causes not directly con-'overruled and refused.

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C. P. of

Montgomery ('0. gages, where such proceeds are not sufficient
Yost v. Yeakle

to pay both liens and mortgages, must be

read in the light of its own facts and with Distribution-Taxes-Liens-Act June 4, especial reference to the repealed legislation, 1901, P. L. 364.

which had been special to Philadelphia and

Delaware Counties. That case finally setThe real estate of defendant was sold upon itled that the act of 1901 did not change the foreclosure of a mortgage, executed prior o the existing law in those counties, cities or disAct of June 4, 1901, P. L. 364. Claims for Township, School and County taxes were filed with the tricts where taxes and municipal claims Sheriff

. The Sheriff distributed the entire pro- were first liens prior to its passage, as was ceeds, which were less than the amount of more the case in those counties. gage to the plaintiff. HELD, upon exceptions to The Sheriff's distribution, that the plaintiff's mort- Such, however, had not been the law in gage had priority in distribution of ihe fuod. Montgomery County prior to the passage of

the act.

President Judge Swartz said in Exceptions to Sheriff's Distribution.

1896 in Fryer v. Metz, 12 M. L. R. 108: E. F. Slough, for Plaintiff.

"We are not aware of any act of Assembly H. N. Stahlnecker, for Exceptant.

which makes taxes assessed on seated lands

in Montgomery County a lien thereon. In September 15, 1917. Miller, J.-The the absence of any statute declaring them to plaintiff's mortgage of $2500 was executed be a lien they become no more than a perand recorded in 1891. On its foreclosure sonal charge against the owner or occupier the sheriff sold the real estate on June 6, 'of the land, * *." 1917, for $600. The real estate was a store

The act of 1901, in its section 2, proand dwelling combined.

vided in part that: "All taxes which may On December 30, 1916, the township of be lawfully imposed or assessed on any propSpringfield, in which the morigaged prem-erty in this Commonwealth *

* * shall be ises are located, filed in the office of the and they are hereby declared to be a first Prothonorary a claim for township taxes, lien on said property * ; and such liens assessed and levied against them, amounting shall have priority to and be fully paid and to $40.91 and, on the same day, the school satisfied out of proceeds of any judicial sale district of the township filed therein a simi- of said property before any other obligation, lar claim of $27.99 for school taxes. Be- judgment, claim, lien or estate with which fore the sale the treasurer of the township the said property may become charged, or also lodged with the sheriff claims for 1915 for which it may become liable * * *.” and 1916 county taxes amounting to the

The late Judge Weand, in Lukens v. total sum of $8.62.

Katz, 27 Pa. C. C. 596, soon thereafter, The sheriff distributed to the plaintiff decided that a mortgage recorded before the the entire proceeds of sale, remaining after

passage of the act

was not affected by it the payment of costs, and the exceptions and took priority over the lien of taxes filed to his schedule raise the single ques- because the legislative intent was thereby to

make future taxes liens and only liens as If the fund realized by the sheriff of against other future encumbrances, thus Montgomery county upon a sale of real avoiding any question as to the disturbance estate in foreclosure of a mortgage created or interference with a lien which had atprior to 1901 amounts to less than is re- tached prior to the passage of the act, and in quired to pay both the judgment on the Caner v Bergner, 27 Pa. Sup. Ct. 220 mortgage and taxes on the mortgaged prem- which was another lontgomery County isee, which were assessed and levied after case, it was decided in 1905, that "a claim that year, which of the two has priority in for taxes assessed and levied by a township the distribution of the fund?

subsequent to the passage of the act of June Haspel v. O'Brien, appellant, 218 Pa. 4, 1901, P. L. 367, has no priority over a 146, which decided that claims for caxes mortgage executed and recorded prior to assessed and filed as liens of record after the the passage of the act, in the distribution of passage of the act of June 4, 1901, P. L. the proceeds of sale of real estate on levari 364, have priority over mortgages made Jacias.before that act, in the distribution of the See also in re: Prince & Walter, 14 P. proceeds of sheriff's sales under the mort. D. R. 172.


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