Jones, J., Jan. 14, 1924-Summons in

Paragraphs eighteen and twenty of the counter claim, however, are clearly assumpsit and judgment in favor of the open to the objection that they set forth plaintiff and against the defendant, in default, in the sum of $50. lumping charges and claims for damages, without properly itemizing the same or giving in sufficient detail the facts upon which they are based, as is required by the Practice Act of 1915.

Same day execution issued and returned nulla bona, and two days thereafter attachment execution issued, served upon defendant personally and upon Mount Lookout Coal Company, garThis requirement of the statute has nishee, who made answer that it was indebted to defendant in the sum of $22.74 been enforced by the courts with equal for wages of labor, denying the right of strictness against both defective state-plaintiff to have execution against the ments and defective counter claims, and garnishee, for the reason that the Act of is conclusive of this case: Gross v. Exe- May 8, 1876, P. L. 139, and its suppleter Machine Works, 277 Pa. 363; Davis, ments, April 10, 1905, P. L. 134, and Director General of Railroads, v. Smutz-III, section 7, of the Constitution, being May 1, 1913, P. L. 132, violate article inger, 281 Fed. 640; Phila. Storage Bat-special legislation. tery Co. v. Air Reduction Sales Co., 274 Fed. 216-218.

And now, to wit, October 20th, 1924 The affidavit of defense and defendant's counter claim are stricken off, with leave to file others within fifteen days after the filing of this opinion.

Practice, J. P.-Attachment execution -Judgment--Act of April 15, 1845.

Section 5 of the Act of April 15, 1845, P. L. 459, provides that in an action proceeded with in the usual way by summons, hearing,

These acts provide for the commencement of suits and actions by attachment of the peace to recover pay for boarding before magistrates, aldermen or justices and lodging and to attach wages due or owing such persons.

These acts have been declared unconstitutional, as being in conflict with article III, section 7, of the Constitution, which forbids special legislation changing the methods for the collection of debts: Jenkins v. Davis, 18 Dist. R. 928; Antreason v. Samarsien, 18 Dist. R. 335; Schmidt v. Schmidt et al., 24 Lacka. Jurist, 108.

This suit was not instituted under any of these acts, but was proceeded with in the usual way by summons, hearing, judgment, execution, return of "no goods," and then an attachment execution under the Act of April 15, 1845, P. L. 459.

Section 5 of this act provides that if judgment, execution, return of "no goods" the garnishee in his answers admit that

and then an attachment execution if the

garnishee admits possession or control of property of the defendant, judgment may be

entered specially to be levied out of the ef

fects in the hands of the garnishee, or so much of the same as may be necessary to

pay the debt and costs.

Judgment against the garnishee generally is not in compliance with the act, and will

be reversed upon certiorari.

Certiorari.

John R. Wilson, for garnishee.

there is in his possession or control property of the defendant liable under said act to attachment, then said magistrate may enter judgment specially to be levied out of the effects in the hands of the garnishee, or so much of the same as may be necessary to pay the debt and costs.

The garnishee in its answers admitted. the sum of $22.74 in its possession or control, property of the defendant.

In such case the act provides that the cipe directing that a writ of foreign atmagistrate may enter judgment specially. tachment issue against the defendant, attaching his property in the possession of In this case the magistrate entered the garnishee. On the same day the judgment generally against the garnishee. plaintiff also filed an affidavit of cause of This was not in compliance with the act.

In Longwell v. Hartwell, 164 Pa. 533, it was said: "The proper form of the judgment is for plaintiff against the garnishee, and that the garnishee has in his hands certain goods, effects or credits, to wit (naming them), of the calue, etc., or that the garnishee is indebted to the defendant in the sum of, etc."

action.

The proceedings of foreign attachment proceed in regular course until Jan. 12, in behalf of the defendant by Davis, 1923, when an appearance was entered Fruit & Anderson, his attorneys.

On June 18, 1923, the plaintiff presented a motion for judgment against the defendant for the reason that no affidaIn Layman v. Beam, 6 Wharton, 181, vit of defence had been filed by the dethe proper form of a judgment was given fendant after the entry of appearance, as follows: "That plaintiff have execu- whereupon the court made an order dition of so much of the debt, etc., due by recting judgment to be entered by the garnishee to defendant, and attached in prothonotary for the amount claimed for his hands, as may satisfy the judgment want of an affidavit of defence. of plaintiff against the said defendant."

The defendant soon thereafter pre

For the reasons herein stated, the pro-sented a petition to strike off the judgceedings of the magistrate are reversed.

Foreign attachment Statement claim-Affidavit of defence - Striking off judgment-Practice, C. P.

In foreign attachment proceedings, judgment cannot be entered for want of an affi

davit of defence if no declaration or state

ment of claim has been filed.

ment. The reason alleged in the petition for striking off the judgment is as follows:

"All of the original papers and docket entries fail to show that the plaintiff filed a declaration or a statement of claim either before or after the defendant entered an appearance.

"The defendant, therefore, represents that the judgment is void and invalid, because it was incumbent upon the plaintiff to file a declaration or statement of

claim before judgment could be awarded for failure on the part of the defendant to file an affidavit of defence."

It is admitted that no affidavit of defence had been filed, and it must be conceded that, inasmuch as no affidavit of defence had been filed, the plaintiff was ant into court, and is not a substitute for entitled to judgment, provided the plainthe statement of claim, which is an essential tiff had fully complied with the requirepart of the proceedings in the action of as-ments of the law in the prosecution of

The affidavit of cause of action is merely a part of the proceeding to bring the defend

sumption to determine whether or not the plaintiff is entitled to judgment.

Petition to strike off judgment.

C. E. Brockwell, for plaintiff.

Davis, Fruit & Anderson, for defend

ant.

McLaughry, P. J., Feb. 29, 1924.-On June 15, 1922, the plaintiff filed a præ

his suit.

"Where a general appearance has been entered by the defendant in an action of assumpsit and begun by foreign attachhim for want of an affidavit of defence:" ment, judgment may be taken against Railroad Co. v. Snowdon, 166 Pa. 236.

The defendant, however, alleges that, even though no affidavit of defence had

been filed by the defendant, the plaintiff whether the affidavit be defective or wrongfully took judgment, for the rea- whether there be no affidavit at all. The son that the plaintiff had not previously object of a writ of foreign attachment is filed a declaration or statement of claim, to compel an appearance, and when this which it was incumbent upon him to do. is secured, the suit then proceeds as if This, the plaintiff alleges, was done, commenced by a summons. and the requirements of the law fully complied with in the filing of the affidavit when the præcipe was issued on June

15, 1922.

The whole question, then, is as to whether or not the said affidavit is such a declaration as to fulfill the requirements of the law.

Foreign attachment is but a process by which to commence a personal action, It seizes property to compel an appearance. The affidavit is a part of the process of foreign attachment. The declaration or statement of claim and the affidavit of defence constitute part of the proceedings in the action of assumpsit to determine whether or not the plaintiff in his suit is entitled to a judgment. There are two processes. One is the foreign attachment, and the other is the In the first, the

Foreign attachment, as defined by our Supreme Court, "is a proceeding in rem, by attachment of a non-resident's goods, with the primary objject of compelling an appearance to answer the plaintiff's action in assumpsit. suit."

As is apparent from the definition, the foreign attachment is one thing and the plaintiff's suit is another. The primary object of the foreign attachment is to obtain an appearance to answer the plaintiff's suit. In Pennsylvania, foreign attachments are regulated by statute. It is regarded as a severe remedy, allowed by our laws for the purpose of enforcing the appearance of a non-resident, by seizing his property before the creditor has legally established his claim.

affidavit of cause of action may be required. In the second, the declaration or statement of claim is necessary. The one must contain all the elements as designated in the laws pertaining to foreign attachments. The other must contain all the elements designated in the laws pertaining to actions of assumpsit. They are two distinct papers filed for two distinct purposes.

In the case of Rowland v. Red Cross

Packing Co., 15 W. N. C. 468, the court said: "The plaintiff in a foreign attachment must furnish an affidavit of his

It seems that it is not absolutely indispensable that the affidavit of cause of ac- cause of action, if required. The fact tion should be filed when the writ is is-that he has already filed his narr and bill It must be produced, however, of particulars makes no difference. The when there is a rule to show cause of defendant, whose property and rights of action. Our courts have consistently

sued.

action form the subject of the attachment, is certainly entitled to a sworn statement of the cause of action in order that the court may determine whether there is ground for sustaining the attachment."

held that an affidavit of cause of action must aver such facts as will show the court's jurisdiction at the time of issuing the writ. The purpose of the affidavit is to sustain the writ of attachment, and unless it does in all respects, the writ is quashed. Whether the affidavit is Before a judgment can be rendered for filed as a prerequisite to the issuance of want of an affidavit of defence, a declarthe writ or filed in response to a rule, it ation or statement of claim must be is considered upon a motion to quash, filed. It is apparent from the record that and if defective and not sufficient in law none was filed by the plaintiff. The to sustain the writ, the motion is sus-plaintiff, therefore, was not entitled to a tained and the writ quashed. judgment for want of an affidavit of de

When the defendant appears general- fence.

ly, he waives his privilege of moving to February 29, 1924, the motion that the show cause of action, and after such ap-jjudgment be stricken off is granted and pearance, it can make no difference the rule made absolute.

Q. S. of

Commonwealth v. Pengelly

Berks Co.lowing consideration in property, as well as the covenants and promises for future support hereinafter more fully set forth," and then provided that the defendant was to convey to the complinant in fee,

Husband and wife--Agreement of sep-clear of all encumbrances, a house and

aration- Bar to proceeding for support under Act 13 April 1867, P. L. 78.

An agreement between a husband and wife

to live separate and apart, accompanied by or embracing as a part of its terms a reason

lot No. 1224 Eckert Avenue, Reading, (the existing mortgage of $1,500 therein to be paid off by the defendant not later than Nov. 1, 1912); to give her all the household goods and effects in the house, and: "The said James H. Pengelly hereable provision for the wife's support, if not by agrees to pay unto his said wife, Katie consideration, if reasonable in its terms and W. Pengelly, the sum of $25 upon the actually carried into effect and performed by 15th day of each and every month for and void by acts of the parties (by reconcili-her support and maintenance, commencation, waiver or abandonment), is a bar to a ing with the 15th day of November, A. D. proceeding for support instituted by the wife in the Quarter Sessions under the Act 13 April, 1867, P. L. 78.

fraudulently procured, if based upon a good

both parties, and which has not become null

Rule to show cause why the order for support heretofore entered shall not be vacated. Rule absolute.

George Eves, for defendant and rule. John B. Stevens, for the Commonwealth.

1908,"

The real estate was conveyed, the household effects were transferred, the monthly payments for her support and maintenance were paid by the defendant to the complainant, and the parties thereafter continued to live separate and apart.

On May 15, 1910, a second agreement was entered into which in every particuBertolet, J.. July 26, 1924.-The de-lar republished the terms of the previous fendant's wife has made complaint agreement, but the sum to be paid monthagainst him for desertion and failure to ly was reduced to $20. support her. The case was heard on May In 1919 the complainant began pro24, 1924, and an order was made on the ceeding for support under the act of defendant to pay the complainant $60 1867, one of the reasons being the failper month. Subsequently he presented ure of the defendant to fully pay off the his petition asking that the order be re-mortgage on 1224 Eckert Avenue. Bevoked because he and his wife had on fore hearing, a third agreement dated Oct. 31, 1908, entered into an agreement March 1, 1919, was entered into and upon of separation. Upon this petition a rule its execution and payment by the defendwas granted to show cause why the orderant of the balance due on the mortgage, should not be revoked and the rule is the proceedings were withdrawn. This now to be disposed of. agreement recites: "Whereas, the said The testimony taken at the time the James H. Pengelly and Katie W. Penorder of $60 a month was made, and up-gelly have for some years been living on the hearing on the rule, shows the separate and apart from each other; and following facts: Whereas, the said James H. Pengelly is On Oct. 31, 1908, an agreement was legally liable for the support and mainentered into between the defendant and tenance of his said wife, Katie W. Penthe complainant, which recited: "Where-gelly, and the said parties have agreed as, divers unhappy differences have of upon a definite monthly payment to be late existed between the said James H. made by the said James H. Pengelly Pengelly and Katie W. Pengelly, in so therefor," and provides "that in considmuch that they have mutually agreed to eration of the premises and in discharge live separate and apart from each other; of the aforesaid liability the said James and Whereas, the said Katie W. Pengelly H. Pengelly does hereby covenant, prohas consented to execute this agreement mise and agree to and with the said Katie upon receiving from her husband the fol-W. Pengelly to pay unto the said Katie

W. Pengelly the sum of $35 upon the 41 Pa. Superior Ct. 542; Scott's Est., 147 15th day of each and every month for Pa. 102; Com. v. Smith, 200 Pa. 363; her support and maintenance commenc- Com. v. King, 37 Pa. Co. Crt. Rep. 635; ing with the 15th day of March, 1919." Commonwealth v. Hilton, 33 Lanc. Law The notes of testimony do not show Rev. 121; Commonwealth v. Witsch, 33 the defendant's financial situation, the Lanc. Law Rev. 274; and Com. v. Barvalue of 1224 Eckert Avenue, or of the nickel, supra. Without going into a tedifurniture in it, as of the date of the various and unnecessary recapitulation of all ous agreements. That taken at the first the authorities, these rules appear to be hearing, but not reported stenographical- that an agreement between husband and ly, referred to the present and showed wife to live separate and apart, accomthat now the real estate is worth upwards panied by or embracing as a part of its of $10,000, that the defendant owns two terms, a reasonable provision for the other properties, a half interest in a wife's support, if not fraudulently proprinting business, and has an income of cured, if based upon a good considerafour to five thousand dollars a year.

tion, if reasonable in its terms, and acThe complainant while contending that tually carried into effect and performed the March 1, 1919, agreement is not supby both parties, and which has not beplementary to the earlier ones nor in- come null and void by the acts of the tended so to be but is a new and inde-parties (by reconciliation, waiver, or pendent contract, says that even though abandonment), is a bar to a proceeding the three must be taken together she is not thereby barred from proceeding for support in the quarter sessions under the Act of 1867, because it nowhere appears that by these agreements she unequivocally released the defendant from his legal liability for her support, citing Com. v. Barnickel, 22 Lack. Jurist, 17 Adams, supra, to be confined to the time (1920).

The deftndant takes the position that the agreements are a bar to these proceedings and cites Com. v. Richards, 131 Pa. 209, and Adams v. Adams, 32 Pa. Superior Ct. 353, as conclusive authorities on the subject.

for support instituted by the wife in the quarter sessions under the Act of 1867. and whether these conditions exist in any particular case must always be, on all the facts as developed, for the court below; and, the reasonableness of the provision for the wife seems, under Adams v.

when the agreement was made.

While in many of the cases mentioned the separation agreement provided for the release of the husband's liability for support, the absence of such a provision, excepting in Com. v. Barnickel, supra, has not, as I recall the decisions, been the In my view, the three agreements controlling factor moving the court to must, not only by their terms but under refuse to accept the agreement as a bar the testimony of Mr. Wolff who repre- to proceedings under the Act of 1867. sented the defendant at the time, be taken If, however, the inquiry has disclosed together, and so taken they doubtless con- that, with reference to her maintenance stitute a valid separation agreement with and support, the wife was overreached a provision for the complainant's support. The main question is whether, in the absence of what the complainant refers to as an unequivocal release by her of all claim against the defendant for support, they constitute a bar to proceedings under the Act of 1867.

when the agreement was made, that it was unreasonable in its terms, that the husband has not paid what he agreed to pay, and the like, the courts have not hesitated to make an order.

The complainant and defendant here have agreed to live separate and apart The rules of law applicable to cases of and by their signed writings a not unthis character are discussed in Com. v. reasonable provision was made for Richards and Adams v. Adams, both the former's support and maintenance. supra; Com. v. Smith, 13 Pa. Superior The terms were a transfer to the Ct. 358; Com. v. Hollinger, 16 Pa. Super-complainant of a valuable dwelling, ior Ct. 199; Rodenbaugh v. Rodenbaugh, the furniture in it, and, as now pro17 Pa. Superior Ct. 619; Shimp v. Gray, 'vided, payment by the defendant of $35