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vested in us of granting a new trial upon not given, the payee in the note executed our own motion : See Commonwealth v. an obligation to the Union Acceptance Gabor, 209 Pa. 201 ; Wickel v. Mertz, 49 Company, Inc., the plaintiff in this case, Pa. Super. Ct. R., 472, and the cases and by the terms thereof the payee ascited therein. Following the practice in signed and transferred the note to plaindicated by Judge Scott in Drumbor v.tiff and guaranteed payment of principal Wolle, 19 Dist. Rep., 183, before granting and interest as and when the same bea new trial, we shall afford defendant an

came due and payable as per schedule on opportunity to be heard by entering a the note and empowered any attorney of rule upon him to show cause why a new any court of record to appear for them trial should not be awarded.

and, after declaration filed, confess judgNow, August 4, 1924, the prothonotary ment against them as of any term in is directed to enter a rule upon the de- favor of the holder for such amount as fendant to show cause why a new trial may appear to be unpaid thereon. should not be granted. Returnable fif- There was thus created two separate teen days after service.

obligations, differing in form and substance, by two different parties, each

containing a warrant for the entry of a C. P. of

Luzerne Co. judgment against the maker according to Union Acceptance Co. v. Grant

the tenor and effect of the instrument. Motor Sales Co.

On Oct. 22, 1923, the prothonotary, lipon an affidavit of default by attorney for the plaintiff and upon praecipe signed

by him as plaintiff's attorney, entered Judgments-Rules to strike off-War- judgment on the note against Mrs. Rusrant of attorney—:1ppearance of attor-interest and attorney's commission, to

sell Shepherd for the sum of $824, with ney--Declaration-Act of Feb. 24, 1806. No. 456, December Term, 1923. Where judgment is entered upon a written

On the same day, upon praecipe filed instrument in accordance with warrant of by counsel for the plaintiff to the folattorney contained therein upon praecipe, lowing effect, “enter judgment on filed by counsel for plaintiff, but without a declaration, judgment

be | dorsement on note entered No. 456, Destricken off for failure to file a declaration cember Term (no year given), according or to enter an appearance for defendant.

The Act of Feb. 24, 1806, § 28, 4 Sm. Laws, to the tenor and effect thereof, for the 270, makes it the duty of the prothonotary sum of $824, with interest from May 18, of any court of record, on the application of nny persons being the original holder (or

1823. and attorney's commission of 10 assignee of such holder) of a note, bond or per cent.,” the prothonotary entered a other instrument in writing in which judg. I judgment in favor of the plaintiff and ment is confessed, to enter judgment against the person who executed the same for the against the Grant Motor Sales Company, amount which, from the face of the instru. upon which an exection was issued. ment, may appear to be due, without the agency of an attorney or declaration filed. Grant Motor Sales Company presented Rule to strike off judgment. Refused. its petition for a rule to show cause why

the judgment against it should not be Clarence D. Coughlin, for plaintiff. stricken from the record and assigns thir

teen reasons embracing two propositions Reynolds & Reynolds, for defendant.

of law: Jones, J., Feb. 14, 1924.—Mrs. Russell Because the record discloses no Shepherd, on May 18, 1923, executed a appearances by any attorney for the dejudgment note under seal, obligating her fendant nor any declaration filed by any self to pay to the order of Grant Motor attorney for it, and, therefore, there was Sales Company $824 at the time or times no warrant in law authorizing the prostated in the schedule of payments en-thonotary to enter judgment against it. dorsed on the note; the said schedule 2.

Failure to file an affidavit of deprovided for monthly payments of fault. $68.67.

A judgment by confession can only be On the back of the same paper, date sustained by a warrant authorizing it at

en

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not

I.

the same time and in the manner and It is claimed that, because the judgform in which it was entered: Eddy v. ment was entered pursuant to a praecipe Smiley, 26 Pa. Superior Ct. 318; Agri- signed by the attorney for the plaintiff cultural T. Co. v. Brubaker & S., 13 Pa. and not by any attorney appearing for Superior Ct. 468.

the defendant, the judgment is irregular. The right of the plaintiff to enter a Under the Act of 1806 the prothonojudgment against the defendant by con- tary could have entered the judgment fession was dependent upon the provis- upon the mere oral application of the ions of the assignment, which contained plaintiff or any other person acting for a warrant for the entry of judgment as him, and the mere fact that the request follows: "The undersigned further em- was in writing in the form of a praecipe powers any attorney of any court of rec- signed by plaintiff's attorney cannot inord within the United States or else-validate it. where to appear for them or any of them An attorney is an officer of the court, severally or jointly and, after one or more and what he did was not in pursuance of declarations filed, confess judgment any authority derived from the note, but against the undersigned as of any term in in his capacity as an attorney and an offavor of the holder for such amount as ficer of the court acting for the plainmay appear to be unpaid hereon, with tiff : Racunas v. Vaughn, 29 Dist. R. costs of suit."

1058. The record discloses no appearance by In Dalton v. Willingmyre, 60 Pa. Suany attorney for the defendant nor any perior Ct. 225, the court said: "The audeclaration filed by any attorney for it. thority to appear for the defendant and The praecipe or declaration is signed by confess a judgment against him was dithe attorney for the plaintiff.

rected to any attorney of any court of Was there any legal warrant for the record in Pennsylvania, and the praecipe entry of judgment against the Grant Mo-| to enter the judgment was signed by tor Sales Company?

counsel as attorney for the plaintift." The Act of Feb. 24, 1806, § 28, 4 Sm. Had he joined this with his assertion of Laws, 270, makes it “the duty of the attorney for the defendant, there would prothonotary of any court of record, on not be any question of the validity of the the application of any person being the judgment. It is clear that the warrant original holder (or assignee of such was not directed to the prothonotary, and holder) of a note, bond or other instru- the only question is, was the judgment ment of writing in which judgment is properly entered under the Act of Feb. confessed, or containing a warrant for an 24, 1806. Connay v. Halstead, 73 Pa. attorney-at-law or other person to con-1354; Whitney v. Hopkins, 135 Pa. 246; fess judgment, to enter judgment against Latrobe v. Fritz, 152 Pa. 224, are authorthe person or persons who executed the ity for such entry of judgment when on same for the amount which from the the face of the instrument the amount face of the instrument may appear to be due appears or can be rendered certain due, without the agency of an attorney by calculation from inspection of the or declaration filed.”

writing. This act expressly dispenses with the In Jameson Piano Co. v. Earnest, 66 necessity of filing the declaration, and Pa. Superior Ct. 586, the lease authoryet gives the judgment the same force ized any attorney of any court of record and effect as if a declaration had been of Pennsylvania to appear for defendant filed: Rex v. Nelson, 15 Phila. 323; and to enter judgment. The plaintiff's Montelius v. Montelius, Brightly's Reps.statement or declaration was addressed 79.

to the clerk of the municipal court of The evident and sole intention of the Philadelphia county, and the judgment legislature in conferring the power of en- was entered by him in accordance with tering a judgment on a judgment bond the direction of the attorney for the without the intervention of an attorney plaintiff. There was no appearance in was to exempt the obligor from payment behalf of the defendant, nor was the decof costs to an attorney: Helvete v. Rapp, laration signed by any attorney for the 7 S. & R. 306.

defendant. The court said: “There is no

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doubt that had the judgment been en-strike off the judgment. If it should later tered in the Court of Common Pleas of appear that they have been paid, the Philadelphia county by the prothonotary, plaintiff would have standing to show though the praecipe for the entry of that fact.” judgment and the declaration or state- The burden is on the defendant to ment filed was not signed by the defend- show that he has complied with his obant or an attorney for him, the judgment ligation and that nothing was due at the would have been good under the 28th time the judgment was entered. section of the Act of Feb. 24, 1806.” A confessed judgment remains within

Did the face of the instrument disclose the control of the court, as does the exethe amount due or could it be rendered cution issued thereon: O'Maley v. Puglicertain by calculation from inspection of ese, 272 Pa. 350. the writing? An affidavit of default was The judgment was confessed as profiled upon the entry of the judgment vided in the bond, and the warrant being against Shepherd, and in the praecipe without limit as to time, it was not necesupon which the judgment was entered sary to await the maturity of the obligaagainst the defendant in this case a ref- tion.

Hence, the question of erence was made to that case. So this default was immaterial to the validity of record does disclose an affidavit of de- the judgment: O'Maley v. Pugliese, 272 fault on the original note or undertaking. Pa. 350.

In Dalton v. Willingmyre, 60 Pa. Su- Where a judgment was entered by the perior Ct. 225, it was said that the pos-prothonotary by direction of the attorney session of an instrument of writing for for the plaintiff on a lease providing for the payment of money affords prima fa-monthly payments, and, in case of decies of a right in the holder to recover fault, authorizing any attorney to appear upon it according to its terms. The hold- for and enter judgment against defender is not required to prove that it has ant, the judgment will not be stricken off not been paid. The case is made by the on the ground that there was no affidavit production of the instrument in the first filed of the amount due and nothing to instance, and the burden of showing pay- show how the amount was arrived at, and ment is on him who alleges it. If pay- the praecipe was not signed by any atments had been made that did not appear torney for the defendant, there being no on the paper, so that there was in fact no claim that the defendant was not in dedefault, the court would, on application, fault: National Cash Register Co. v. hear the defendant's proof and strike off Keystone Furniture Co., 3 D. & C. 24.

3 the judgment; but until the prima facies For the reasons herein stated, the apof the instrument is overcome by proof, plication to strike off the judgment is rethe judgment must stand: Whitney v. fused and the rule to show cause is disHopkins, 135 Pa. 246.

charged. The judgment is entered for the precise sum designated in the note. Defend- Q. S. of

Lancaster Co. ant can avoid its obligation by showing that it has paid that sum, or any part

Commonwealth v. Rinaldi thereof, according to the terms of the condition. That is a duty which rests upon it. The amount for which judg

Criminal law-Indictment for carrying ment is to be entered can be ascertained concealed weapons by foreigner-Comand is plain upon the face of this instruinent.

plaint-Act of March 18, 1875, May 8, In Wurlitzer Co. v. Pearson (No. 1), 62 Pa. Superior Ct. 425, it was said: 1909, and May 24, 1923-Constitution, “The notes given by the defendant at the Art. III, Sect. 3. time the contract was signed were col

An indictment for carrying a concealed, lateral to the contract and additional se- deadly weapon under the Act of March 18, curity. The fact that they are outstand- 1875, P. L. 33, cannot be based on a complaint ing or not credited on the contract af- under the Act of May 8, 1909, P. L. 466.

The Act of May 8, 1909, was specifically refords no support to the application to pealed by the Act of May 24, 1923, P. L. 359,

tained.

and an indictment under it cannot be sus- wise, of any description, excepting in detained. The offense not being designated as a mis

fence of person or property, and to that demeanor or a felony under the Act of May end it shall be unlawful for

any unna24, 1923, should have been proceeded with turalized foreign-born resident within before the alderman as a summary conviction, and an indictment cannot be main this Commonwealth to either own or be

possessed of a shot-gun or rifle of any Quaere, whether the Act of May 24, 1923, inake.” is not unconstitutional as in violation of conviction for violation of these provi

A penalty was imposed upon Article III, Section 3, of the Constitution.

sions. But this act was specifically reDemurrer to indictment.

pealed by the Act of May 24, 1923, Sec.

I ZOI, Art XXXIV., P. L 359, and the inSummer V. Hosterman, assistant dis- dictment cannot, therefore, be sustained trict attorney, for Commonwealth.

under the Act of 1909. B. F. Davis, for defendant.

The next question is whether the Act

of 1923 applies. The title to this act is, Landis, P. J., March 29, 1924—Two "An Act concerning game and other wild indictments were found against the birds and wild animals, and amending, reabove-named defendant. One charged vising, consolidating and changing the him with having, on November 28, 1923, law relating thereto." Section 903 of carried concealed on his person a loaded article IX of the act provides that "the revolver, and the other charged him, an possession of a shot-gun or rifle or pistol unnaturalized foreigner, with unlawfully or firearm of any make or kind, or of a possessing a firearm, to wit, a loaded re- dog of any kind, at any place outside of volver of Savage make. Demurrers have buildings, by an unnaturalized foreignbeen filed to both of the indictments. born resident, shall be prima facie evi

The complaint alleged that the defend-dence of a violation of the provisions of ant "did unlawfully and willfully on said this article," and that "the presence of a date carry and have concealed on his shot-gun or rifle or pistol or firearm of person a loaded revolver of Savage make, any make or kind, or of a dog of any said Charles Rinaldi being an unnatural- kind, in a room or house or building or ized citizen and of foreign birth : Act of tent or camp of any description, occupied May 8, 1909, P. L. 466." It would seem, or controlled by an unnaturalized fortherefore, that, if sustainable at all, the eign-born resident, shall be prima facie charge must be based upon the Act of evidence that such firearm or dog is 1909. . There is no complaint to sustain owned or controlled by the person oca charge of carrying concealed deadly cupying or controlling the property in weapons under the Act of March 18, which the same is found, and shall ren1875, P. L. 33, and as the first indict- der such person liable to the fines imment is drawn under that act, it must posed by this article." Section 904 denecessarily fall.

signates the fines to be paid for a violaThe Act of May 8, 1909, P. L. 466, tion of this article, and section 1101 dewas entitled “An act to give additional clares that, “except in cases where the protection to wild birds and animals and offence is designated a misdemeanor or a game within the Commonwealth of Penn- felony, each magistrate, alderman and sylvania; prohibiting the hunting for, or justice of the peace shall have the power capture or killing of, such wild birds or of summary conviction in matters peranimals or game by unnaturalized for- taining to violations of any of the provieignborn residents; forbidding the own- sions of this act.” As the charge made

” ership or possession of shot-gun or rifle against the defendant is neither a misby any unnaturalized foreign-born resi- demeanor nor a felony, it follows that dent within the Commonwealth ; and pre- the cause should have been proceeded scribing penalties for violation of its pro- with before the alderman as a summary visions.” The ist section of this act conviction, and that the indictment found made it “unlawful for any unnaturalized on the return to this court cannot be foreign-born resident to hunt for, or cap- maintained. ture or kill, in this Commonwealth, any It has also been suggested that the Act wild bird or animal, either game or other-'of 1923 is unconstitutional and against

The

proper

War

the provisions of section 3 of Article III intent to defraud him, without having of the Constitution of 1874. There would sufficient funds in, or credit with, the dleappear to be some substance in this ob- pository upon which the check was jection. See linkler v. Com., 7 Dist. drawn. R., 04;0; Com. v. Hartzell, 17 Pa. C. C. The act under which the indictment Reps., 91. But it is not necessary to de- was drawn was approved April 18th, finitely decide this point, as the objec-1919, P. 1.. 70. tions above set forth are all-sutticient. At the trial, the jury convicted the de

The demurrers are sustained and the fendant, and a motion was made for a indictments set aside.

new trial, assigning the following rea

SOUS: Q. S. of

York Co.

"1. Because the verdict was against Commonwealth v. Rogowski

the evidence.”

"2. Because the verdict is against the weight of the evidence."

Because the verdict is against the Criminal lanIssuing a check with-law.' 011t sufficient funds in bank--Jurisdic

"4. The learned trial judge erred in

refusing to permit defendant to crosstion, crime begun in one county and com- examine the prosecutor as to the basis

of the whole transaction." pleted in another--Improper remark hy

5 Defendant reserves the right to counsel, manner of putting objections on file additional exceptions.

No additional exceptions were filed, the record

and no oral argument was made, alto bring objectionable though the case was placed upon the regremarks of counsel before the court for ad- ular December argument list, and at the justment, is to formally and definitely except to the remarks at the time of their ut- special request of defendant's counsel a teranee, so that the exceptions will become particular time was fixed by the court a part of the record.

for argument. The defendant's counsel A remark made in the course of the crossexamination of a defendant indicating that

sent by mail his brief of argument to sushe is a Hebrew was held not prejudicial totain his motion. the defendant so as to require a withdrawal of a juror, or the granting of a new trial.

The case was left for the jury to deWhere one puts in force an agency for the cide upon the evidence, under a charge of coinmission of a crime, in legal contemplar | the trial judge, which was not specifically tion, he accompanies the same to the point where it becomes effective.

objected to. Where, in the trial under an indictment There was direct evidence that the charging the drawing of check without defendant drew a check for the sum of having sufficient funds

depository, there was evidence that the check was sent ! $231.25, payable to John E. Ellis (the

mail by the prosecutor from the county prosecutor) at the Overbrook Bank at in which he other county acting for the payee, a convic- Philadelphia, 6th and Master Streets. tion in the latter county was sustained. The check was dated at Philadelphia,

Motion for a new trial in Common- February 15. 1923. The evidence was wealth of Pennsylvania v. K. Rogowski, that it was given in payment of a note No. 30, April Term, 1924, in the Court against the defendant held by the proseof Quarter Sessions of York Co., Pa. I cutor: that upon receipt of the check, the Refused.

prosecutor forwarded the note by mail

to the defendant. Joseph Z. Ehrenreich, of the Philadel- The check was deposited by the prosephia bar, for defendant and motion. 1 cutor as "cash" to his account in the

C. W'. 1. Rochow and I'. Il. Van llestern National Bank of York, Pa., Baman, district attorney, contra.

and when duly forwarded for collection,

was protested at the Overbrook Bank at Ross, J., December 29th, 1927.—The Philadelphia for want of funds. Demand defendant was indicted and charged with was made upon the defendant for paythe crime of making or drawing and de- ment, as required by the act of assemlivering his check to the prosecutor, with 'bly, and the defendant failed to pay the

in

the

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