vested in us of granting a new trial upon our own motion: See Commonwealth v. Gabor, 209 Pa. 201; Wickel v. Mertz, 49 Pa. Super. Ct. R., 472, and the cases cited therein. Following the practice indicated by Judge Scott in Drumbor v. Wolle, 19 Dist. Rep., 183, before granting a new trial, we shall afford defendant an opportunity to be heard by entering a rule upon him to show cause why a new trial should not be awarded.

not given, the payee in the note executed an obligation to the Union Acceptance Company, Inc., the plaintiff in this case, and by the terms thereof the payee assigned and transferred the note to plaintiff and guaranteed payment of principal and interest as and when the same became due and payable as per schedule on the note and empowered any attorney of any court of record to appear for them 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.

Union Acceptance Co. v. Grant

Motor Sales Co.

There was thus created two separate obligations, differing in form and substance, by two different parties, each containing a warrant for the entry of a judgment against the maker according to the tenor and effect of the instrument.

On Oct. 22, 1923, the prothonotary, upon an affidavit of default by attorney for the plaintiff and upon praecipe signed by him as plaintiff's attorney, entered judgment on the note against Mrs. Rusrant of attorney-Appearance 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.

Judgments-Rules to strike off-War

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 endeclaration, such judgment will not be dorsement on note entered No. 456, Destricken off for failure to file a declaration cember Term (no year given), according

filed by counsel for plaintiff, but without a

or to enter an appearance for defendant.

The Act of Feb. 24, 1806, § 28, 4 Sm. Laws, 270, makes it the duty of the prothonotary

of any court of record, on the application of hny persons being the original holder (or assignee of such holder) of a note, bond or other instrument in writing in which judgthe person who executed the same for the amount which, from the face of the instru

ment is confessed, to enter judgment against

ment, may appear to be due, without the
agency of an attorney or declaration filed.

Rule to strike off judgment. Refused.
Clarence D. Coughlin, for plaintiff.
Reynolds & Reynolds, for defendant.

to the tenor and effect thereof, for the sum of $824, with interest from May 18, 1823. and attorney's commission of 10 per cent.," the prothonotary entered a judgment in favor of the plaintiff and against the Grant Motor Sales Company, upon which an exection was issued.

Grant Motor Sales Company presented its petition for a rule to show cause why the judgment against it should not be stricken from the record and assigns thirteen reasons embracing two propositions of law:

I. Because the record discloses no

Jones, J., Feb. 14, 1924.-Mrs. Russell 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

Was there any legal warrant for the entry of judgment against the Grant Mo-to enter the judgment was signed by tor Sales Company?

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 statement filed was not signed by the defendant or an attorney for him, the judgment would have been good under the 28th section of the Act of Feb. 24, 1806."

The burden is on the defendant to show that he has complied with his obligation and that nothing was due at the time the judgment was entered.

A confessed judgment remains within. the control of the court, as does the execution issued thereon: O'Maley v. Pugliese, 272 Pa. 356.

Did the face of the instrument disclose the amount due or could it be rendered certain by calculation from inspection of 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. 356.

monthly payments, and, in case of default, authorizing any attorney to appear for and enter judgment against defendant, the judgment will not be stricken off on the ground that there was no affidavit filed of the amount due and nothing to

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 facies of a right in the holder to recover upon it according to its terms. The holder is not required to prove that it has not been paid. The case is made by the production of the instrument in the first instance, and the burden of showing pay-show how the amount was arrived at, and ment is on him who alleges it. If payments had been made that did not appear on the paper, so that there was in fact no default, the court would, on application, hear the defendant's proof and strike off the judgment; but until the prima facies of the instrument is overcome by proof, the judgment must stand: Whitney v. Hopkins, 135 Pa. 246.

the praecipe was not signed by any attorney for the defendant, there being no claim that the defendant was not in default: National Cash Register Co. v. Keystone Furniture Co., 3 D. & C. 24.

For the reasons herein stated, the application to strike off the judgment is refused and the rule to show cause is discharged.

Lancaster Co.

Commonwealth v. Rinaldi

The judgment is entered for the precise sum designated in the note. Defend- Q. S. of ant can avoid its obligation by showing that it has paid that sum, or any part thereof, according to the terms of the condition. That is a duty which rests upon it. The amount for which judgment is to be entered can be ascertained and is plain upon the face of this instru

ment.

In Wurlitzer Co. v. Pearson (No. 1), 62 Pa. Superior Ct. 425, it was said: "The notes given by the defendant at the time the contract was signed were collateral to the contract and additional security. The fact that they are outstanding or not credited on the contract affords no support to the application to

Criminal law--Indictment for carrying concealed weapons by foreigner-Com

plaint-Act of March 18, 1875, May 8,

1909, and May 24, 1923-Constitution, Art. III, Sect. 3.

An indictment for carrying a concealed, deadly weapon under the Act of March 18, 1875, P. L. 33, cannot be based on a complaint under the Act of May 8, 1909, P. L. 466.

The Act of May 8, 1909, was specifically re

pealed by the Act of May 24, 1923, P. L. 359,

and an indictment under it cannot be sus-wise, of any description, excepting in de

tained.

The offense not being designated as a misdemeanor or a felony under the Act of May 24, 1923, should have been proceeded with before the alderman as a summary convic

tion, and an indictment cannot be maintained.

Quaere, whether the Act of May 24, 1923, is not unconstitutional as in violation of

Article III, Section 3, of the Constitution.

Demurrer to indictment.

fence of person or property, and to that end it shall be unlawful for any unnaturalized foreign-born resident within this Commonwealth to either own or be possessed of a shot-gun or rifle of any make." A penalty was imposed upon conviction for violation of these provisions. But this act was specifically repealed by the Act of May 24, 1923, Sec. 1301, Art XXXIV., P. L. 359, and the in

Summer V. Hosterman, assistant dis- dictment cannot, therefore, be sustained trict attorney, for Commonwealth.

B. F. Davis, for defendant.

Landis, P. J., March 29, 1924-Two indictments were found against the above-named defendant. One charged him with having, on November 28, 1923, carried concealed on his person a loaded revolver, and the other charged him, an unnaturalized foreigner, with unlawfully possessing a firearm, to wit, a loaded revolver of Savage make. Demurrers have been filed to both of the indictments.

The complaint alleged that the defendant "did unlawfully and willfully on said date carry and have concealed on his person a loaded revolver of Savage make, said Charles Rinaldi being an unnaturalized citizen and of foreign birth: Act of May 8, 1909, P. L. 466." It would seem, therefore, that, if sustainable at all, the charge must be based upon the Act of 1909.. There is no complaint to sustain a charge of carrying concealed deadly weapons under the Act of March 18, 1875, P. L. 33, and as the first indictment is drawn under that act, it must necessarily fall.

under the Act of 1909.

The next question is whether the Act of 1923 applies. The title to this act is, “An Act concerning game and other wild birds and wild animals, and amending, revising, consolidating and changing the law relating thereto." Section 903 of article IX of the act provides that "the possession of a shot-gun or rifle or pistol or firearm of any make or kind, or of a dog of any kind, at any place outside of buildings, by an unnaturalized foreignborn resident, shall be prima facie evidence of a violation of the provisions of this article," and that "the presence of a shot-gun or rifle or pistol or firearm of any make or kind, or of a dog of any kind, in a room or house or building or tent or camp of any description, occupied or controlled by an unnaturalized foreign-born resident, shall be prima facie evidence that such firearm or dog is owned or controlled by the person occupying or controlling the property in which the same is found, and shall render such person liable to the fines imposed by this article." Section 904 designates 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 1st 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