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he ignored and remained in possession."

Landis, P. J., December 20, 1924We think from this that it is clear that This case arises out of an automobile acDeGeorge was no longer claiming a right cident. The statement filed by the plainto occupy the premises by reason of any tiff alleges that, on March 21, 1924, while lease or prior right that existed before

the sale, but that instead he was claiming he was driving his Buick automobile on to held possession under the agreement Columbia Avenue, going west, a truck made with Rines, whose rights as land-belonging to the defendant corporation, lord were thus acknowledged, and, in operated by its agents, turned east from view of this, we think that the Act of

The defendant filed an affidavit of de

1905 above referred to, had no applica-Ruby Street on to Columbia Avenue, was tion to this case. That act was intended driven suddenly to the north side of the to provide a new and more efficient way street before the plaintiff's car, and a to enable purchasers at sheriff's sale to collision ensued. acquire possession of the property they purchased; but in this case by the agree-fense, denying all liability for the acciment which was admittedly made be- dent, and, in addition, made a countertween DeGeorge and Rines, Rines' title was admitted by DeGeorge, and De-claim to the amount of $63.65. ThereGeorge's possession was really that of upon counsel for plaintiff asked us to Rines, DeGeorge having attorned to strike off the affidavit of defense, for the Rines as his landlord. Under these conreason that such a claim cannot be made ditions DeGeorge became a tenant at will in an action of trespass. of Rines, and if Rines desired to oust him, his remedies were those that existed between landlord and tenant, and we do not think that a proceeding under the Act of 1905 could be sustained. If our view in regard to this is correct, it nec essarily follows that the present proceedig should be discharged at the cost of the petitioners.

Section 14 of the Practice Act of May 14, 1915, P. L. 483, provides that "in actions of assumpsit, a defendant may set off, or set up by way of counter-claim, against the claim of the plaintiff, any right or claita for which an action of assumpsit would lie." There is no proviAnd now, November 22, 1924, the pro-in actions of trespass, and it follows that sion in the act relating to counter-claims ceeding in this case is dismissed, costs to be paid by the petitioners.


the defendant cannot in such a case maintain the counter-claim under the act. It is true that matters sounding in tort may be taken advantage of when they H. W. Musser v. Watt & Shand arise out of the same transaction: Gogel

C. P. of

Lancaster Co.

v. Jacoby, 5 S. & R. 117. Here, however, the defendant denies the plaintiff's

Practice Act of May 14, 1915, P. L. right of action. It avers that the defend

483 Trespass Set off.

There is no provision in the Practice Act of May 14, 1915, P. L. 483, relating to counter claims in actions of trespass.

It is true that matters sounding in tort may be taken advantage of when they arise. out of the same transaction, but when the, defendant denies the plaintiff's right of action, it follows that there can be not counter


Rule to strike off defendant's affidavit of defense. Discharged.

Paul A. Mueller, for rule.

ant was not negligent and is not answerable for the results of the accident. If the plaintiff has no right of action, how can there be a counter-claim? Although all facts can be presented as a matter of the defense, no claim could be certified in favor of the defendant. Therefore, we think the eleventh paragraph of the affidavit of defense is not good, but the rest of the answers seem to be properly pleaded.

The eleventh paragraph is directed to be stricken out of the affidavit of defense, but the rule as to the balance of the affi

Chas. G. Baker and John 1. Coyle, davit is now discharged.


As modified, the rule is discharged.

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Practice Plaintiff's statement - Uncertainty Interlineations-Striking off.

A plaintiff's statement which avers that

the plaintiff sold to the defendant twenty car loads of goods, on terms allowing the defendant a discount of two per cent, if payment is made within ten days; that defendant paid for all the goods, less two per cent

of the specified price; that nine car loads were not paid within ten days, without indicating specifically which nine car loads

were not so paid; and claiming the two per cent deducted from the price of the nine car loads, is uncertain and will be stricken


A plaintiff's statement, the body of which is in typewriting, with interlineations in ink, without any explanation whether the interlineations were made before or after the statement was signed and verified, is defec

The seventh paragraph says: * "all of the goods * * * were paid for by the defendant to the plaintiff less a deduction of two per cent on the twenty cars."

The eighth paragraph says:: "in accordance with the terms of the said contract, the defendant was entitled to a deduction of two per cent on eleven cars, but was not entitled to a deduction of two per cent on the remaining nine cars, as payment for the remaining nine cars. was made after the period of ten days."

Defendant invokes the protection of the "Practice Act 1915," by filing the following worded motion to strike off:

"And now, the 23rd day of June, 1924, comes into court the defendant, by his Counsel, Robert C. Fluhrer, and respectfully moves the court to strike from the record the plaintiff's statement of claim in the above named action filed June 21, 1924, for the reason that the said statement does not conform with the provisions of the Practice Act of 1915 in this: that the said statement does not contain Motion to strike off the plaintiff's a concise and summary form of the mastatement in Penn Paper Stock Com-terial facts on which the plaintiff relies pany v. York Paper Manufacturing Com- for his claim; that the statement fails to pany, No. 92 April Term, 1924, in the aver who constitutes the York Paper Court of Common Pleas of York County, Manufacturing Company; that paragraph Pa. Motion allowed.


Robert C. Fluhrer, for motion.
John A. Hoober, contra.

Ross, J., January 26th, 1925.-The plaintiff's statement, in the third paragraph, states: "Defendant purchased from plaintiff twenty cars of merchandise, of the character, in the quantity, on the dates and at the prices shown by Exhibits '1, 2, 3, 4 and 5,' attached hereto, made a part hereof and to the court shown. Said exhibits being true and correct copies of the original orders. Duplicate invoices are attached hereto and marked Exhibits A to T, inclusive."

The words underscored [here in italics] are written with pen and ink in a very small, and to a weak-sighted judge, in almost indecipherable characters.

The sixth paragraph says: "Under the terms of said orders, as shown by said Exhibits '1, 2, 3, 4 and 5,' the said goods was sold and delivered on the terms of two per cent for cash in ten days or net thirty days."

8 sets forth that the defendant was entitled to a deduction of two (2%) per cent on eleven (11) cars, but was not entitled to a deduction of two (2%) per cent on the remaining nine (9) cars, as payment for the remaining nine (9) cars was made after the period of ten (10) days, the plaintiff failing to designate in reference to the exhibits attached to the said statement on which nine (9) cars the defendant was not entitled to the two (2%) per cent discount; that paragraphs 3 and 4 of the statement contain hand written interlineations without any explanation as to whether the same were made before or after the said statement was signed and sworn to."

We cannot sustain the first reason alleged in the motion to strike off, because the first paragraph of plaintiff's statement plainly states that "plaintiff is an individual, William J. McGerity, trading as the Penn Paper and Stock Company."

The remaining reasons given to support the motion to strike off the statement must be affirmed.

The statement charges the defendant

with the failure to pay a certain amount, Biddle, P. J., Ninth Judicial District, which is alleged to be the aggregate specially presiding, November 22, 1924. amount of discount on eleven car loads The defendant in this case was inof merchandise, without designating dicted under the Act of 11 July 1917, P. which of the cars, among the twenty cars L. 773, for failure to support an illegitipurchased and paid for, were the cars inmate child. The defendant denied the which the alleged delinquency happened. paternity of the child, and averred that It has been frequently decided that a on a previous charge against him of statement of claim must be made with the adultery and bastardy, which charge insame particularity that is required of an volved the paternity of the present child, affidavit of defence, for an affidavit of he was acquitted of the charge of basdefence will be held insufficient, if it does tardy, and on this ground he moved for not aver facts which clearly and certainly a new trial and in arrest of judgment. answer plaintiff's claim: Lanahan v. At the argument of the case defendant's Beach, 279 Pa. 297. counsel stated that they did not think that The statement now before us cannot be their motion for a new trial should be clearly and certainly answered, if its par-sustained, but that the motion in arrest agraphs do not clearly, definitely and cer- of judgment was well founded and tainly state the facts upon which plaintiff should be sustained.

expects to recover.

And now, January 26, 1925, the statement is stricken from the records, and a more definite statement will be allowed to be filed within fifteen days from this date; the new statement to be served upon defendant in the manner required by the statute.

Q. S. of

Berks Co.

Commonwealth v. Gottschall

On the trial of the present case, the defendant offered in evidence the record of the former trial, that record showing that the defendant was charged with adultery and bastardy, and that the jury "do find the defendant, Israel Gottshall, guilty in manner and form as he stands indicted." The defendant followed this with parol testimony to show that the record was incorrect, and that the defendant had, under instructions from Judge Wagner, been acquitted of the charge of bastardy on the ground that Evidence-Parol evidence to contra- the child in question was born in New dict judicial record - Criminal law-Jersey, and that, therefore, no coviction of this charge could be had in Berks Failure to support illegitimate child-County. The parol testimony to estabAct 11 July, 1917, P. L. 773—Prior Ac-lish this contention was admitted without objection on the part of Commonquuittal on bastardy charge. wealth's counsel in the pending case.

Parol evidence may not be received to contradict, explain or impair the effect of a judicial record.

Under the provisions of the Act 11 July, 1917, P. L. 773, a conviction for failure to

support a child born out of wedlock will stand, although the defendant had been ac

quitted of the charge of bastardy because the court in which he was tried had no jur

We do not think that this parol testimony was competent for the purposes for which it was offered, for it has been repeatedly held that parol evidence may not be received to contradict, explain, or impair the effect of a judicial record: Kapp v. Shields, 17 Pa. Superior Ct. Indictment under Act II July, 1917, Patchin v. Coal Co., 226 Pa. 157. Ás a 524; Leedom v. Lombaert, 80 Pa. 381; P. L. 773, for failure to support an il- rejection of this evidence would eliminlegitimate child. Rule for new trial and ate the basis of the defendant's present motion in arrest of judgment. Rule dis-contention, his motion might well be discharged.

isdiction owing to the birth of the child having occurred in another state.

David Sharman, Jr., for defendant.

Paul N. Schaeffer, for Commonwealth.

charged on that ground alone.

We do not think, however, that it is necessary to place our decision on this ground, for, apart from this, we think

the conviction should be sustained. which did not occur until he refused to
While it is true that a conviction under further support his child." We think
the Act of 11 July, 1917, supra, neces- the first part of this latter quotation fully
sarily involves the determination of the answers the argument made by the
paternity of the child, yet that paternity learned counsel for the defendant.
is not a part of the offense charged And now, November 22, 1924, the rule
against the defendant. The cases cited for a new trial and the motion in arrest
on behalf of the defendant which hold of judgment are discharged, and the dis-
that where there has been an acquittal trict attorney is directed to move for
or conviction on a charge of adultery, judgment of sentence.
fornication, or seduction that there can-

not be a subsequent conviction of the c. P. of
charge of bastardy based on the same
offense which furnished the basis for
the other prosecution, apply to cases in-
volving a different section or provision
of our criminal code.

Philadelphia Co.

Mallon v. Mallon

Divorce-Void marriages - BigamyAnnulment "Innocent or injured party"

The Act of 1917 constitutes an entirely different offense and one that is not-Act of April 14, 1859.

has obtained only an interlocutory decree of

divorce from her husband, is not an "inno

cent or injured party" within the meaning of the Act of April 14, 1859, P. L. 647, and canof the marriage.

not maintain proceedings for the annulment

Exceptions to master's report.

J. Morris Yeakle and Arthur E. Hutchinson, for libellant.

Lewis, J., December 31, 1924.—This case comes before us on libellant's exceptions to the findings and recommendation of the master. The libel prayed for an annulment and the master has found. against the libellant on two grounds: First, that libellant is not an innocent and injured party, as required by the Act of April 14, 1859, P. L. 647; and, secondly, that there was a valid common law marriage relation between the libellant and respondent at the time of the filing of the libel.

and cannot be committed until long af- A man who goes through the ceremony of ter the other offense has been commit-marriage with a woman knowing that she ted, and we think it was the intention of the legislature in enacting this particular legislation to provide for cases like the present one and those similar to it. It has been held that where there could be no conviction under prior legislation because the offense was barred by the statute of limitations, that that fact would not constitute any bar to a conviction under the Act of 1917, and we think that by a parity of reasoning the same conclusion should be reached here. If the incompetent evidence offered by the defendant was accepted and considered, it would show that while the present defendant was acquitted of the charge of bastardy, if he was acquuitted, it was not because he was not guilty, and not because he was not the father of the child in question, but because the court in which he was tried had no jurisdiction owing to the birth of the child having occurred in another state, so that the The libellant and respondent went merits of the case were not passed upon. through a marriage ceremony at Phoe"His conviction under this statute is en- nix, Arizona, on August 25, 1918 (under tirely independent of any right to pro- circumstances hereinafter recited), and ceed under other statutes": Com. v. Wib- thereafter resided first in Arizona and ner, 73 Pa. Superior Ct. 349; and what later in California, removing thence to was said further in that case applies Pennsylvania. At the time of this marwith equal force here, to wit: "While he riage the libellant was a widower. He has secured immunity from prosecution first became acquainted with the respondunder one section of our code, he is ent in Los Angeles and learned that reclearly liable under the Act of 1917 for spondent was separated from her then the offense charged in this indictment, husband. Libellant asked respondent to

the libellant was not such an injured or innocent party as was contemplated by the Pennsylvania statute. We have carefully considered this case, and affirm this finding of the master. There seems no room for doubt that the libellant was fully informed as to the status of the divorce proceedings which the respondent was prosecuting against Clark, and specifically knew the nature of the interlocutory decree entered in 1918. Hence, he was not an "innocent and injured party." So concluding, it is unnecessary for us to discuss the remaining exceptions dealing with the finding of the master as to a subsisting common law marriage under the laws of Pennsylvania, although if it were essential to decide this point, we would have to rule it adversely to the master, for reasons given in an opinion this day filed by us in the case of Stanley v. J. S. Rogers Co., et al., C. P. No. 2, June T., 1924, No. 1967 [5 D. & C. 527].

marry him and offered to, and did, pay
the costs of a proceeding in divorce insti-
tuted by respondent. That suit was filed
in March, 1918, in the Superior Court of
California. A short time thereafter li-
bellant moved his residence to Phoenix,
Arizona, to accept employment there. On
August 23, 1918, an interlocutory decree
of divorce in favor of the respondent
was entered by the Superior Court of
California, and respondent notified libel-
lant of the fact by telegraph. Libellant
then secured a marriage license in Phoe-
nix, Arizona, and arranged for respond-
ent to come to Arizona to marry him.
Upon the arrival of the respondent, they
were married on August 25, 1918, at
Phoenix, the ceremony being performed
by a magistrate. The parties lived as
husband and wife for eleven months in
Arizona. They then proceeded to San
Bernardino, California, and eventually
moved to Los Angeles. On September
25, 1919, while they were living in Los
Angeles, the Superior Court of Califor-
nia entered the final decree of divorce in
the suit which the respondent had insti-C. P. of
tuted against her first husband. The par-
ties continued to reside together in Cali-
fornia without any further ceremony of
marriage until the fall of 1920, when they
both came to Pennsylvania to take up
residence. Becoming domiciled in Phil-
adelphia, they lived as husband and wife
until a short time before the libel for an-
nulment was filed. The fibellant testified
before the master that he had never ques-
tioned his status as the lawful husband
of respondent and had no reason to do
so until he was advised by Philadelphia
counsel that the supposed marriage be-
tween himself and the respondent was

The master has found as a fact that the libellant, prior to his marriage with respondent, knew that only an interlocutory decree in divorce had been obtained by respondent in the suit against her then husband, Clark, and believed that respondent's second marriage to him was invalid only in California. The master finds, also, that libellant later knew of the entering of the final decree against Clark, and that libellant and respondent discussed the advisability of another marriage in the State of California, but no such marriage was ever there performed. The master found unequivocally that

The exceptions are dismissed and the master's report is confirmed.

Northampton Co.

Warner v. Levine

Practice-Foreign attachment-Affi

davit of cause of action.

An affidavit of cause of action to support a writ of foreign attachment must aver inter alia that defendant was the owner of property within the jurisdiction of the court, and that he was not within the county at the time of the issuance of the process of

foreign attachment.

Rule to dissolve foreign attachment. Rule absolute.

A. Seip, Esq., for rule.

D. M. Giberson, Esq., contra.

McKeen, J., September 22, 1924.—A rule was entered on plaintiff in the above case to show his cause of action and why a foreign attachment issued by plaintiff should not be dissolved. No answer was filed by plaintiff to defendant's rule. The record discloses that plaintiff made an affidavit of the cause of action on June 26, 1924. The praecipe for the writ of foreign attachment, together with affidavit of cause of action, was filed June 27, 1924, on which date the attachment is

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