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he ignored and remained in possession." Landis, P. J., December 20, 1924.

We 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 lease or prior right that existed before tiff alleges that, on March 21, 1924, while 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 riglits 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 lot of 1005 above referred to, had 10 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 The defendant filed an affidavit of depurchased; but in this case by the agree-fense, len ving 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 trike off the attidavit of defense, for the

, Rines as his landlord. L'nder these con

reason 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

Section 14 of the Practice Act of May him, his remedies were those that existed between landlord and tenant, and we do 14, 1915, P. L. 483, provides that “in acnot think that a proceeding under the tions of assumpsit, a defendant may set Act of 1905 could be sustained. If our off, or set up by way of counter-claim, view in regard to this is correct, it re-against the claim of the plaintiff, any essarily follows that the present proceedig should be discharged at the cost of the right or claim for which an action of aspetitioners.

sumpsit would lie." There is no proviAnd now, November 22, 1924, the pro- in actions of trespass, and it follow's that

siou in the act relating to counter-claims ceeding in this case is dismissed, the

the defendant cannot in such a case costs to be paid by the petitioners.

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

v. Jacobx; 5 S. & R. 117. Here, how

ever, the defendant denies the plaintiff's Practice lei of lay 14, 1915, P. 1. right of action. It avers that the defenddet I

ant was not negligent and is not answer183 - Trespass - Set off.

able for the results of the accident. If There is no provision in the Practice Act the plaintiff has no right of action, how of May 14, 1915, P. L. 483, relating to counter can there be a counter-claim? Although claims in actions of trespass.

all facts can be presented as a matter of It is true that matters sounding in tort the defense, no claim could be certified may be taken advantage of when they arise out of the same transaction, but when the in favor of the defendant. Therefore, we defendant denies the plaintiff's right of ac- think the eleventh paragraph of the aftition, it follows that there can be not counter davit of defense is not good, but the rest

i of the answers to be properly Rule to strike off defendant's affidavit pleaded. of defense. Discharged.

The eleventh paragraph is directed to Paul 1. Vueller, for rule.

be stricken out of the affidavit of defense.

I but the rule as to the balance of the affiChaus. G Dakor and John.l. Covle, davit in now discharged.

is modificil, the rule is discharged.

C. P. of

Lancaster Co.




York Co.





C. P. of

The seventh paragraph says: "all of the goods

were paid Penn Paper Stock Co. for by the defendant to the plaintiff less

a deduction of two per cent on the V.

twenty cars.” York Paper Man'f'g. Co. The eighth paragraph says :: "in ac

cordance with the terms of the said con

tract, the defendant was entitled to a dePractice - Plaintiff's statement

duction of two per cent on eleven cars,

but was not entitled to a deduction of certaintyInterlineations-Striking off. two per cent on the remaining nine cars,

as payment for the remaining nine cars A plaintiff's statement which avers that was made after the period of ten days.” the plaintiff sold to the defendant twenty car loads of goods, on terms allowing the de

Defendant invokes the protection of fendant a discount of two per cent, if pay- the "Practice Act 1915," by filing the folment is made within ten days; that defend: lowing worded motion to strike off : ant paid for all the goods, less two per cent of the specified price; that nine car loads

“And now, the 23rd day of June, 1924, were not paid within ten days, without in: comes into court the defendant, by his dicating specifically which nine car loads were not so paid; and claiming the two per counsel, Robert C. Fluhrer, and respectcent deducted from the price of the nine fully moves the court to strike from the car loads, is uncertain and will be stricken / record the plaintiff's statement of claim off.

A plaintiff's statement, the body of which in the above named action filed June 21, is in typewriting, with interlineations in ink, 192.1, for the reason that the said statewithout any explanation whether the interlineations were made before or after the ment does not conform with the provisstatement was signed and verified, is defec-ions 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.

8 sets forth that the defendant was en

titled to a deduction of two (2%) per Robert C. Fluhrer, for motion.

cent on eleven (11) cars, but was not enJohn A. Hoober, contra.

titled to a deduction of two (2%) per

cent on the remaining nine (9) cars, as Ross, J., January 26th, 1925.—The payment for the remaining nine (9) cars plaintiff's statement, in the third para- was made after the period of ten (10) graph, states: “Defendant purchased days, the plaintiff failing to designate in from plaintiff twenty cars of merchan- reference to the exhibits attached to the dise, of the character, in the quantity, on said statement on which nine (9) cars the dates and at the prices shown by Ex- the defendant was not entitled to the two hibits '1, 2, 3, 4 and 5,' attached hereto, (2%) per cent discount; that paramade a part hereof and to the court graphs 3 and 4 of the statement contain shown. Said exhibits being true and cor- hand written interlineations without any rect copies of the original orders. Du- explanation as to whether the same were plicate invoices are attached hereto and made before or after the said statement marked Exhibits A to T, inclusive."

was signed and sworn to." The words underscored [here in ital- We cannot sustain the first reason alics] are written with pen and ink in a leged in the motion to strike off, because very small, and to a weak-sighted judge, the first paragraph of plaintiff's statement in almost indecipherable characters. plainly states that “plaintiff is an indi

The sixth paragraph says: "Under the vidual, William J. McGerity, trading as terms of said orders, as shown by said the Penn Paper and Stock Company." Exhibits ‘I, 2, 3, 4 and 5,' the said goods The remaining reasons given to supwas sold and delivered on the terms of port the motion to strike off the statetwo per cent for cash in ten days or net ment must be affirmed. thirty days."

The statement charges the defendant

was in

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 of 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 in mate child. The defendant denied the which the alleged delinquency happened. paternity of the child, and averred that

It has been frequently decided that alon 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 state- On the trial of the present case, the ment is stricken from the records, and a defendant offered in evidence the record more definite statement will be allowed of the former trial, that record showing to be filed within fifteen days from this that the defendant was charged with date; the new statement to be served adultery and bastardy, and that the jury upon defendant in the manner required "do find the defendant, Israel Gottshall, by the statute.

guilty in manner and form as he stands

indicted." The defendant followed this Q. S. of

Berks Co. with parol testimony to show that the

record was incorrect, and that the deCommonwealth v. Gottschall

fendant 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 with

out 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 ju- We do not think that this parol testidicial record.

Under the provisions of the Act 11 July, mony was competent for the purposes 1917, P. L. 773, a conviction for failure to for which it was offered, for it has been support a child born of wedlock will repeatedly held that parol evidence may stand, although the defendant had been acquitted of the charge of bastardy because not be received to contradict, explain, or the court in which he was tried had no jur; impair the effect of a judicial record: isdiction owing to the birth of having occurred in another state.

Kapp_v. Shields, 17 Pa. Superior Ct.

524; Leedom v. Lombaert, 80 Pa. 381 ; Indictment under Act 11 July, 1917, Patchin v. Coal Co., 226 Pa. 157. As a P. L. 773, for failure to support an il- rejection of this evidence would elimin

I legitimate 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.

charged on that ground alone. Dacid Sharman, Jr., for defendant,

We do not think, however, that it is Paul A. Schacffer, for Common-necessary to place our decision on this Wealth.

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 disthat 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 cannot be a subsequent conviction of the C. P. of

Philadelphia Co. charge of bastardy based on the same

Mallon v. Mallon offense which furnished the basis for the other prosecution, apply to cases involving a different section or provision Divorce-Void marriages Bigamyof our criminal code.

Annulment—Innocent or injured party" The Act of 1917 constitutes an entirely different offense and one that is not

-Act of April 14, 1859. 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 has obtained only an interlocutory decree of

divorce from her husband, is not an "innothe legislature in enacting this particular cent or injured party” within the meaning of legislation to provide for cases like the the Act of April 14, 1859, P. L. 647, and can

not maintain proceedings for the annulment present one and those similar to it. It of the marriage. has been held that where there could be

Exceptions to master's report. no conviction under prior legislation because the offense was barred by the J. llorris Y cakle and Arthur E. statute of limitations, that that fact Hutchinson, for libellant. would not constitute any bar to a conviction under the Act of 1917, and we think Lewis, J., December 31, 1924.—This that by a parity of reasoning the same case comes before us on libellant's excepconclusion should be reached here. Iftions to the findings and recommendation the incompetent evidence offered by the of the master. The libel prayed for an defendant was accepted and considered, annulment and the master has found it would show that while the present de-against the libellant on two grounds: fendant was acquitted of the charge of First, that libellant is not an innocent and bastardy, if he was acquuitted, it was not injured party, as required by the Act of because he was not guilty, and not be- April 14, 1859, P. L. 647; and, secondly, cause he was not the father of the child that there was a valid common law marin question, but because the court in riage relation between the libellant and which he was tried had no jurisdiction respondent at the time of the filing of owing to the birth of the child having the libel. 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 ihe libellant was a widower. He has secured immunity from prosecution first became acquainted with the respondunder one section of our cod 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

marry him and offered to, and did, pay the libellant was not such an injured or the costs of a proceeding in divorce insti- innocent party as was contemplated by tuted by respondent. That suit was filed the Pennsylvania statute. We have carein March, 1918, in the Superior Court of fully considered this case, and affirm this California. A short time thereafter li- finding of the master. There seems no bellant moved his residence to Phoenix, room for doubt that the libellant was fulArizona, to accept employment there. On ly informed as to the status of the diAugust 23, 1918, an interlocutory decree vorce proceedings which the respondent of divorce in favor of the respondent was prosecuting against Clark, and speciwas entered by the Superior Court of fically knew the nature of the interlocuCalifornia, and respondent notified libel-tory decree entered in 1918. Hence, he lant of the fact by telegraph. Libellant was not an "innocent and injured party.” then secured a marriage license in Phoe- So concluding, it is unnecessary for us to nix, Arizona, and arranged for respond discuss the remaining exceptions dealing ent to come to Arizona to marry him. with the finding of the master as to a subUpon the arrival of the respondent, they sisting common law marriage under the were married on August 25, 1918, at laws of Pennsylvania, although if it were Phoenix, the ceremony being performed essential to decide this point, we would by a magistrate. The parties lived as have to rule it adversely to the master, husband and wife for eleven months in for reasons given in an opinion this day Arizona. They then proceeded to San filed by us in the case of Stanley v. J. S. Bernardino, California, and eventually Rogers Co., et al., C. P. No. 2, June T., moved to Los Angeles. On September 1924, No. 1967 [5 D. & C. 527).

| 25, 1919, while they were living in Los

The exceptions are dismissed and the Angeles, the Superior Court of Califor- master's report is confirmed. nia entered the final decree of divorce in the suit which the respondent had insti-C. P. of

Northampton Co. tuted against her first husband. The parties continued to reside together in Cali

Warner v. Levine fornia without any further ceremony of marriage until the fall of 1920, when they both came to Pennsylvania to take up Practice-Foreign attachment-Affiresidence. Becoming domiciled in Philadelphia, they lived as husband and wife datit of cause of action. until a short time before the libel for an

An affidavit of cause of action to support nulment was filed. The libellant testified/ a writ of foreign attachment must aver inbefore the master that he had never ques-i ter alia, that defendant was the owner of

property within the jurisdiction of the court, tioned his status as the lawful husband and that he was not within the county at of respondent and had no reason to do the time of the issuance of the process of so until he was advised by Philadelphia counsel that the supposed marriage be- Rule to dissolve foreign attachment. tween himself and the respondent was Rule absolute. void.

4. Seir, Esq., for rule. The master has found as a fact that the libellant, prior to his marriage with D. II. Giberson, Esq., contra. respondent, knew that only an interlocutory decree in divorce had been obtained McKeen, J., September 22, 1924.-A by respondent in the suit against her then rule was entered on plaintiff in the above husband. Clark, and ,

believed that case to show his cause of action and why respondent's second marriage to him was a foreign attachment issued by plaintiff invalid only in California. The master should not be dissolved. No answer was finds, also, that libellant later knew of the filed by plaintiff to defendant's rule. The entering of the final decree against Clark, record discloses that plaintiff made an and that libellant and respondent dis- affidavit of the cause of action on June cussed the advisability of another mar- 26, 1924. The praecipe for the writ of riage in the State of California, but no foreign attachment, together with affida

, such marriage was ever there performed. vit of cause of action, was filed June 27,

The master found unequivocally that: 1924, on which date the attachment is

foreign attachment.

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