within the meaning or scope of this lan- guage; he is not a bailor and he does not
While is may be proper to interpret Clause
Intoxicating liquors-Criminal law have the legal title. Forfeiture of vehicle-Statute strictly construed Chattel mortgage Act of March 27, 1923, P. L. 34.
(III) with some measure of liberality for the
purpose of protecting the rights of innocent parties, it clearly is not admissible in its interpretation, to reject any expressly pre- scribed conditions of the granting of the re- lief, and thus to apply the provision to a case which is plainly and clearly outside of the meaning and scope of the language used.
-COMMONWEALTH V. ONE DODGE AUTOMO- BILE, 30
A statute imposing a forfeiture should be strictly construed and in a manner as favor- able to the owner of the property as is con- sistent with fair principles of interpretation. Where a chattel mortgage is valid under the laws of the state where made, the prin- ciples of comity demand that an innocent .mortgagee of an automobile forfeited undtr the Act of March 27, 1923, P. L. 34, be given Intoxicating liquors-Plaintiff's state- the same standing as the holder of a bail- ment-Contracts-Illegal contract—Vio- ment lease or contract. A lien attaches to lation of liquor laws-Statement of the proceeds of sale for the balance unpaid. claim-Practice, C. P.-Affidavit of de- The mortgagee in a chattel mortgage has fence-Merits and law-Statement of no standing to claim the automobile as claim.
-COMMONWEALTH V. MATHIS, 18
Criminal Law-Interpretation of stat- utes-Condemnation of vehicle used in unlawful transportation of intoxicating liquor-Rights of chattel mortgagee out of possession-Act of March 27, 1923. P. L. 34, Sec. 11, subdivision (D), and Clause (III) of subdivision (B).
Where, as against the owner of an auto- mobile the Commonwealth is entitled to a
-FRITZ ET UX. V. McGEEHAN, 45
Wills-"Issue" does not include an adopted person. -BUCHER'S ESTATE, 17
Decedent's estate-Additional inven- tory-Duty of executor-Act of June 7. 1917. P. L. 447.
-CUMMINGS' ESTATE, 94
Judgments-Opening and letting de- fendant into a defense-Warranty.
decree of condemnation, under the Act of March 27, 1923, P. L. 34, on the ground that the vehicle while in the possession of the owner, was used in the unlawful transpor-JUDGMENTS. tation of intoxicating liquors, a chattel mort- gagee, out of possession, is not entitled to take the possession of the seized car from the Commonwealth, and cannot prevent the In a proceeding to open a judgment and Commonwealth from enforcing a forfeiture let the defendant into a defense, where the incurred by the acts of the owner, in pos- petitioner's testimony, though strongly con- session; such mortgagee does not come with-tradicted, shows that the judgment was con- in the class of claimants, who under the pro- fessed on a note given, for goods purchased visions of subdivision (D) of section 11 of by the defendant, and tends to show at the the act, are entitled to this relief; Common-sale the plaintiff, in recommending the goods, wealth v. Cutshall, 4 Wash. Co. R. 7, re- used language which may be construed to affirmed. have been a warranty, and clearly showed not the goods were as recommended, the judgment was opened and the defendant let into a defense.
The provisions of clause (III) of subdivi- sion (B) of section 11 of the Act of March 27, 1923, P. L. 34, relating to payment out of the proceeds of a condemnation sale of a Where the defendant's testimony in a pro- vehicle seized while being used in the unlaw-ceeding to open a judgment and let the de- ful transportation of intoxicating liquors, of fendant into a defense, though contradicted the amount owing upon a "bailment lease or contract," afford relief only to a claimant who is a "bailor," having the "legal title" and who was out of possession at the time of the seizure because the property was held "under a bailment lease or contract," and a mere mortgagee, out of possession, is not
by the testimony on behalf of the plaintiff, showed that the judgment was confessed on a note given in payment of a cow purchased of the plaintiff at a public sale, and that at the time of the sale the auctioneer and the plaintiff said the cow then was "straight and all right and a fresh cow," and it was clear-
ly proven that the cow then was not fresh, and was unfit for use as a milk cow, the judgment was opened and the defendant was let into a defense.
-STOLL V. KUNKEL ET AL, 1
material averments of the petition are denied by the answer and the petition is not sup- ported by testimony.
-ANSTINE V. WILT, ET AL., 165
Judgment-Opening - Corporation -
Foreign judgment-Suit on-Affidavit, Power of officer to confess Directors. of defense.
In a suit on a judgment obtained in anoth- er state an affidavit of defense is insufficient which fails to deny that there is such a judgment or to aver want of jurisdiction or payment.
If failure to give notice to the defendant of the trial or of the entry of the judgment affects the judgment, advantage can only be taken of it in the court where it was entered. -GITMAN BROTHERS V. MARANTZ, 8
A judgment confessed on a warrant in a bailment lease was opened where the judg- ment had been confessed by an officer of the company without authority from the direc- tors to do so. Ordinarily confessing judg- ment against it is not any part of the power of an officer of a corporation. FINANCE & GUARANTY COMPANY V. E. a. MYERS COMPANY, 192
Rule to strike off judgment for want of affidavit of defense-Rule for security for costs
Opening-Depositions--Notice to counsel.
A petition to open a judgment, as soon as a responsive answer is filed, must be fol- lowed by the immediate taking of deposi-
-COLT COMPANY V. SHIRK, 5
Declaratory judgments - Jurisdiction of orphans' court-Uniform Declaratory tions. A delay of ninety days is fatal to the Judgments Act of June 18, 1923, P. L.
proceeding. -DITCHFIELD V. BERNHARD, 68
Judgments Rules to strike off-War- rant of attorney-Appearance of attor- ney-Declaration-Act of Feb. 24, 1806.
Where judgment is entered upon a written
instrument in accordance with warrant of attorney contained therein upon praecipe,
filed by counsel for plaintiff, but without a declaration, such judgment will not be stricken off for failure to file a declaration 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 any persons being the original holder (or assignee of such holder) of a note, bond or
Declaratory judgment-Power of bor- ough to pave street without petition of abutting property owner-Acts of May 14, 1915, P. L. 312, and June 7, 1923, P. L. 677-Repeal of one Act by another by implication.
-PETITION OF WINTON BOROUGH FOR DE- CLARATORY JUDGMENT, 27
Pleadings Foreign judgments-Pre- sumption of residence-Service of pro- cess-Act of April 14, 1851. -QUINN V. REED, 91
Practice, J. P.-Attachment execution
other instrument in writing in which judg--Judgment-Act of April 15, 1845.
ment is confessed, to enter judgment against the person who executed the same for the amount which, from the face of the instru-
-SHAPRIS V. PASKAWITCH, 126
Foreign attachment Statement of
ment, may appear to be due, without the claim - Affidavit of defence - Striking
agency of an attorney or declaration filed. -UNION ACCEPTANCE CO. V. GRANT MOTOR SALES CO., 141
Judgments Opening-Hearing on pe- tition and answer.
A judgment entered by confession under warrant of attorney should not be opened, unless the instrument be overcome by testi- mony which, if believed, should move a chan- cellor to decree that the note was void or should be reformed because of forgery, fraud or mistake.
A judgment can not be opened where the
off judgment--Practice, C. P.
-MCBRIDE V. BARTOL ET AL., 127
Libel-Demurrer-Effect of demurrer -Judgment for plaintiff on demurrer- Rule to open-Power of court over judg-
Equity Jurisdiction Demurrer Bill to enforce personal liability of stock- holders-Filing and recording of certifi cate of taking possession of bank-Bank- ing Act of 1923-Secretary of banking, powers, &c.-Appointment of secretary of banking questioned collaterally-Tak- ing possession of bank without hearing, &c.—Administrative Code of 1923 is constitutional.
-CITY BANK, ETC., V. BENTZ, ET AL. 13
Declaratory judgments-Jurisdiction of orphans' court-Uniform Declaratory Judgments Act of June 18, 1923, P. L. 840.
Automobiles-Certiorari -Magistrate —Jurisdiction in motor vehicle cases— Transcript-Diminution of record-Act of June 14, 1923, P. L. 718.
-EXCELSIOR EXPRESS CO., V. CAULK, 88
-DITCHFIELD V. BERNHARD, 68
LANDLORD AND TENANT.
Landlord and tenant-Proceedings for possession-Conclusiveness of -Dam- ages for unlawful eviction - Act of March 31, 1905.
A judgment of possession in favor of a
Elections-Polling place-Petition to change-Quarter sessions court-County landlord, by a justice of the peace, under the commissioners Jurisdiction Acts of 1895, 1903 and 1919.
-IN RE POLLING PLACE, 107
Act of March 31, 1905, P. L. 87, not appealed from is conclusive as to the right of the landlord to evict his tenant, and in a sub- sequent suit by the tenant against the land- lord to recover damages for unlawful evic- tion, binding instructions for the defendant are properly given to the jury.
Criminal law-Issuing a check with- out sufficient funds in bank-Jurisdic- tion, crime begun in one county and com- pleted in another-Improper remark by writ, the plaintiff's claim for damages for counsel, manner of putting objections on the record.
If the constable negligently executed the
this cause would be against the constable and not against the landlord.
Where the tenant occupied a house with two doors and two street numbers, the fact that only one of the numbers was mentioned in the notice was immaterial. -STEELY V. LORAH, 38
Equity-Landlord and tenant-For-
Practice, C. P.-Partnership-Service feiture-Rent-Place of payment-De- -Judgment-Transcript-Jurisdiction.
Divorce Jurisdiction of court of state in which parties had no residence- Maintenance.
-COMMONWEALTH V. MILLER, 206
mand-Default-—Injunction.
Defendant was restrained from forfeiting a lease and ousting plaintiff from possession because rent for one month was not paid on the day stipulated, where defendant had previously accepted rent on days later in the month than the one in question, and had served no notice on plaintiff that thereafter the terms of the lease would be strictly en- forced and a forfeiture declared in case of a
New trial-Impeachment of verdict- similar default in the future. After-discovered evidence-Intoxication of juror-Record of conviction.
--COMMONWEALTH V. WILSON, 33
When a lease contained no provision as to where payment of rent was to be made, the place of payment was on the demised pre-
mises, and a forfeiture was refused when it did not appear that the landlord was on the demised premises on the day the rent fell due or that any demand was made on the Defendant was premises for the rent. strained from declaring a forfeiture and dis- possessing plaintiff.
-MYERS V. BOYLAN, 39
A court has control over its own judg- ments, and it may open them or set them aside if the justice of the case so demands; but this is only done on appeal to the sound discretion of the court and is by grace and not by right.
The court has power to open a judgment entered for plaintiff on a demurrer in an ac-
Sheriff's sale-Act 20 April, 1905, P. tion for libel. L. 239-Purchaser's right to possession -Landlord and tenant.
The Act 20 April, 1905, P. L. 239, was in- tended to provide a new and more efficient way to enable purchasers at sheriff's sale to acquire possession of the property they pur- chased, and does not apply in a case where a landlord seeks to oust his tenant. -RINES ET AL., V. DeGEORGE, 175
Except in cases under the Practice Act of 1915 or in equity, the effect of a demurrer admits the facts and leads to a judgment quod recuperet and not respondeat ouster.
In this case the court opened a judgment entered for the plaintiff on a demurrer in an action for libel, on the allegation of the de- fendant's counsel that the demurrer was filed under a misapprehension of the law as to its effect, where otherwise, the next step be-
have been a writ of inquiry under common law practice to determine the amount of damages due the plaintiff. -KEEFER V. INTELLIGENCE AND NEWS- JOURNAL, 167
Landlord and tenant-Duty of land-fore an appeal could have been taken, would lord to repair -Practice-Set-off or counter claim Demurrer Motion to strike off-Notice to be endorsed--Cop- ies of contracts-Practice Act of May 14, 1915, P. L. 483.
The proper practice is to move to have a
defective set-off or counter claim set up in an affidavit of defense stricken off, and not to file a replication by way of statutory de- murrer to the counter claim and such statu-
tory demurrer should be regarded by the court as a motion to strike off. Such motion will be considered, and in a proper case al- lowed when it asks to have only that part of the affidavit stricken off which sets up a set- off or counter claim.
The Practice Act of May 14, 1915, P. L. 483, Section 5, requires that copies of all
Construction of statutes-U. S. Sol- diers' and Sailors' Relief Act of March. 8, 1918-Limitation by contract of time in which to bring action is effected by Soldiers' and Sailors' Relief Act.
-WEINSTOCK V. PENNSYLVANIA RAILROAD CO., 105
Attorney and client-Purchase of real estate by attorney in execution—Éject- ment by client-Statute of limitations— Acts of April 22, 1856, March 27, 1865, and June 12, 1919.
-BELL V. PARRELL ET AL., 148
Automobiles-Certiorari -Magistrate
contracts must be attached to the pleadings, Jurisdiction in motor vehicle cases-
including a defendant's set-off or counter
Transcript-Diminution of record-Act
The Practice Act of May 14, 1915, P. L. of June 14, 1923, P. L. 718.
483, Section 15, requires that where the affi- davit of defense sets up a set-off or counter claim against the plaintiff it should be en- dorsed the same as required for a statement, and in the exact language of the act, other- wise it must be stricken off. -DAVIS V. GREGG, 182
-EXCELSIOR EXPRESS CO., V. CAULK, 88
Maintenance-Divorce-Agreement to continue maintenance.
An order for maintenance is no longer ef- fective after the parties are divorced al- though the parties, before the divorce, en- tered into an agreement that the amount so
ordered should be paid until the wife re-
married if there should be a divorce.
agreement can only be enforce by suit before
a magistrate or in common pleas. -COMMONWEALTH V. KINZER, 196
Husband and wife portioned. A separate lien must be filed against each building on the basis of an ap- portionment of what is due.
Agreement of separation-Bar to pro- ceeding for support under Act 13 April, 1867, P. L. 78.
-COMMONWEALTH V. PENGELLY, 129
Maintenance Evidence Parol evi- dence to contradict judicial record- Criminal law-Failure to support illegit- imate child-Act 11 July, 1917, P. L. 773-Prior acquittal on bastardy charge.
-COMMONWEALTH V. GOTTSCHALL, 178
A separate petition is necessary on motion for leave to amend, and should conform to the requirements of section 51, of Act of June 4, 1901, P. L. 431.
-HAGEN LUMBER CO., V. BRIGHT, ET AL., 72
Mechanic's lien-Pleading-Rescission of sale-Set-off-Affidavit of defense.
A deduction or set-off alleged in an affida- vit of defense must, in order to be of any avail, be stated with precision and exactness as to the amount, and the court must be left Void in no doubt as to its source and character, "In- so as to be able to judge of the propriety of its allowance against the plaintiff's claim; and this rule is applicable to an affidavit of defense filed to a scire facies sur mechanic's lien.
Husband and wife - Divorce marriages-Bigamy-Annulment nocent or injured party"-Act of April 14, 1859.
-MALLON V. MALLON, 179
MECHANICS' LIEN.
Suit by fictitious name- -Mechanics'
Where an owner of a building in course of erection accepted materials from a material man, and in his affidavit of defense to a scire
lien Affidavit of defense-Practice-facias sur mechanic's lien avers that the ma- Acts of June 4, 1915, June 28, 1917, and terials were not in accordance with a war-
Where a plaintiff brings an action which shows on the face of the pleadings that he is conducting business under a fictitious name, he must show affirmatively that he has complied with the Fictitious Name Acts of June 28, 1917, P. L. 645, and May 10, 1921, P. L. 465.
The Practice Act of May, 1915, which pro- vides for the raising of a question of law by affidavit of defense, does not apply to me- chanics' liens.
An affidavit of defense purporting to raise a question of law in an action on a mechan- ics' lien may be considered as an affidavit
ranty of the same, and admits the retention and use thereof, but does not aver that the alleged defects were pointed out to the claim- ant, or that he gave any notice of such de- fect or that he intended to rescind the con- tract, he cannot rescind the sale of the ma- terials mentioned.
Where an affidavit of defense to a scire fa- cias sur mechanic's lien avers a set-off for defects in materials, for unsound lumber and for materials which the claimant agreed to take back, without stating the full particu- lars and details in relation to the same, the affidavit is not sufficient to prevent judgment. -BLAEBAUM V. JULIUS, 149
Mechanics lien-Sheriff's special re-
of defense filed under the Mechanics' Lien turn--Exceptions to schedule of distri-
Act of June 4, 1901, P. L. 431, and sustained. -TRISSLER ELECTRICAL SHOP V. WRIGHT, 2
bution-Mortgagee New structure · Alteration and repairs-Acts of 1901
Mechanic's lien- When sufficiently and 1905. specific.
A mechanic's lien filed by a contractor for labor and materials furnished will not be stricken off because it only sets forth the amount and the name to whom due and not the kind of labor, and number of hours, and the nature and character of the materials furnished where the contracts were with the
Exceptions were sustained to a sheriff's special return awarding a fund realized at a judic'al sale to the mortgagee instead of a mechanics' lien, where the contract was let and the last work done was prior to the plac- ing of the mortgage, but the lien was filed subsequent thereto.
In a mechanics' lien proceeding, it was held 10 be for a new erection and construction and not alteration and repairs, where the
Mechanics lien-Amendment--Act of rear walls of an old structure were left June 4, 1901, P. L. 431.
A single mechanic's lien cannot be filed against several dwelling houses and then ap-
standing, but a new building, about 30 by 60 feet, was built, two stories high. This was connected with a partially new building in the rear, only one story high, and they were
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