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INTOXICATING LIQUORS.

within the meaning or scope of this lan-

guage; he is not a bailor and he does not
Intoxicating liquors-Criminal law- have the legal title.
Forfeiture of vehicle- Statute strictly

While is may be proper to interpret Clause
construed Chattel mortgage

Act of

(III) with some measure of liberality for the
March 27, 1923, P. L. 34.

purpose of protecting the rights of innocent
A statute in osing a forfeiture should be' parties, it clearly is not admissible in ts
strictly construed and in a manner as favor- interpretation, to reject any expressly pre-
able to the owner of the property as is con scribed conditions of the granting of the re-
sistent with fair principles of interpretation. lief, and thus to apply the provision to a
Where a chattel mortgage is valid under

case which is plainly and clearly outside of
the laws of the state where made, the prin- the meaning and scope of the language used.

-COMMONWEALTH V. ONE DODGE AUTOMO-
ciples of comity demand that an innocent

BILE, 30
·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 lawStatement of
no standing to claim the automobile

as claim.

-FRITZ ET UX. V. McGEEHAN, 45
-COMMONWEALTH V. MATHIS, 18

owner.

Criminal Law— Interpretation of stat- ISSUE.
utes-Condemnation of vehicle used in

Wills_Issue does not include an
laauful transportation of into ricating adopted person.
liquor-Rights of chattel mortgagee out -BUCHER'S ESTATE, 17
of possession-Act of March 27, 1923.
P. L. 34, Sec. II, subdivision (D), and

INVENTORY.
Clause (III) of subdivision (B).

Decedent's estate-Additional intent-
Where, as against the owner of an auto-
mobile the Commonwealth is entitled to a

tory-Duty of crecutor-Act of June 7.
decree of condemnation, under the Act of

1917. P. L. 147
March 27, 1923, P. L. 34, on the ground that --CUMMINGS' ESTATE, 94
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 fendant into a defense-Warranty.

Judgments-Opening and letting de-
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
The provisions of clause (III) of subdivi- the goods were as recommended, the
sion (B) of section 11 of the Act of March judgment was opened and the defendant let
27, 1923, P. L. 34, relating to payment out into a defense.
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 by the testimony on behalf of the plaintiff,
or contract," afford relief only to a claimant showed that the judgment was confessed on
who is a "bailor," having the "legal title" a note given in payment of a cow purchased
and who was out of possession at the time of the plaintiff at a public sale, and that at
of the seizure because the property was held the time of the sale the auctioneer and the
"under a bailment lease or contract," and a plaintiff said the cow then was “straight and
mere mortgagee, out of possession, is not all right and a fresh cow," and it was clear-

not

ly proven that the cow then was not fresh, material averments of the petition are denied
and was unfit for use as a milk cow, the by the answer and the petition is not sup-
judgment was opened and the defendant was ported by testimony.
let into a defense.

--ANSTINE V. WILT, ET AL., 165
-STOLL V. KUNKEL ET AL, I

Judgment-Opening Corporation
Foreign judgment-Suit on-1ffidavit Power of officer to confess-Directors,
of defense.

A judgment confessed on a warrant in a
In a suit on a judgment obtained in anoth-bailment lease was opened where the judg-
er state an affidavit of defense is insufficient ment had been confessed by an officer of the
which fails to deny that there is such a company without authority from the direc-
judgment or to aver want of jurisdiction or

tors to do so. Ordinarily confessing judg-
payment.

ment against it is not any part of the power

of an officer of a corporation.
If failure to give notice to the defendant

-FINANCE & GUARANTY COMPANY V. E. A.
of the trial or of the entry of the judgment MYERS COMPANY, 192
affects the judgment, advantage can only be

Practice
taken of it in the court where it was entered.

Rules of court Rule to
GITMAN BROTHERS V. MARANTZ, 8

strike off judgment for want of affidavit

of defense-Rule for security for costs
Judgments -- Opening-Depositions -Notice to counsel.
Laches.

-COLT COMPANY V. SHIRK, 5
A petition to open a judgment, as soon as

Declaratory judgments - Jurisdiction
a responsive answer is filed, must be fol-
lowed by the immediate taking of deposi-

of orphans' court-Uniform Declaratory
tions. A delay of ninety days is fatal to the Judgments Act of June 18, 1923, P. L.
proceeding.

8.10.
-DITCHFIELD V. BERNHARD, 68

-DUFF'S ESTATE, 21
Judgments-Rules to strike off-War Declaratory judgment-Power of bor-
rant of attorney-Appearance of attor- ough to pave street without petition of
ney---Declaration-- Act of Feb. 24, 1806. abutting property owner-Acts of May

Where judgment is entered upon a written 14, 1915, P. L. 312, and June 7, 1923,
instrument in accordance with warrant of

P. L. 677Repeal of one Act by another
attorney contained therein upon praecipu, by implication.
filed by counsel for plaintiff, but without a --PETITION OF WINTON BOROUGH
declaration, such judgment will not be CLARATORY JUDGMENT, 27
stricken off for failure to file a declaration

Pleadings-Foreign judgments-Pre-
or to enter an appearance for defendant.

siumption of residence-Service of pro-
The Act of Feb, 24, 1806, § 28, 4 Sm. Laws,

cessAct of April 14, 1851.
270, makes it the duty of the prothonotary
of any court of record, on the application of

-QUINN V. REED, 91
any persons being the original holder (or

Practice, J. P.-Attachment execution
assignee of such holder) of a note, bond or
other instrument in writing in which judg —Judgrent-Act of April 15, 1845.
ment is confessed, to enter judgment against

-SHAPRIS V. PASKAWITCH, 126
the person who executed the same for the
amount which, from the face of the instru-

Foreign attachment - Statement of
ment, may appear to be due, without the clain Affidavit of defence - Striking
agency of an attorney or declaration filed. off judgment--Practice, C. P.
-UNION ACCEPTANCE CO. V. GRANT MOTOR

-McBRIDE V. BARTOL ET AL., 127
SALES CO., 141
Judgments-opening-Hearing on pe-

Libel-Demurrer-Effect of demurrer
tition and answer.

- Judgment for plaintiff on demurrer-

Rule to open-Power of court over judg-
A judgment entered by confession under

incnts.
warrant of attorney should not be opened,
unless the instrument be overcome by testi-

-KEEFER

INTELLIGENCE AND NEWS-

JOURNAL, 167
mony which, if believed, should move a chan-
cellor to decree that the note was void or

Practice, C. P.-Partnership-Service
should be reformed because of forgery, fraud

-- Judgment-Transcript-Jurisdiction.
or mistake.

-FRISBIE LUMBER

V. KRATZER,
A judgment can not be opened where the AL., 194

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-CHESTER ATUO RADIATOR COMPANY V. SAM

CARDILE, 24

840.

JURISDICTION.

JUSTICE OF THE PEACE.
Equity - Jurisdiction - Demurrer Justice of the peace--Appeal-Strik-
Bill to enforce personal liability of stocking off appeal-Appeal nunc pro tunc.
holders-Filing and recording of certifi Where failure to appeal from a judgment
cate of taking possession of bank-Bank- of the justice of peace within the statutory
ing Act of 1923-Secretary of banking, period, is in consequence of an act of the
powers, &c.-Appointment of secretary magistrate, an appeal may be allowed nunc
of banking questioned collaterallyTak- pro tunc if asked for within a reasonable
ing possession of bank without hearing, time, and if the magistrate of his own mo-
&c.-Administrative Code of 1923 is

tion permits an appeal to be taken, it will
constitutional.

not be stricken off.
-CITY BANK, ETC., V. BENTZ, ET AL. 13
Declaratory judgments Jurisdiction

LACHES.
of orphans' court-Uniform Declaratory
Judgments Act of Jue 18, 1923, P. L. Judgments Opening-Depositions-

Laches.
-DUPF'S ESTATE, 21

-DITCHFIELD V. BERNHARD, 68
Automobiles--Certiorari -- Magistrate LANDLORD AND TENANT.
- Jurisdiction in motor vehicle cases Landlord and tenant--Proceedings for
Transcript-Diminution of record-Act possession - Conclusiveness of Dam-
of June 14, 1923, P. I. 718.

ages for unlawfı:/ eviction - Act of
-EXCS: SIOR EXPRESS Co., V. CAULK, 88

March 31, 1905.
Ele rions-Polling placePetition to

A judgment of possession in favor of a
changeQuarter sessions court-County landlord, by a justice of the peace, under the
commissioners Jurisdiction -- Acts of

Act of March 31, 1905, P. L. 87, not appealed

from is conclusive as to the right of the
1895, 1903 and 1919.

landlord to evict his tenant, and in a sub-
-IN RE POLLING PLACE, 107

sequent suit by the tenant against the land-

lord to recover damages for unlawful evic-
Criminal law'-Issuing a check with
out sufficient funds in" bank-Jurisdiction, binding instructions for the defendant

are properly given to the jury.
tion, crime began in one county and com-

If the constable negligently executed the
pleted in another-Improper remark by writ, the plaintiff's claim for damages for
counsel, manner of putting objections on

this cause would be against the constable
the record.

and not against the landlord.
-COMMONWEALTH V. ROGOWSKI, 145

Where the tenant occupied a house with

two doors and two street numbers, the fact
Orphans' court - Jurisdiction - Sub-

that only one of the numbers was mentioned
stantial dispute-Restraining and man-

in the notice was immaterial.
datory order on erecutor.

-STEELY V. LORAH, 38
-GREENAWAY'S ESTATE, 169

Equity-Landlord and tenant-For-
Practice, C. P.-Partnership-Service feiture-Rent-Place of payment-De-
- JudgmentTranscript-Jurisdiction. mand-Default-Injunction.
-FRISBIE LUMBER

KRATZER,

Defendant was restrained from forfeiting

a lease and ousting plaintiff from possession
Dizorce Jurisdiction of court of because rent for one month was not paid
state in which parties had no residence- on the day stipulated, where defendant had
Maintenance.

previously accepted rent on days later in the

month than the one in question, and had
-COMMONWEALTH V. MILLER, 206

served no notice on plaintiff that thereafter

the terms of the lease would be strictly en-
JUROR.

forced and a forfeiture declared in case of a
New trialImpeachment of verdict- similar default in the future.
After-discovered evidence-Tuto.rication When a lease contained no provision as to
of juror-Record of conviction.

where payment of rent was to be made, the
--COMMONWEALTH V. WILSON, 33

place of payment was on the demised pre-

CO.

v.

ET

AL., 194

mises, and a forfeiture was refused when it A court has control over its own judg-
did not appear that the landlord was on the ments, and it may open them or set them
demised premises on the day the rent fell aside if the justice of the case so demands;
due or that any demand was made on the but this is only done on appeal to the sound
premises for the rent. Defendant was re- discretion of the court and is by grace and
strained from declaring a forfeiture and dis not by right.
possessing plaintiff.

The court has power to open a judgment
--MYERS V. BOYLAN, 39

entered for plaintiff on a demurrer in an ac-
Sheriff's sale Act 20 April, 1905, P. tion for libel.
L. 239Purchaser's right to possession

Except in cases under the Practice Act of
-Landlord and tenant.

1915 or in equity, the effect of a demurrer

admits the facts and leads to a judgment
The Act 20 April, 1905, P. L. 239, was in- quod recuperet and not respondeat ouster.
tended to provide a new and more efficient

In this case the court opened a judgment
way to enable purchasers at sheriff's sale to

entered for the plaintiff on a demurrer in an
acquire possession of the property they pur-

action for libel, on the allegation of the de-
chased, and does not apply in a case where a

fendant's counsel that the demurrer was filed
landlord seek to 0 is tenant.

under a misapprehension of the law as to
-RINES ET AL., V. DeGEORGE, 175

its effect, where otherwise, the next step be-
Landlord and tenant--Duty of land- fore an appeal could have been taken, would
lord to repair Practice - Set-off or

have been a writ of inquiry under common
counter claim - Demurrer Motion to

law practice to determine the amount of
strike off-Notice to be endorsed ----Cop-|-KEEFER v.

damages due the plaintiff.

INTELLIGENCE AND NEWS-
ies of contracts-Practice Act of May JOURNAL, 167
14, 1915, P. L. 483.

LIMITATIONS.
There is no implied covenant on the part
of a lessor that the premises are in good Construction of statutes-U. S. Sol-
repair and fit for any particular purpose. He diers' and Sailors' Relief Act of March.
is not bound to make repairs unless he has 8, 1918-Limitation by contract of time
covenanted to do so.

in which to bring action is cffected by
The proper practice is to move to have a Soldiers' and Sailors' Relief Act.
defective set-off or counter claim set up in

-WEINSTOCK V. PENNSYLVANIA RAILROAD
an affidavit of defense stricken off, and not CO., 105
to file a replication by way of statutory de-

Attorney and clienl-Purchase of real
murrer to the counter claim and such statu-
tory demurrer should be regarded by the estate by attorney in execution-Eject-
court as a motion to strike off. Sich motion ment by client-Statute of limitations-
will be considered, and in a proper case al- | Acts of April 22, 1856, March 27, 1865,
lowed when it asks to have only that part of and June 12, 1919.
the affidavit stricken off which sets up a set -BELL V. PARRELL ET AL., 148
off or counter claim.

The Practice Act of May 14, 1915, P. L. VÄGISTRATES.
483, Section 5, requires that copies of all

Automobiles--Certiorari-Magistrate
contracts must be attached to the pleadings,

- Jurisdiction in motor z'chicle cases --
including a defendant's set-off or counter

Transcript-Diminution of record-Act
claim.
The Practice Act of May 14, 1915, P. L. of Iwe 14, 1923, P. L. 718.

-EXCELSIOR EXPRESS Co., V. CAULK, 88
483, Section 15, requires that where the aff-
davit of defense sets up a set-off or counter

MAINTENANCE.
claim against the plaintiff it should be en-
dorsed the same as required for a statement, Maintenance-Divorce-Agreement to
and in the exact language of the act, other continue maintenance.
wise it must be stricken off.

An order for maintenance is no longer ef-
-DAVIS V. GREGG, 182

fective after the parties are divorced al-

though the parties, before the divorce, en-
LIBEL.

tered into an agreement that the amount so
Libel--Demurrer-Effect of demurrer ordered should be paid until the wife re-

married if there should be a divorce. Such
- Judgment for plaintiff on demurrer-
Rule to open-Power of court over judg- agreement can only be enforce by suit before

a magistrate or in common pleas.
nucuts.

-COMMONWEALTH V. KINZER, 196

Maintenance Husband and wife portioned. A separate lien must be filed
Agreement of separation-Bar to pro- against each building on the basis of an ap-
ceeding for support under Act 13 April

, portionment of what is due.
1867. P. L. 78.

A separate petition is necessary on motion
--COMMONWEALTH V. PENGELLY, 129

for leave to amend, and should conform to

the requirements of section 51, of Act of
llaintenance Evidence Parol cai-

June 4, 1901, P. L. 431.
dence to contradict judicial record -HAGEN LUMBER CO., V. BRIGHT, ET AL., 72
Criminal law-Failure to support illegit-
imate child--Act II July, 1917, P. L.

lechanic's lien-Pleading-Rescission
773—-Prior acquittal on bastardy charge of sale-Set-off-ffidavit of defense.
-COMMONWEALTH V. GOTTSCHALL, 178

A deduction or set-off alleged in an affida-

vit of defense must, in order to be of any
MARRIAGE.

avail, be stated with precision and exactness

as to the amount, and the court must be left
Husband and wife Divorce l'oid | in no doubt as to its source and character,
marriayes-Bigamy-Anulment "111- so as to be able to judge of the propriety of
nocent or injured party"--Act of April its allowance against the plaintiff's claim;
14, 1859.

and this rule is applicable to an affidavit of
-MALLON V. MALLON, 179

defense filed to a scire facies sur mechanic's

lien.
MECHANICS' LIEN.

Where an owner of a building in course of

erection accepted materials from a material
Suit by fictitious name - Mechanics'

man, and in his affidavit of defense to a scire
lien - <1 ffidavit of defense--Practice facias sur mechanic's lien avers that the ma-
cets of June 4, 1915, June 28, 1917, and terials were not in accordance with a war-
Alay 10, 1921.

ranty of the same, and admits the retention

and use thereof, but does not aver that the
Where a plaintiff brings an action which alleged defects were pointed out to the claim-
shows on the face of the pleadings that he ant, or that he gave any notice of such de-
is conducting business under a fictitious fect or that he intended to rescind the con-
name, he must show affirmatively that he

tract, he cannot rescind the sale of the ma-
has complied with the Fictitious Name Acts

terials mentioned.
of June 28, 1917, P. L. 645, and May 10, 1921,

Where an affidavit of defense to a scire fa.
P. L. 465.

cias sur mechanic's lien avers a set-off for
The Practice Act of May, 1915, which pro defects in materials, for unsound lumber and
vides for the raising of a question of law by for materials which the claimant agreed to
affidavit of defense, does not apply to me take back, without stating the full particu-
chanics' liens.

lars and details in relation to the same, the
An affidavit of defense purporting to raise affidavit is not sufficient to prevent judgment.

--BLA EBAUM V. JULIUS, 149
a question of law in an action on a mechan-
ics' lien may be considered as an affidavit 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.

bution-Mor!gagee

Nenu structure
-TRISSLER ELECTRICAL SHOP V. WRIGHT, 2

Alteration and repairs-Acts of 1901
Mechanic's lien --- When sufficiently and 1905.
specific.

Exceptions were sustained to a sheriff's
A mechanic's lien filed by a contractor for special return awardin, a fund realized at a
labor and materials furnished will not be judic al sale to the mortgagee instead of a
stricken off because it only sets forth the mechanics' lien, where the contract was let
amount and the name to whom due and not and the last work done was prior to the plac-
the kind of labor, and number of hours, and ing of the mortgage, but the lien was filed
the nature and character of the materials stilsequent thereto.
furnished where the contracts were with the

In a mechanics' lien proceeding, it was held
owner.

robe for a new erection and construction
-BAIR V. STEWART, 52

and not alteration and repairs, where the

rear walls of an old structure were left
Mechanics lien-Amendment--Act of

standing, but a new building, about 30 by 60
June 4, 1901, P. L. 431.

fcet, was built, two stories high. This was
A single mechanic's lien cannot be filed connected with a partially new building in
against several dwelling houses and then ap- the rear, only one story high, and they were

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