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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-
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
-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
have been a warranty, and clearly showed
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.
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
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
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.
-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
-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
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
-CITY BANK, ETC., V. BENTZ, ET AL. 13
of orphans' court-Uniform Declaratory
Judgments Act of June 18, 1923, P. L.
—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
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-
Divorce Jurisdiction of court of
state in which parties had no residence-
-COMMONWEALTH V. MILLER, 206
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.
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
premises for the rent.
strained from declaring a forfeiture and dis-
-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-
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
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
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
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
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
Husband and wife - Divorce
nocent or injured party"-Act of April
-MALLON V. MALLON, 179
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-
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-
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.
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
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