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was а

new

65.

so adjusted that they could be used together. sets and assion ption of contractsSim-
The cement floors were laid over practically ilarity of numes.
the whole lot. This

structure

-NORTH V. YORK METAL ALLOYS CO. (NO. 2),
within the meaning of the law.
-EISEN ERG V. WOLF, 173

Mechanics' liens-Ict ! June, 1901, P. NEW TRIAL.
L. 431--Necessity for affidavit support-
ing statement of claim-Practice, C. P.

New tria!-Impeachment of verdict--
ilct 17 -1 pril, 1905, P. L. 172, Paragraph

Ifler-discovered evidence- Intoxication
2 of Section 1-Requisites of statement of juror--Record of conviction.
-Dates of furnishing materia!—— Con It is never permitted to impeach a verdict
tractor and sub-contractor.

by the declarations of a juror as to what
Neither the Act 4 June, 1901, P. L. 431, nor

influenced him.
any of its amendments regulating the filing Where a juror becomes intoxicated upon
of mschanics' liens, specifically requires that the trial, and from time to time goes to
the claim be supported by affidavit, although sleep, it is the duty of counsel to bring the
it is good practice to have such claims sworn

matter to the attention of the court at once.
to.

The trial of a case is under the inspection
Where on the face of a mechanic's lien, it of the court, and unless the court personally
appears that the contract to furnish the ma. happened in the jury-room, or as to what
"terials was with the owner, it is sufficient notices a juror's condition, or has it brought
under paragraph 2 of Section 1 of the Act to its attention during a trial, allegations
17 April, 1905, P. L. 172, to set forth the that the juror was intoxicated or asleep
amount claimed to be due, the kind and will not be considered, especially where the
amount of materials furnished, and that the court has a distinct recollection that the
materials were furnished over a period of juror was neither intoxicated nor asleep.
time, giving the dates of the first and last

A witness may be asked, when on the
deliveries.

stand, upon cross-examination, whether he
On a motion to strike off a mechanic's lien

had been convicted of a crime or not, for the
the court cannot decide the issue whether

purpose of affecting his credibility, or the
the claimant is a contractor as averred in

other side may introduce the record that he
the statement or a sub-contractor as

has been convicted of a crime, without in-
tended by the petitioner.

terrogating the witness upon the subject.
-KASE ET AL. V. SEGAL 184

-COMMONWEALTH V. WILSON, 33
MERCANTILE LICENSE.

Now trial granted because irrelevant
Taration Vercantile license tur

matter may have influenced jury-The
Act 2. May, 1899, P. I. 181 Act granting of a new trial is within the dis-
9 April, 1870. P. L. 59Plumbers.

cretion of the trial court.
-MILLER'S APPEAL, 202

Where, in the trial of a case, irrelevant

matter was brought before the jury, and the
MORTGAGE.

court was in great doubt as to the extent to

which this matter influenced the minds of
Mechanic's lien-Sheriff's special re-ene jury in arriving at the verdict, a new
11n-Exceptions to schedule of distri- trial was granted.
bution--Mortgagee – Nea structure - The granting of a new trial is within the
Alteration and repairs-dots of 1901 power of the trial court, and the appellate

court will not interfere with the inherit ex-

ercise that
-EISENERG V. WOLF, 173

authority, except in cases

where the record shows unmistakable
MUNICIPAL LIEX.

abuse of discretion.

-RIEST V. WOGAN, 69
Practice - Municipal lien - Counter-

Practice-New trial on court's own.
claim for damages in trespass-When

motion
counter-claim will not be stricken off-
dets of May t. 1915, and liay 28, 1915.

On a rule for judgment n. 0. V., the court,
---NEW HOLLAND BOROUGII V. RANCK, OWN-being of the opinion that such a judgment
ER, ETC., 158

could not be entered, but that a new trial

should be awarded, of its own motion, en-
NAMES.

Cered a rule to show cause why a new trial

should not be granted.
Employer and employee-Sale of as-

-AMERICAN INSULATION CO., INC. V. BEST. 140

con-

and 1905.

of

an

reason

a

NOTES.

Such use, at the instance of the owners of

properties in the neighborhood, will be en-
Promissory notes --- Accommodation joined.
maker . Want of consideration Suffi -WHEALEN ET AL. V. SATZ ET AL., 90
ciency of evidence to establish defense-
Question for jury.

OFFICERS.
A total or partial want or failure of con Public Officers - Supervisors - Fur-
sideration for a promissory note may be in-nishing own teanis Criminal law
sisted upon as a defense between any of the Road law— Act of March 31, 1860.
original parties to the note.
An accommodation note is

An indictment charging that a supervisor
one to which

furnished his own team for work on a town-
the accommodating party put his name,

ship road and accepted pay for the same,
without consideration, for the purpose

of

charges an offence under section 66 of the
accommodating some other party who is to

Act of March 31, 1860, P. L. 400, although it
use it and is expected to pay it; and between

is not averred that there was any corrupt
these parties the consideration

may be

or dishonest intent or unfairness in the price
shown to be wanting.

charged for the services.
in a suit on a promissory note, between -COMMONWEALTH V. McCOY, 42
the original parties, one party thereto may
defend upon the ground that he

was ORPHANS' COURT.
induced to sign by

of

prom -
ise which the other made and, in the suit,

Orphans' court Jurisdiction - Sub-
attempts to repudiate; and in such case, it stantial dispute-Restraining and man-
need not be averred nor proved that the in- datory order on crecutor.
ducing promise was omitted from the note

On a demurrer to a petition in the orphans'
by fraud, accident or mistake.

court, raising the question of the jurisdiction
Where, in an action against the maker of of the court, the averments in the petition
a promissory note, the evidence tends to must be taken as true.
show that the note was given without con-

A demurrer to a petition in the orphans'
sideration for the accommodation of the

court does not raise “a sub tantial dispute"
payees, the plaintiffs in the action, the ques-

within the intendment of the act of assem-
tion of the defendant's liability is for the bly providing for the sending of issues by
jury, and judgment for the plaintiff non ob-

he orphans' court to the common pleas in
stante veredicto can not be entered.

mertain cases in which there is a substan-
-SCHLOUGH ET AL. V. YETTER, 153

tial dispute.

A fact is properly said to be in disput
NOTICES.

when it is alleged by one party and denied
Practice Rules of court Rule to by another, and botli with some show of

mere naked allegation without
rike off judgment for want of affidavit reason; a

evidence or against the evidence, cannot cre-
of defense-Rule for security for costs

ate a dispute within the meaning of the law.
-Notice to counsel.

A substantial dispute exists when a con-
- COLT COMPANY V. SHIRK, 5

Cusion of fact to be drawn from the testi-
Stolen goods Banks

mony
Bonds stolen

is one about which reasonable men
by assistant cashier-Notice of fraudu-

might honestly differ.
lent acquisition.

The orphans' court has jurisdiction of a

petition averring that an executor has in h's
-PETITION OF YORK LODGE OF MOOSE, 185.

custody, as executor, certain shares of the

capital stock of certain corporations which
NUISANCE.

were pledged, by the petitioner to the tes-
Nuisance -- automobiles -Public ser-

tator in his life time, and which the executor

contends are the unqualified property of the
vice garage in residential district--Build-ate, and praying for an order restraining
ing restriction-hujunction.

the executor from disposing of the same un-

til further order of the court, and ordering
A building restriction in an exclusively

him to deliver the same to the petitioner
residential section of the city, built up with
substantial modern houses, which prohibits petition avers the stock was pledged.

upon the payment of the debt for which the
the establishment of any offensive business,

-GREENAWAY'S ESTATE, 169
applies to the use of one of the properties
affected by such restriction a public Declaratory judgments - Jurisdiction
garage.

of orphans' court-Uniform Declaratory

as

840.

an

Judgments Act of June 18, 1923, P. L. ency of the averment, the admission did the

defendant no harm.
-DUFF'S ESTATE, 21

-WETTER V. SMITH, 35
Decedents' Estates-Orphans' court-

Plaintiff's statement-Endorsement of
Suit pending in other court-Claimant address where papers may be served
must present claim in orphans' court-General reasons to strike off Gross
Jurisdiction.

claims for damages-Particulars of neg-
-HARVEY'S ESTATE, 99

ligence must be shown.

A plaintiff's statement which does not have
PARTITION.

endorsed thereon address within the

county where all papers are to be served,
Partition-Arpointment of an auditor will be stricken off.
--Confirmation of account.

A reason in support of a motion to strike
In all cases where, in consequence of pro- off a plaintiff's statement which states in
ceedings in partition, any share in real es-

general terms that the statement lacks "con-
tate shall be converted into cash, the or-

ciseness," without pointing out specifically
phans' court may appoint an auditor to as-

the alleged defect, is too general, and will
certain whether there are any liens or other not be considered.
incumbrances on such real estate.

Claims for damages in a plaintiff's state-
The administrator or trustee is the proper ment, in trespass, must be itemized and spe-
party to make the application for an auditor cific; claims for gross sums disbursed "for
which should be done before confirmation of doctors, medicines, hospitals, nursings, do-
the sale.

mestic help," etc., are not within the re-
-ESTATE OF JOHN L. GEIGER, 11

quirements of the Practice Act.

In a suit in trespass where the charge is
PETITION AND ANSWER.

negligence arising out of alleged acts of

omission, the grounds of complaint must be
JudgmentsO pening-Hearing on pe- stated concisely and distinctly in the plain-
tition and answer.

tiff's statement; facts must be averred suf-
-ANSTINE V. WILT, ET AL., 165

ficient to show that a duty required by law

has been breached or neglected by the de-
PLAINTIFFS' STATEMENTS.

fendant, and plainly to indicate the casual
Plaintiff's statement - Husband and

connection between this breach or neglect

and the injury complained of.
wife-Automobiles Collision State-

-DIEHL V. STEWARTSTOWN RAILROAD CO., 19
ment-Averment of wife's agency as
driver - Admission - Practice Act of

Plaintiff's statement-Want of neces-
May 11, 1915.

sary particulars-Striking off

A plaintiff's statement in an action to re-
The mere relation of husband and wife
does not make the wife the husband's agent in which it is shown that the dwelling was

cover the cost of erecting a dwelling house,
In an action of trespass to recover for erected under a contract, and there are items
damages to an automobile caused in a colli- of claim for work and materials furnished in
sion with another automobile owned by de-addition to, or more costly than those re-
fendant, an averment in the statement of
claim “that said automobile belonging to the quired by the contract, in accordance with

modifications of the contract, full particu-
above named defendant, at said time and

lars of the materials and labor so furnished
place was being operated with the knowl-

must be set out.
edge, consent, approval and sanction of the
above named defendant, by his wife," is an

Such a statement, where the additional
insufficient averment of her agency, and, if materials and labor furnished were set out
no other evidence is offered at the trial as as “a porch was constructed." "the plumbing
to her authority, or whether the car was en was changed," "a refrigerator was installed,"
gaged in the defendant's business at the etc., with the charges made for each item,
time of the accident, the defendant will be was stricken off because it did not set forth
entitled binding instructions, not with the necessary particulars.
standing the fact that he did not file an -DOLL V. STAUFFER, 85
affidavit of defense; the failure to file the

Plaintiff's statement-llotion to strike
affidavit operated as admission under
section 13 of the Practice Act of May 14, off-Redundant and verbose averments

Electric wires-Necessity to inspect
1915, P. L. 483, but, owing to the insuffici -

to

an

POWER

electric wires-Averment of ownership ant paid for all the goods, less two per cent
of wire.

of the specified price; that nine car loads

were not paid within ten days, without in-
A plaintiff's statement which states the dicating specifically which nine car loads
facts which the defendant is required to meet

were not so paid; and claiming the two per
at the trial in such language as can be un-

cent deducted from the price of the nine
derstood and answered by an affirmance or

car loads, is uncertain and will be stricken
denial of the negligence, the results, and the ff.
damage described, will not be stricken off

A plaintiff's statement, the body of which
even though the averments be verbose and

is in typewriting, with interlincations in ink,
redundant.

without any explanation whether the inter-
Electricity is a dangerous agency, and lineations were made before or after the
those employing it are required to exercise statement was signed and verified, is defec-
the highest practical degree of care.

tive.

-PENN PAPER STOCK CO. V. YORK PAPER
The duty to inspect electric wires is clear, MAN'F'G. CO., 177
and failure to perform it is negligence.

PracticeTrespass-Plaintiff's state-
Where a plaintiff's statement averred that

ment-Affidavit of defense not required
the plaintiff was injured by coming in con-

- Motion to strike off, when too late,
tact with a wire dangling from the defend-

service of copy.
ant's pole, the court refused to strike off the
statement because it was not averred that

-PRENTZEL, TRUSTEE V. SNYDER, 25
said wire was the defendant's wire, or that Intoxicating liquors-Plaintiff's state-
it was attached to said pole with the knowl- ment-Coniracts-Illegal contract-Vio-
edge and consent of the defendant, or that lation of liquor laws Statement of
defendant knew that said wire dangled from claim-Practice, C. P.-Affidavit of de-
its pole, negligence in maintenance and in fence-Merits and lawStatement of
failure to inspect having been charged. clain.
-MARTIN V. EDISON LIGHT AND
CO., 118

-FRITZ ET UX. V. McGEEHAN, 45
Plaintiff's statements-Need not con-

Plaintiff's statement Practice De-
tain matters of defense-Affidavit raising fective statement on appeal from magis.
question of law-Practice Act of May trate-Amendment-Rule to arbitrate-
14, 1915, P. L. 483.

Acts of Jwe 16, 1836, P. L. 719, May

14, 1815, P. L. 483, and April 10, 1921,
Where rule to strike off a plaintiff's
statement was discharged and the time for

--CROYLE V. GROFF & WOLF CO., 95
filing an affidavit of defense extended fifteen
days to file an affidavit of defense, and with-

Practice, C. P.-Plaintiff's statement
in that time the defendant filed an affidavit --Goods sold and delivered-Book ac-
raising a point of law, a judgment subse-count without dates or descriptive items
quently entered for want of an affidavit of -Affidavit of defense in lieu of demur.
defense is improperly entered and should be
stricken off.

-DOMBROWSKI V. WALCZLGLOWA, 122
It is not necessary for a statement to set
forth whether the plaintiff is a foreign or do- Ieral averiments of negligece Striking

Pleadings-Plaintiff's statement-Gen-
mestic corporation or that one of the defend-

off statement.
dants is a married woman and the wife of

-STICK V. GROVE, 164
the other defendant or whether or not she
signed the note on which suit is brought as

PLEADING.
surety, nor is it necessary for the plaintiff to
state that the note was protested in order to Pleading Affidavit of defense
hold the makers. These are all matters of Counter claim.
defense.

The defendant's set off or counter claim is
-WAGNER BROS. CO. V. DOUGLAS, 131

to be regarded as his statement of claim, and
Practice Plaintiff's statement Un- can be attacked for want of necessary aver-
certaintyInterlineations-Striking off.

the same way that an original
A plaintiff's statement which avers that statement can be attacked.
the plaintiff sold to the defendant twenty An affidavit of defense setting up a count.
car loads of goods, on terms allowing the de. er claim which is not sufficiently full or pre-
fendant a discount of two per cent, if pay-cise to enable a proper reply and the forma-
ment is made within ten days; that defend- ' tion of a definite issue will be stricken off

a

P. L. 144.

rer.

ments

in

under the authority contained in Section 21 fense set up thereto; and where the defense
of the Practice Act of 1915, P. L. 483.

includes alleged contacts and arrangements
-BRUBAKER V. KOLLER, 9

between the parties, followed by a series of
PleadingsForeign judgments-Pre- transactions, which resulted in changed busi-

ness relations and financial obligations from
sumption of residence-Service of pro- those set forth in the plaintiff's statement,
Cess-Act of Aprii 14, 1851.

some latitude must be allowed in setting the
In an action upon the judgment of a court same forth in pleadings.
of a sister state, it is not necessary to aver Paragraphs which set forth lump charges
in the statement of claim that defendant did | and claims for damages, without properly
in fact reside within the jurisdiction of the itemizing the same or giving in sufficient de-
court in which the judgment was rendered, tail the facts upon which they are based, are
where the transcript of the sheriff's return defective; and an afidavit of defense con-
of the summons shows service by leaving a

taining such paragraphs in a counter-claim
copy at the defendant's residence. This

was stricken off.
raises a presumption that defendant was a

-REICHARD V. PARIS, 125
resident within the jurisdiction of the court
at the time suit was instituted and the pro-

Pleading and practice--Administrator
cess served.

- lction in trespassNegligence-Act
Act of April 14, 1851, P. L. 612, considered. of April 26, 1855, P. L. 309, and Fiduci-
-QUINN V. REED, 91

aries Act of 1917, P. L. 504, Section 35.
Pleading and practice-Rule for more An administrator cannot maintain an ac-
specific averments of facts-Judgment tion in trespass for damages for the death of
of non pros for failure to file a more spe- his decedent by the alleged negligence of de-
cific plaintiff's statement

fendant. The Act of April 26, 1855, P. L. 309,

is not disturbed by the 35th Section of the
Where, after a motion to strike off a plain- Fiduciaries Act of 1917, P. L. 504.
tiff's statement, the court held the statement -CONROY V. WEISBROD, 136
sufficient, and indicated that if the defendant

Pleadings-Plaintiff's statement-Gen-
should deem the statement not sufficiently

eral averments of negligence-Striking
explicit, application may be made for more
specific averment of facts, and defendant off statement.
made such application, and the plaintiff in In an action of trespass founded on negli-
answer to a rule granted on the defendant's gence, the plaintiff's statement should in-
application gave the information requested, form the defendant just what acts or omis-
the defendant is not entitled to judgment of sions the plaintiff charges him with, so that,
non proson the ground that the plaintiff if the allegations of the acts or omissions are
failed to file a more specific statement in ac not true, the defendant can deny or explain
cordance with the rule granted.

them by such evidence as he can produce.
-HERSHEY V. YORK WATER CO., NO. 2, 121

The Practice Act of 1915, P. L. 483, re-
Pleading-Allegation defined-Mater-quires that the plaintiff must give by his
ial allegations-zinswering paragraph in statement to the defendant fair notice of all
affidavit of defenseLump charges and he expects to prove agianst him.

A plaintiff's statement in which the neglig-
claims for damages-Striking off affida-

ence charged was averred in general terms,
vit of defense.

without particulars, was stricken off.
An allegation, in the technical sense -STICK V. GROVE, 164
which the word is used in the statute pre-

Mechanic's lien--Pleading-Rescission
scribing the form of pleadings, is the asser-

of sale-Set-off-Affidavit of defense.
tion, declaration or statement of a party to

-BLAEBAUM V. JULIUS, 149
an action made in a pleading setting out
what he expects to prove.

Guarantors, liability to one another for
The statute, however, limits the pleader to contribution - Position at trial conclu-
the making of “material allegations,” which, site-Evidence to vary a written instru-
in an affidavit of defense, should consist only ment-Review of refusal to strike off
of such pertinent and material facts as may zerbose pleadings.
constitute a proper defense in answer to the

-KAUFFMAN'S APPEAL, 161
corresponding paragraph of the plaintiff's
statement. Such an answering paragraph PLEADING AND PRACTICE.
may, therefore, include many facts, and may
be more or less extended, according to the

Afidavit of defense Pleading and
nature of the plaintiff's claim and of the de- practice-Replevin-Statement of claim

in

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