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-Anticipation-Demurrer-Damages

Judgment for want of an affidavit of de-
Oath-Act of 1901 Practice Act of fense will be stricken off where before the

return day of the summons defendant was
1915.

granted a rule on plaintiff to show cause
An affidavit of defense in the nature of a

why security for costs should not be given,
demurrer under the Practice Act of 1915 has

which rule provided that all proceedings
no place in replevin. The pleadings in re-

should be stayed pending the determination
plevin are governed by the Act of 1901 and

of the said rule and until ten days after no-
its amendments. A common law demurrer

tice to defendant or his attorney of entry
may yet be filed in such cases, but this is a

of security, and where the judgment was
dilatory plea and must be supported by a
proper affidavit as provided for in Amended taken without the notice required in said

rule.
Court Rule No. 137.

-COLT COMPANY V. SHIRK, 5
A statement of claim in replevin shall be
verified by oath and shall consist of a con-

Practice-Security for costs -- Non-
cise statement of plaintiff's demand setting

resident-Court rule.
forth the facts upon which his title to the

A non-resident plaintiff' will not be
goods and chattels is based. The lease forms quired to give security for costs on a peti-

part of plaintiff's statement, and the tion filed by defendant after action has been
matter of damages claimed for the violation
of planitiff's rights under it may only be set tion for judgment on the pleading, been duly

tissue nearly three years and gone to a mo-
up in his reply to defendant's affidavit of de-
fense. Amended Court Rule No. 139 must be argued by counsel and submitted to the court
adherd to. Demurrer sustained with leave

for decision.
to amend.

Application for security for costs should
-DIEDRICK V. RUSSELL & CO., ET AL., 55 be made without laches and generally be-

fore issue joined.
PLUT BERS.

Allegation of the mere fact of plaintiff's
Taxution Mercantile license tax non-residence does not conform to Rule No.
Act 2 May, 1899, P. L. 18.1 Act70, of the Court of Common Pleas of Lacka-
9 April, 1870, P. L. 59--Plumbers.

wanna County, which requires an affidavit

that the party "has a just defense against
-MILLER'S APPEAL, 202

the whole of plaintiff's demand."

-LEONARD SEED CO. V. LUSTIG BURGERHOF
POLLING PLACE.

CO., 8
ElectionsPolling place--Petition to Practice-Trespass-Plaintiff's state-
change--Quarter sessions court-County ment- Iffidavit of defense not required
commissioners Jurisdiction Acts of | - Motion to strike off, when too late,
1895, 1903 and 1919.

service of copy.
-IN RE POLLING PLACE, 107

Under the provisions of the Practice Act

of 1915, P. L. 463, it is not necessary to
POSSESSION

file an affidavit of defense in an action of
Sheriff's sale, Act 20 April, 1905, P. trespass; and, therefore, judgment for want
L. 239Purchaser's right to possession of an affidavit of defense can not be taken
--Landlord and tenant.

in such an action.
-RINES ET AL., V. DeGEORGE, 175

If the allegations of fact are not clear

enough to enable the defendant sufficiently
POWERS.

to prepare evidence to meet them at the
Directors of the Poor of York Coun- trial, he may apply for a rule for a more
tyPowers-Acts of February 6, 1804, specific statement.
4 Sm. L. 113, and of April 17, 1866, P. Under the Act of May 23rd, 1923, P. L.
L. 110.

325, amending the Practice Act of 1915, a
-WILLIS V. DIRECTOR OF THE POOR OF YORK motion to strike off a plaintiff's statement
CO., 197.

made

than 15 days after the

copy of the statement was served on the
PRACTICE.

defendant or his counsel, is too late to be

effective.
Practice -- Rules of court -- Rule to

A copy of a motion to strike off a plain-
strike off judgment for want of affidavit
of defense-Rule for security for costs tiff or his counsel.

tiff's statement must be served on the plain-

.
-Notice to counsel.

-PRENTZEL, TRUSTEE V. SNYDER, 25

more

are

Practice- ction against surety- Practice, C. P.--Court may postpone
Demurrer-- Affidavit of defense-Post- decision of legal questions raised by sta-
ponement of case of law raised by de- tutory demurrer until after jury trial-
murrer until after jury trial.

Practice Act of May 14, 1915.
When a question of law in the nature of

When a question of law in the nature of a
a demurrer is raised by the affidavit of demurrer is raised by the affidavit of de-
defense and the matter is brought before rense and the matter is brought before the
the court for disposition, under Section 20 court for disposition, under Section 20 of
of the Practice Act of 1915 the court may the Practice Act of May 14, 1915, P. L. 483,
postpone decision on the questions of law the court may post pone decision of the ques-
until after the issues of fact are determined tions of law until the issues of fact shall
by a jury. This is a proper exercise of have been determined by a jury. This is a
the discretion of the court as it affects the proper exercise of the discretion of the court,
order of procedure but not the rights of the as it affects the order of procedure, but not
parties.

the rights of the parties.
-AMERICAN SURETY COMPANY V. McSPAD-

-AMERICAN SURETY COMPANY OF NEW YORK

V. MeSPADDEN, 87
DEN, 44
Practice, C. P.--Appeals from justice Practice-Rule to take deposition of
--Pleading Plaintiff's statement

witnesses out of the Commonwealth-
Striking off - <1 ffidavit--:1cts of April Requirements of petition for such rule-
14, 1921, P. L. 144, and May 14, 1915, Distance of place of taking testimony
P. L. 483

from parties.
The Act of April 14, 1921, P. L. 144, amend-

The petition for a rule to take depositions
ing the Practice Act of May 14, 1915, P. L.

of witnesses outside of the Commonwealth
483, so as to include appeals from justices on a rule instead of upon a commission and
of the peace, and thereby providing for a interrogatories must show that the witnesses
plaintiff's statement and affidavit of defense

out of the Commonwealth, and make
on such appeals, will be liberally construed. known the nature of the testimony and its

A plaintiff's statement of claim, on an ap- / relevancy to the issue in the case, so that
peal from a justice of the peace, will not be the opposite party may admit the same, if

the facts are not disputed.
stricken from the record, because the affida-
vit is made upon information and belief The distance the opposite party

his
without an averment of an expectation to be counsel would be required to travel to the
able to prove the facts alleged.

i lace of taking the testimony for the pur-
Schleicher v Hunsicker, 10 Leh. C. L. J..pose of cross-examining the witnesses, is an

clement that the court will consider in de-
181, followed.

Termining whether such a
--KUREY V. KOCZENOCZ, 51

rule should be

ranted.
Practice, C. P. - Counter claim -

-FURBY V. PENNSYLVANIA RAILROAD CO., 89
Waiver of tort.

Plaintiff's statement Practice
A claim sounding in tort, arising out of a

fective statement on appeal from magis-
different transaction, cannot be set up as a

trate-Amendment-Rule to arbitrate-
counter-claim to plaintiff's claim founded in

Acts of June 10, 1836, P. L. 719, May
assumpsit.

14, 1815, P. L. 483, and April 10, 1921,
In an action for commissions as agent for
sale of hides and skins, the defendant cannot
set up as a counter-claim the value of cer-

A statement filed on appeal from the judg-
tain leather which plaintiff, while in the em- ment of an alderman, which does not have
ploy of defendant, shipped without authority on it the endorsement required by Section 10
to another, the price of which proved uncol- of the Practice Act of 1915, is defective and
lectible.

the Act of 1915 applies, although after the
Plaintiff may waive a tort, but only when filing of the statement the plaintiff took out
the goods have been actually converted into a rule to arbitrate under the Act of June 16,
money by the wrongdoer or the circum- 1826, which is still pending. The court, how-
stances are such as to raise a presumption cver, in such case will allow the statement to
that he has done so.

he amended.

-CROYLE V. GROFF & WOLF CO., 95
Section 14, of the Practice Act of May 14,
1915, P. L. 483, provides for a set-off or Practice, C. P.-Plaintiff's statement
counter-claim of any right claim for

-Goods sold and delivered-Book ac-
which an action of assumpsit would lie.
-FREY V. LEHIGH VALLEY SHOE CO., 86

count without dates or descriptive items

or

De-

P. L. 144.

or

1111 -

-- Affidavit of defense in lieu of demu On scire facias on a municipal lien for the
rer.

cost of laying a pavement, the defendant may

set off a claim for damages sustained by rea-
Plaintiff sued for the value of a quantity son of the acts of the plaintiff's agents and
of bread, groceries and meats sold defendant employees in laying the same pavement.
at the latter's special instance and request, This is not an action of assumpsit, but a
averring that the prices charged were rea-

statutory proceeding under the Act of May
sonable and that defendant promised to pay 14, 1915, P. L. 312; and section 14 of the
such prices; and attached to his statement a Practice Act of May 14, 1915, P. L. 483, pro-
copy of book entries which disclosed nothing viding that only claims recoverable in as-
but a collection of figures. Defendant filed sumpsit can be set off in an action of as-
an affidavit of defense in lieu of demurrer sumpsit does not apply.
claiming that the copy of the book account

In such case, the application to strike off
was insufficient in law to charge the defend the defendant's counter-claim should be made
ant. Held: that the action was founded on

promptly and before the filing of the reply
the implied contract to pay for the goods de- thereto.
livered by the plaintiff and not upon the -NEW HOLLAND BOROUGH V. RANCK, OWN-

ER, ETC., 158
book account; and that the question whether
or not the alleged copy of book entries would Practice Act of May 14, 1915, P.
be admissable in evidence on the trial of the

783Trespass-Set off-Counter claim.
case is not raised by the present rule.
-DOMBROWSKI V. WALCZLGLOWA, 122

There is no provision in the Practice Act

of May 14, 1915, P. L. 483, relating to counter
Practice, I. P.-Attachment execution claims in actions of trespass.
- Judgment--Act of April 15, 1845.

It is true that matters sounding in tort
Section 5 of the Act of April 15, 1845, P., may be taken advantage of when they arise
L. 459, provides that in an action proceeded out of the same transaction, but when the
with in the usual way by summons, hearing, defendant denies the plaintiff's right of ac-
judgment, execution, return of "no goods" tion, it follows that there can be not counter
and then an attachment execution if the claim.
garnishee admits possession or control of -H, W. MUSSER V. WATT & SHAND, 176
property of the defendant, judgment may be
entered specially to be levied out of the ef-

Pleading and practice-motion to
fects in the hands of the garnishee, or so amend after entering judgment for part
much of the same as may be necessary to of claim-- Affidavit to amended state-
pay the debt and costs.

nient.
Judgment against the garnishee generally

Plaintiff's motion to amend a statement of
is not in compliance with the act, and will

claim in assumpsit, after entering judgment
be reversed upon certiorari.

on the amount admitted to be due in the af-
-SHAPRIS V. PASKAWITCH, 126

fidavit of defense, was refused, as he had al-
Practice-Trial -- Verdict Variance leged a state of facts to which the defend-
between oral and written verdict--Erron- ant agreed, admitting liability by reason of
eous verdict--New trial.

that state of facts, and the plaintiff cannot

be allowed to amend his statement and set
A verdict rendered by the jury orally at

up a state of facts inconsistent not only with
the bar and recorded by the court, cannot be

his former allegations, but also with his
controlled by the written verdict handed in

acting upon them in court by entering a
by the jury at the same time.

judgment founded thereon.
Where a verdict is palpably wrong and the

An assignee's affidavit to a motion to
error shown to exist with certainty by ref-

amend a plaintiff's statement of claim was
erence to the written verdict, the discretion
of the court will be properly exercised by held invalid where the assignment was made
looking at the written verdict for explana- after the happening of all the material mat-

ters averred in the statement, and did not
tion of that error.

show what means of knowledge he had or
An erroneous verdict which defies correc-

why the plaintiff himself did not make the
tion by the record is ground for a new trial.

a fidavit.
-MERRITT ET AL V, BECKER, 147

-COURY, ETC. V. STANDARD FIRE INSURANCE

CO., 188
Practice -- Municipal lien - Counter-
claim for damages in trespass-When Practice- Affidavit of defense raising
counter-claim will not be stricken off questions of lawConsolidation of ac-
Acts of May 4, 1915, and May 28, 1915. tions.

a

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If the question of law raised by an affida- forth in the statement; and plaintiff's
vit of defense amounts, in effect, to a de- statement which contained only such general
murrer, it should be treated; if it averments was stricken off.
amounts to a plea in abatement or a plea in

--AUTOMOTIVE STORES CORPORATION V.

LEACHEY, 205
bar, a special plea, or any other technical
plea under the common law system of plead-

Suit by fictitious namie--Mechanics'
ing, it must now be treaetd as a “question lien - Affidavit of defense

Practice-
of law," and adjudged accordingly.

Acts of me 4, 1915, June 28, 1917, and
Where two actions were brought, one by
the husband and the wife, for damages re-

May 10, 1921.

-TRISSLER ELECTRICAL SHOP V. WRIGHT, 2
sulting from the alleged injury of the wife,
in an automobile collision, and another for Intoricating liquors-Plaintiff's state-
injuries sustained by the husband in the ment-Contracts-Illegal contract-Vio-
same collision, and the matter was brought lation of liquor lacus Statement
before the court by affidavits of defense rais- claim-Practice, C. P.-Affidavit of de-

of
ing questions of law, the court ordered one
of the actions discontinued, with leave to the fence-Merits and law-Štatement

of

claim.
plaintiffs to reform the pleadings in the
other so as to include their separate claims

-FRITZ ET UX. V. McGEEHAN, 45
for damages.
-WINDER ET AL. V. LUKACHER, 189

Pleading and practice-Rule for more

specific azerments of facts-Judgment
Practice -- Sheriff's inter pleader of non pros for failure to filc a more spe-
Statement-ilot of Vlay 26, 1897, P. I. cific plaintiff's statement.
95.

-HERSHEY V. YORK WATER CO., NO. 2, 121
Where a plaintiff in a sheriff's interpleader

Plaintiff's statements-Need not con-
fails to file a statement within two weeks

tain matters of defense-Affidavit raising
after the issue has been awarded as required
by the Act of May 26, 1897, P. L. 95, but he question of low-Practice "Act of May
subsequently files it, the defendant is not en- 14, 1915, P. L. 183.
titled, after it is filed, to have it stricken off -WAGNER BROS. CO. V. DOUGLAS, 131
and a non-suit entered.

Pleading and practice-Administrator
-SPRECHER ET AL., V. KENNEDY ET AL., 191

-- Action in trespass-N cgligence-Act
Practice, C. P.-Partnership--Service of April 26, 1855, P. L. 309, and Fiduci-
- Judgment--Transcript-.Jurisdiction. aries Act of 1917, P. L. 504, Section 35.
In a suit against a copartnership, there is

-CONROY V. WEISBROD, 136
no authority in law to serve one of the part-
ners outside of the county where suit is in-

Practice-New trial on court's own
stituted.

motion.

-AMERICAN INSULATION CO., INC. V. BEST, 140
On an exemplified transcript of a judg-
ment against all of the partners, under

Pleading and practice-Equity-Eject-
service of one as aforesaid, entered in the

went Title to real estate Foreign
court of common pleas of another county, the
transcript judgment was stricken off and all judgment-Lien-Creditor's bill.

-AMERICAN TRUST CO., V. KAUFMAN, 160
process issued thereunder was set aside.
-FRISBIE LUMBER CO.

KRATZER,
AL., 194

Practice -- Plaintiff's statement-Un-
Plaintiff's statement Sufficiency

certaintyInterlineations-Striking off.

-PENN PAPER STOCK CO. V. YORK PAPER
General azerments--- 4werments of con- MAN'F'G. CO., 177
clusion of law.

Practice-Foreign attachment-Affida-
In an action by a corporation for the price

vit of cause of action.
of stock alleged to have been sold to the de-
fendant, an averinent that the plaintiff ac- -WARNER V. LEVINE, 180
cepted the defendant's subscription and de-

Landlord and tenant-Duty of land-
livered to him the stock is an expression of

lord to repair Practice - Set-off or
a conclusion of law based on facts not dis-

Demurrer

counter-claim
closed; the defendant is entitled to know by

Motion to
what party, when and where the alleged ac-

strike off-Notice to be endorsed-Cop-
ceptance and delivery are alleged to have its of contracts-Practice Act of May
been made; and if the acceptance was

14, 1915, P. L. 483.
writing a copy of the same should be set -DAVIS V. GREGG, 182

a

V.

ET

in

FOR

EX

REL

WOLFE

V.

LE-

PRESUMPTION.

P. L. 677-Repeal of one Act by another
Pleadings-Forcign judgments-Pre-

by implication.
-PETITION OF WINTON BOROUGH

DE-
sumption of residence-Service of pro- CLARATORY JUDGMENT, 27
cess-Act of April 14, 1851.
-QUINN V. REED, 91

REPLEVIN.
QUO WARRANTO.

Replevin -- Affidavit of value --Evi-

dence-Prothonotar y-New trial.
Elections - Township school board -
Certificate of election-School Code, Sec. mit as prima facie proof of value of the

In replevin, it was reversible error to ad-
222_Q110 warranto.

articles replevied, the affidavit which the
-COMMONWEALTH
VAN, 132

plaintiff filed on a precipаe for writ of re-
plevin. The purpose of an affidavit of value

in an action of replevin is merely to inform
RAPE.

the prothonotary as to the amount of the
Criminal lazıStatutory rape-Age of bond demanded.

-KRELL V. WINGEROT, ET AL. 36
defendant-Proof of.
--COMMONWEALTH V. KINARD, 97

Affidavit of defense -- Pleading and

practice-Repletin-Statement of claim
REAL ESTATE.

- Anticipation-Demurrer-Damages
Real estate Contracts ---- Indefinite Oath-Act of 1901 Practice Act of
contract-Specific performance-Equity 1915. .

-DIEDRICK V. RUSSELL & CO., ET AL., 55
-Statute of frauds and perjuries.
A court of equity will not enforce the spe.

RES ADJUDICATA.
cific performance of a contract to convey
real estate, where said contract, being a mere Res adjudicata--Salary--Payments--
receipt for the down money, describes the Separate actionsConclusive as to sub-
property merely by number and street, with-

sequent installments.
out designating a city or town.
-CASSONE V. WINTER, 78

A rule for judgment for want of a suffici-
affidavit of defense

discharged,
Dcccdents' Estates Administration

where the action was based on an agreement
account-Source of money in hands of to pay a salary in installments and it ap-
administrator-Authority of administra- peared that a previous action on another in-
tor to sell real estate.

stallment had been decided in favor of de-
-ESTATE OF GEORGE W. FARQUHAR, 20

fendant. This was conclusive as to subse-
Contract for the sale of real estate quent installments and barred plaintiff's re-
modified by oral agreement-Statute of

-HULSMAN V. BROOKLINE DISTRICT NO. 506,
frauds.
-HAMMER V. GROVE, 29

Attorney and client-Purchase of reil RESIDENCE.
estate by attorney in erecution-Eject-

Pleadings-Forcign judgments-I're-
ment by client-Statute of limitations--sumption of residence-Service of pro-
elets of April 22, 1850, March 27, 1865. cess-Act of April 11, 1851.
and Jwe 12, 1919.

-QUINN V. REED, 91

ent

was

covery.

ETC. 64

-BELL V. PARRELL ET AL., 118

Pleading and practice-Equity- Eject- ROADS.
ment Title to real estate Foreign

Roads Terminus at railroad station
judgment-Lie-Creditor's bill.

-- Necessity for road--Il'idth of road.
--AMERICAN TRUST CO., V. KAUFMAN, 160

A terminus of a public road may be at a
REPEJL BY IMPLICATION.

railroad station.

The decision of viewers appointed to view
Declaratory judgment-Power of bor-

a proposed public road that there is neces-
ough to patie street without petition of sity for a road is conclusive on exceptions to
abuitting property owner-acts of May their report, unless plain error of judgment
14. 1915, P. 1.. 312, and June 7, 1923. I is established by testimony.

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