Judgment for want of an affidavit of de-
-Anticipation-Demurrer-Damages Oath-Act of 1901 - Practice Act of fense will be stricken off where before the
An affidavit of defense in the nature of a
demurrer under the Practice Act of 1915 has no place in replevin. The pleadings in re- plevin are governed by the Act of 1901 and its amendments. A common law demurrer may yet be filed in such cases, but this is a dilatory plea and must be supported by a proper affidavit as provided for in Amended Court Rule No. 137.
A statement of claim in replevin shall be verified by oath and shall consist of a con- cise statement of plaintiff's demand setting forth the facts upon which his title to the goods and chattels is based. The lease forms no part of plaintiff's statement, and the matter of damages claimed for the violation of planitiff's rights under it may only be set up in his reply to defendant's affidavit of de- fense. Amended Court Rule No. 139 must be adhered to. Demurrer sustained with leave to amend.
-DIEDRICK V. RUSSELL & CO., ET AL., 55
return day of the summons defendant was granted a rule on plaintiff to show cause why security for costs should not be given, which rule provided that all proceedings should be stayed pending the determination of the said rule and until ten days after no- tice to defendant or his attorney of entry of security, and where the judgment was taken without the notice required in said rule.
-COLT COMPANY V. SHIRK, 5
Practice-Security for costs - Non- resident-Court rule.
A non-resident plaintiff will not be re- quired to give security for costs on a peti- tion filed by defendant after action has been t issue nearly three years and gone to a mo- tion for judgment on the pleading, been duly argued by counsel and submitted to the court
Application for security for costs should be made without laches and generally be- fore issue joined.
Allegation of the mere fact of plaintiff's non-residence does not conform to Rule No.
70, of the Court of Common Pleas of Lacka- wanna County, which requires an affidavit that the party "has a just defense against the whole of plaintiff's demand." -LEONARD SEED CO. V. LUSTIG BURGERHOF CO., 8
Practice-Trespass-Plaintiff's state- ment-Affidavit of defense not required |—Motion to strike off, when too late, service of copy.
Under the provisions of the Practice Act of 1915, P. L. 463, it is not necessary to file an affidavit of defense in an action of
trespass; and, therefore, judgment for want of an affidavit of defense can not be taken
If the allegations of fact are not clear enough to enable the defendant sufficiently to prepare evidence to meet them at the
trial, he may apply for a rule for a more specific statement.
Under the Act of May 23rd, 1923, P. L. 325, amending the Practice Act of 1915, a motion to strike off a plaintiff's statement made more than 15 days after the copy of the statement was served on the defendant or his counsel, is too late to be effective.
A copy of a motion to strike off a plain- tiff's statement must be served on the plain-
Practice Rules of court Rule to strike off judgment for want of affidavit of defense-Rule for security for costs tiff or his counsel.
-PRENTZEL, TRUSTEE V. SNYDER, 25
against surety- Practice, C. P.-Court may postpone decision of legal questions raised by sta- tutory demurrer until after jury trial- Practice Act of May 14, 1915.
Practice-Action Demurrer-Affidavit of defense-Post- ponement of case of law raised by de- murrer until after jury trial.
When a question of law in the nature of a demurrer is raised by the affidavit of defense and the matter is brought before the court for disposition, under Section 20 of the Practice Act of 1915 the court may postpone decision on the questions of law until after the issues of fact are determined by a jury. This is a proper exercise of the discretion of the court as it affects the order of procedure but not the rights of the parties. -AMERICAN
SURETY COMPANY V. McSPAD-
Practice, C. P.--Appeals from justice --Pleading Plaintiff's statement Striking off-Affidavit-Acts of April 14, 1921, P. L. 144, and May 14, 1915, P. L. 483.
The Act of April 14, 1921, P. L. 144, amend- ing the Practice Act of May 14, 1915, P. L. 483, so as to include appeals from justices of the peace, and thereby providing for a plaintiff's statement and affidavit of defense on such appeals, will be liberally construed.
A plaintiff's statement of claim, on an ap- peal from a justice of the peace, will not be stricken from the record, because the affida- vit is made upon information and belief without an averment of an expectation to be able to prove the facts alleged.
When a question of law in the nature of a demurrer is raised by the affidavit of de- fense and the matter is brought before the court for disposition, under Section 20 of the Practice Act of May 14, 1915, P. L. 483, the court may postpone decision of the ques- tions of law until the issues of fact shall have been determined by a jury. This is a proper exercise of the discretion of the court, as it affects the order of procedure, but not the rights of the parties.
-AMERICAN SURETY COMPANY OF NEW YORK V. MCSPADDEN, 87
Practice-Rule to take deposition of witnesses out of the Commonwealth— Requirements of petition for such rule- Distance of place of taking testimony from parties.
The petition for a rule to take depositions of witnesses outside of the Commonwealth on a rule instead of upon a commission and interrogatories must show that the witnesses are out of the Commonwealth, and make known the nature of the testimony and its relevancy to the issue in the case, so that the opposite party may admit the same, if the facts are not disputed.
The distance the opposite party or counsel would be required to travel to the Ilace of taking the testimony for the pur-
Schleicher v Hunsicker, 10 Leh. C. L. J. Pose of cross-examining the witnesses, is an 181, followed.
-KUREY V. KOCZENOCZ, 51
Practice, C. P.-Counter claim
'element that the court will consider in de- termining whether such a rule should be ranted.
-FURBY V. PENNSYLVANIA RAILROAD CO., 89
Plaintiff's statement Practice - De- A claim sounding in tort, arising out of a fective statement on appeal from magis-
different transaction, cannot be set up as a counter-claim to plaintiff's claim founded in assumpsit.
trate-Amendment-Rule to arbitrate- Acts of June 16, 1836, P. L. 719, May
In an action for commissions as agent for 14, 1815, P. L. 483, and April 10, 1921, P. L. 144.
sale of hides and skins, the defendant cannot set up as a counter-claim the value of cer- tain leather which plaintiff, while in the em- ploy of defendant, shipped without authority to another, the price of which proved uncol- lectible.
Plaintiff may waive a tort, but only when the goods have been actually converted into money by the wrongdoer or the circum- stances are such as to raise a presumption that he has done so.
A statement filed on appeal from the judg- ment of an alderman, which does not have on it the endorsement required by Section 10 of the Practice Act of 1915, is defective and the Act of 1915 applies, although after the filing of the statement the plaintiff took out a rule to arbitrate under the Act of June 16, 1826, which is still pending. The court, how- ever, in such case will allow the statement to be amended.
-CROYLE V. GROFF & WOLF CO., 95
Practice, C. P.-Plaintiff's statement -Goods sold and delivered-Book ac- count without dates or descriptive items
-Affidavit of defense in lieu of demur-
Plaintiff sued for the value of a quantity of bread, groceries and meats sold defendant at the latter's special instance and request, averring that the prices charged were rea- sonable and that defendant promised to pay such prices; and attached to his statement a copy of book entries which disclosed nothing but a collection of figures. Defendant filed an affidavit of defense in lieu of demurrer claiming that the copy of the book account was insufficient in law to charge the defend- ant. Held: that the action was founded on the implied contract to pay for the goods de- livered by the plaintiff and not upon the book account; and that the question whether or not the alleged copy of book entries would be admissable in evidence on the trial of the case is not raised by the present rule. -DOMBROWSKI V. WALCZLGLOWA, 122
On scire facias on a municipal lien for the cost of laying a pavement, the defendant may set off a claim for damages sustained by rea- son of the acts of the plaintiff's agents and employees in laying the same pavement.
This is not an action of assumpsit, but a statutory proceeding under the Act of May 14, 1915, P. L. 312; and section 14 of the Practice Act of May 14, 1915, P. L. 483, pro- viding that only claims recoverable in as- sumpsit can be set off in an action of as- sumpsit does not apply.
In such case, the application to strike off the defendant's counter-claim should be made promptly and before the filing of the reply thereto.
-NEW HOLLAND BOROUGH V. RANCK, OWN- ER, ETC., 158
Practice Act of May 14, 1915, P. L. 483-Trespass-Set off-Counter claim.
There is no provision in the Practice Act of May 14, 1915, P. L. 483, relating to counter
Practice, J. P.-Attachment execution claims in actions of trespass. -Judgment--Act of April 15, 1845.
Section 5 of the Act of April 15, 1845, P. L. 459, provides that in an action proceeded with in the usual way by summons, hearing, judgment, execution, return of "no goods" and then an attachment execution if the garnishee admits possession or control of property of the defendant, judgment may be entered specially to be levied out of the ef-
fects in the hands of the garnishee, or so much of the same as may be necessary to
pay the debt and costs.
Judgment against the garnishee generally is not in compliance with the act, and will be reversed upon certiorari. -SHAPRIS V. PASKAWITCH, 126
It is true that matters sounding in tort may be taken advantage of when they arise out of the same transaction, but when the defendant denies the plaintiff's right of ac- tion, it follows that there can be not counter claim.
-H. W. MUSSER V. WATT & SHAND, 176
Pleading and practice-motion amend after entering judgment for part of claim-Affidavit to amended state-
Plaintiff's motion to amend a statement of claim in assumpsit, after entering judgment on the amount admitted to be due in the af- fidavit of defense, was refused, as he had al- 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.
A verdict rendered by the jury orally at the bar and recorded by the court, cannot be controlled by the written verdict handed in by the jury at the same time.
Where a verdict is palpably wrong and the error shown to exist with certainty by ref- erence to the written verdict, the discretion of the court will be properly exercised by looking at the written verdict for explana- tion of that error.
An erroneous verdict which defies correc- tion by the record is ground for a new trial. -MERRITT ET AL V. BECKER, 147
claim for damages in trespass-When
that state of facts, and the plaintiff cannot be allowed to amend his statement and set up a state of facts inconsistent not only with his former allegations, but also with his acting upon them in court by entering a judgment founded thereon.
An assignee's affidavit to a motion to amend a plaintiff's statement of claim was held invalid where the assignment was made after the happening of all the material mat- ters averred in the statement, and did not show what means of knowledge he had or why the plaintiff himself did not make the affidavit.
-COURY, ETC. V. STANDARD FIRE INSURANCE CO., 188
Practice Affidavit of defense raising
counter-claim will not be stricken off-questions of law-Consolidation of ac- Acts of May 4, 1915, and May 28, 1915. tions.
If the question of law raised by an affida- vit of defense amounts, in effect, to a de- murrer, it should be so treated; if it amounts to a plea in abatement or a plea in bar, a special plea, or any other technical plea under the common law system of plead-
forth in the statement; and a plaintiff's statement which contained only such general averments was stricken off. -AUTOMOTIVE STORES CORPORATION V. LEACHEY, 205
ing, it must now be treaetd as a "question lien - Affidavit of defense
Suit by fictitious name-Mechanics' Practice-
of law," and adjudged accordingly.
Where two actions were brought, one by the husband and the wife, for damages re- sulting from the alleged injury of the wife,
Acts of June 4, 1915, June 28, 1917, and May 10, 1921.
-TRISSLER ELECTRICAL SHOP V. WRIGHT, 2
in an automobile collision, and another for Intoxicating 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 lazes Statement of before the court by affidavits of defense rais- claim-Practice, C. P.-Affidavit of de- fence-Merits and law-Statement of
ing questions of law, the court ordered one
of the actions discontinued, with leave to the
plaintiffs to reform the pleadings in the other so as to include their separate claims for damages.
-WINDER ET AL. V. LUKACHER, 189
Practice Sheriff's inter pleader Statement Act of May 26, 1897, P. L. 95.
Where a plaintiff in a sheriff's interpleader fails to file a statement within two weeks after the issue has been awarded as required
-FRITZ ET UX. V. McGEEHAN, 45
Pleading and practice-Rule for more specific averments of facts-Judgment of non pros for failure to file a more spe- cific plaintiff's statement.
-HERSHEY V. YORK WATER CO., NO. 2, 121
Plaintiff's statements-Need not con- tain matters of defense-Affidavit raising by the Act of May 26, 1897, P. L. 95, but he question of law-Practice Act of May
subsequently files it, the defendant is not en- titled, after it is filed, to have it stricken off and a non-suit entered.
-SPRECHER ET AL., V. KENNEDY ET AL., 191
Practice, C. P-Partnership-Service -Judgment-Transcript-Jurisdiction.
In a suit against a copartnership, there is no authority in law to serve one of the part- ners outside of the county where suit is in- stituted.
On an exemplified transcript of a judg- ment against all of the partners, under a service of one as aforesaid, entered in the
14, 1915, P. L. 483.
-WAGNER BROS. CO. V. DOUGLAS, 131
Pleading and practice-Administrator --Action in trespass-Negligence—Act of April 26, 1855, P. L. 309, and Fiduci- aries Act of 1917, P. L. 504, Section 35.
-CONROY V. WEISBROD, 136
Practice-New trial on court's own
-AMERICAN INSULATION CO., INC. V. BEST, 140
Pleading and practice-Equity-Eject-
court of common pleas of another county, thement - Title to real estate transcript judgment was stricken off and all judgment-Lien-Creditor's bill.
process issued thereunder was set aside. -FRISBIE LUMBER CO. V. KRATZER, ET AL., 194
Plaintiff's statement General averments-Averments of con- clusion of law.
In an action by a corporation for the price
-AMERICAN TRUST CO., V. KAUFMAN, 160
Practice Plaintiff's statement-Un- certainty-Interlineations-Striking off.
-PENN PAPER STOCK CO. V. YORK PAPER MAN'F'G. CO., 177
Practice-Foreign attachment-Affida-
of stock alleged to have been sold to the de- vit of cause of action.
fendant, an averinent that the plaintiff ac- cepted the defendant's subscription and de- livered to him the stock is an expression of a conclusion of law based on facts not dis- closed; the defendant is entitled to know by what party, when and where the alleged ac-
Landlord and tenant-Duty of land- lord to repair Practice Set-off or counter-claim Demurrer Motion to
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 in writing a copy of the same should be set
14, 1915, P. L. 483.
-DAVIS V. GREGG, 182
Replevin-Affidavit of value - Evi- dence-Prothonotary-New trial.
In replevin, it was reversible error to ad- mit as prima facie proof of value of the articles replevied, the affidavit which the plaintiff filed on a preci pae for writ of re- plevin. The purpose of an affidavit of value in an action of replevin is merely to inform the prothonotary as to the amount of the
Criminal law-Statutory rape-Age of bond demanded. defendant-Proof of.
-COMMONWEALTH V. KINARD, 97
-KRELL V. WINGEROT, ET AL. 36
Affidavit of defense- Pleading and practice-Replevin-Statement of claim -Anticipation-Demurrer-Damages
Real estate Contracts - Indefinite Oath-Act of 1901-Practice Act of contract-Specific performance-Equity -Statute of frauds and perjuries.
A court of equity will not enforce the spe- cific performance of a contract to convey real estate, where said contract, being a mere
-DIEDRICK V. RUSSELL & CO., ET AL., 55
Res adjudicata-Salary-Payments- receipt for the down money, describes the Separate actions-Conclusive as to sub-
property merely by number and street, with- out designating a city or town. -CASSONE V. WINTER, 78
sequent installments.
A rule for judgment for want of a suffici- ent affidavit of defense was discharged, where the action was based on an agreement
Decedents' Estates - Administration 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.
-ESTATE OF GEORGE W. FARQUHAR, 20
stallment had been decided in favor of de- 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 frauds.
-HULSMAN V. BROOKLINE DISTRICT NO. 506, ETC. 64
Attorney and client-Purchase of real | RESIDENCE.
estate by attorney in execution Eject- Pleadings Foreign judgments-Pre- ment by client-Statute of limitations-sumption of residence-Service of pro- Acts of April 22, 1856, March 27, 1865. ccss-Act of April 11, 1851.
and June 12, 1919.
-BELL V. PARRELL ET AL., 148
Pleading and practice-Equity-Eject- ROADS. ment - Title to real estate judgment-Lien-Creditor's bill.
-AMERICAN TRUST CO., V. KAUFMAN, 160
REPEAL BY IMPLICATION.
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,
Roads -Terminus at railroad station Necessity for road-Width of road.
A terminus of a public road may be at a railroad station.
The decision of viewers appointed to view a proposed public road that there is neces-
sity for a road is conclusive on exceptions to their report, unless plain error of judgment is established by testimony.
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