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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

1915.

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

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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

for decision.

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

in such an action.

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.

-Notice to 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

DEN, 44

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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.

his

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

Waiver of tort.

'element that the court will consider in de-
termining whether such a rule should be
ranted.

-FURBY V. PENNSYLVANIA RAILROAD CO., 89

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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.

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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-

rer.

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

to

Pleading and practice-motion
amend after entering judgment for part
of claim-Affidavit to amended state-

ment.

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.

Practice-Trial - Verdict

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

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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

claim.

-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

motion.

-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

Sufficiency

Plaintiff's statement
General averments-Averments of con-
clusion of law.

In an action by a corporation for the price

Foreign

-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-

-WARNER V. LEVINE, 180

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

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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

REAL ESTATE.

-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

1915.

-DIEDRICK V. RUSSELL & CO., ET AL., 55

RES ADJUDICATA.

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-

covery.

Contract for the sale of real estate quent installments and barred plaintiff's re-
modified by oral agreement-Statute of
frauds.

-HAMMER V. GROVE, 29

-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

Foreign

-QUINN V. REED, 91

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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