ance with section 6. The averments of the other facts on which the plaintiff relies to establish liability, and averments relating to damages claimed, or their amount, need not be answered or denied, but shall be deemed to be put in issue in all cases unless expressly admitted."

Section 6 of said act is: "Every allegation of fact in the plaintiff's statement of claim, or in the defendant's set-off or counter-claim, if not denied specifically or by necessary implication in the affidavit of defence, or plaintiff's reply, as the case may be, or if no affidavit of defence or plaintiff's reply be filed, shall be taken to be admitted, except as against an infant, a person of unsound mind, or one sued in a representative capacity, as provided in section 7, and except as provided in section 13.'

power to bind the husband as his agent." See French v. Spencer, 23 Pa. Superior Ct., 428.

And as the husband is not responsible for his wife's torts (Gustine v. Westenberger, 224 Pa. 455; Hinski v. Stein, 68 Pa. Superior Ct. 441), the averment in the statement of claim did not relieve the plaintiff from proving her agency, or that the car was being used in and about defendant's business, and the motion must be allowed, and, accordingly, judgment n. o. v. is entered in this case.

Replevin-Affidavit of value - Evi

Paragraph four of the statement of claim was offered in evidence, but no dence-Prothonotary-New trial. testimony as to the authority of the person who was operating the automobile or whether it was engaged in plaintiff's business.

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 precipae for writ of replevin. The purpose of an affidavit of value in an action of replevin is merely to inform the prothonotary as to the amount of the

bond demanded.

The averment of the statement that this car was "operated with the knowledge, consent, approval and sanction of the above-named defendant" seems to be qualified by the words "his wife," which is a limitation of the averment to the fact that she was the person who was the agent or employee of defendant who made him responsible for her acts, without any evidence of her authority other JJ. than his responsibility in law for her acts; therefore, as no liability of defendant arises from such relationship, there was no liability of defendant shown. The wife was the only person by whom the act was alleged to have been committed, and hence, unless she was the agent of defendant, the averment was not sufficient to establish liability.

In Markle v. Perot, 273 Pa. 4, it was held that "the liability of the owner of a motor vehicle for the tortuous act of the driver of his car, which causes injury to a third person, rests either on the relation of master and servant or of principal and agent, between the owner and the driver."

In 30 Corpus Juris 614, it is stated that "the mere relation of husband and wife does not create the wife an agent of the husband, nor confer an inherent

Motion for new trial. Granted.
George P. Henning, for plaintiff.
Joseph F. Weis, for defendant.
Before Evans, Carnahan and Kline,

Kline, J., November 15, 1923.-This case comes before us upon motion for new trial. This was an action of replevin brought by plaintiff in this case to recover certain goods and chattels in the possession of the defendants, claimed to be property of the plaintiff.

The jury returned a verdict for the defendant in the sum of $509.52.

The plaintiff filed a motion for a new trial, alleging inter alia, "that the court erred in admitting as prima facie proof of value of the articles replevied, the affidavit which the plaintiff filed on a precipac for writ of replevin."

In Guinn v. Vitte, 63 Sup. Ct., 611, it was decided that on the trial of an action of replevin, it is reversible error for the court to admit as prima facie proof of value of the articles replevied, the affidavit filed by plaintiff under Section 2 of

the Act of March 19, 1903, P. L. 39, supreme court in Miller vs. Rubber Co., amending Section 8, of the Act of April 268 Pa., 51; that decision holding, as 19, 1901, P. L. 88, to determine the we understand it, that the provisions of amount of the bail.

the Practice Act which provide for an accounting in cases similar to those disclosed by the plaintiff's bill are constitutional, and that the act provides an adequate remedy at law. So far, we think the defendant's contention is well taken; but, while it may and should be held that the Practice Act of 1915 provides an adequate remedy at law, it does not necessarily follow that that York Co. remedy is exclusive, and that the plaintiff's bill should not be sustained. The learned counsel for the defendant admitted during the argument of the case that, prior to the passage of the Practice

Equity-Accounting-Adequate rem-Act of 1915, conditions such as those

Although the Practice Act of 1915 provides that is sought here; but the defendant's an adequate remedy at law for an account-contention is that that condition is ing, yet this remedy is not exclusive, and a bill in equity for an accounting may be changed, and that the remedy provided by the Practice Act is exclusive.

Demurred to the bill in equity of Moses Hayes Keller v. James W. Keller, No. The case cited above is the only one 1, April Term, 1924, in the Court of cited in support of the defendant's posiCommon Pleas of York County, Pa., sit-tion; but, as we construe that case, it ting in equity, praying for an account- really decides the point now before us ing, etc. Demurrer overruled.

And now, June 19th, 1924, the deTo sustain the demurrer, the defen-murrer in this case is overruled, and dant relies upon the decision of the the defendant is directed to answer over.

C. P. of

Steely v. Lorah

Lancaster Co. we shall refer later, decided that the

Landlord and tenant-Proceedings for possession Conclusiveness of - Damages for unlawful eviction-Act of March 31, 1905.

A judgment of possession in favor of a

are properly given to the jury.

plaintiff was a tenant at will, or by the month, which being unappealed from, is conclusive. The rent which the plaintiff was to pay was $11.00 per month.

On August 25th, 1921, the defendant gave the plaintiff notice, to vacate and surrender the said house, as is required by the Act of March 31, 1905, P. L. 87,

where the lease is at will or for an indeterminate period, before suit can be brought before a justice. Upon his relandlord, by a justice of the peace, under the Act of March 31, 1905, P. L. 87, not appealed fusal to do so, she, on September 30, from is conclusive as to the right of the landlord to evict his tenant, and in a sube 1921, began proceedings before F. E. sequent suit by the tenant against the land- Engle, a justice of the peace, to obtain lord to recover damages for unlawful evic-possession of the same as provided in the tion, binding instructions for the defendant Acts of Assembly. After a hearing, at which both parties were present and testified, judgment was entered in favor of Martha Huber Lorah, the defendant in this case. On November 4, 1921, an alias writ of possession was issued on the judgment, by virtue of which J. W. Wanner, the constable to whom it was directed, evicted the plaintiff in this case, and delivered possession of the premises to Martha Huber Lorah, the defendant in this case. No appeal was taken from

If the constable negligently executed the writ, the plaintiff's claim for damages for 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.

Rules for judgment for plaintiff n. o. v. and new trial. Discharged.

John M. Groff, for plaintiff.

Amos E. Burkholder and F. Lyman that judgment, nor was a writ of cerWindolph, for defendant.

Hassler, J., January 19, 1924.-At the trial of this case we affirmed a point submitted by the defendant asking for binding instructions. We are now asked by the plaintiff to enter judgment for him n. o. v., or to grant a new trial.

The action is one to recover damages resulting from an alleged unlawful eviction of the plaintiff from a house owned by the defendant. It was proven at the trial, that the defendant is the owner of a house and lot on North State Street in the Borough of Ephrata, which has three doors opening on the street. The southern one is not numbered, the middle one is numbered 462, and the northern 464. It is a single house, so arranged that it can be occupied by two families, but there is no partition in it making two houses of it. In 1918 she rented it to the plaintiff, who continued in possession until he was ejected in November, 1922. They differed in their testimony as to the term for which it was rented, but a judgment of a justice of the peace, to which

tiorari issued. We were of the opinion at the trial that the judgment was conclusive as to the right of the defendant in this case to evict the plaintiff from her property, and therefore affirmed the point submitted to us by the defendant, asking for binding instructions in her favor.

That we did not err in doing this, is shown by the case of Schwab v. Schneider, 236 Pa. 61, which was affirmed on the opinion of Judge Ralston, who said: "If the tenant had any defense to the proceedings, or if there was any irregularity in the procedure, he should have taken an appeal or have brought the record before the court of common pleas by certiorari. He took neither of these steps, and therefore he must be held to be bound by the judgment of the magistrate. He cannot recover damages against the defendant for putting him out of possession by proceedings begun and prosecuted in accordance with law. The judgment of the magistrate must be regarded as final, as no proceedings have been taken to have it reversed. The de

fense offered, namely, that the tenant raised no question so far as the proceedwas a tenant from year to year, and ings or the testimony taken show, that therefore was entitled to three months' the prosecution was instituted to obtain notice to quit, should have been put in possession of the house he occupied, and at the hearing before the magistrate. As for which he had agreed to pay eleven. the proceedings before the magistrate dollars a month. The number was but a appear to have been regular, and were small part of the description, and the use not appealed from, a non-suit was pro- of one of the two numbers to identify it perly entered." The case was exactly was sufficient. In fact, if no number had the same as this one, an action for tres-been used in describing it, but it was depass for injuries for unlawfully dispos- scribed as the house and lot occupied by sessing a tenant. the plaintiff as a tenant of the defendant

tiff.

In McClellan v. Patterson, 5 Cent. on North State Street, it would have Rep. 734, it is decided that a judgment been sufficient, and this is what was of possession in favor of the landlord, done. The plaintiff certainly had suffinot reversed on appeal, is binding on the cient notice of what it was he was dirparties and conclusive of the facts de- ected to deliver possession of to the determined in the proceedings, and cannot fendant, and the writ of possession suffibe collaterally attacked. It is a defense ciently describes it. The only dispute in trespass against the lessor by the de- between the parties at the hearing was fendant's wife to recover damages for an whether the term was from year to year illegal execution of a writ of possession. or from month to month, and this, as we Moreover, if the constable who executed have said, was decided against the plainthe writ of possession was guilty of illegal acts, he would be the person liable, and not the present defendant. See also Riggin v. Becker, 9 D. R. 439, and Ellis v. Lamb, 9 D. R. 491. It will be obseryed from this that the plaintiff's claim for negligently executing a writ cannot be C. P. of maintained against the defendant, as the constable who executed it was in no sense her employee, or agent, but was an officer executing a legal process, so that if it was done negligently, or carelessly, to the injury of the plaintiff, an action

We are satisfied that no error was committed at the trial, and therefore discharge the rule for a new trial, and also the rule for judgment n. o. v.

Allegheny Co.

Myers v. Boylan

Equity-Landlord and tenant-For

for damages so occasioned must be feiture-Rent-Place of payment-Deagainst him, and not against her. mand-Default-Injunction.

At the argument of these rules, the plaintiff contended that the judgment of the justice did not conclude him for the reason that the proceedings to evict him were only as to the house No. 462, as that was the only number appearing in the notice, whereas he was also evicted from house No. 464. All the testimony, including that of the plaintiff, showed that he occupied, as a tenant of the defendant, only one house on North State Street, for which he agreed to pay eleven dollars a month. It had two doors on State Street that were numbered, one 462 and one 464. He used both of them. They were not doors to separate houses, but to the one house occupied by him. He was present at the hearing, and

4. The plaintiff has paid the rent from the beginning of the lease up until August, 1923, usually on or before the tenth day of the month, once in September, 1922, a few days after that, and several times in the year before, a day or two after the tenth, these payments benotice that he would do so if a similar ing made by check sent to the defenddefault was made, and the regular payant's house. The defendant never gavement by the plaintiff for some time does to the plaintiff any notice after the acceptance by him of rent after the tenth not under such circumstances excuse the want of such notice. as stated, that he would thereafter require the rent to be paid on or before the tenth of the month.