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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.

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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

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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.

In Newman v. Globe Indemnity Company, 275 Pa., 374, it was decided that 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 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

In view of the foregoing, a new trial must be granted.

C. P. of

Keller v. Keller

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

edy at law.

averred in the plaintiff's bill would have entitled him to the remedy in equity

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.

Logan & Logan, Esqs., for plaintiff. John A. Hoober, Esq., for defendant and demurrer.

E. M. Biddle, Jr., P. J. Ninth Judicial District, specially presiding-The plaintiff in the bill avers therein, in substance, that the defendant is his brother, and that from time to time the defendant received from the mother of the parties certain sums of money to be held for the benefit of the plaintiff, and that the amounts so received are still in the possession and control of the defendant, the aggregate being unknown to the plaintiff, who prays for discovery and an accounting. The defendant has demurred on the ground that the Practice Act of 1915 provides an adequate remedy at law, and that, therefore, the plaintiff's action in equity should not be sustained.

adversely to the contention of the defendant. The present question was not involved there; but, in that case, the supreme court ruled expressly that the action of account render provided by the act of 1840, P. L. (1841) 1, 7, is not inconsistent with the act of 1915, and is still extant. The act referred to provided that in all cases where the action of account render might be sustained a bill in equity might be had to effect the same purpose; and the ruling of the supreme court in the case upon which the defendant relies holds, therefore, as we view it, that the remedy in equity is still available. The question involved here was considered and passed upon by the judge who heard this case in the case of Stover vs. Deysher, 15 Berks L.J. 210. This view of the case calls for the overruling of the defendant's demurrer.

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


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

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1. On or about the first of May, 1919, the defendant, F. J. Boylan, leased to the plaintiff a building in the Borough of Sewickley, containing a storeroom, for the term of five years, at the monthly rent of $55.00, payable monthly on or before the tenth of each month, the lease being in writing and printed as Exhibit "A" of the Bill.

2. The lease contains a provision that "the aforesaid rent, or any part thereof remaining unpaid after the same shall be due and payable, the said party of the first part may, at his option, then consider the lessee as tenant at will, and may, after ninety days' notice in writing, levy upon the premises, re-enter and re-possess all of the said premises, using such and so much force as is necessary to that end," the lease containing no provision as to where the rent is payable.

3. The lessee, the plaintiff herein, has occupied the building since the date of the lease and still occupies it, maintaining therein a confectionery store in which he has built up a paying business. If the premises in question were now for rent, they would bring some eighty or ninety dollars per month.

next morning by her son to the defendant's house, and some time. afterwards she received the same back from the defendant in an envelope enclosing a notice, a copy of which is printed as Exhibit "B" of the Bill, being a notice to the plaintiff to deliver up quiet and peaceable possession of the premises on the 12th of November next.

6. The defendant claims that he has

forfeited the lease, and has threatened that at the expiration of ninety days he will dispossess the plaintiff. The defendant asserts that the check which he so returned was not signed by anyone. The plaintiff's wife asserts that it was signed by her before it was sent out. We do not deem it necessary to determine which of them is right. If the check was rejected for that reason, the defendant should have called the plaintiff's attention to it.


First. As the lease contained no provision as to where the payment was to be made, the place for payment was the demised premises, and as it does not appear that the defendant was on the demised premises on the day the rent fell due, or that any demand was made on the premises for the rent, the defendant. was not in position to declare a forfeiture for non-payment of it: Rea v. Eagle Transfer Co., 201 Pa., 273.

Second. In addition to this, while it is true that the plaintiff paid his rent regularly on or before the tenth for many months after September, 1922, when he was allowed to pay it a day or two late, yet the defendant should not be allowed to forfeit a valuable lease without giving

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.

5. The tenth of August, 1923, was a day set aside by the President's proclamation for the funeral of President Harding, and the banks in Sewickley were closed on that day. On the evening of August 10th plaintiff's wife drew a check for the rent, which she sent the

Third. We are therefore of opinion that the defendant has no right under these circumstances to forfeit the lease, or to oust the plaintiff from possession, and that the plaintiff is entitled to a decree to that effect, and an injunction restraining the defendant from ousting him, and that the defendant pay the costs.

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