C. P. of

ance with section 6. The averments of power to bind the husband as his agent.” the other facts on which the plaintiff re- See French v. Spencer, 23 Pa. Superior lies to establish liability, and averments Ct., 428. relating to damages claimed, or their And as the husband is not responsible amount, need not be answered or denied, for his wife's torts (Gustine v. Westenbut shall be deemed to be put in issue in berger, 224 Pa. 455; Hinski v. Stein, 68 ail cases unless expressly admitted." Pa. Superior Ct. 441 ), the averment in

Section 6 of said act is : "Every allega- the statement of claim did not relieve the tion of fact in the plaintiff's statement plaintiff from proving her agency, or of claim, or in the defendant's set-off or that the car was being used in and about counter-claim, if not denied specifically defendant's business, and the motion or by necessary implication in the affida-must be allowed, and, accordingly, judgvit of defence, or plaintiff's reply, as the ment n. 0. v. is entered in this case. case may be, or if no affidavit of defence or plaintiff's reply be filed, shall be taken

Allegheny Co. to be admitted, except as against an infant, a person of unsound mind, or one Krell v. Wingerot, et al. sued in a representative capacity, as provided in section 7, and except as provided in section 13.'

Replevin --- Affidavit of value — EviParagraph four of the statement of claim was offered in evidence, but no dence-Prothonotary-New trial. testimony as to the authority of the per

In replevin, it was reversible error to adson who was operating the automobile or mit as prima facie proof of value of the whether it was engaged in plaintiff's articles replevied, the affidavit which the business.

plaintiff filed on a precipаe for writ of re

plevin. The purpose of an affidavit of value The averment of the statement that in an action of replevin is merely to inform this car was “operated with the knowl- the prothonotary as to the amount of the

bond demanded. edge, consent, approval and sanction of the above-named defendant" seems to be Motion for new trial. Granted. qualified by the words "his wife," which is a limitation of the averment to the

George P. Henning, for plaintiff. fact that she was the person who was Joseph F. Il'eis, for defendant. the agent or employee of defendant who made him responsible for her acts, with

Before Evans, Carnahan and Kline, out any evidence of her authority other JJ. than his responsibility in law for her Kline, J., November 15, 1923.—This acts; therefore, as no liability of defend- case comes before us upon motion for ant arises from such relationship, there new trial. This was an action of replewas no liability of defendant shown. vin brought by plaintiff in this case to The wife was the only person by whom recover certain goods and chattels in the the act was alleged to have been com- possession of the defendants, claimed to mitted, and hence, unless she was the be property of the plaintiff. agent of defendant, the averment was The jury returned a verdict for the not sufficient to establish liability.

defendant in the sum of $509.52. In Markle v. Perot, 273 Pa. 4, it was

The plaintiff filed a motion for a new held that "the liability of the owner of trial, alleging inter alia, “that the court a motor vehicle for the tortuous act of erred in admitting as prima facie proof the driver of his car, which causes in- of value of the articles replevied, the afjury to a third person, rests either on the fidavit which the plaintiff filed on a prerelation of master and servant or of cipac for writ of replevin.” principal and agent, between the owner

In Guinn v. Vitte, 63 Sup. Ct., 611, it and the driver."

was decided that on the trial of an action In 30 Corpus Juris 614, it is stated of replevin, it is reversible error for the that "the mere relation of husband and court to admit as prima facie proof of wife does not create the wife an agent value of the articles replevied, the affidaof the husband, nor confer an inherent i vit filed by plaintiff under Section 2 of

37

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 In Newman v. Globe Indemnity Com- accounting in cases similar to those dispany, 275 Pa., 374, it was decided that closed by the plaintiff's bill are constitie purpose of an affidavit of value in an tutional, and that the act provides an action of replevin is merely to inform adequate remedy at law. So far, we the prothonotary as to the amount of the think the defendant's contention is well bond demanded.

taken; but, while it may and should be In view of the foregoing, a new trial held that the Practice Act of 1915 promust be granted.

vides an adequate remedy at law, it

does not necessarily follow that that C. P. of

York Co. remedy is exclusive, and that the plain

tift's bill should not be sustained. The Keller v. Keller

learned counsel for the defendant admitted during the argument of the case

that, prior to the passage of the Practice Equity-Accounting-Adequate rem-.1ct of 1915, conditions such as those

averred in the plaintiff's bill would have €dy at law.

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 maintained.

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.

adversely to the contention of the de

fendant. The present question was not Logan & Logan, Esqs., for plaintiff. involved there; but, in that case, the

John A. Hoober, Esq., for defendant supreme court ruled expressly that the and demurrer.

action of account render provided by

the act of 1840, P. L. (1841) I, 7, is E. M. Biddle, Jr., P. J. Ninth Judicial not inconsistent with the act of 1915, District, specially presiding- The plain- and is still extant. The act referred to tiff in the bill avers therein, in substance, provided that in all cases where the acthat the defendant is his brother, and tion of account render might be that from time to time the defendant tained a bill in equity might be had to received from the mother of the parties effect the same purpose; and the ruling certain sums of money to be held for of the supreme court in the case upon the benefit of the plaintiff, and that the which the defendant relies holds, thereamounts so received are still in the pos- fore, as we view it, that the remedy in session and control of the defendant, equity is still available. The question the aggregate being unknown to the involved here was considered and passed plaintiff, who prays for discovery and upon by the judge who heard this case an accounting. The defendant has de- in the case of Stover vs. Deysher, 15 murred on the ground that the Practice Berks L.J. 210. This view of the case Act of 1915 provides an adequate rem- calls for the overruling of the defendedy at law, and that, therefore, the plain-ant's demurrer. tiff's action in equity should not be sustained.

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

Lancaster Co. we shall refer later, decided that the Steely v. Lorah

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. Landlord and tenant-Proceedings for

On August 25th, 1921, the defendant possession -- Conclusiveness of - Dam- gave the plaintiff notice, to vacate and ages for unlawful eviction — Act of by the Act of March 31, 1905, P. L. 87,

surrender the said house, as is required March 31, 1905.

where the lease is at will or for an in

determinate period, before suit can be A judgment of possession in favor of a 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 1921, began proceedings before F. E. landlord to evict his tenant, and in a subsequent 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 are properly given to the jury.

If the constable negligently executed the which both parties were present and teswrit, the plaintiff's claim for damages fortified, judgment was entered in favor of this cause would be against the constable Martha Huber Lorah, the defendant in and not against the landlord.

this case.

On November 4, 1921, an Where the tenant occupied a house with two doors and two street numbers, the fact alias writ of possession was issued on that only one of the numbers was mentioned the judgment, by virtue of which J. W.

Wanner, the constable to whom it was Rules for judgment for plaintiff n. 0. directed, evicted the plaintiff in this case, 2. and new trial. Discharged.

and delivered possession of the premises

to Martha Huber Lorah, the defendant Join 11. Groff, for plaintiff.

in this case.

No appeal was taken from Amos E. Burkholder and F. Lyman tiorari issued.' We were of the opinion

that judgment, nor was a writ of cerW'indolph, for defendant.

at the trial that the judgment was conHassler, J., January 19, 1924.-At the clusive as to the right of the defendant trial of this case we affirmed a point sub- in this case to evict the plaintiff from mitted by the defendant asking for bind-her property, and therefore affirmed the ing instructions. We are now asked by point submitted to us by the defendant, the plaintiff to enter judgment for him asking for binding instructions in her

favor. n. 0. V., or to grant a new trial.

The action is one to recover damages That we did not err in doing this, is resulting from an alleged unlawful evic-shown by the case of Schwab v. Schneidtion of the plaintiff from a house owned er, 236 Pa. 61, which was affirmed on by the defendant. It was proven at the the opinion of Judge Ralston, who said: trial, that the defendant is the owner of “If the tenant had any defense to the a house and lot on North State Street in proceedings, or if there was any irreguthe Borough of Ephrata, which has three larity in the procedure, he should have doors opening on the street. The south-taken an appeal or have brought the reern one is not numbered, the middle one cord before the court of common pleas is numbered 462, and the northern 464. by certiorari. He took neither of these It is a single house, so arranged that it steps, and therefore he must be held to can be occupied by two families, but be bound by the judgment of the magisthere is no partition in it making two trate. He cannot recover damages houses of it. In 1918 she rented it to against the defendant for putting him the plaintiff, who continued in possession out of possession by proceedings begun until he was ejected in November, 1922. and prosecuted in accordance with law. They differed in their testimony as to the The judgment of the magistrate must be term for which it was rented, but a judg- regarded as final, as no proceedings have ment of a justice of the peace, to which I been taken to have it reversed. The de

was

error

was

fense offered, namely, that the tenant raised no question so far as the proceed

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 ille

tiff. gal acts, he would be the person liable,

We are satisfied that no and not the present defendant. See also committed at the trial, and therefore disRiggin v. Becker, 9 D. R. 439, and Ellis charge the rule for a new trial, and also v. Lamb, 9 D. R. 491. It will be observ- the rule for judgment n. 0. v. ed from this that the plaintiff's claim for negligently executing a writ cannot be c. P. of

Allegheny Co. maintained against the defendant, as the constable who executed it was in no

Myers v. Boylan sense her employee, or agent, but was an officer executing a legal process, so that if it was done negligently, or carelessly, Equity--Landlord and tenant-Forto the injury of the plaintiff, an action 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

Defendant was restrained from forfeiting plaintiff contended that the judgment of a lease and ousting plaintiff from possession the justice did not conclude him for the because rent for one month was not paid reason that the proceedings to evict him on the day stipulated, where defendant had

previously accepted rent on days later in the were only as to the house No. 462, as month than the one in question, and had that was the only number appearing in served no notice on plaintiff that thereafter

the terms of the lease would be strictly enthe notice, whereas he was also evicted forced and a forfeiture declared in case of a from house No. 464. All the testimony, similar default in the future. including that of the plaintiff, showed When a lease contained no provision as to that he occupied, as a tenant of the de- place of payment was on the demised pre

where payment of rent was to be made, the fendant, only one house on North State mises, and a forfeiture was refused when it Street, for which he agreed to pay eleven did not appear that the landlord was on the

demised premises on the day the rent fell dollars a month. It had two doors on due or that any demand was made on the

Defendant was reState Street that were numbered, one premises for the rent.

strained from declaring a forfeiture and dis462 and one 464. He used both of them.

possessing plaintiff. They were not doors to separate houses, but to the one house occupied by him.

Bill in equity for injunction. He was present at the hearing, and Alter, Wright & Barron, for plaintiff.

2.

Jas. L. Brady, for defendant.

next morning by her son to the defendShafer, P. J., March 5, 1924.- The she received the same back from the de

ant's house, and some time. afterwards bill is for an injunction to restrain the fendant in an envelope enclosing a nodefendant from forfeiting a lease and tice, a copy of which is printed as Exousting the plaintiff from possession.

hibit “B” of the Bill, being a notice to FINDINGS OF FACT.

the plaintiff to deliver up quiet and 1. On or about the first of May, peaceable possession of the premises on 1919, the defendant, F. J. Bovlan, leased the 12th of November next. to the plaintiff a building in the Borough of Sewickley, containing a storeroom,

6. "The defendant claims that he has for the term of five years, at the month-| forfeited the lease, and has threatened ly rent of $55.00, payable monthly on or that at the expiration of ninety days he before the tenth of each month, the lease will dispossess the plaintiff. The debeing in writing and printed as Exhibit fendant asserts that the check which he "A" of the Bill.

so returned was not signed by anyone. The lease contains a provision that The plaintiff's wife asserts that it was "the aforesaid rent, or any part thereof signed by her before it was sent out. remaining unpaid after the same shall be We do not deem it necessary to deterdue and payable, the said party of the mine which of them is right. If the first part may, at his option, then consid- check was rejected for that reason, the er the lessee as tenant at will, and may, tiff's attention to it.

defendant should have called the plainafter ninety days' notice in writing, levy upon the premises, re-enter and re-pos

CONCI,USIONS OF LAW sess all of the said premises, using such First. As the lease contained no proand so much force as is necessary to that vision as to where the payment was to end,” the lease containing no provision be made, the place for payment was the as to where the rent is payable.

demised premises, and as it does not ap3. The lessee, the plaintiff herein, has pear that the defendant was on the deoccupied the building since the date of mised premises on the day the rent fell the lease and still occupies it, maintain- due, or that any demand was made on ing therein a confectionery store in the premises for the rent, the defendant which he has built up a paying business. was not in position to declare a forfeiIf the premises in question were now for ture for non-payment of it: Rea v. Eagle rent, they would bring some eighty or Transfer Co., 201 Pa., 273ninety dollars per month. 4. The plaintiff has paid the rent is true that the plaintiff paid his rent re

Second. In addition to this, while it from the beginning of the lease up until August, 1923, usually on or before the gularly on or before the tenth for many

months after September, 1922, when he tenth day of the month, once in Septem

was allowed to pay it a day or two late, ber, 1922, a few days after that, and sev

vet the defendant should not be allowed two after the tenth, these payments be- to forfeit a valuable lease without giving ing made by check sent to the defend- default was made, and the regular pay

notice that he would do so if a similar ant's house. The defendant never gave to the plaintiff any notice after the ac

ment by the plaintiff for some time does ceptance 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 Third. We are therefore of opinion

. tenth of the month.

that the defendant has no right under 5. The tenth of August, 1923, was a these circumstances to forfeit the lease, day set aside by the President's procla- or to oust the plaintiff from possession, mation for the funeral of President and that the plaintiff is entitled to a deHarding, and the banks in Sewickley cree to that effect, and an injunction rewere closed on that day. On the even- straining the defendant from ousting ing of August 1oth plaintiff's wife drew him, and that the defendant pay the a check for the rent, which she sent the costs.