But "the test whether a demand connected with an illegal transaction is capable of being enforced at law is, whether the plaintiff requires the aid of the illegal transaction to establish his case: II Serg. & Rawle, 155; 10 Barr, 270;" Scott v. Duffy, 14 Pa. 18. See, also, Mohney v. Cook, 26 Pa. 342; Shuman v. Shuman, 27 Pa. 90; Foreman v. Ahl, 55 Pa. 325; Fowler et al. v. Scully, 72 Pa. 456; Whitmire v. Montgomery, 165 Pa. 253, and Smyers v. McMahon, 71 Pa. Superior Ct. 142.

cumvention of the law was in contem- Knight v. Press Co., 227 Pa. 185; Smyplation, or that otherwise the statement ers v. McMahon, 71 Pa. Superior Ct. might show that the whiskey was to be 142; Bibb v. Allen, 149 U. S. 481; 39 delivered by the defendant compatibly Law Ed., 819. with the law of the land and not in violation of it. The plaintiffs could lawfully have owned three invoices for three barrels of whiskey, and they aver that they were the owners of three such invoices. The defendant seemed to be aware of the fact, and he "approached" the plaintiffs and evidently suggested to them the transportation of the whiskey, making them believe that he was on friendly terms with A. Overholt & Company, and in a position to expedite its delivery. And if the plaintiffs made a contract violative of the law with the defendant, he wrongfully induced them to do so, and he now tries to take advantage of his own wrong and retain all the fruits of it. If the statement be true, it shows a shameless swindle on the part of the defendant, and he cannot be heard to plead his own wrong in defence of the plaintiffs' claim for the return of their invoices and of the cash which the defendant obtained in such a reprehensible manner. Allegans suam turpitudinem non est audiendus.

Of course, one should show that he stands on legal ground when he seeks relief in a court of justice, for courts will not aid the enforcement of contracts made in violation of law. Public policy forbids the prosecution of an action founded on immoral or illegal grounds: Mitchell v. Smith, 1 Binney, 110; Maybin v. Coulon, 4 Dallas, 298; Duncanson v. McLure, 4 Dallas, 308; Biddis v. James, 6 Binney, 321; Seidenbender v. Charles's Administrators, 4 S. & R. 151; Badgley v. Beale, 3 Watts, 263; Kepner v. Keefer, 6 Watts, 231; Wagonseller v. Snyder, 7 Watts, 343; Edgell v. McLaughlin, 6 Wharton, 176; Clippinger v. Hepbaugh, 5 W. & S. 315; Columbia Bank and Bridge Co. v. Haldeman, 7 W. & S. 233; Unger v. Boas, 13 Pa. 601; Brua's Appeal, 55 Pa. 294; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 173; Fowler et al. v. Scully, 72 Pa. 456; Holt v. Green, 73 Pa. 198; Thorne v. Travelers' Insur. Co., 80 Pa. 15; Dickson's Executor v. Thomas, 97 Pa. 278; Spalding v. Ewing, 149 Pa. 375; Whitmire v. Montgomery, 165 Pa. 253;

The plaintiffs' statement, however, does not show that the plaintiffs require the aid of an illegal transaction to establish their case.

Although betting on elections is illegal, yet either side to a bet may recover the amount deposited with the stakeholder, if notice be given, even after the result of the bet has been determined, but before the money is paid over. "This right to recover from the stakeholder seems to be rested on impregnable grounds, namely, that the money being paid on a contract prohibited by law, the contract being void, the owner's right of reclamation is not to be impeded by it:" Forscht v. Green, 53 Pa. 138. So in this case, if the contract made is prohibited by law, it is void and the owner's reclamation is not to be impeded by it. And if the contract be lawful, then recovery is permissible because of its rescission.

*

In App v. Coryell, 3 P. & W. 494, which concerned money bet on a horserace, the Supreme Court said in a per curiam opinion: "The court very properly directed that money staked may be recovered either from the winner or the stakeholder. * *" And again: "The contract being void, the money could be recovered only on the promise implied from the receipt of it to the plaintiff's use, which in this respect is determined by the nature of the consideration. The promise, in fact, arises out of and is guided by the consideration, which is the receipt of the money, as was held in Boggs v. Curtin, 10 S. & R. 211, 213."

In Conklin v. Conway, 18 Pa. 329, 330, we read: "The act of assembly de

clares all bets on horse-racing void. Hence, money delivered to a stake-holder on such a bet is delivered on a void contract, and the title to the money is not thereby changed, and the stakeholder has no right to deliver it to the winner."

want of a sufficient affidavit of defence.

Ordinarily, a defendant is entitled to an opportunity to file a supplemental affidavit of defence to the averments of fact in the statement of claim within fifteen days after a question of law has "In pari delicto is not a maxim of been decided against him. This is prouniversal application; for where money vided in section 20 of the Practice Act. has been paid on a contract which is ille- of May 14, 1915, P. L. 483, 486, but that gal, merely because it is in violation of a provision of the statute implies that the rule which has for its object the protec- question of law is raised before the reply tion of weak and necessitous men, it may is made to the merits and not at the same be recovered back, and for the very rea- time that the reply is made to the merits son that the rule itself would be frustrat- or after the reply has been made to the ed by any other construction:" McAllis-merits. "One who seeks to avail himself ter v. Hoffman, 16 S. & R. 147, 148. of technical objections to pleadings must In Waters v. Hixenbaugh's Admin'rs, do so at the earliest opportunity. 25 Pa. 131, the plaintiff and the defend- cannot be permitted by those pleadings ant's intestate had some dealings togeth- to raise an issue on the merits of the case er, the plaintiff having done harvest and thereafter to attack the sufficiency work for the intestate, and he owed the of the opponent's pleadings. plaintiff $5.68. The intestate made a bet! The filing of the affidavit of defence to with the plaintiff for double that sum, the plaintiff's statement of claim was an payable if W. J. Johnson was re-elected abandonment of the defendant's right to Governor of Pennsylvania, and gave his attack the regularity or sufficiency of the note to the plaintiff in double the amount statement:" Boyle v. Breakwater Co., of the wages. The plaintiff won the bet 239 Pa. 577. And we do not think, unand sued for his original cause of action. der the circumstances of this case, that The court below was of the opinion that the defendant should be afforded anothbetting the debt barred the right of ac- er opportunity to file another affidavit of tion for it. The Supreme Court held defence when he has already filed an that in one event that would be enforc- affidavit of defence covering every paraing the bet, and in another it would be graph of the plaintiffs' statement. We letting the loser of the bet win it. It will, therefore, proceed to dispose of the held that the plaintiff could not avail rule in this case for judgment for want himself of his illegal note to recover, as of a sufficient affidavit of defence. it was a void contract, but he did not forfeit what already was in the hands of the losing better. And the court below was reversed.

In Rainsburg Borough v. Fyan, 127 Pa. 74, a bond given by the borough in violation of the law could not be sued upon to recover its face value of $500, because the contract was unlawful, but, as the borough received the money and applied it to a valid indebtedness, it was liable on an implied contract for money had and received. The plaintiff, therefore, did not require the aid of an illegal contract in order to recover, nor do we think the plaintiffs in this case need the aid on an illegal contract, because the statement of claim does not show upon its face that an illegal contract was made.

2. As to the rule for judgment for

*

The affidavit of defence undertakes to meet all the material averments in the plaintiffs' statement of claim simply by saying "the third, fourth, fifth, sixth, seventh, eighth, ninth, tenth and eleventh paragraphs of the plaintiffs' statement of claim are denied." This stands on all fours with the case of Fulton Farmers Ass'n v. Bomberger, 262 Pa. 43, and must be controlled by it. There the language of the affidavit of defence was: "The statement of facts as set forth in paragraphs

of statement is denied," and it was declared insufficient. The third paragraph of the affidavit of defence is no more effective than the second. It fails to show how "Cassie Fritz is indebted to the defendant," or how such indebtedness may be set off against the joint claim of herself and her husband. As the affidavit of defence

undertakes to answer all averments of fendant has filed a motion to strike off fact in the plaintiffs' statement of claim, the statement filed by the plaintiffs in we know of no good reason why an this case, for the following stated reaopportunity should be afforded to file sons: another one concerning the same averments of fact.

"The plaintiff's statement does not contain an endorsement of an 'address The question of law is decided against within the county where all papers are the defendant, and the rule for judg-to be served,' as required by section 9, of ment for want of a sufficient affidavit of the Practice Act of 1915, P. L. 483.” defence is made absolute, and the prothonotary is directed to assess the damages and enter judgment accordingly.

C. P. of

An inspection of the statement shows that the exception is well taken.

The requirement of section 10, of the Practice Act of 1915, is, that the statement of claim shall be endorsed as folYork Co. lows: "To the within defendant: You

Diehl v. Stewartstown Railroad Co. are required to file an affidavit of de

fense to this statement of claim within fifteen days from the service thereof. The notice shall be followed by the name

Plaintiff's statement-Endorsement of of the plaintiff's attorney, or by his own address where papers may be served-[name, if he sues in person, and an adGeneral reasons to strike off - Gross dress within the county where all papers claims for damages-Particulars of negligence must be shown.

A reason in support of a motion to strike

off a plaintiff's statement which states in general terms that the statement lacks "conciseness," without pointing out specifically

the alleged defect, is too general, and will not be considered.

Claims for damages in a plaintiff's statement, in trespass, must be itemized and specific; claims for gross sums disbursed "for

doctors, medicines, hospitals, nursings, domestic help," etc., are not within the re

quirements of the Practice Act.

are to be served.”

The purpose of this section is "to secure uniformity and regularity with redefendant in default, in case of his failspect to the notice necessary to place the ure to present his defense, and it is to be presumed that, in selecting the very words of the endorsement, importance was attached to them, according to their signification, and that they were used advisedly.": Dick v. Forshey, 71 Pa. Supr. Ct. 439.

It was held by this court, in the case of Bitner v. City of York, 34 York Legal Record (30 D. R. 956) (opinion by Judge Wanner), that the failure to ennegligence arising out of alleged acts of dorse upon the plaintiff's statement "an omission, the grounds of complaint must be address within the county where all stated concisely and distinctly in the plain

In a suit in trespass where the charge is

tiff's statement; facts must be averred suf-papers are to be served," as required by ficient to show that a duty required by law the (10th section) "9th section" of the

has been breached or neglected by the de

fendant, and plainly to indicate the casual act, is sufficient cause to strike off. That connection between this breach or neglect case referred to the case of Frontier and the injury complained of. Press Co. v. Garman, 28 D. R. 1033. Motion to strike off the plaintiff's The plaintiff being remiss in this restatement in Catharine Diehl and Sam-quirement, the exception is sustained. The second reason given for striking uel H. Diehl, her husband, v. The Stewartstown Railroad Company, No. 67, off the statement is entirely too general. January Term, 1924, in the Court of It does not deserve any discussion beCommon Pleas of York County, Pa. cause the attention of court is not called Motion allowed. to the particular lack of "conciseness" which is referred to.

William B. Gemmill, for motion.

Robert S. Spangler, contra.

Ross, J., April 7th, 1924.-The de

The third reason in support of the motion is well taken. It reads as follows:

"The said statement does not so sepa

rate and itemize the several elements of does not contain any material facts unplaintiff's claim as to inform the defend-der the circumstances constituting negliant of their precise nature and extent. gence. The plaintiff's statement does In this case, the plaintiff claims a gross not give any particulars showing neglisum in damages which is alleged in their gent operation of the train." statement to cover and include 'large sums of money for doctors, medicines, hospitals, nursing, domestic help, etc., and will be compelled to spend large sums of money for like purposes in the future for an indefinite period.' There is no specific amount paid for each of the above named items; to whom they were severally paid; nor is there any allegation of the value of the wife's services."

The 4th paragraph of the statement says, "That while she was a passenger in said train, and seated in the passenger coach of same, a freight train, owned and operated by the defendant company, ran into and collided with the coach upon which the plaintiff was a passenger at or near Ziegler station, in the said county.”

The 7th paragraph states "that defendant was negligent in permitting said freight engine and train to collide with said passenger car."

The 9th and 10th paragraphs of the plaintiff's statement aver "that as a result of the said occurrence he (one of The 8th paragraph says, "that defendthe plaintiffs) has been compelled to ex-ant was otherwise careless, reckless and pend large sums of money for doctors, negligent in and about the operation of medicines, hospitals, nursing, domestic said trains." help, etc., and will be compelled to spend large sums of money for like purposes in the future."

It is necessary, under the Practice Act 1915, to set forth the amounts paid to the parties who, it is alleged, were paid as a result of the alleged accident, if an effort be made to collect those sums as part of the damage, for the defendant is entitled to know this so that he may be able to answer intelligently what items he can admit and what he will contest.

It has been held by the courts that, under the Practice Act of 1915, "The plaintiff's statement must be a bill of particulars in an action of trespass as well as in an action of assumpsit.”

We think the defendant is entitled to a more specific statement of the facts which constituted the negligence, recklessness and carelessness complained of.

The averments of the statement are but assertions of the plaintiff's theory of what constitutes negligence, &c.

In a suit in trespass, especially where the charge is negligence arising out of alleged acts of omission, the grounds of complaint must be stated concisely and distinctly in the declaration, so that the issue may be formed by a simple plea of "not guilty." To do this, facts must be averred sufficient to show that a duty required by law has been breached or neglected by the defendant, and plainly to The provisions of section 13, relieving indicate the casual connection between defendants from filing an affidavit of de- this breach or neglect and the injury fense denying certain allegations as to complained of. The declaration must the damages claimed, does not relieve give the defendant clear and exact inthe plaintiff from the duty of giving a formation of the charges against him, detailed statement of the damages and, although it need not anticipate declaimed as section 5 of the act provides. fenses or aver mere underlying evidenThe primary object of requiring specific tial facts, yet the ultimate facts relied information in such cases is to enable upon to show negligence must appear in the defendant to make defense thereto at unequivocal language, and those facts the trial: Smith's Practice Act (supple- must be such as, standing alone, if not ment), page 20, citing Bollinger v. controverted, would entitle the plaintiff Greenway, Jr., 3 D. & C. 312; Phila. to a verdict in his favor.": CharnogurStorage Battery Co. v. Air Reduction sky v. Price-Pancoast Coal Co., 249 Pa. Cell Co., 274 Fed. 216; King v. Brill- 1.

hart, 271 Pa. 301.

The statement in the case at bar does 4. "The allegations of defendant's not meet these requirements, therefore negligence are general and the statement the fourth reason is sustained.