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The plaintiff had, therefore, till Sep-rules of court. The court intends to live tember 18th, 1922, to file its answer to up to them in the conduct of court afthe rule, and all proceedings were to stay fairs, and we must insist on their due obpending the determination of the rule servance by the practitioners at the bar. and even till ten days after notice of the The face of the record plainly show's determination of the rule or the entry of that this judgment was entered in violasecurity, the notice to be given to the de- tion of the order of court of June 28th, fendant or to his attorney.

1922. It is, therefore, irregularly and If the rule should be in any manner 'unauthorizedly entered, and must be disposed of without the knowledge of the stricken off the record, full and ample defendant or of his counsel, then notice authority for doing which is plentifully thereof should be given the defendant or found in the books. his counsel, and the stay of proceedings We are not at this time making dispocontinues till ten days after this notice sition of the bond filed as security for has been given.

costs. We cannot, however, refrain The order of June 28th, 1922, called from saying that a power of attorney upon the plaintiff to furnish security for duly authorizing P. B. Linn, Esq., to iscosts in the sum of five hundred dollars sue and sign bonds for this company, is on or before July 17th, 1922, or show of record in the recorder's office in Miscause why judgment of non pros. should cellaneous Book No. 3, page 317, the not be entered for want of such secur- same having been recorded on Decemity. On July 17th, 1922, the court, upon ber 24th, 1903, and that this company motion, extended the time for filing the has been annually filing its statements in said bond for fifteen days further, or to the office of the prothonotary. In this August 1st, 1922. On July 28th, 1922, respect the bond is regular and lawful. the bond was filed and approved by the And now, to wit, November 25th, court.

1922, for the reasons herein given, the However, there was, and still is, a rule rule granted on the 23rd day of Septembefore the court to be disposed of, and ber, 1922, is made absolute, and the the proceedings in this case are stayed judgment entered on the 14th day of Autill the determination of this rule. It be- gust, 1922, is stricken from the records. came a living creature of this court, and it continues to live, although apparently

Lehigh Co. in a stage of coma, till some disposition is made of it. It must be either dis- Frey v. Lehigh Valley Shoe charged or made absolute. Nothing has

Company been done with it up to the present time, so it must still be undetermined, and if it is, then the stay placed on the proceedings by the order of June 28th, 1922,

Practice - Counter-claim-Ilaiter of

is still in force. If this is true, if the tort. stay is still on, how could judgment be taken?

A claim sounding in tort, arising out of a

different transaction, cannot be set up as a Then again, when this bond was ap- counter-claim to plaintiff's claim founded in proved on July 28th, 1922, the plaintiff assumpsit. was bound to give notice of its entry, to

In an action for commissions as agent for

sale of hides and skins, the defendant cannot the defendant, and this notice would set up as a counter-claim the value of cerneed be given in accordance with our tain leather which plaintiff, while in the emRule of Court No. 168, which fully pro- to another, and which proved uncollectible.

ploy of defendant, shipped without authority vides for the service of it as well as to

Defendant may waive a tort, but only its form. It is conceded this was not when the goods have been actually converted done. Then again, how could judgment stances are such as to raise a presumption

into money by the wrongdoer, or the circumbe taken?

that he had done so. We do not wish to be regarded as Section 14 of Practice Act of 1915 protechnical. Be it far from us, but we right or claim for which an action of as

vides for a set-off or counter-claim of any must insist on an observance of our sumpsit would lie.

C. P. of


Affidavit of defense, setting up a Pa. p. 62, Mr. Justice Sharswood, on p. counter-claim. Plaintiff's statutory de- 65, says, “It is evidently true, that in murrer. Defenciant's counter-claim many cases the owner of goods wrongstricken from the pleadings.

fully taken or detained by another, may

waive the tort and recover on a count Gernerd & Boyle, for plaintiff.

for money had and received in assumpsit. But then there must

ther be some Buts & Rupe, for defendant.

evidence that goods have been actually lobst, J., March 3, 1924.-In this case converted into money by the wrongdoer, the plaintiff claims in assumpsit the re- or the circumstances must be such as to covery of the sum of fifteen hundred and raise a presumption that he has done so. ten dollars and forty-four cents ($1510.- * It is evident that conversion 44), upon an oral contract of agency for or consumption was essential; a mere the sale of certain hides and skins, the detention, or a loss even by negligence property of the defendant. The defend- would not have been enough to charge ant in its affidavit of defense denies the him in this form of action. There must claim of the plaintiff, and in addition to be something from which to presume said denial sets up a counter-claim, as that he assumed the ownership as venfollows:

dee." The counter-claim in this case "For further answer to the claim of does not allege that the plaintiff conthe plaintiff herein, and as a counter-verted the leather to his own use or that claim thereto, the defendant avers that it was converted into money. It simply the plaintiff is indebted to it in the sum alleges that he shipped without authority of one hundred and twenty dollars and to some one else the goods of the deninety-eight cents ($120.98), and which fendant while he was in its employ. But is the value of certain leather which the a more serious objection appears in the plaintiff, while in the employ of the de- fact that the matters set forth in the fendant, shipped without authority, to counter-claim do not arise out of the the Force Company, at Philadelphia, Pa., same transaction as set forth in the from whom it could not be collected by plaintiff's cause of action. There is no reason of want of assets. The leather so doubt that an action sounding in tort, shipped consisted of tuo invoices, viz., arising out of a different transaction, on June 12, 1910), leather invoiced at cannot be set up as a counter-claim to a eight dollars and forty-eight

cents plaintiff's cause of action founded in as($8.48), and on June 18, 1919, leather stompsit. invoiced at one hundred and twelve dol- “It is well settled that matters soundlars and fifty cents ($112.50). The de- ing in tort and arising out of a different fendant claims the said sum of one hun- transaction, cannot be given in evidence dred and twenty dollars and ninety-eight as a set off, by a defendant sued in an cents ($120.98) as a counter-claim in the action er contractu. Broad and liberal event that the plaintiff should recover as the decisions have been, they have any sum whatsoever against the defend- never authorized the admission of proof ant upon the cause of action alleged in of damages arising from a technical the statement of claim."

tort." Greetzinger v. Latimer, 146 Pa., To defendant's counter-claim, plaintiff page 628. In the case of Roth v. Reiter, files an affidavit of defense for the pur- 213 Pa., page 400, Mr. Justice Elkin, on pose of raising questions of law for the page 401, says: “It is conceded in this decision of the court. Section 14 of the case, and it is the law, that in an action Practice Act of May 14, 1915, P. L. 483, on contract, unliquidated damages 485, provides, inter alia, that “In ac-, arising out of a tort independent of, and tions of assumpsit a defendant may set disconnected with, the transaction sued off, or set up by way of counter-claim on, cannot be recouped by way of equitagainst the claim of the plaintiff, any able defense.” In addition, we think right or claim for which an ction of as- that the set off or counter-claim is not sumpsit would lie."

pleaded with sufficient clearness and exIn the case of Satterlee v. Melick, 76 'actness, as required under the act. “A





counter-claim should set forth with as nied for that reason: Wadlinger on much precision and exactness as is re- Costs, 66; Voss and Evans v. Sensenig, quired in the statement of a cause of ac- 3 Pa. D. R., 633; Applegate v. R. R. Co., tion upon which proceedings are insti- 12 W. V. C., 406; Firestone v. Christ, tuted.” Motors Co. v. Hudford P. S. 12 Pa. C. C. 814. Co., 264 Pa. 557. For these reasons, we But aside from that, the only ground think that the defendant's set off or alleged is the mere fact of plaintiff's counter-claim should be stricken from non-residence. This doesn't conform to the pleadings.

the local rule on the subject, which reAnd now, Varch 3rd, 1924, it is or- quires an affidavit that the party "has a dered that the defendant's set off or just defense against the whole demand": counter-claim be stricken from the Court Rule No. 70. pleadings.

If it be supposed that the averment is supplied by the fact that formal defense

has long since been taken by affidavit, C. P. of

Lackawanna Co.

the supposition can avail nothing, as it Leonard Seed Co. v. Lustig- can only serve to emphasize defendant's Burgerhoof Co.

laches in this particular.

The motion is accordingly denied and

the rule to show cause discharged. Practice- Security for costs - Von

C. P. or

Lancaster ('o. resident---Court rule.

Gitman Brothers v. Marantz A non-resident plaintiff will quired to give security for costs on a petition filed by defendant after action has been 't issue nearly three years and gone to a mo- Foreim judgment Suit on--. I ffidavit tion for judgment on the pleading, been duly argued by counsel and submitted to the court of defense. for decision.

Application for security for costs should In a suit on a judgment obtained in anothbe made without laches and generally be-ier state an affidavit of defense is insufficient fore issue joined.

which fails to deny that there is such a Allegation of the mere fact of plaintiff's judgment or to aver want of jurisdiction or non-residence does not conform to Rule No. Payment. 70, of the Court of Common Pleas of Lacka- If failure to give notice to the defendant wanna County, which requires an affidavit, of the trial or of the entry of the judgment that the party "has a just defense against affects the judgment, advantage can only be the whole of plaintiff's demand."

taken of it in the court where it was entered. Motion for security for costs.

Rule for judgment for want of a suf

ficient affidavit of defense. Rule absoJessup, Gunster & Rose, for plaintiff.

lute. J. F. Gilroy and T. P. Duffy, for de

Jolin. Coule, for rule. fendant.

li'm. (. Rehm, contra. Newcomb, T., March 1, 1924.--The action is assumpsit, and has been pend- Hassler, J., March 20), 1924.-- This is ing nearly three years. In the mean- an action on a judgment in the Court of time the cause had been put at issue on Common Pleas of Montgomery County, the merits and had gone to a motion for Ohio. A certified copy of the judgment judgment on the pleadings, which had is attached to the plaintiff's statement. been duly argued by counsel and sub- The affidavit of defense which purmitted to the court for decision. At that ports to set forth a just, complete, and stage of the proceeding, namely, on Feb- legal defense to plaintiff's claim, does not ruary 2, this motion on part of defend- deny any of the averments of the stateant was filed asking for an order on ment. The defendant does not deny the plaintiff for security for costs.

existence of the judgment nor question Manifestly it is very much belated and the jurisdiction of the court of Montthe relief asked for may properly be de-gomery County, Ohio, to enter it, nor does he allege that it is paid. It is well Henry Brubaker v. 1. C. Koller, No. settled that when a court has jurisdic- 184, April Term, 1923, in the Court of tion to enter a judgment, such judg- Common Pleas of York County, Pa. ment, until reversed, is binding in all Motion allowed. other courts of the same or other states, and is conclusive of all matters covered

James J. Logan, for plaintiff and mo

tion. by it. The only defense that can be made to such a judgment is that it is paid, or John 1. Hoober, contra. that there is no such judgment, or that the court did not have jurisdiction to en- Ross, J., February 4th, 1924.--The ter it: Guthrie v. Lowry, 84 Pa. 533; statement filed in this case consists of Hunt v. Snyder, 261 Pa. 252; German seven separable paragraphs. Trust Co. v. Plotke, 274 Pa. 483. The The first and second paragraphs state affidavit of defense does not set forth the places of residence of the plaintiff any of these defenses. The allegation in and of the defendant. it that the defendant had no knowledge of the trial of the case, or that judg. At York, Pa., by verbal agreement, on

The third paragraph sets forth that, ment had been entered against him, is not a defense in the absence of the 'de- or about, to wit, December 20, 1922, the nial of the court's jurisdiction. If fail- defendant employed the plaintiff to go to ure to give notice of the trial or of the Grove City, Pa., and to work in and entry of judgment, affects the judgment, about a bridge located on or near Huntadvantage can only be taken of it in the er's farm, near said city, which bridge court where it was entered. It is bind- the defendant claimed to own and for ing and conclusive in this court for the which work the defendant then and reason that we are bound to presume there agreed to pay the plaintiff at the that everything was rightly done in the rate of one dollar ($1.00) per hour and proceedings in the court in which the expenses, including transportation, board judgment was entered: Guthrie v. Low- and lodging." ry, 84 Pa. 533. The rule for judgment The fourth paragraph states that, “In is made absolute, and judgment entered pursuance of said agreement, at the verfor the plaintiff for $572.77.

bal direction of the defendant, plaintiff Rule made absolute.

on January 1st, 1923, went to said Grove City and was employed in and about the business of the defendant in and about said bridge beginning January 1st, 1923,

and continuously to and including JanuC. P. of

ary 22, 1923, during which time the Brubaker v. Koller

plaintiff worked for the defendant a total of 15372 hours, more fully set out in Exhibit Ahereto attached."

The fifth paragraph states that, “In Pleading 1ffidavit of defense

accordance with said employment, the Counter claim.

plaintiff laid out and expended seven

($7.00) dollars in carfare and forty-five The defendant's set off or counter claim is dollars ($45.00) in board and lodging, to be regarded as his statement of claim, and which he seeks to recover as expenses can be attacked for want of necessary aver

way that an original under said contract.” statement can be attacked. An affidavit of defense setting up a count

The sixth paragraph states: “By reaer claim which is not sufficiently full or pre- son of said premises, the defendant becise to enable a proper reply and the forma

came indebted to the plaintiff as follows: tion of a definite issue will be stricken off under the authority contained in Section 21

; of the Practice Act of 1915, P. L. 483. total, $205.50."

Motion to strike off the defendant's The seventh paragraph says that "the supplemental affidavit of defense in defendant paid to the plaintiff on ac

York Co.

ments in the same

count of said bill the sum of $12.04, and certain labor for the defendant. That the further sum of $25.00. The balance the said plaintiff has neglected and redue the plaintiff is $168.46, which sum is fused to deliver to defendant the said now due with interest thereon from Jan- articles or any of them, to wit: Fortyuary 22, 1923

two and one-half pounds one and oneThe affidavit of defense admits the fourth inch manilla rope, $12.75; one third paragraph of the statement. "ex- hundred fifty pounds manilla rope, one

, cept that the verbal contract included inch, $9.46; two hundred pounds one board and lodging, which is denied.”

and one-fourth inch manilla rope, The affidavit of defense denies the $17.00; and one acetylene burning torch,

$105.00; a total of $144.21; also canvas fourth paragraph, and avers “It was not material what sum the plaintiff paid for covering of the value of $50.00; also 40 boarding, as defendant under the terms

foot rope of value of $10.00; total,

$207.21. of the contract was not liable therefor.” The affidavit of defense denies the

"Plaintiff retains the said articles sixth paragraph and avers that he, "de- against the right of the defendant therefendant, employed plaintiff to wreck and to and defendant claims from the plainship for him two bridges and especially tiff the cost thereof, to wit, $144.21; all instructed him to wreck what is known

of which defendant will prove on the as the Hunter bridge first, and if he had

trial of this cause. any trouble with Mr. Hunter, on whose

“Affirmed to and subscribed before me land it was located, to at once begin this 15th day of October, A. D. 1923. work on the other bridge. Plaintiff had "(Signed)

W. C. Koller. trouble with Mr. Hunter and could not "W. H. Snyder, Prothonotary.” remove said bridge, and instead of at

The plaintiff then filed the following once beginning work on the other bridge, worded motion by leave of court: as instructed, loafed at the hotel approx

“Henry Brubaker, the plaintiff, by imately ten days, and for said period of James J. Logan, his attorney, respectloafing has now charged defendant $1.00 fully moves the court to strike off the

supplemental affidavit of defense and “Defendant has paid $37.04, being the counterclaim filed by the defendant and full sum due plaintiff for the period he to stay a rule to reply thereto within fifworked, deducting said period of loafing teen days for the following reasons, to caused by plaintiff's disobeying defend- wit: ant's orders and the terms of the con

“). The date and place of delivery of tract."

the articles or any of them is not set out. Subsequently defendant filed, by leave of court, the following worded paper:

2. There is no averment that the

plaintiff received the articles mentioned “Supplemental affidavit of defense and

or undertook to be responsible for their counterclaim.

safety or return to the defendant; or “Defendant hereby files supplemental whether such agreement was verbal or affidavit of defense and counterclaim in in writing. the above entitled action and avers as

“3. Plaintiff cannot learn from said follows:

Supplemental affidavit of defense wheth“Reaffirming all contained in his affi- er he is charged with receiving said ardavit of defense and counterclaim, de- ticles from the defendant or from some fendant sets up the following counter-agent of the defendant or when or where claim supplemental and additional to that received or for what purpose to be used. contained in the original counterclaim, Plaintiff cannot learn from said as follows:

affidavit the nature or character or kind "Defendant purchased and delivered of articles he is alleged to have received to the plaintiff the following articles of and whether or not they were new or the character and at the prices shown used articles at the time the alleged dehereinafter to be used by the plaintiff in 'livery was made or whether they are al

per hour.”


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