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so adjusted that they could be used together. sets and assumption of contracts-Sim-
The cement floors were laid over practically ilarity of names.

the whole lot. This was a new
within the meaning of the law.
-EISENERG V. WOLF, 173

structure

-NORTH V. YORK METAL ALLOYS CO. (NO. 2),
65.

Mechanics' liens-Act 4 June, 1901, P. NEW TRIAL.
L. 431-Necessity for affidavit support-
ing statement of claim-Practice, C. P.

Act 17 April, 1905. P. L. 172, Paragraph
2 of Section 1-Requisites of statement
-Dates of furnishing materia!-- Con-
tractor and sub-contractor.

Neither the Act 4 June, 1901, P. L. 431, nor
any of its amendments regulating the filing
of mechanics' liens, specifically requires that
the claim be supported by affidavit, although
it is good practice to have such claims sworn
to.

Where on the face of a mechanic's lien, it
appears that the contract to furnish the ma-
terials was with the owner, it is sufficient
under paragraph 2 of Section 1 of the Act
17 April, 1905, P. L. 172, to set forth the
amount claimed to be due, the kind and
amount of materials furnished, and that the
materials were furnished over a period of
time, giving the dates of the first and last
deliveries.

On a motion to strike off a mechanic's lien
the court cannot decide the issue whether
the claimant is a contractor as averred in
the statement or a sub-contractor as con-
tended by the petitioner.

-KASE ET AL. V. SEGAL 184

MERCANTILE LICENSE.

Taxation Mercantile license tax
Act 2 May, 1899, P. L. 184
9 April, 1870, P. L. 59-Plumbers.

-MILLER'S APPEAL, 202

MORTGAGE.

New tria!-Impeachment of verdict--

Ifter-discovered evidence-Intoxication
of juror-Record of conviction.

It is never permitted to impeach a verdict
by the declarations of a juror as to what
influenced him.

Where a juror becomes intoxicated upon
the trial, and from time to time goes to
sleep, it is the duty of counsel to bring the
matter to the attention of the court at once.
The trial of a case is under the inspection
of the court, and unless the court personally
happened in the jury-room, or as
as to what
notices a juror's condition, or has it brought
to its attention during a trial, allegations
that the juror was intoxicated or asleep
will not be considered, especially where the
court has a distinct recollection that the
juror was neither intoxicated nor asleep.

A witness may be asked, when on the
stand, upon cross-examination, whether he
had been convicted of a crime or not, for the
purpose of affecting his credibility, or the
other side may introduce the record that he
has been convicted of a crime, without in-
terrogating the witness upon the subject.
-COMMONWEALTH V. WILSON, 33

New trial granted because irrelevant
matter may have influenced jury-The
Act granting of a new trial is within the dis-
cretion of the trial court.

Where, in the trial of a case, irrelevant
matter was brought before the jury, and the
court was in great doubt as to the extent to
which this matter influenced the minds of

Mechanic's lien-Sheriff's special re-the jury in arriving at the verdict, a new
turn-Exceptions to schedule of distri-trial was granted.
bution-Mortgagee New structure

-

The granting of a new trial is within the

Alteration and repairs-Acts of 1901 1ower of the trial court, and the appellate
and 1905.

-EISENERG V. WOLF, 173

MUNICIPAL LIEN.

Practice Municipal lien Counter-
claim for damages in trespass-When
counter-claim will not be stricken off—
Acts of May 4, 1915, and May 28, 1915.

-NEW HOLLAND BOROUGH V. RANCK, OWN-
ER, ETC., 158

NAMES.

court will not interfere with the inherit ex-
ercise of that authority, except in cases
where the record shows an unmistakable
abuse of discretion.
-RIEST V. WOGAN, 69

Practice New trial on court's own
motion.

On a rule for judgment n. o. v., the court,
being of the opinion that such a judgment
could not be entered, but that a new trial
should be awarded, of its own motion, en-
tered a rule to show cause why a new trial
should not be granted.

Employer and employee-Sale of as-AMERICAN INSULATION CO., INC. V. BEST. 140

NOTES.

Promissory notes

Such use, at the instance of the owners of
properties in the neighborhood, will be en-

Accommodation joined.

maker Want of consideration Suffi- -WHEALEN ET AL. V. SATZ ET AL., 90
ciency of evidence to establish defense-
Question for jury.

A total or partial want or failure of con-

OFFICERS.

Public Officers - Supervisors - Fur-
sideration for a promissory note may be in-nishing own teams- Criminal law –

sisted upon as a defense between any of the

original parties to the note.

An accommodation note is one to which
the accommodating party put his name,
without consideration, for the purpose of
accommodating some other party who is to
use it and is expected to pay it; and between
these parties the consideration may be
shown to be wanting.

in a suit on a promissory note, between
the original parties, one party thereto may
defend upon the ground that he was
induced to sign by reason of a prom-
ise which the other made and, in the suit,

Road law-Act of March 31, 1860.

An indictment charging that a supervisor
furnished his own team for work on a town-
ship road and accepted pay for the same,
charges an offence under section 66 of the
Act of March 31, 1860, P. L. 400, although it
is not averred that there was any corrupt
or dishonest intent or unfairness in the price
charged for the services.
-COMMONWEALTH V. McCOY, 42

ORPHANS' COURT.

Orphans' court-Jurisdiction

Sub-

attempts to repudiate; and in such case, it stantial dispute-Restraining and man-
need not be averred nor proved that the in-datory order on executor.
ducing promise was omitted from the note
by fraud, accident or mistake.

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On a demurrer to a petition in the orphans'
court, raising the question of the jurisdiction
of the court, the averments in the petition
must be taken as true.

A demurrer to a petition in the orphans'
court does not raise "a substantial dispute"
within the intendment of the act of assem-

bly providing for the sending of issues by
he orphans' court to the common pleas in
"ertain cases in which there is a substan-
tial dispute.

A fact is properly said to be in disput
when it is alleged by one party and denied
by another, and both with some show of
a mere naked allegation without

reason;

evidence or against the evidence, cannot cre-
ate a dispute within the meaning of the law.

A substantial dispute exists when a con-
clusion of fact to be drawn from the testi-

mony is one about which reasonable men
might honestly differ.

The orphans' court has jurisdiction of a
petition averring that an executor has in h's
custody, as executor, certain shares of the
capital stock of certain corporations which
were pledged, by the petitioner to the tes-
tator in his life time, and which the executor
contends are the unqualified property of the

Nuisance Automobiles- Public ser-
vice garage in residential district- Build- tate, and praying for an order restraining
ing restriction-Injunction.

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the executor from disposing of the same un-
til further order of the court, and ordering
him to deliver the same to the petitioner
upon the payment of the debt for which the
petition avers the stock was pledged.
GREENAWAY'S ESTATE, 169

Declaratory judgments-Jurisdiction
of orphans' court-Uniform Declaratory

Judgments Act of June 18, 1923, P. L. ency of the averment, the admission did the
$40.

-DUFF'S ESTATE, 21

defendant no harm.
-WETTER V. SMITH, 35

Plaintiff's statement-Endorsement of
address where papers may be served-

Decedents' Estates-Orphans' court-
Suit pending in other court-Claimant
must present claim in orphans' court-General reasons to strike off - Gross

Jurisdiction.

-HARVEY'S ESTATE, 99

PARTITION.

claims for damages-Particulars of neg-
ligence must be shown.

A plaintiff's statement which does not have
endorsed thereon an address within the
county where all papers are to be served,

Partition-Appointment of an auditor will be stricken off.
-Confirmation of account.

In all cases where, in consequence of pro-
ceedings in partition, any share in real es-
tate shall be converted into cash, the or-
phans' court may appoint an auditor to as-
certain whether there are any liens or other
incumbrances on such real estate.

The administrator or trustee is the proper
party to make the application for an auditor
which should be done before confirmation of
the sale.

-ESTATE OF JOHN L. GEIGER, 11

PETITION AND ANSWER.

A reason in support of a motion to strike
off a plaintiff's statement which states in
general terms that the statement lacks "con-
ciseness," without pointing out specifically
the alleged defect, is too general, and will
not be considered.

Claims for damages in a plaintiff's state-
ment, in trespass, must be itemized and spe-
cific; claims for gross sums disbursed "for
doctors, medicines, hospitals, nursings, do-
mestic help," etc., are not within the re-
quirements of the Practice Act.

In a suit in trespass where the charge is
negligence arising out of alleged acts of
omission, the grounds of complaint must be

Judgments-Opening-Hearing on pe- stated concisely and distinctly in the plain-

tition and answer.

-ANSTINE V. WILT, ET AL., 165

PLAINTIFFS' STATEMENTS.

Plaintiff's statement - Husband and
wife-Automobiles - Collision State-
ment-Averment of wife's agency as
driver-Admission - Practice Act of
May 14, 1915.

The mere relation of husband and wife

does not make the wife the husband's agent.
In an action of trespass to recover for
damages to an automobile caused in a colli-
sion with another automobile owned by de-
fendant, an averment in the statement of
claim "that said automobile belonging to the
above named defendant, at said time and
place was being operated with the knowl-
edge, consent, approval and sanction of the
above named defendant, by his wife," is an
insufficient averment of her agency, and, if
no other evidence is offered at the trial as
to her authority, or whether the car was en-
gaged in the defendant's business at the
time of the accident, the defendant will be
entitled to binding instructions, notwith-
standing the fact that he did not file an
affidavit of defense; the failure to file the
affidavit operated as an admission under
section 13 of the Practice Act of May 14,
1915, P. L. 483, but, owing to the insuffici-

1

tiff's statement; facts must be averred suf-
ficient to show that a duty required by law
has been breached or neglected by the de-
fendant, and plainly to indicate the casual
connection between this breach or neglect
and the injury complained of.
-DIEHL V. STEWARTSTOWN RAILROAD CO., 49

Plaintiff's statement-Want of neces-
sary particulars-Striking off.

A plaintiff's statement in an action to re-
cover the cost of erecting a dwelling house,
in which it is shown that the dwelling was
erected under a contract, and there are items
of claim for work and materials furnished in

addition to, or more costly than those re-
quired by the contract, in accordance with
modifications of the contract, full particu-

lars of the materials and labor so furnished
must be set out.

Such a statement, where the additional
materials and labor furnished were set out
as "a porch was constructed," "the plumbing
was changed," "a refrigerator was installed,"
etc., with the charges made for each item,
was stricken off because it did not set forth
the necessary particulars.
-DOLL V. STAUFFER, 85

Plaintiff's statement-Motion to strike
off-Redundant and verbose averments
Electric wires-Necessity to inspect

electric wires-Averment of ownership ant paid for all the goods, less two per cent
of wire.

A plaintiff's statement which states the
facts which the defendant is required to meet
at the trial in such language as can be un-
derstood and answered by an affirmance or
denial of the negligence, the results, and the
damage described, will not be stricken off
even though the averments be verbose and
redundant.

Electricity is a dangerous agency, and
those employing it are required to exercise
the highest practical degree of care.

The duty to inspect electric wires is clear,
and failure to perform it is negligence.

of the specified price; that nine car loads
were not paid within ten days, without in-
dicating specifically which nine car loads
were not so paid; and claiming the two per
cent deducted from the price of the nine
car loads, is uncertain and will be stricken
off.

A plaintiff's statement, the body of which
is in typewriting, with interlineations in ink,
without any explanation whether the inter-
lineations were made before or after the
statement was signed and verified, is defec-

tive.

-PENN PAPER STOCK CO. V. YORK PAPER
MAN'F'G. CO., 177

Practice-Trespass-Plaintiff's state-

Where a plaintiff's statement averred that ment-Affidavit of defense not required

the plaintiff was injured by coming in con-
tact with a wire dangling from the defend-
ant's pole, the court refused to strike off the
statement because it was not averred that
said wire was the defendant's wire, or that

-Motion to strike off, when too late,
service of copy.

-PRENTZEL, TRUSTEE V. SNYDER, 25

Intoxicating liquors-Plaintiff's state-
it was attached to said pole with the knowl-ment-Contracts-Illegal contract—Vio-
edge and consent of the defendant, or that lation of liquor laws-Statement of
defendant knew that said wire dangled from claim-Practice, C. P.-Affidavit of de-
its pole, negligence in maintenance and in fence-Merits and law-Statement of

failure to inspect having been charged.
-MARTIN V. EDISON LIGHT AND POWER
CO., 118

Plaintiff's statements-Need not con-
tain matters of defense-Affidavit raising
question of law-Practice Act of May
14, 1915, P. L. 483.

Where a rule to strike off a plaintiff's
statement was discharged and the time for
filing an affidavit of defense extended fifteen
days to file an affidavit of defense, and with-

claim.

-FRITZ ET UX. V. McGEEHAN, 45

Plaintiff's statement - Practice - De-
fective statement on appeal from magis
trate-Amendment-Rule to arbitrate-
Acts of June 16, 1836, P. L. 719, May
14, 1815, P. L. 483, and April 10, 1921,
P. L. 144.

-CROYLE V. GROFF & WOLF CO., 95

Practice, C. P.-Plaintiff's statement

in that time the defendant filed an affidavit-Goods sold and delivered-Book ac-
raising a point of law, a judgment subse- count without dates or descriptive items
-Affidavit of defense in lieu of demur-

quently entered for want of an affidavit of
defense is improperly entered and should be
stricken off.

It is not necessary for a statement to set

rer.

-DOMBROWSKI V. WALCZLGLOWA, 122

Pleadings-Plaintiff's statement—Gen-
forth whether the plaintiff is a foreign or do- eral averments of negligece — Striking

mestic corporation or that one of the defend-
dants is a married woman and the wife of
the other defendant or whether or not she
signed the note on which suit is brought as
surety, nor is it necessary for the plaintiff to
state that the note was protested in order to
hold the makers. These are all matters of

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off statement.

-STICK V. GROVE, 164

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under the authority contained in Section 21 fense set up thereto; and where the defense
of the Practice Act of 1915, P. L. 483.
-BRUBAKER V. KOLLER, 9

includes alleged contacts and arrangements
between the parties, followed by a series of

ness relations and financial obligations from

Pleadings Foreign judgments-Pre-transactions, which resulted in changed busi-
sumption of residence-Service of pro- those set forth in the plaintiff's statement,
cess-Act of April 14, 1851.

In an action upon the judgment or a court
of a sister state, it is not necessary to aver
in the statement of claim that defendant did
in fact reside within the jurisdiction of the
court in which the judgment was rendered,
where the transcript of the sheriff's return
of the summons shows service by leaving a
copy at the defendant's residence. This
raises a presumption that defendant was a
resident within the jurisdiction of the court
at the time suit was instituted and the pro-
cess served.

some latitude must be allowed in setting the
same forth in pleadings.

Paragraphs which set forth lump charges
and claims for damages, without properly
itemizing the same or giving in sufficient de-
tail the facts upon which they are based, are
defective; and an affidavit of defense con-
taining such paragraphs in a counter-claim
was stricken off.

-REICHARD V. PARIS, 125

Pleading and practice-Administrator
-Action in trespass-Negligence-Act

Act of April 14, 1851, P. L. 612, considered. of April 26, 1855, P. L. 309, and Fiduci-

-QUINN V. REED, 91

Pleading and practice-Rule for more
specific averments of facts-Judgment
of non pros for failure to file a more spe-
cific plaintiff's statement.

Where, after a motion to strike off a plain-
tiff's statement, the court held the statement
sufficient, and indicated that if the defendant
should deem the statement not sufficiently
explicit, application may be made for more
specific averment of facts, and defendant
made such application, and the plaintiff in
answer to a rule granted on the defendant's
application gave the information requested,
the defendant is not entitled to judgment of
non pros on the ground that the plaintiff
failed to file a more specific statement in ac-
cordance with the rule granted.
-HERSHEY V. YORK WATER CO., NO. 2, 121

Pleading Allegation defined-Mater-
ial allegations Answering paragraph in
affidavit of defense-Lump charges and
claims for damages-Striking off affida-
vit of defense.

An allegation, in the technical sense in
which the word is used in the statute pre-
scribing the form of pleadings, is the asser-
tion, declaration or statement of a party to
an action made in a pleading setting out
what he expects to prove.

The statute, however, limits the pleader to
the making of "material allegations," which,
in an affidavit of defense, should consist only
of such pertinent and material facts as may

constitute a proper defense in answer to the
corresponding paragraph of the plaintiff's
statement. Such an answering paragraph
may, therefore, include many facts, and may

aries Act of 1917, P. L. 504, Section 35.

An administrator cannot maintain an ac-

tion in trespass for damages for the death of
his decedent by the alleged negligence of de-

fendant. The Act of April 26, 1855, P. L. 309,
is not disturbed by the 35th Section of the
Fiduciaries Act of 1917, P. L. 504.
-CONROY V. WEISBROD, 136

Pleadings-Plaintiff's statement-Gen-
eral averments of negligence-Striking
off statement.

In an action of trespass founded on negli-
gence, the plaintiff's statement should in-
form the defendant just what acts or omis-
sions the plaintiff charges him with, so that,
if the allegations of the acts or omissions are
not true, the defendant can deny or explain
them by such evidence as he can produce.

The Practice Act of 1915, P. L. 483, re-

quires that the plaintiff must give by his
statement to the defendant fair notice of all

he expects to prove agianst him.

A plaintiff's statement in which the neglig-
ence charged was averred in general terms,
without particulars, was stricken off.
-STICK V. GROVE, 164

Mechanic's lien--Pleading-Rescission
of sale-Set-off-Affidavit of defense.

-BLAEBAUM V. JULIUS, 149

Guarantors, liability to one another for
contribution Position at trial conclu-
sive-Evidence to vary a written instru-
ment-Review of refusal to strike off
verbose pleadings.

-KAUFFMAN'S APPEAL, 161

PLEADING AND PRACTICE.

be more or less extended, according to the Affidavit of defense - Pleading and
nature of the plaintiff's claim and of the de-practice-Replevin-Statement of claim

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